Forty-Seventh Street Improvement Ass'n. v. Volpe

Civil Action No. C-4176 (D. Colo. January 8, 1973)

Partial injunctive relief is granted in a suit challenging the construction of the substantially complete five mile Forty-seventh Street Bypass, on the ground that responsible officials failed to file a National Environmental Policy Act (NEPA) impact statement. The court holds that the limited general approval necessary for secondary highways constitutes "major federal action." The court denies injunctive relief with respect to the northernmost four miles because the authorities have agreed to file an impact statement. It granted relief with respect to the remaining mile on a suspended basis, pending the filing of a draft statement within forty-five days.

Counsel for Plaintiffs
Lawrence C. Rider
2260 Baseline Road #201
Boulder, Colorado 80302

H. Anthony Ruckel
Sierra Club Legal Defense Fund
508 Majestic Building
Denver, Colorado

Counsel for Defendants
Joseph Montano Assistant Attorney General
State Highway Department
4201 East Arkansas Avenue
Denver, Colorado 80222

Charles W. Johnson
U.S. Attorney's Office
U.S. Courthouse
1929 Stout Street
Denver, Colorado

Richard O. Jones
Regional Council
Federal Highway Administration
Building 40
Denver Federal Center
Denver, Colorado 80225

Walter Wagenhals
City Attorney
Municipal Building
Boulder, Colorado 80302

David G. Hill
John Purvis
1227 Spruce
Boulder, Colorado 80302

Donald M. Burkhardt
Denver Club Building
Denver, Colorado 80202

Tom Gibb
State Highway Department
4201 East Arkansas Avenue
Denver, Colorado 80222

[3 ELR 20163]

Winner J.

PROCEEDINGS

* * *

THE COURT: Well, gentlemen, I'm never going to know any more about this case than I know now; and the evidence in the case will never be as fresh in my memory as it is now.

The remarks I'm about to make will constitute the findings and conclusions required by Rule 52 of the Federal Rules of Civil Procedure. No written findings and conclusions will be hereafter filed. All appellate times commence to run when we recess today, subject, of course, to any extension of those appellate times in accordance with the Rules should motions be filed. But counsel desiring to appeal should assume that the oral findings and conclusions I make here today are the final findings and conclusions. Necessarily, if, as, and when they are transcribed, I'm sure that they will be replete with grammatical errors, and I'm sure that we can improve upon the sentence structure materially if we took the time to have them transcribed and to review them, but counsel and the Court are going to have to live with the words and sentences as they come out here today.

These findings and conclusions I do not suggest are impromptu. I've given thought to them and I have made notes which I shall refer to presently.

By way of introduction, I recognize the right of interested citizens to bring actions in the capacity of private attorneys general. It would be most difficult not to recognize that right. I comment that now we have private attorneys general bringing antitrust cases; we have private attorneys general bringing civil rights cases; we have private attorneys general bringing Title 7 cases; we have private attorneys general bringing environmental cases. The private attorneys general in my observation are conducting more of the public business than the employed attorneys general.

I hope that the Supreme Court's decision inSierra Club against Morton is indicative of an awareness on the part of our highest court of the problem which is being created for the judiciary by this widely expanded and rapidly expanding theory of private attorneys general. Certainly we must all recognize that the Supreme Court held in Sierra Club against Morton that there is not an unfettered right on the part of interested citizens to litigate at least in the federal courts. It seems to me to be abundantly clear that the court held that there must be some specific property or personal right involved before standing will be recognized.

As I view it, the record made here this week clearly establishes the standing of the plaintiffs to bring this action under the principles of Sierra Club against Morton.

Accordingly, I initially find and conclude that the plaintiffs do have standing to bring this case which challenges the legality of the construction of a segment of a certain highway located in the County of Boulder and the City of Boulder, variously known as the 47th Street Bypass, Foothills Boulevard, I guess it is, and as State Highway No. 157.

