Stop H-3 Association v. Volpe

No. 72-3606 (D. Haw. July 6, 1973; July 13, 1973)

Plaintiffs' motions for partial summary judgment ordering (1) circulation of an amendment to the final impact statement on Interstate H-3 as a draft, (2) new corridor hearings on the highway, (3) new design hearings on the highway, and (4) the submission of new "report" as defined by 23 U.S.C. § 128(a) are granted. In granting the motion for recirculation, the court finds that the so-called "preface" to the final environmental impact statement changes the concept and design of the highway and contains land use, air and noise pollution studies not included in the final statement. As such, within the rule of NRDC v. Morton, 2 ELR 20071 (D.D.C. 1972), and pursuant to PPM 90-1, par. 6, the preface must be circulated and reviewed as a draft.

In ordering new hearings, the court finds that the two location hearings held in 1965 and the design hearing held in 1970 were inadequate because the location hearings considered only the economic impact of the highway, and the design hearing unreasonably restricted the length of highway subject to discussion. The ruling on new location hearings is premised on a holding that the 1968 amendments to the hearing statute apply retroactively to location hearings held prior to 1968 where the original hearings did not consider social and environmental values and where the highway is not so advanced as to make new hearings meaningless, Monroe County Conservation Council, Inc. v. Volpe, 3 ELR 20006 (2d Cir. 1972), Arlington Coalition on Transportation v. Volpe, 2 ELR 20162 (4th Cir. 1972). For previous opinions in this case see 3 ELR 20130, 2 ELR 20648.

Counsel for Plaintiffs
Boyce R. Brown, Jr.
Mattoch, Edmunds, Kemper & Brown
841 Bishop Street, Suite 1401
Honolulu, Hawaii 96813

Michael R. Sherwood
Hart, Sherwood, Leavitt, Blanchfield & Hall
Suite 433 Dillingham Building
735 Bishop Street
Honolulu, Hawaii 96813

Counsel for Defendants
Robert K. Fukuda United States Attorney
Room 320, Federal Building
Honolulu, Hawaii 96813

[3 ELR 20689]

King, J.

FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER

Plaintiffs on May 3, 1973, moved for partial summary judgment "ORDERING DEFENDANTS TO CIRCULATE FOR COMMENT THE SO-CALLED 'PREFACE' TO THE EIS ON H-3". Defendants opposed the motion. The matter came before me for hearing on May 25, 1973, at which time evidence was received for and against the motion. the court took the matter under advisement and on June 1, 1973, notified the parties that an order would be entered granting the motion. In furtherance thereof, the court makes the following findings of fact and conclusions of law.

Findings of Fact

1. On August 2, 1972, Defendants published a statement entitled "Preface to Final Environmental Statement for Interstate Route H-3 Halawa Interchange to Halekou Interchange Oahu, Hawaii"

2. Prior thereto a "Final Environmental Statement Administrative Action" for this project had been prepared in 6 volumes, having been first circulated to various federal, state and local agencies in both draft and "prefinal form" and the comments received as a result of the circulation having been incorporated therein.

3. The "Preface" was not circulated to federal, state or local agencies in draft form nor were comments thereon solicited. Rather, the "Preface" was included as the introductory volume to the "Final Environmental Statement" which had theretofore been prepared. This 7-volume set was distributed to federal, state and local agencies but only as a final EIS and not for comment.

4. Upon inspection, the "Preface" in fact changes the concept and design for Interstate H-3 and contains land-use, air pollution and noise pollution studies relating to the changed concept and design which studies were not include in the other 6 volumes.

Upon consideration of the foregoing facts, the court reaches the following

Conclusions of Law

1. The so-called "Preface" is a supplemental statement as that term is defined and used in FHWA PPM 90-1, paragraph 6p.

2. In addition, the so-called "Preface" constitutes essentially a draft statement in itself. See Natural Resources Defense Council v. Morton, 337 F. Supp. 170, 3 ERC 1623, 2 ELR 20071 (D.D.C. 1972).

3. The requirements of NEPA and of PPM 90-1 have not been met unless and until the so-called "Preface" has been circulated and reviewed in accordance with the provisions of PPM 90-1, paragraph 6, and of 42 U.S.C. § 4332(2)(c), as they relate to a new EIS.

WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion or Partial Summary Judgment Ordering Defendants to Circulate for Comment the So-Called "Preface" to the EIS on H-3, be and the same is GRANTED.

IT IS FURTHER ORDERED that Defendants process the so-called "Preface" in the same manner as a new environmental statement in conformity with the provisions of 42 U.S.C. § 4332(2)(c) and PPM 90-1, paragraph 6p.

