Pizitz, Inc. v. Volpe

No. 72-1995 (5th Cir. October, 1972)

Certain parties are permitted to intervene out of time as amicus curiae, and their motion to strike a paragraph of the opinion of the Circuit Court, on the ground that the issue discussed is not necessary to the decision, is granted. The offending paragraph concerned the state's preparation of a NEPA impact statement. (For the main opinion of the Court see 2 ELR 20379.)

Counsel for Plaintiffs
Schrader & Schwenn
Suite 400
State National Bank Building
Huntsville, Alabama 35804

Counsel for Federal Defendants
Ira DeMent, U.S. Attorney
Kenneth E. Vines Ass't U.S. Attorney
P.O. Box 197
Montgomery, Alabama 36104

Counsel for State Defendants
Lucian L. Smith, Jr.
Alabama State Highway Department
11 South Union Street
Montgomery, Alabama 36104

Counsel for Intervenors
Michael Padnos
Crosland & Padnos
1105 William Oliver Bldg.
32 Peachtree St., N.W.
Atlanta, Georgia 30303

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

[2 ELR 20635]

ORDER ON MOTION FOR PERMISSION TO INTERVENE OUT OF TIME AS AMICUS CURIAE, AND ON PETITION FOR REHEARING SEEKING MODIFICATION OF THE OPINION OF THIS COURT

PER CURIAM:

The court's opinion affirming the judgment of the trial court was based upon the statement contained in the second full paragraph of he opinion, that is, that the work sought to be enjoined for failure to meet requirements of federal statutes for the protection of the environment was part of an approved design which, when it was approved, had met all requirements.

Intervenor seeks to have the court strike the remaining paragraph of the opinion on the ground that it was not necessary to the decision of the court. We agree.

Although the question whether the responsible federal officials could, under the applicable federal statutes, accept an environmental impact statement prepared by a state highway department was briefed by the parties on this appeal, it was not necessary to reach this issue. We, therefore, leave that question for decision in a case in which it is essential to the decision.

The motion of Virginia Hand Callaway, National Audubon Society, Inc., Georgia Botanical Society and Save America's Vital Environment, Inc. is GRANTED; said parties are permitted to interveneout of time as amicus curiae, and the opinion of the court is amended to strike the second paragraph on page 2 of the slip opinion reading as follows:

[2 ELR 20636]

"We find no merit in the contentions of appellants that the responsible federal officials could not, under the applicable federal statutes accept an environmental impact statement prepared by a state highway department.[Including footnote 1]."