The principal challenge made by the plaintiffs has to do with the failure of the governmental defendants to file an impact statement as required by Section 102-C, the National Environmental Policy Act.

The individual corporate defendants are in the case because they have an important financial interest in that they have contracts for the construction of the highway, and undeniably they have standing to participate in the case.

Prior to the commencement of this phase of the trial, and by that I mean the hearing on the permanent injunction, we were concerned with the requirement, if any, for the filing of an impact statement on the entire five miles of the highway running from the Denver-Boulder Turnpike on the south to State Highway 119 on the north. The State Highway Department has agreed that it will file a so-called NEPA statement for the northerly four miles of that stretch of highway. With more particularity, it has said it will file a NEPA statement for the portion of the highway lying between Baseline on the south and Highway 119 on the north. I regard that statement by the Highway Department as being in the nature of a firm and irrevocable commitment on its part on which the plaintiffs are entitled to rely, and on which the Court does rely.

And with that, I feel that there is no necessity for an injunctive order requiring the filing of such a statement for the northerly four miles of the highway, but I urge that you not put me to the test of what, if any, remedy would be available to the plaintiffs should that commitment not be lived up to. Where there's a will, there's a way; and I'm sure we can find a way to take care of the situation should the statement which you've agreed to file not be filed. But there will be no injunctive order issued as to the filing of the statement on the northerly four miles of the highway, but the only reason there won't be is because of the agreement.

Now, the record here has established, and I find that, with the exception of a single hardship acquisition of a right-of-way by the Highway Department in the northerly four mile section, no right-of-way has been acquired in that portion of the proposed highway.

However, I additionally find that, in furtherance of what is manifestly good city planning, the City of Boulder has required in the pasta reservation of much of the right-of-way which may be needed in the future; and that this reservation program by the city has been carried out as a part of its annexation program.

There is no assurance whatsoever that the northerly four miles of this highway will ever be built. There is no assurance whatsoever that if it is built it will be built in any particular fashion or on any particularly designated land. It may or it may not affect park land.These are matters which, of course, will have to be covered in the NEPA statement which is to be filed in the future.

Now, the record has established that this is a secondary highway. It's further established that under the secondary highway program general plan approval is required of the federal government, but that no specific plan approval is required as to highways built as a part of the secondary highway program.

The defendants have seriously urged that, because of the limited approval required of the federal government in the secondary highway program, secondary highways should not be considered to be major federal action. I cannot accept this contention of the defendants. I think that a review of the cases, and I have particular reference to the Upper Pecos case versus Stans, in the Tenth Circuit, and to Davis against Morton, in the Tenth Circuit, and I think that a review of those cases leaves insecapable the conclusion that secondary federal highways or secondary highways, at least in the Tenth Circuit, are major federal action.

Now in that connection, I do not wish any comment I have made concerning the contention of the defendants that this is not major federal action or any conclusion reached by defendants' counsel that this is not major federal action to be construed as a criticism of counsel or of the agency. Let it be said that I could not agree more with any case than I do with the language in Hanly against Mitchell from the United States Court of Appeals for the Second Circuit, which was decided on May 17, 1972, and which says in part — and this is the part I so emphatically agree with. The case describes the National Environmental Policy Act as, and I quote:

"A statute whose meaning is more uncertain than most, not merely because it is relatively new, but also because of the generality of the phrasing."

Counsel for the defendants have every reason to read the statute as being inapplicable to secondary highways. The Tenth Circuit may say they were right or the Supreme Court of the United States may say they were right. I don't think they are. And I hope that NEPA statements are required as to secondary highways, but it wouldn't hurt my feelings at all if I got appealed on this, and it wouldn't surprise me any if I got reversed on this. That's just my best guess as to the Congressional meaning or intent in enacting this statute.

