Joseph v. Adams

No. 82-1010 (6th Cir. March 10, 1983)

The Sixth Circuit affirms a district court ruling that a supplemental negative declaration on a highway extension project satisfied the requirements of the National Environmental Policy Act. The court holds that an environmental impact statement (EIS) is not required on a southern connector route that has been deleted from the official proposal. Although the connector route may be added in the future, an EIS is required only on proposed, not contemplated actions, and the evidence is insufficient to show that the current proposal will significantly affect the area south of the project so as to require an EIS. The court rejects appellants' argument that an interchange should be down-scaled to minimize wetlands impacts, holding that setting the size of the interchange is within the discretion of the agency's engineers. Finally, it holds that the district court properly denied attorneys fees and dismissed pendent state claims because all federal claims were decided against appellants.

Counsel for Appellants
Peter W. Steketee
Steketee & Timmons
505 Peoples' Bldg., 60 Monroe Ave. NW, Grand Rapids MI 49503
(616) 451-8341

Counsel for Appellees
Patrick McElmurry, Ass't Attorney General
525 W. Ottawa St., Lansing MI 48913
(517) 373-1124

Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-5993

Before Keith, Jones and Wellford, JJ.

[13 ELR 20455]

Per curiam:

Order

On July 8, 1976, Ronald Joseph and his wife, Betty Joseph, brought the present action in the United States District Court for the Eastern District of Michigan to prevent the construction of an extension of Dort Highway. The Josephs alleged that the proposed highway would violate the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, the Federal Aid Highway Act, 23 U.S.C. § 101, and Michigan Environmental Protection Act, MICH. COMP. LAWS ANN. § 691.1201.

Dort Highway is a free access highway which runs north into Flint, Michigan from a point about one mile south of Saginaw Street. Saginaw Street is a free access highway which runs northwest from I-75 through Grand Blanc, Michigan, a small community located approximately 3 miles south of Flint. The proposed extension of Dort Highway as originally envisioned was about 2.5 miles in length and consisted of five continguous lanes. The extension would intersect I-75 and continue south one-half mile and connect with McWain Road. McWain Road is a two-lane gravel road which transects a basically rural area south of I-75. This area consists primarily of uncultivated farmland, several scattered wood lots, and a few lakes of approximately 100 acres in size. The trend of land use in the area is toward residential development.

In a 1978 published opinion, Joseph v. Adams, 467 F. Supp. 141 [9 ELR 20468] (E.D. Mich. 1978), the district court remanded the action to the Department of Transportation. The court took this action because the Final Negative Declaration was inadequate and certain required public hearings had not been conducted. The Final Negative Declaration was deficient in two respects. First, it failed to adequately investigate all the relevant environmental issues raised by the proposed construction. Second, it failed to explain why certain environmental impacts in the area south of I-75 were not significant. The court rejected the argument that the environmental [13 ELR 20456] impact statement for the project should include a plan for the development of a highway network between Detroit and Flint.

On remand the Department of Transportation supplemented the Final Negative Declaration and held the required public hearings. In 1979 this material was submitted to the district court. Both sides filed for summary judgment. In the interim between the remand to the Department of Transportation and the resubmission to the district court, the plans for the proposed highway changed dramatically. The Dort Highway would terminate at I-75 rather than continue south and connect with McWain Road as originally proposed. The highway thus would not directly affect the area southwest of I-75, the area of particular concern to the Josephs.

On July 16, 1981, the district court granted summary judgment for the government. It found that the defendants were not required to consider the effects of the proposed highway on the area southwest of I-75. The court also rejected the allegation that additional discovery was necessary to reveal the "secret" plan to build the connecting road between the proposed Dort Highway Interchange with I-75 and McWain Road. The court also found the analysis of the impact the proposed project would have was adequate:

The painstaking analysis compels the conclusion that the Defendants have indeed fulfilled all of their obligations under NEPA and that the SND has fully explored all of the impacts of the proposal on the environment and alternative proposals.

Ultimately, the district court dismissed the pendent state claims on the ground that all federal claims had been decided against the plaintiffs. The action was accordingly dismissed.

On appeal the Josephs contend summary judgment should not have been granted for the government. Their position is based on the following three contentions: First, there is an issue of fact as to "whether the defendants have truly dropped the McWain Road connector or whether they have simply deferred it for a short period of time in an effort to disentangle themselves from this litigation." Allegedly, an inference can be drawn from affidavits in the record that the McWain Road connector will be added some time in the future. Second, the proposed project allegedly will have a substantial impact on the relatively rural area south of I-75 even if the McWain Road connector is not built. Therefore, the secondary impact the modified proposal will have on the area should have been analyzed. The government and the district court erred in concluding that such an analysis was not needed. Third, the Josephs contend that the I-75 interchange is oversized and should be scaled down to minimize the impact on the wetland on which it is located.

After carefully considering the record, the briefs, and the arguments of counsel, we believe the judgment entered by the district court must be affirmed. The government has thoroughly considered and explained the various environmental impacts associated with the Dort Highway project. An environmental impact statement need not be prepared on the McWain Road connector, since it was officially deleted from the proposed project. In Weinberger v. Catholic Action of Hawaii, __ U.S. __, 70 L. Ed. 2d 298, 305 [12 ELR 20098] (1982), environmentalists argued that the Navy was required to prepare an environmental impact statement for the storing of hazardous nuclear wastes at a naval facility which was nuclear capable. The Supreme Court disagreed:

It does not follow, however, that the Navy is required to prepare an EIS [environmental impact statement] in this case. The Navy is not required to prepare an EIS regarding the hazards of storing nuclear weapons at West Loch simply because the facility is "nuclear capable." As we held in Kleppe v. Sierra Club, 247 U.S. 390, 405-06 (1976), an EIS need not be prepared simply because a project is contemplated, but only when the project is proposed. To say that the West Loch facility is "nuclear capable" is to say little more than that the Navy has contemplated the possibility that nuclear weapons, of whatever variety, may at some time be stored there. It is the proposal to store nuclear weapsons at West Loch that triggers the Navy's obligation to prepare an EIS.

Id. at 305-06. (emphasis in original).

See also, Commonwealth of Kentucky ex rel. Beshear v. Alexander, 655 F.2d 714, 720 [11 ELR 20787] (6th Cir. 1981) ("In the absence of an active, as distinguished from a purely speculative, proposal from a responsible public agency, with power and responsibility in the area . . . there is nothing that could be the subject of the analysis envisioned by [NEPA] for an impact statement.")

On this record there is insufficient evidence on which to conclude that the reconstituted Dort Highway project will have substantial environmental impact should of the I-75 interchange. The inference drawn from the affidavits is that urban browth may occur in the area. This growth, however, appears to be consistent with the district court finding that the trend in the area is toward residential development. Urban development consistent with existing growth patterns does not require an environmental impact statement. See Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 [5 ELR 20698] (7th Cir. 1975).

Finally, this Court will not second-guess construction engineers concerning the appropriate size of a freeway interchange. The government is free to construct an interchange which is capable of servicing short-run and long-range traffic needs of the area. Moreover, the district court did not abuse its discretion in dismissing the pendent state claims. See Nash & Associates, Inc. v. Lum's of Ohio, Inc., 484 F.2d 392 (6th Cir. 1973). Nor did it err in refusing to award attorney fees. See Alaska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

Accordingly, the judgment of the district court is affirmed. The sensitive and thorough treatment of this case by United States District Court Judges James Harvey and Stewart Newblatt is commendable. It is so ORDERED.