Keith v. Volpe

Civil No. 72-355-HP (C.D. Cal. September 11, 1972)

This is an order denying a motion by defendants to amend the preliminary injunction granted against the construction of the Century Freeway (I-105) in Los Angeles County. That injunction, granted July 7, 1972, and the opinion supporting it, are found at 2 ELR 20425. Much of the present opinion is a clarification and reaffirmation of points raised in the earlier opinion. The court further finds that § 102 of the National Environmental Policy Act (NEPA), requiring laws of the United States to be interpreted in accordance with § 101 of NEPA, expands the responsibilities of state highway authorities under § 128 (a) of the Federal-Aid Highway Act, 23 U.S.C. § 128 (a). The requirement of NEPA, echoed by the California Environmental Quality Act (CEQA), that a full evaluation of the environmental impact, including noise and air pollution, of the proposed action, and the impact of alternatives, including mass transit, must be made, becomes a part of the public hearings requirement of § 128 (a). Members of the public who attend corridor and design hearings must be adequately informed about the alternatives studied by the state highway department. The hearings convened by the California Division of Highways in this case were procedurally adequate, but not enough consideration was given to the crucial issues of noise and air pollution. The court denies defendants' requests for permission to continue to acquire land along the proposed right-of-way; for permission to proceed with outside agencies to relocate utilities; for blanket permission to proceed with payments and contracts which provide for increased housing in the vicinity of I-105, and for blanket permission to demolish buildings in the right-of-way already acquired. There is the danger that proceeding in any way with the freeway as presently planned will jeopardize the objective reevaluation NEPA and CEQA require. The court permits several cities along the proposed freeway route to intervene.

Counsel are listed at 2 ELR 20425.

Counsel for Additional Plaintiff City of Hawthorne
Kenneth L. Nelson
City Attorney, City of Hawthorne
4460 W. 126th Street
Hawthorne, California 92250

[2 ELR 20632]

Pregerson, J.

On July 7, 1972, this Court issued a preliminary injunction halting work on the proposed Century Freeway until such time as the federal defendants prepare the environmental impact statement required by federal law and until such time as the state defendants prepare the environmental impact statement required by state law, hold additional public hearings, provide the federal defendants with the specific project assurances required by federal regulations, and conduct additional housing availability studies. The Court's order contains two exceptions. It permits the California Division of Highways, upon satisfying the Court that a resident or businessman has freely and voluntarily decided to leave the freeway corridor, to appraise and acquire the real estate of that person and to provide him with relocation payments and services. The Court's order also permits the Division, for good cause shown, to engage in any demolition work necessary to protect the public health and safety.

The magnitude of the Century Freeway project has necessitated — and will no doubt continue to necessitate — further orders by the Court implementing the preliminary injunction. On July 21, 1972, Judge Warren J. Ferguson of this Court, who handled my calendar at my request during my absence from the district, issued an order authorizing the following activities: (1) the removal from the freeway corridor of vacant houses that had been sold to third parties prior to the Court's order of July 7; (2) the closing of escrows that had been entered into between the State of [2 ELR 20633] California and property owners prior to July 7, the payment of monies due pursuant to the terms of such escrows, and the payment of relocation assistance payments, provided that the affected property owners freely and voluntarily waived their right to cancel their escrows; (3) the continuation of work on those Ralph Act projects¹ in regard to which the Division had entered into commitments prior to July 7; and (4) the payment of relocation assistance payments to individuals who had not yet relocated but who had received commitments from the Division prior to July 7. On August 4, 1972, Judge Ferguson, upon a showing by the Division that the affected property owners had freely and voluntarily decided to sell their property to the State of California, issued a further order authorizing the Division to proceed with five specific eminent domain actions then pending in the state courts and to purchase five other specific parcels of real estate directly from the owners.