We have already covered the fact that as to the northerly four miles of the highway nothing has been done by the way of physical work, and little has been done by way of right-of-way acquisition. We are here primarily concerned with the one mile stretch between the Turnpike and Baseline. There we have a completely different situation. There a great deal of work has been done; plans have been finalized; overpasses have been built or started or contracted for; grading has been done; drainage work has been started; contracts have been let; and those contracts when completedwill finish this one mile section of the highway. Additionally, of course, there are noncancellable orders for steel and other materials.

[3 ELR 20164]

I cannot accept in its totality defendants' contention that this one mile stretch of the highway must be considered completely separate and apart from the other four miles. I think that the reviewing authorities, and I think that I, have to consider it as a part of at least a potentially integrated whole.

Nevertheless, the evidence has established and I find that the one mile section is a viable section of the highway standing alone, which by itself will provide an important improvement in the traffic flow in the City of Boulder.

As to this one mile stretch and, in fact, to a lesser degree as to the entire five miles, the record has established and I find that planning for this highway was commenced during the 1950's and that the plans have uniformly shown that 47th Street would be improved to provide major traffic flow on a northerly-southerly direction.

I find that there has been no significant change in the location of this route during the past fifteen years. I find that under then applicable statutes the required public hearing leading to the construction of the one mile section was held in 1968; that in full accord with its purpose, public input was obtained at that time. I further find that from the record it has been established that public input had been obtained in this planning for many years prior to the 1968 public hearing; and, in fact, it has been obtained subsequent to the 1968 hearing.

I find from the record and the evidence in the case, that the public has been fully informed of the planning in connection with this road for many, many years; and I find that there has been truly a remarkable degree of public debate and participation in connection with this highway.

I find, as I have already indicated, that following the public hearing, the general plan of the highway was approved. And that design approval was thereafter obtained; but I expressly find and conclude that design approval by the federal officials is not required as to secondary highways and that the design approval to which I refer is design approval by the state and local officials.

As a result of the public discussions and public input which has incurred in connection with this highway, the state and local officials have cooperated with the interested citizens. The record has established that changes have been made as a result of requests made by local citizens; for example, I find that a pedestrian overpass is being built which is designed to protect the safety of school children as well as other pedestrians. I find that for the primary benefit of abutting and nearby property owners noise berms are being built. I find that landscaping is being provided; and I find that drainage which will be of benefit to a widespread area of Boulder is being provided as a result of the costruction of this highway and as a part of the construction of the highway.

Most assuredly the record here completely fails to establish arbitrary or capricious action on the part of any city, state, or federal official.

From a review of the evidence in the case, I'm unable to find that the highway as built will cause any readily avoidable impact on the environment. I stress that it's not the court's function to pass upon the question of whether this is the best or the second best or the third best plan. As I understand the cases, that's left to the discretion of the appropriate administrative officials. Their discretion, unless arbitrary or capricious, is final. They are obligated to give consideration to all environmental questions. They must consider views expressed by interested citizens, but it is the responsible administrative officials who are charged with the responsibility for making the decision. Neither the interested citizens nor the court have either that right or that responsibility.

I have difficulty in finding that there will be very great environmental impact as a result of the construction of this highway; that is, of the one mile section. However, under the decided cases, I somewhat reluctantly find that there is sufficient environmental impact resulting from this one-mile stretch of the highway to qualify under the act for the requirement for a so-called NEPA statement.

With that finding, then, I pass to a discussion of what I conceive to be the applicable law. I recognize at the outset that the defendants contend that because of the date of the design approval the highway in questions is immune from the requirement of the filing of a NEPA statement. I readily concede that the defendants have cited respectable authority in support of that decision. There is equally respectable authority the other way. And I think that the weight of authority and the more recent authority is the other way; and I find and conclude that the NEPA statement is in fact required despite the date of design approval; and I reject the defendants' contention that no NEPA statement is required because of the date of the design approval.

