Civic Improvement Committee v. Volpe

Misc. No. 931 (4th Cir. April 3, 1972)

Even though the City of Charlotte will be paying all of the $600,000 cost for the widening of Sharon Lane, the resulting destruction of ancient oak trees is a major federal action requiring a formal impact statement because the project is a part of the federally assisted Sixth Circumferential Route. Plaintiff's evidence of other circumferentials, though necessarily limited by the severe time constraints of the original hearing, supports the inference that millions of federal dollars eventually will be contributed to the Sixth Route. In addition, $91,000 of federal funds was contributed to the City's Master transportation plan, which included the Sharon Lane project, and 400,000 federal dollars already were expended on the Sixth Route. Destruction of the trees is enjoined pending an appeal on the merits from the district court's denial of a preliminary injunction.

Counsel for Plaintiffs — Appellants
Hugh G. Casey, Jr.
808 Law Building
Charlotte, North Carolina 28202

Counsel for Defendants — Appellees
Keith S. Snyder U.S. Attorney
P.O. Box 132
Asheville, North Carolina 28802

[2 ELR 20249]

Craven, Circuit Judge

Memorandum of Decision and Partial Preliminary Injunction Pending Appeal

This is another ecology case. The complaint is a very broad one, and the relief sought in the district court was exceedingly complex. The district judge has enjoined further construction of several highway projects within the City of Charlotte but declined to enjoin the widening of Sharon Lane and declined to prevent the cutting of some 60 very old and very large oak trees in connection with the Sharon Lane project. The motion before me is limited. The parties have not appealed the decision of the district judge except for plaintiffs' appeal from his refusal to grant relief with respect to the Sharon Lane project.

With respect to this portion of the complaint the district judge thought that plaintiffs' theory of jurisdiction and subjection to the National Environmental Policy Act was valid, but that the facts with respect to Sharon Lane failed to sufficiently show federal participation so as to bring this part of the total highway improvement plan for Charlotte within the protection of the Act. I think the question is a very close one. Unavoidably the district judge allowed no time for plaintiffs' discovery and inevitably handicapped plaintiffs' opportunity to offer evidence of federal participation. Indeed, the evidentiary hearing was conducted 36 hours after notice. It was necessary that the court proceed with such dispatch because of tremendous cost factors involved in other portions of the overall Charlotte street plan. Even so, I am inclined to think that the plaintiffs established sufficient federal participation to invoke the National Environmental Policy Act. Counsel for the City concedes that approximately $400,000 of federal money has been spent on the sixth circumferential route of which Sharon Lane is a part. In addition, the so-called "Smith Plan." which is the master street and highway plan for Charlotte, was partially paid for by federal money, i.e., $91,000.The Sharon Lane project will cost only about $600,000, and the money will come entirely from the City, but it is part of the sixth circumferential and plaintiffs' evidence, limited as it necessarily was, supports the inference that in all probability millions of dollas of federal money will sooner or later go into completion of the sixth circumferential. The evidence indicates that in other circumferentials such has been the case.

In Named Ind. Mem. of San Antonio Con. Soc. v. Texas Hy. Dept., 446 F.2d 1013 (1971), a different any yet similar problem of fragmentation of a total overall project was presented. The court recognized the frustrating effect of piecemeal administrative approvals on various sections or segments of highway construction and disapproved permitting a single project to be divided into segments for purposes of environmental approval. In my opinion Sharon Lane is a part of the overall Smith Plan for the development of roads and streets for the City of Charlotte, and the Sharon Lane project is a part of a major federal action within the meaning of 42 U.S.C. § 4332(A).

It is clear that once trees are cut down they cannot be put back and that the injury to environmental values involved in the destruction of ancient oaks is irreparable. I do not believe that the defendants will be substantially harmed by delaying the destruction of the trees on Sharon Lane until an appeal from the refusal of the district judge to grant a preliminary injunction can be held and determined. It seems to me that plaintiffs are likely to prevail and be held entitled to a preliminary injunction pending trial on the merits, and it also seems to me likely that they will ultimately be entitled to have the court require an environmental impact statement. I believe the public interest will be served by granting a preliminary injunction pending appeal. Long v. Robinson, 432 F.2d 977 (1970).

Now, therefore, it is ordered, adjudged and decreed that the defendants be, and they hereby are, enjoined from further cutting trees along Sharon Lane pending appeal, provided that nothing contained herein shall prevent the contractors now employed by the City of Charlotte to widen Sharon Lane from proceeding with other work so long as it does not injure the trees.

This 31st day of March, 1972.