This matter came on for hearing again on August 28, 1972, on the state defendants' motion to alter or amend the preliminary injunction and on motions to intervene filed by the Cities of Downey, El Segundo, Inglewood, Lynwood, Paramount, and South Gate. The state defendants ask the court to eliminate from the preliminary injunction the various requirements that it has ordered them to satisfy. They also ask, apparently in the alternative, that the Division of Highways be permitted to continue acquiring property in the proposed freeway right-of-way while the environmental impact statements required by the preliminary injunction are prepared. The state defendants also ask — again, apparently, in the alternative — that nine activities be exempted from the proscriptions of the preliminary injunction. The federal defendants join in the state defendants' motion, but only insofar as it asks the Court to eliminate the requirement of additional public hearings from the terms of the preliminary injunction.

The Motions to Intervene:

As presently planned, the Century Freeway will pass through, inter alia, the cities of Hawthorne, Downey, El Segundo, Inglewood, Lynwood, Paramount, and South Gate. The Court has already permitted Hawthorne to intervene; the other aforementioned cities now seek to intervene, too. These cities have a very real interest in the future of the Century Freeway and in any orders by this Court regulating or prohibiting work on the freeway. The State of California has already purchased a considerable amount of real estate in these cities, and it plans to purchase more. The cities are entitled to intervene in this lawsuit as of right, pursuant to Rule 24 (a) of the Federal Rules of Civil Procedure. The motions to intervene will be granted.

The Requirements Imposed by the Preliminary Injunction:

The Court will not eliminate from the preliminary injunction any of the requirements that it ordered the state defendants to satisfy. The Court issued a preliminary injunction because it concluded that the state defendants had failed to comply with federal and state environmental protection laws and with other legal requirements and that the public interest demanded prompt compliance with those provisions.In its July 7 order the Court discussed its reasons for reaching these conclusions at length; the Court believes that, with one exception, additional discussion is unnecessary. Some further observations on the Court's reasons for ordering additional public hearings, however, would be useful.

In its July 7 order the Court stated that the public hearings that the state defendants had conducted had not been "totally inadequate in their consideration of the relevant social, economic, and environmental effects" of the proposed freeway and had not "provided an inadequate 'public forum * * * for presenting views' on alternate locations and designs for the freeway." The Court concluded, however, that the hearings had given only "minimal" consideration to one of the most crucial of the freeway's effects — i.e., its effect on noise and air pollution. Therefore the Court ordered the state defendants to conduct additional design hearings. The federal defendants argue, in support of the state defendants' motion to alter or amend the preliminary injunction, that Section 128 (a) of the Federal-Aid Highway Act, 23 U.S.C. § 128 (a), requires only that "a public hearing be held or that an opportunity for a public hearing be afforded." (Federal Defendants' Memorandum in Support of Motion to Alter or Amend Preliminary Injunction, p. 1.) The federal defendants contend that

"where, as here, public hearings were actually held and the public is afforded the opportunity to present its views regarding the economic, social and environmental effects of the freeway, the statutory requirement has been met even if the public did not utilize the opportunity to present views on particular subjects."

(Federal Defendants' Memorandum, p. 2.)

The Court believes that the public hearing requirement is broader in scope than the federal defendants contend. The state highway authorities must do more than merely permit members of the public to come to an auditorium and express whatever concerns they might have at the time. PPM 20-8, 23 C.F.R. Part 1, Appendix A, which implements Section 128 (a), imposes upon the state authorities the responsibility to provide prople who attend public hearings with information about the alternatives that exist. Paragraph 8a (3) of PPM 20-8 provides that the state highway authorities must notify the public, in advance of the hearings, that "maps, drawings, and other pertinent information developed by the State highway department * * * will be available for public inspection and copying" prior to the public hearings. Paragraph 8b (3) of PPM 20-8 provides,

"At each required corridor public hearing, pertinent information about location alternatives studied by the State highway department shall be made available. At each required highway design public hearing information about design alternatives studied by the State highway department shall be made available."

The state defendants did not meet their obligations by simply convening hearings. Air and noise pollution is one of the social, economic, and environmental effects listed in paragraph 4c of PPM 20-8; information about the problem clearly is pertinent to the consideration of the design alternatives that are available on a given freeway project. The consideration given to air and noise pollution at the design hearings on the Century Freeway was inadequate not because the members of the public in attendance expressed little interest in the problem, but because little information about the problem was made available to the public. Therefore additional design hearings are appropriate.