Now, in that connection, I rely heavily on the guidelines of the counsel on environmental quality. Those guidelines, as you all know, provide that to the maximum extent practicable the Section 102(2)(c) procedure should be applied to further major federal action having a significant effect on the environment, even though they arise from projects or programs iniated prior to January 1, 1970. Where it is not practicable to reassess the basic course of the action, it is still important that further incremental major action be shaped so as to minimize adverse environmental consequence. It is important in further action that account be taken of environmental consequence not fully evaluated at the outset of the project or program. I think this policy statement means exactly what it says. I think it means that under circumstances such as these the principles and provisions of the act should be applied to the maximum extent practicable to projects which are in the course of construction. What is practicable, of course, must be decided by a case-by-case basis; and this is a determination to be made by the responsible administrative agencies in complete good faith.

It seems apparent to me that as to this one mile section it is not practicable to reassess the basic course of action; but it is equally clear that it is practicable that careful thought can be given to minimize adverse environmental consequences. This is not to say that I don't think that thought has not already been given; I do. I think it has been given, and I think that in a sense there is probably little more which can be done; but I think the National Environmental Policy Act says you're to do it the way the Act provides. And I think you have to do it that way.

I think it undeniable that the record establishes that the defendants have fully complied with the spirit of the Act. I think it undeniable that the record establishes that the defendants have given consideration to environmental consequences and the reasonable alternatives. What is missing is the technical compliance with the requirement of a filed and approved environmental impact statement. I think, as I have said, that that statement must be filed. There are cases pro and con. I think probably all of them are listed in Environmental Defense Fund vs. TVA, the Sixth Circuit decision of December 13, 1972; and as I have said, I cast my lot with what I think is the weight of authority.

I recognize that the filing of the environmental impact statement under these circumstances may indeed be somewhat of an exercise in futility, but be that as it may, I'm not the first court which has recognized that. Hanly against Mitchell recognized it. And without quoting from it, the Second Circuit Court held that it assumed good faith on the part of the responsible administrative official. It implies that it is required to assume that good faith and I make the same assumption. In Environmental Defense Fund vs. TVA the Court quoted with approval from Environmental Defense Fund vs. the Corps of Engineers, from the District Court of Arkansas; and I interrupt here to comment that the Environmental Defense Fund must have more money to litigate with than the Sierra Club because they really seem to show up in court with a great deal of frequency; but be that as it may, we are happy with their war chest and they keep us busy. The Circuit Court quoted with approval from the Arkansas case as follows:

"The Court is not suggesting that the status of the work should not be considered in determining whether to proceed with the project. It is suggesting that the degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA. Although the attitude of the defendants is understandable, nevertheless, as the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States Government, such as the defendants here, to objectively evaluate all of their projects regardless of how much money has already been spent thereon, and regardless of the degree of the completion of the work."

[3 ELR 20165]

The Sixth Circuit then continues, having ended its quotation from the Arkansas case:

"In addition, we reject appellants' contention that courts should determine whether separate, significant "stages" of a project begun prior to 1970 remain to be constructed and, that only in a case like the Arkansas decision, in which the most important part of the project had yet to be begun, should courts apply the provisions of the NEPA. We do not believe that NEPA admits of an interpretation that projects are to be divided into separate stages for purposes of determining whether federal officials must comply with Sections 101 and 102."

Omitting the citations —

"This is not to say that the degree of completion of a project is irrelevant; the amount of completed construction or investment will certainly affect the ultimate determination whether modifications should be made in the project or whether the project should be abandoned, and the degree to which the significant environmental effects have occurred will affect the determination whether a project is still a "proposal for action" within the meaning of Section 102(2)(C)."

