Lathan v. Volpe

No. 71-1149 (9th Cir. February 8, 1972)

The court of appeals corrects its opinion in Lathan v. Volpe, 1 ELR 20602 (9th Cir. Nov. 15, 1971), by determining that the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA), not the relocation provisions of the Federal-Aid Highway Act of 1968, is applicable to Interstate 90. Because the requirements of both statutes essentially are the same with respect to the protection afforded displaced persons, the court again holds that defendants have not complied with federal law governing relocation. The filing of a draft environmental impact statement pursuant to NEPA does not moot the issue of defendants' obligation under the Act. The determination of whether defendants have satisfied that obligation is left for the trial court.

Counsel for Plaintiffs
J. Anthony Kline
Public Advocates
433 Turk Street
San Francisco, California 94102

Counsel for Federal Defendants
Walter Fleischer Attorney
Department of Justice
Washington, D.C. 20530

Counsel for State Defendant
Thomas Garlington
Office of Attorney General
Temple of Justice
Olympia, Washington 98501

Before: JERTBERG, DUNIWAY and CHOY, Circuit Judges

[2 ELR 20090]

Opinion on Petition for Rehearing

DUNIWAY, Circuit Judge:

In their petition for a rehearing, the State defendants¹ call our attention to an error in our opinion relating to the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA). In footnote 2 of our opinion we stated that the law of the State of Washington does not authorize payments and assistance required by URA § 221(c). The [2 ELR 20091] fact is that Washington law does authorize such payments and assistance. Washington Uniform Relocation Act (Wash. URA) ch. 240, Wash. Laws of 1971, Ex. Sess., effective July 1, 1971. Under the URA, Pub. L. 91-646, 84 Stat. 1894 (42 U.S.C. 1970 Ed., ch. 61, §§ 4601 ff.), Section 221, the pertinent sections of that Act became effective on July 1, 1971, by reason of Washington's adoption of its URA, and the corresponding sections of the Federal-Aid Highway Act of 1968, discussed in our opinion, were repealed. The adoption of Wash. URA and its effect were called to our attention, both in brief and on oral argument, but we nevertheless overlooked them. Our error, not that of the parties, necessitates this supplemental opinion.

We believe that our opinion is a correct exposition of the law that was in effect when the trial court acted. But we deal have with equitable relief by way of injunction, and we are bound to apply the Washington and federal laws as they now stand, not as they stood when the order appealed from was entered. Cf. Diffenderfer v. Central Baptist Church, 1972, U.S. , (Jan. 10, 1972), and cases cited. Nor does the existence of a saving clause in URA, sec. 220(b), affect this conclusion. That clause speaks of ". . . rights or liabilities now existing under prior Acts. . . ." It preserves rights accrued to persons displaced before URA became effective. But it does not speak to rights in future, i.e., what rights persons not yet displaced may have. As to them, we are satisfied that URA and Wash. URA apply here. Appellants do not disagree.

The question is, are plaintiffs' rights and State defendants' duties different under the new Acts, and if so, how do they differ? We find but one significant difference.

Until it enacted URA, Congress had proceeded in piecemeal fashion in providing protection and assistance for persons displaced by federal or federally assisted projects. URA is an attempt to provide such protection and assistance in all such cases. It therefore replaces the previous jumble of statutory provisions. Their repeal is provided for in Section 220(a), which lists no less than eleven acts or parts of acts that are repealed. When Congress adopted URA, it heard much testimony to the effect, that federal agencies, and particularly the Department of Transportation, had engaged in a pattern of evasion of the requirements of the Federal-Aid Highways Act and other Acts relating to relocation. See, e.g., Hearings before the Committee on Public Works, House of Representatives, 91st Cong., 1st and 2d Sess., on H.R. 14898 and 14899 and S.1 and related bills, at p. 371. There is no reason to believe that Congress intended to afford less protection or assistance to persons displaced than had been provided for in the Highways Act; quite the contrary. Thus under the Highways Act, 23 U.S.C. §§ 502(3) and 508(a)(2), replacement housing was to be assured "to the extent that can be reasonably accomplished." No such limitation appears in the corresponding § 205(c)(3) of URA. URA also increases the monetary payments to be made: Compare § 202(b) with former 23 U.S.C. § 505(b), § 203(a)(1) with former 23 U.S.C. § 506(a) and § 204 with former 23 U.S.C. § 506(b). See also § 206(a) applicable when existing housing is insufficient. See also §§ 205(c) and 210(2) and § 206(b) of URA.

As Mr. Justice Douglas, joined by Justices Black, Brennan, and Marshall, recently stated in a dissent to dismissal of a writ of certiorari as improvidently granted: "That Act [URA] . . . is so similar to the 1968 amendments [Chapter 5 of the Federal-Aid Highway Act] that any necessary interpretation of the 1968 amendments would be equally applicable to the 1970 Act." Triangle Improvement Council v. Ritchie, 1971, 402 U.S. 497, 504, n. 1. Justice Harlan, concurring with the dismissal of the writ, did not dispute that contention by Justice Douglas. Id. at 501. The question involved in that case was interpretation of Section 502 of the 1968 Act and the effect of its replacement by Section 210 and 205(c)(3) of URA.