In their papers in support of their motion for a preliminary injunction the plaintiffs launched a broad attack on the adequacy of the public hearings on the Century Freeway. This attack included severe criticism of the format of the hearings. Plaintiffs alleged that the way in which presentations by state officials and intermissions were scheduled discouraged the members of the public in attendance from presenting their views. Plaintiffs also contended that the refusal to accept questions other than at certain times and the refusal to accept questions on certain subjects had [2 ELR 20634] the same result. The Court, however, was not convinced by these criticisms of the format of the public hearings. With these criticisms in mind the Court stated in its July 7 order that it was "not prepared to say that the hearings * * * provided an inadequate 'public forum * * * for presenting views' on alternate locations and designs for the freeway." (Memorandum and Order, p. 20.) The defendants apparently interpret this statement to mean that the public hearings constituted a completely adequate "public forum * * * for presenting views" — i.e., that they fully complied with the requirements set forth in paragraph 4 of PPM 20-8. The Court, however, intended merely to say that it believed that the procedural details attacked by the plaintiffs — the timing of presentations, intermissions, and question periods, and the restrictions of the subject matter of the questions — did not render the hearings inadequate; the Court did not mean to imply that the hearings provided completely adequate public forums. The state defendants had the duty to provide the public with relevant information about the available alternatives, including information about the environmental effects of these alternatives. The consideration given at the hearings to the crucial issues of air and noise pollution was minimal, however, and in that respect the design hearings were not adequate.

The defendants also argue that no additional corridor public hearings are necessary, because the corridor hearings that they held complied with the statute and regulations that were in effect at the time.The Court disagrees. "The message of NEPA," the Court observed in its July 7 order, "is loud and clear." (Memorandum and Order, p. 9') Both NEPA and CEQA require the defendants to prepare environmental statements. In doing so, the defendants must actually reevaluate the Century Freeway. They must consider, inter alia, "the environmental impact of the proposed action," especially its effect on air and noise pollution; "alternatives to the proposed action," including other modes of mass transportation; and abandonment of the project versus continuation. See Section 102 (2) (C) of NEPA. In short, they must reconsider, in the language of paragraph 4a (2) of PPM 20-8, "the need for" the Century Freeway.

NEPA itself contains no requirement of a public hearing. Under Section 128 (a) and PPM 20-8, however, state highway authorities may not make decisions on basic issues such as "the need for" a highway until members of the public have had the opportunity to express their views at corridor public hearings. Section 128 (a) and PPM 20-8 should, the Court believes, be applied to the reevaluation of the freeway that compliance with NEPA requires. NEPA and Section 128 (a) are not independent of each other; they are both part of a structure of federal law designed to protect the environment. Both statutes demand thatenvironmental issues be considered in the planning of federal-aid highways.² Section 128 (a) stands for the proposition that members of the public have the right to be consulted — to obtain pertinent information and to express their views — on the important decisions that affect the construction of federal-aid highways. This is why additional corridor hearings are required.

Right-of-Way Acquisition Pending Compliance with NEPA and CEQA:

As of April 24, 1972, the State of California had acquired 55.8% of the 6073 parcels of land that it intends to purchase in order to clear the proposed freeway corridor; by now it certainly owns many more parcels. The state defendants ask that they be permitted to continue acquiring right-of-way for the freeway, without any restrictions, pending the preparation of environmental impact statements in compliance with NEPA and CEQA. They contend that once the entire right-of-way has been cleared, it will be easier for the highway authorities to decide to abandon the freeway project, if such a decision is warranted, because it will be easier to dispose of the large blocks of real estate that the State will own at that point. The Court will not grant the state defendants such permission for two reasons.

The Court would anticipate that the more the defendants spend on the freeway — whether for land acquisition or for some other purpose — the more difficult it will be to decide to abandon the project. Proceeding with right-of-way acquisition, in short, would impede the objective reevaluation of the freeway project that NEPA and CEQA require.