Yes, I'm going to issue an injunctive order here, but I emphasize that the defendants should pay particular heed to the language last quoted, because I think those are elements which the defendants are entitled to and in the public interest must take into consideration. Actually, I adopt almost in its totality the reasoning of the Sixth Circuit in Environmental Defense Fund vs. TVA. It would serve no purpose for me to read further lengthy quotations from that case, but in interpreting what I say here today, I hope that counsel will pay particular heed to the command of the Sixth Circuit in the TVA case. I also adopt without — I hope without necessity for extensive quotation the reasoning and philosophy of Judge Wright in the Calvert Cliffs case, in 449 Fed. 2d at 1109, and I ask that careful consideration be given to the directions set forth in that case.

The decision I make in this case rests largely upon the pattern and policy created by the Second and Ninth Circuits. In Hanly against Mitchell, 460 Fed. 2d at 640, a method of handling cases such as this was first devised and that method was basically and fundamentally the same method recommended by the Ninth Circuit in Brooks against Volpe, found in the same volume of Fed. 2d at page 1193. That's the method I shall apply here, basically; although I'm going to make some modification on it in view of the particular facts here involved.

In approaching this problem I know of no case which holds — and I do not hold, but I suggest that where the court is going to eventually come to in these environmental cases is a recognition of the fact that this new-found field of law is just a new way of phrasing an age old problem. I suggest that the courts are going to come to the conclusion that by and large these environmental cases involving highways are but a new-found weapon for the attacks traditionally made in eminent domain cases, when property owners don't like the location of a highway. I think you're going to find that the courts are going to arrive at exactly the same conclusions on what must be proven, as the Colorado Supreme Court has arrived at in a long line of cases illustrated by Public Service Company against Loveland in 79 Colo. at page 216; and illustrated by the decision of the United States Court of Appeals for the Tenth Circuit in Colorado Central Power Company vs. Englewood, 89 Fed. 2d, 233.

Gentlemen, I comment those cases to your reading and your consideration of the quantum of discretion and the quantum of good faith which is required.

Having found, and I do find and I conclude that as to this one mile stretch the National Environment Protection Impact Statement is required, I am confronted with the problem of exactly what to do. I find that to stop present construction would impose substantial unrecoverable cost on the contractors and on the public; that this cost would be imposed to provide little or nothing in the way of ultimate change. I find that the contractors and the public would be required to pay for stopgap measures while the impact statement was being prepared. Illustrative of these would be temporary traffic controls, temporary flood protection, temporary safety precautions, temporary work on the drainage, harm to the unprotected roadbed; all sorts of things would deteriorate.

I have listened with interest to the damage testimony of the defendants. I accept much of it; some of it I have difficulty buying. One element of damage that I find that wasn't mentioned as far as I could ascertain by any witness is the cost to the public of what I think is inevitable inflation. I have no difficulty at all in finding that there would be very substantial monetary damage should the project be stopped.

Now, as to Environmental Law Fund against Volpe, decided by the District Court in the northern District of California, reported in 3 ERC 1941, I do not agree with all of the conclusions of that court, as I have already indicated. I do not agree with the certain portion of it having to do with retroactivity, but I do agree with the factors which that court has said should be taken into consideration. And these, of course, as you all know, are factors which other courts have recognized. Those factors are these: participation of the local community in the planning; there has been, as I have already mentioned and found, extensive participation. The extent to which the state department involved has attempted to take environmental factors into account — as I have already found and I find again — is again an outstanding record.

The likely harm to the environment, if the project is constructed as planned, if there is going to be any harm and I certainly do not find that there is going to be anything more than minimal harm; I do not think that there will be additional harm resulting from permitting the project to go forward. I cannot find that there is any probable or any reasonable likely improvement in the method of construction unless the route of the highway is changed and that is even under the guidelines almost an inconceivable result at this point.

The last element mentioned by the California District Court is the cost to the state of halting construction while it complies with the filing of an environmental impact statement. The cost here would be twofold. There would be environmental cost from deterioration in the partially constructed highway, from erosion from dust, and from other environmental factors. Additionally, there would be dollar cost. It's impossible to find with any degree of certainty what the exact dollar cost would be, but based upon my best judgment of the damage testimony, I find that the dollar cost would be not less than one hundred twenty-five thousand dollars per month.