DATED: July 6, 1973, at Honolulu, Hawaii,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Plaintiffs on March 1, 1973, filed a Motion for Partial Summary Judgment and for an Order Compelling New Hearings. As spelled out in Plaintiffs' Summary Memorandum on New Hearings, [3 ELR 20690] and Citations of Additonal Authority filed on May 9, 1973, plaintiffs urge that this court:

(1) Order new "corridor" hearings.

(2) Order new "design" hearings.

(3) Order a new "report."

Plaintiffs argue that the design hearing already held was inadequate under the law and regulations then in force, that new hearings are required by the 1968 amendments to 23 U.S.C. § 128(a), and the subsequent revisions of FHWA PPM 20-8, and that the report required by FHWA PPM 20-8 (and subsequent revisions) or by the 1970 amendments to 23 U.S.C. § 128(a) and (b) was either not submitted, or was inadequate, or must be redone after new hearings.

The matter was set down for hearing and argument on June 21, 1973, at which time additional evidence was adduced.

Statement of Facts

1. Pursuant to the statutes, policies and procedures then in force, the State of Hawaii (Department of Transportation) held corridor hearings for the H-3 highway project on January 11, 1965 (Exhibit D-18), and again on May 10, 1965 (Exhibit D-19), and location approval was received from the FHWA on March 7, 1968 (Exhibit D-20). These hearings were held to consider "the economic and other effects" on the project. While some testimony necessarily involved social and environmental effects, no separate emphasis was given to these matters.

2. The 1968 amendments to 23 U.S.C. § 128(a) took effect on August 23, 1968. The 1970 amendments to 23 U.S.C. § 128(a) and (b) took effect on December 31, 1970. The relevant portions of FHWA PPM 20-8 as revised took effect on January 14, 1969, except for paragraph 6g which took effect on July 12, 1972. The latest revision was codified as 23 C.F.R. Chap. I, Part 790, which took effect on May 9, 1973.

3. A notice to request design public hearings for the Leeward segment of the proposed highway was published by the State of Hawaii (Department of Transportation) in both the Honolulu Star-Bulletin and the Honolulu Advertiser on October 22 and November 6, 1969 (Exhibit D-11). Written requests were solicited to be received on or before November 20, 1969. The notice related to "a portion of Interstate Route H-3. The section under study, approximately 5.0 miles in length, begins at the Red Hill Interchange and ends at the Moanalua Portal of the Trans-Koolau Tunnel." No request for a public hearing was received in response to this notice and therefore no such public hearing was held (Exhibit D-5).

4. A notice of design public hearing for the Windward segment of the proposed highway was published by the State of Hawaii (Department of Transportation) in the Honolulu Advertiser on April 24, 1970, and in the Honolulu Star-Bulletin on May 20, 1970 (Exhibit D-12). The notice announced that a public hearing would be held at the Castle High School Cafetorium, Kaneohe, Island of Oahu, at 7:30 P.M. on May 27, 1970 (a Wednesday) "for the purpose of receiving testimony and evidence relating to the design of a portion of Interstate Route H-3. The section under consideration includes that portion from the Trans-Koolau Tunnel to Halekou Interchange." The notice stated:

"Interested persons will be heard particularly with reference to the economic and social effects of such designs and its impact on the environment. The public hearing will also discuss relocation assistance programs and tentative schedules for right-of-way acquisition and construction."

The hearing was held as announced (Exhibits D-10, D-10a, and D-6).

5. There is no document identified as a "report" within the meaning of the 1970 amendments to 23 U.S.C. § 128(a) and (b), or as a "study report" within the meaning of FHWA PPM 20-8, paragraph 10b, (January 14, 1969) or of 23 C.F.R. § 790.9(b). Defendants list on pages 15-16 of their Memorandum in Opposition to Plaintiff's Second Cause of Action on Public Hearings filed June 6, 1973, the documents actually submitted "pursuant to Section 10b, PPM 20-8". These include four documents entitled "Environmental Statement for [each segment]" (Exhibits D-13, D-14, D-15, D-16) and a document entitled "Evaluation of Testimonies, May 27, 1970" (Exhibit D-10a).

6. Design approval for the Leeward segment was requested by letter dated January 23, 1970 (Exhibit D-1), and granted by letter dated February 16, 1970 (Exhibit D-2). Design approval for the Windward segment was requested by letter dated July 8, 1970 (Exhibit D-3) and granted as of August 7, 1970 by Letter of Approval (Form PR-1240) dated August 12, 1970 (Exhibit D-4).