The preliminary injunction is also designed to ensure that people now living in the freeway corridor will not be displaced until there are satisfactory guarantees that adequate replacement housing is available.The state defendants had concluded, prior to the Court's July 7 order, that adequate replacement housing was available, but the Court held in its July 7 order that the studies on which these conclusions had been based were inadequate. Therefore it ordered the state defendants to conduct additional studies. After the preliminary injunction went into effect, the plaintiffs submitted to the Court a study of the housing market in Los Angeles County conducted by the county's Regional Planning Commission.³ The study concludes that the county suffers from a serious housing shortage. In light of the danger that adequate replacement housing is not available, it would not be wise to permit the state defendants to purchase real estate from persons other than those who freely and voluntarily decide to sell to the State.

Exceptions to the Preliminary Injunction:

The state defendants ask that several types of activities be exempted from the proscriptions of the preliminary injunction. In regard to three of these activities the motion is moot: the order signed by Judge Ferguson on July 21 authorized the removal of houses that had been sold to third parties prior to July 7 and, under certain circumstances, the closing of escrows that had been opened prior to July 7 and the payment of relocation assistance payments; the state defendants indicated at the oral argument on the motion to alter or amend that they are satisfied with the scope of the July 21 order. Other portions of the state defendants' motion require further discussion.

The state defendants seek permission to proceed with "[p]ayments and contracts which provide for increased housing in the vicinity of the I-105." (State Defendants' Notice of Motion and Motion to Alter or Amend Preliminary Injunction, p. 2.) The order issued on July 21 authorized the state defendants to proceed with Ralph Act projects in regard to which the state defendants had entered into commitments prior to July 7. The state defendants now seek blanket authorization to proceed with any future Ralph Act projects in which they may eventually decide to engage. The Court intends to consider future Ralph Act projects on a case-by-case basis, and it will deny the state defendants the blanket authorization for which they ask. They will be required to seek approval for each individual construction project. In light of the Court's preference for a case-by-case approach, it would be helpful if the Court explained its views in regard to such future construction.The Court anticipates that, barring evidence that has not yet been presented to it, it will look favorably upon requests for authorization to build additional housing. In considering the state defendants' request for permission to acquire additional right-of-way pending compliance with NEPA, the Court voiced the concern that the more the defendants spend in connection with the Century Freeway, the more difficult it will be to objectively reevaluate the freeway project. Plaintiffs may argue that this danger also applies to authorizing the state defendants to proceed with Ralph Act projects.The Court anticipates, however, that any additional funds spent on the construction of replacement housing will be small in comparison to the additional funds that might be spent on right-of-way acquisition. Therefore the Court anticipates that the construction of future replacement housing would have a minimal effect on the reevaluation of the freeway project. [2 ELR 20635] Furthermore, the Los Angeles County Regional Planning Commission's housing study, which was submitted to the Court by the plaintiffs, concludes that there is a serious housing shortage in Los Angeles County. In light of the danger that this serious housing shortage exists, the Court does not anticipate that it would be in the public interest to enjoin the construction of additional housing. These thoughts are tentative, however, and are only intended to aid counsel in preparing to present or oppose any future motions regarding Ralph Act projects. The Court reverses any actual decisions on future Ralph Act projects until after the appropriate motions have been filed, briefed, and argued.

The state defendants also ask for permission to proceed with all eminent domain actions — regardless of whether or not the property owners consent — that were instituted prior to the temporary restraining order issued, with the consent of the defendants, on March 15, 1972. The Court will not permit the state defendants to acquire the property of any property owners who do not freely and voluntarily consent to the acquisition. The Court discussed its reasons at length in its July 7 order.

The state defendants seek authority to demolish or remove houses that become vacant, and to remove fixtures that are in danger of being vandalized, without obtaining authorization from the Court on a case-by-case basis.The City of Downey seeks enforcement of those provisions in its street-closure agreement with the Division of Highway that require the Division to promptly demolish such homes that it has acquired in Downey once they become vacant. The Court will not grant the blanket authorization that the state defendants and Downey seek. The Court recognizes that vacant buildings can become threats to the public health and safety; in its July 7 order the Court took this danger into account by authorizing the demolition, upon good cause shown, of such buildings that do become threats to the public health and safety. In any event, the Court believes that proper procedures can be devised so that the demolition or removal of improvements can be considered expeditiously on a case-by-case basis. The blanket aproval that the state defendants and the City of Downey seek might well impede the thorough and objective reevaluation of the Century Freeway that NEPA and CEQA demand.