In making this finding, absolutely no consideration has been given to the risk of possible damage actions brought by contractors against the state. I express no opinion as to the probable success or lack of success of any such actions, but I believe that there is real risk that such actions would be filed and there is definite possibility that they would be successful should the plight of the contractors be ignored.

The responsibility for the filing of the impact statement is a responsibility which rests upon the public officials. Private contractors have absolutely no responsibility for filing an impact statement. I believe that they have a right to assume when they enter into a contract that the public officials have complied with the law. It is for that reason that I cannot accept, I do not accept, and I reject any argument to the effect that the contractors are guilty of some sort of contributory negligence when they enter into these contracts. If the businessmen of this country cannot enter into a good faith contract with the government without including in their bids a contingency for government error, the ultimate cost to the taxpayer is going to be staggering. I cannot say that there has been any fault on the part of the contractors in signing the contracts, and I expressly find that there was no such fault.

Now, as I have mentioned, I'm going to follow the Second Circuit and the Sixth Circuit.The Second Circuit in Hanly against Michell provided for a type of a stay order, as did the Ninth Circuit in Brooks against Volpe. I direct my attention primarily to the Brooks case only by way of illustration because I think that the Second Circuit philosophy is exactly the same. In Brooks, as you know, the District Court held that the National Environment Policy Act did not apply to work which was in process on a Washington highway. The Ninth Circuit reversed — it directed that [3 ELR 20166] "the District Court shall make the necessary orders and shall enjoin further construction if there has not been full compliance with the controlling legislation within sixty days from the entry of the judgment herein. If such an injunction is entered pursuant to this direction, it shall be vacated if and when there is such full compliance." I have expressed uncertainty as to exactly what that order meant. The uncertainty I have expressed is what did the Ninth Circuit mean by the phrase "full compliance"? Plaintiffs, of course, urge that the Ninth Circuit meant that each and every step required under the Environmental Policy Act be accomplished within sixty days. Defendants here say that is asking the impossible.

I can read the Ninth Circuit opinion to mean one of two things. I can read it to mean that you had to complete each and every step, including all sorts of final approvals, within sixty days; or I can read it to mean that you fully comply with the initial steps within the sixty-day period. Counsel have not argued it to me, but it seems to me that the trial judge that got reversed read it the second way. In other words, he seems to read it that under that rather tight opinion of the Ninth Circuit he still had an area in which he could still grant relief, because six months after the Ninth Circuit opinion, it was said by Judge Beeks, the trial judge in Brooks against Volpe, once more reported in 4 ERC at 1535, that after he discussed the injunctive order issued by the Ninth Circuit, he made an express finding that for the following reasons, work on contracts numbered 8844 or 8916, 9092, and 9366 should not be enjoined when he said.

"a. Since the filing of the opinion of the court of appeals, additional blasting and grading have cleared much vegetation from the proposed route. Most of the scarring of the landscape which would result from completion of the entire project has now been completed. An injunction stopping further work on the contracts which have been let for this project would not significantly prevent further defacing of the environment.

"b. Severe public injury would result from a blanket injunction. Additional harm to the environment, such as erosion and land slides during the winter season, would enlarge the existing scars on the land and make them more difficult to eradicate. Seeding and planting of vegetation on exposed earth embankments to ameliorate existing defacement of the environment would be prevented. Contractors would file claims against the state for substantial losses caused by the injunction. Nearly 300 persons would lose their jobs.

"c. Defendants made a good faith effort to comply with the applicable statutes —"

and very importantly this clause

"— and the order of the court of appeals.

"d. The additional work allowed by this court is not of a nature which would significantly influence the final decision on whether to alter the route of the new addition to the highway."