Against this background, we examine URA. Section 210 of URA provides:

"Notwithstanding any other law, the head of a federal agency shall not approve any grant to, or contract or agreement with, a State agency, under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after the effective date of this title, unless he receives satisfactory assurances from such State agency that —

(1) fair and reasonable relocation payments and assistance shall be provided to or for displaced persons, as are required to be provided by a Federal agency under sections 202, 203, and 204 of this title;

(2) relocation assistance program offering the services described in section 205 shall be provided to such displaced persons;

(3) within a reasonable period of time prior to displacement, decent, safe and sanitary replacement dwellings will be available to displaced persons in accordance with section 205(c)(3)."

Section 205(c)(3) gives a more detailed definition of such satisfactory assurances: ". . . within a reasonable period of time, prior to displacement there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, as defined by such Federal agency head, equal in number to the number of and available to such displaced persons who acquire such dewellings and reasonably accessible to their places of employment, except that the head of that Federal agency may prescribe by regulation situations when such assurances may be waived."

We hold that § 210 of URA is just as much applicable when the corridor is approved as was former § 502 of the Highway Act. Section 210 prohibits approval of "any grant to, or contract or agreement with,a State agency" unless the frequisite "satisfactory assurances" are received. Federal authorization to hardship acquisitions is an "agreement" on the part of the federal government to reimburse the state for the cost of acquisitions of property. DoT IM 80-2-70, P11(d)(2).

Section 101 of URA defines displaced persons as "any person, who on or after the effective date of this Act, moves from real property . . . as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate the property, for a program or project undertaken by a federal agency, or with Federal financial assistance. . . ." We think it sophistry to say that persons who make "hardship" sales to the state or who leave the property because the owner makes such a sale, do not move "as a result of the acquisition", or to claim that their departures were "voluntary."

The Secretary's regulations interpret URA as applicable before the final approval stage of the project. The implementing regulation is IM 80-1-71.² Paragraph 7, a, deals with statewide assurances [2 ELR 20092] which must be given before a State Highway Department may proceed with "any phase of any project which will, cause the relocation of any person." [Emphasis added.] This provision speaks of relocations that will occur in the future. The State of Washington has given such statewide assurance, and claims that no more is required until the stage of final approval of the right-of-way. We disagree.

Paragraph 7, b, provides that "[n]o State shall be authorized to proceed with right-of-way negotiations . . . which will cause the relocation of any person until it has submitted specific assurances . . . dealing with the particular project" (emphasis added). Their character is prescribed in detail in paragraph 15. Surely negotiations to acquire property for a highway on a "hardship" basis are "right-of-way negotiations" and "will cause" relocation. The Secretary thinks so. In paragraph 7 b (1) he specifically refers to "hardship cases." Thus paragraphs 7, b, and 15 of IM 80-1-71 are applicable now.

There is one difference of significance, however, between URA and the former provisions of the Highway Act. Section 205(c) (3) of URA authorizes the Secretary to prescribe by regulation situations when the assurances required may be waived. The Secretary has utilized this authority to a limited extent in paragraph 7, b, (1) in the following language: "Where right-of-way is acquired in hardship cases and/or for protective buying, the required assurance together with an analysis of the relocation problems involved and a specific plan to resolve such problems shall be provided for each pareel or for the project." It is this requirement that the defendants must meet in this case. The State is required to supply, either for each parcel to be acquired or for the project, (1) assurances that within a reasonable period of time prior to displacement comparable replacement dwellings will be available or provided for each displaced person; (2) an analysis of the relocation problems involved, and (3) a specific plan to resolve such problems, in addition to the general assurances required by Section 210 of URA. So far as the record shows, the State has not done so and does not intend to unless the court requires that it shall.

The Federal defendants, not having received the required assurances, have been acting illegally, in authorizing, or paying out moneys for, the acquisition of properties.

The State defendants have presented with their petition for a rehearing an environmental statement prepared by the State, which, they say, has been submitted to the Department of Transportation. They thus claim that the portion of our judgment requiring the submission of such a statement is moot. We adhere to the view that such a statement is required, but prefer to leave to the trial judge a determination as to whether the statement in question meets the obligation of the State defendants.

Except to the extent that it is inconsistent with this opinion, our former opinion remains the opinion of the court.