The state defendants also ask the Court to exempt from the preliminary injunction contracts that the Division of Highways entered into with outside agencies, prior to July 7, for planning the relocation of public utilities.The Court will not grant this request; there has been no showing that any significant harm will result from holding these contracts in abeyance while the preliminary injunction remains in effect. There is, furthermore, the danger that proceeding in any way with the freeway as presently planned will jeopardize the objective reevaluation that NEPA and CEQA require.

The Court realizes that the delay caused by the preliminary injunction will increase the cost of the Century Freeway if it is ever completed, temporarily inconvenience many individuals, and hinder the planning programs of several of the cities along the route of the freeway. It is necessary, however, to look to the ultimate benefit which hopefully will accrue to everyone living in the Los Angeles area from compliance with our federal and state environmental protection laws. The federal and state highway authorities have not complied; that is why a preliminary injunction is necessary.

The Court's order of July 7 was designed to protect both those property owners who desire to remain in the freeway corridor and those who freely and voluntarily decide to leave. The Court still believes that the best way to accomplish this end is to consider each parcel of land on a case-by-case basis — i.e., to decide whether each property owner decided freely and voluntarily to sell his property. In light of the Court's preliminary injunction, of course, the State of California cannot purchase anyone's property unless it first satisfies the Court that the property owner is acting freely and voluntarily; the State, in short, must petition the Court for approval in each case. The Court has processed — and will continue to process — these applications for approval expeditiously. The state defendants may present these applications on an ex parte basis, as long as the plaintiffs receive actual notice of all hearings. The Court believes that these applications can be processed in as little as a few hours, or at most a day or two; the Court intends to ensure that any inconveinence that will be caused to property owners who freely and voluntarily decide to sell to the State will be minimal.

IT IS ORDERED that the motions to intervene of the cities of Downey, El Segundo, Inglewood, Lynwood, Paramount, and South Gate are granted.

IT IS FURTHER ORDERED that the state defendants' motion to alter or amend the preliminary injunction is denied.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Memorandum and Order, by United States mail, on the attorneys of record for the parties herein.

1. The Ralph Act, Sections 135.3-135.7 of the California Strets and Highways Code, empowers the Department of Public Works, of which the Division of Highways is an agency, to provide relocation assistance to persons who reside in low-income areas and who are displaced by the construction of highways. The Act also empowers the Department to acquire land and housing, to refurbish existing housing, and to construct new housing, so that adequate decent, safe, and sanitary replacement housing will be available to such displacees.

Section 135.3 declares, in part, that the Act's objectives

"can best be achieved by enabling low-income persons in economically depressed areas affected by state highway construction to participate in the development and execution of the replacement housing program. Accordingly, when the initial replacement housing program is undertaken for the assistance of persons displaced by the construction of State Highway Route 105 in Los Angeles County [i.e., The Century Freeway], such program shall be conducted in a manner conducive to maximum community participation, thereby assisting in alleviation of excessive unemployment by utilizing local labor and contributing to the development of training programs for unskilled labor."

In order to achieve these ends, Section 135.3 exempts "this initial replacement housing program" for the Century Freeway from "conventional contracting procedures, including competitive bidding."

2. The applicability of Section 128 (a) and PPM 20-8 to the reconsideration of a federal-aid highway pursuant to NEPA finds support in the directive in section 102 of NEPA that "to the fullest extent possible * * * public laws of the United States shall be interpreted and administered in accordance with the policies" set forth in Section 101 of NEPA. See also Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972); cf. Ward v. Ackroyd, Nos. 71-930-M and 71-1118-M, 4 ERC 1209 (D. Md., June 8, 1972).

3. Los Angeles County Regional Planning Commission, Los Angeles County Housing Element (Oct. 1, 1971). Plaintiffs also submitted a summary of the study, entitled Shelter, which was published on July 1, 1971.