7. PS&E (plans, specifications and estimates) approval has not been granted.

8. Approximately $3,842,000 has been spent to date on proposed Interstate Route H-3 for studies and designs conducted by consulting engineering firms engaged by the State of Hawaii. This total does not include costs of work done by the State Department of Transportation. In addition, the design and construction of the Halawa Interchange and the design and construction of the Halekou Interchange and Makai Windward section (Halekou Interchange to Kaneohe Marine Corps Air Station) have proceeded and will shortly be completed. (Affidavit of Herbert M. Mandel attached to Second Supplemental Memorandum in Opposition of Plaintiffs' Motion for Partial Summary Judgment, filed June 22, 1973; and Stipulation filed September 15, 1972).

9.By affidavit filed on June 25, 1973, the Acting Director of the Department of Transportation, State of Hawaii, informed the court that he had by memorandum (a copy of which is attached to the affidavit) instructed the Highways Division of the department to conduct a fourth public hearing on the proposed Interstate Project H-3. By Plaintiffs' Second Supplemental Memorandum on New Hearings filed on July 6, 1973, plaintiffs argue that this proposed fourth public hearing might satisfy the current requirements of a design public hearing but not of a corridor public hearing. The state is in fact awaiting this order before proceeding with this proposed fourth public hearing.

From the foregoing facts and referenced exhibits, documents, and portions of the record, I reach the following

Conclusions of Law

1. The 1968 amendments to 23 U.S.C. § 128(a) apply to this project and require expanded "location" hearings that consider not only the economic effects of the proposed location, but also the social and environmental effects of the plan and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.

Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972) sets the definite standard that the expanded hearings are required whenever PS&E approval has not been given prior to the effective date of the amendment (August 23, 1968). The test suggested in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 3 ERC 1995, 2 ELR 20162 (4th Cir. 1972), would call for the expanded hearings if the costs of altering or abandoning the proposed location would not certainly outweigh whatever benefits might be derived therefrom as where, for example, construction had not yet begun.

2. Neither FHWA PPM 20-8 (January 14, 1969) nor 23 C.F.R. § 790 (May 9, 1973) requires new corridor hearings for proposed Interstate Route H-3.

As pointed out in Arlington Coalition on Transportation v. Volpe, supra, paragraph 6d. (1) of PPM 20-8 (January 14, 1969) applies only to projects which had not received location approval prior to January 14, 1969. Contra: Keith v. Volpe, 4 ERC 1350 (C.D. Cal. 1972). 23 C.F.R. § 790.5(d)(1) (May 9, 1973) reads the same as the earlier PPM. In view of 1 above, this may be a distinction without a difference.

3. The "highway design public hearing" held on May 27, 1970, was not sufficient to satisfy the expanded requirements of 23 U.S.C. § 128(a).

Whatever administrative convenience may be served by dividing proposed Interstate Route H-3 into segments, for purposes of § 128 (a) it is one project, i.e., neither the Leeward Interior nor Windward Interior segment stands alone as a viable highway without the other segment. The [3 ELR 20691] May 27, 1970, hearing was limited to "only the portion between the Moanalua Portal of the Koolau Tunnel and Halekou Interchange." (Tr. of Public Hearing p. 5).

The hearing was otherwise limited improperly: "Of course, we're not here tonight to debate the pro's and con's of the proposed improvements . . ." (Tr. of Public Hearing p. 7). See Monroe County Conservation Council, Inc. v. Volpe, supra, note 7 at page 701. Although economic, social and environmental views were solicited, they were limited to "views on major highway design features".

4. The "highway design public hearing" held on May 27, 1970, and the opportunity for such a hearing advertised in October and November 1969, did not meet the requirements of a "highway design public hearing" under PPM 20-8 as then in force and do not meet the requirements of 23 C.F.R. § 790 as presently in force.

Again, whatever administrative convenience may be served by dividing the proposed highway into segments, for purposes of public hearings it is one project. Construction of the Leeward segment up to the Koolau Mountains makes no sense without the Windward segment up to the other side of the Koolau Mountains, and neither segment makes sense unless both are connected by a tunnel through the mountains. The public convenience may well be served by holding sessions at different locations, e.g., one session on Leeward Oahu and one session of Windward Oahu, but the permissible discussion at each session should be the entire project, not only the Leeward segment or the Windward segment. Yet in each case, the hearing was so limited.

5. The expanded "location" hearings called for by the 1968 amendments to 23 U.S.C. § 128 (a) may be combined with either a "corridor public hearing" or a "highway design public hearing" as those latter terms are defined in 23 C.F.R. § 790.3 (a) and (b) (May 9, 1973).