I can read that in no way other than that the trial judge who got reversed thought the court of appeals from the Ninth Circuit said that the defendants had sixty days to get the ball rolling. Whether that is what the Ninth Circuit means or whether it isn't, that's what I'm going to order here in effect.

Everyone agrees that the Court is charged with the responsibility of balancing the equities; and what I order here is a result of my evaluation of and my balance, of the equities in the case as I see them.

Accordingly, it is the Order of the Court that further work on the one mile section of Colorado State Highway No. 157, situate between the Denver-Boulder Turnpike and Baseline Road in Boulder, Colorado, is hereby enjoined; provided, however, that the effectiveness of this injunction is suspended and stayed for a period of forty-five days, during which the responsible defendants may, if they desire, prepare and file a draft of a National Environmental Impact Statement in accordance with law. If such an impact statement is filed within that forty-five-day period, then the effectiveness of the injunction is further stayed and suspended during such period of time as the responsible defendants are in good faith diligently attempting to obtain expeditious final approval of the statement and are in good faith diligently attempting to comply with all applicable provisions of the National Environmental Policy Act.

The Court shall and it hereby does retain jurisdiction of this case to conduct any further hearings which may be requested by any party to determine whether the responsible defendants are in fact proceeding in accordance with this injunctive order. Now, during the time that the effect of this injunctive order is suspended and stayed, work on the one mile section of the road in question may proceed with the express and specific provision that all risk of loss from any changes which may be required in the work as a result of compliance by the responsible defendants with the provision of the National Environmental Protection Act shall be born by the governmental defendants and no part of that risk of loss is to be shared by the private contractors.

In the preparation of the National Environmental Protection Act Impact Statement, consideration shall be given to the effect on the environment of the construction of the one mile section in question, both as an independent viable section of the highway and as a probable integrated section of the highway leading from the Denver-Boulder Turnpike to State Highway No. 119. Consideration may be given to any factor heretofore enumerated in these comments and findings, but it shall particularly be given, as I have heretofore indicated, to all of the factors enumerated in Environmental Defense Fund vs. TVA.

This being a permanent injunction, of course. There is no requirement for bond and no bond will be fixed.

As I have heretofore indicated, I think that the parties in this case have been in complete good faith. I think that the defendants in good faith took the position that they were not required to file a statement on this secondary road work, approval of which started as long ago as it did.

This is a case in which I feel it proper, and in the exercise of my discretion, I do order that each party, that is, that the plaintiffs and the defendants shall bear their own costs, and costs are not awarded to any party in this case.

Gentlemen, do you have any questions?

MR. RIDER: Your Honor, I was intending to file a motion with the Court for the awarding of attorneys fees in accordance with La Raza Unida and Volpe in California.

THE COURT: You can file it; it will be denied.

MR. RIDER: I have no other questions.

MR. NONTANO: Your Honor, I believe that the plaintiffs have conceded, as I understood, then — and if I did not understand them correctly, I would ask them to advise me — that they would have no objection to the letting of contracts relating to landscaping and the pedestrian overpass; I would wonder if the Court's Order might —

THE COURT: The Court's Order was intended to — I don't believe it was phrased this way, but it should have been phrased to say that work may proceed and contracts may be let necessary for the completion of the one mile stretch within the limitations of the injunctive order that, pending the injunctive order becoming effective either because the defendants fail to file a draft impact statement in forty-five days or failure to proceed diligently in accordance with the language of the order, the defendants are free to pursue this job both as to work and as to contracts.

Does that clear that up?

MR. MONTANO: I think so, Your Honor. As I understand, we can proceed with contracts on landscaping and the pedestrian overpass subject to the conditions of the overall order.

THE COURT: That's right.

MR. MONTANO: Very well.

THE COURT: Any further questions?

MR. RIDER: No, Your Honor.

THE COURT: Thank you, gentlemen.

We will be in recess.

(Whereupon, the Court recessed at 3:40 o'clock p.m.)