The judgment of this court is modified, to read as follows:

The order denying a prelminary injunction is vacated and the case is remanded to the District Court. That court shall order the State defendants to prepare and submit to the court forthwith a statement showing the time or times when, and the manner in which, they propose to comply, for each parcel to be acquired, or for the project, with URA and IM 80-1-71 as herein construed. The State defendants shall submit to the court a copy of the environmental statement submitted to this court on November 30, 1971. The court shall order the Federal defendants to prepare and submit to the court forthwith a schedule for preparing a Section 102(2)(c) environmental impact statement in consultation with the appropriate governmental agencies as required by NEPA. Until such statement and schedule are submitted to the court, all further acquisitions of land by the defendants for the I-90 project herein involved shall be enjoined. The court may, however, in cases of genuine hardship, permit hardship acquisitions by the State if it complies with URA and IM 80-1-71 in connection with such acquisitions.

If the court finds, after giving full weight to the need for speed in obtaining compliance with these statutes and regulations, that the schedules presented to it by defendantsare not adequate, it shall proceed on its own to set up a definite schedule of compliance for defendants to follow in performing their responsibilities under the law. If, on the other hand, the court is satisfied that the schedules presented are realistic and adequate, then it shall retain jurisdiction to insure compliance with the schedules and shall lift the injunction when it is satisfied that applicable federal law has been property complied with.

Vacated and remanded with directions.

The petition for a rehearing is denied. No further petition for a rehearing may be filed. The mandate shall issue 10 days after the filing of this opinion. No further stay of the mandate will be granted by this court.

1. The Federal Defendants have not petitioned for a rehearing.

2. Pertinent provisions of IM 80-1-71 are:

"7. ASSURANCES OF ADEQUATE RELOCATION ASSISTANCE PROGRAM

a. STATEWIDE ASSURANCES

No State highway department shall be authorized to proceed with any phase of any project which will cause the relocation of any person, or proceed with any construction project concerning any right-of-way acquired by the State without Federal participation and coming within the provisions of paragraph 6a of this memorandum until it has furnished satisfactory assurances on a statewide basis that:

(1) relocation payments and services were or will be provided as set forth in this memorandum;

(2) the public was or will be adequately informed of the relocation payments and services which will be available as set forth in paragraph 11 of this memorandum; and

(3) to the greatest extent practicable no person lawfully occupying real property shall be required to move from his dwelling, or to move his business or farm operation, without at least 90 days written notice from the State of the date by which such move is required.

b. PROJECT ASSURANCES

No State shall be authorized to proceed with right-of-way negotiations on any project which will cause the relocation of any person until it has submitted specific written assurances that:

(1) Comparable Replacement Housing.

Within a reasonable period of time prior to displacement comparable replacement dwellings will be available or provided (built if necessary) for each displaced person.Such assurance shall be accompanied by an analysis of the relocation problems involved and a specific plan to resolve such problems as described in paragraph 15b of this memorandum. Where right-of-way is acquired in hardship cases and/or for protective buying the required assurance together with an analysis of the relocation problems involved and a specific plan to resolve such problems shall be provided for each parcel or for the project.

(2) Adequate Relocation Program

The State relocation program is realistic and is adequate to provide orderly, timely and efficient relocation of displaced persons as provided in this memorandum.

15. RELOCATION PROGRAM AT RIGHT-OF-WAY STAGE

a. GENERAL REQUIREMENTS

The division engineer shall not authorize the State to proceed with negotiations on any project which will cause the relocation of any person until the State has submitted and he has approved the project assurances as provided for in paragraph 7b of this memorandum and the relocation plan required by subparagraph "b" below.

b. RELOCATION PLAN

(1) Inventory of Individual Needs

The State shall prepare an inventory of the characteristics and needs of individuals and families to be displaced based on the standard of comparable replacement housing. This inventory may be based upon a sampling survey process rather than a complete occupancy survey. A State may utilize recent census or other valid recent survey data to assist in preparing the inventory. However, any sampling survey process must be to the depth necessary to be fully representative of the characteristics and needs of the relocatees.

(2) Inventory of Available Housing

The State shall develop a reliable estimate of currently available comparable replacement housing. The estimate shall set forth the type of buildings, state of repair, number of rooms, adequacy of such housing as related to the needs of the persons or families to be relocated (based on standards outlined in paragraph 5) type of neighborhood, proximity of public transportation and commercial shopping areas, and distance to any pertinent social institutions, such as church, community facilities, etc. The use of maps, plats, charts, etc., would be useful at this stage. This estimate should be developed to the extent necessary to assure that the relocation plan can be expeditiously and fully implemented.

(3) Analysis of Inventories

The State shall prepare an analysis and correlation of the above information so as to develop a relocation plan which will:

(a) outline the various relocation problems;

(b) provide an analysis of current and future Federal, State and community programs currently in operation in the project areas, and nearby areas affecting the supply and demand for housing including detailed information on concurrent displacement and relocation by other governmental agencies or private concerns;

(c) provide an analysis of the problems involved and the method of operation to resolve such problems and relocate the relocatees in order to provide maximum assistance; and

(d) estimate the amount of leadtime required and demonstrate its adequate to carry out a timely, orderly and humane relocation program.