Much confusion arises from the labels applied to the several hearings. 23 U.S.C. § 128 (a) does not call for a "corridor public hearing" or a "highway design public hearing" but simply for "public hearings". The refinement into "corridor" hearings and "design" hearings was introduced by FHWA PPM 20-8, and is carried on under 23 C.F.R. § 790. A "single combined corridor and highway design public hearing" is permitted under certain circumstances, and no hearings are required for some road projects.

The occasions for requiring hearings are not identical under § 128 (a) and 23 C.F.R. § 790. The latter requirements are more pervasive.

The terms "design", "location" and "corridor" are used ambiguously. To some extent, the design of a highway affects its location, so that "location" becomes an aspect of "design". On the other hand, the "location" of a highway within a "corridor" may shift appreciably without a change in the "corridor".

Monroe County Conservation Council, Inc. v. Volpe, supra, discusses the interaction among these concepts and concludes: "We think it is clear that the requirements of the highway design hearing, at outlined in PPM 20-8, will be met by any hearing sufficient to satisfy the requirements of 23 U.S.C. § 128 (a), since the statute requires that the state consider 'the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing . . .' Therefore, it is unnecessary for us to decide whether or not the PPM, by its own terms, see e.g., PPM 20-8 § 6 (d), requires the design public hearing for this project which was under way when the PPM was issued." (at page 702).

6. The report required by the 1970 amendments to 23 U.S.C. § 128 (a) and (b) and the study report required by 23 C.F.R. § 790.9 (b), must be prepared and submitted after the further public hearings hereinafter ordered.

The study report referred to in 23 C.F.R. § 790.9 (b) may be used to satisfy the § 128 requirements. See FHWA Notice EV-20 of March 8, 1971.

Defendants argued that they had complied with the § 128 report requirement. Inasmuch as further hearings must be held, that issue becomes moot. In this connection, a future report should respond to the itemization in 23 C.F.R. § 790.3 (c).

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs' motion for partial summary judgment with respect to the Second Cause of Action (paragraphs 27-33 of the Complaint) be and the same is GRANTED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that:

(a) Defendants have not complied with the provisions of 23 U.S.C. § 128 (a) and (b), as amended in 1968 and in 1970, or of FHWA PPM 20-8 or 23 C.F.R. § 790 with respect to a highway design public hearing;

(b) In order to so comply with the requirements of 23 U.S.C. § 128 (a) one or more public hearings (which may be in one or more sessions at one or more locations) must be held at which members of the public are permitted to discuss and to present information concerning the economic and social effects of the proposed location of Interstate Route H-3 (in its entirety), its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the City and County of Honolulu or by the State of Hawaii, and at which persons in rural areas or through or contiguous to whose property the proposed highway will pass may express any objections they may have to the proposed location of such highway;

(c) In order to so comply with the requirements of 23 C.F.R. § 790 one or more public hearings (which may be in one or more sessions at one or more locations) must be held at which members of the public are permitted to present views on the highway design features and specific location of Interstate Route H-3 (in its entirety), including the social, economic, environmental and other effects of alternate designs and of alternate specific locations;

(d) The "Final Environmental Statement" and "Preface to Final Environmental Statement" shall be made available to the public as provided in FHWA PPM 90-1 not later than the first notice of public hearing referred to in subparagraphs (b) and (c) above and at any such hearing comments thereon from members of the public shall be received;

(e) A "corridor public hearing" as that term is defined and provided for in 23 C.F.R. § 790 is not required;

(f) The requirements set out in subparagraphs (b) and (c) above may be met by holding one combined hearing (which may be in one or more sessions at one or more locations);

(g) In calling and holding such hearing or hearings the provisions of 23 C.F.R. § 790 shall be followed where applicable, (more particularly, the provisions of § 790.7 without overlooking subparagraphs § 790.7 (a) (4) and § 790.7 (a) (5), and bearing in mind the requirements of paragraphs § 790.9 (d) and § 790.10) and the phrase "social, economic, and environmental effects" shall have the meaning ascribed thereto in 23 C.F.R. § 790.3 (c), effective May 9, 1973.

(h) 23 U.S.C. § 128 also requires that, following the hearing or hearings referred to in subparagraph (a) above, a report which indicates the consideration given to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or hearings or which were otherwise considered, shall be submitted to the Secretary of Transportation together with the required certification as to the holding of the hearing or hearings; and

(i) The report referred to in subparagraph (f) above may be submitted as part of, but preferably separately identifiable from the other parts of, the study report required by 23 C.F.R. § 790.9 (b), and may be coordinated with the discussion of the same matters in any environmental impact statement prepared with respect to this project pursuant to the requirements of NEPA.

DATED: Honolulu, Hawaii, July 13, 1973.