Alaska Conservation Society v. Brinegar

No. A-33-73 (D. Alaska August 10, 1973)

The court refuses to issue a preliminary injunction against construction of the proposed Copper River Highway in southcentral Alaska because plaintiffs failed to show that they would suffer irreparable injury if the injunction were denied. Plaintiffs' assertions that construction of the highway would threaten the wilderness character of the area were countered by defendants' claims that the present construction is merely repair and maintenance of an existing roadway, and in any case are held by the court to be too speculative and remote to constitute irreparable harm. Although it notes that plaintiffs were persuasive that the highway is a federal project, the court does not rule on whether it is a major federal project significantly affecting the environment. Since this is not an exceptional case like Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971) in which a departure from established equitable doctrine is justified, an additional ground for denial exists in that, given the present state of the record, the court cannot find that plaintiffs are likely to prevail on the merits.

Counsel for Plaintiffs
Sanford Sagalkin
Falkner, Banfield, Doogan, Gross & Holmes
311 Franklin Street
Juneau, Alaska 99801

John D. Hoffman
Sierra Club Legal Defense Fund, Inc.
311 California Street, #311
San Francisco, California 94104

Counsel for Defendants
Ralph Stemp Asst. Attorney General
Rm 428, State Capitol Building
Juneau, Alaska 99801

Keith Goltz Asst. U.S. Attorney
P.O. Box 680
Anchorage, Alaska 99501

[3 ELR 20744]

Plummer, J.

MEMORANDUM AND ORDER

This is an action to enjoin the construction of the proposed Copper River Highway pending compliance with certain federal statutes. The Copper River Highway would link the town of Cordova with the present highway network in southcentral Alaska. The principal allegations in the complaint are (1) that an environmental impact statement for the entire proposed highway as a single unit has not been completed or considered, in violation of the National Environmental Policy Act of 1969 ("NEPA"),¹ (2) that the Secretary of Transportation has not yet determined whether feasible alternatives to the proposed highway exist, in violation of the Department of Transportation Act of 1966,² and (3) that to proceed with construction of the highway would interfere with the discretion of the Secretary of the Interior to recommend a wilderness-preserving classification for the area, in violation of the Alaska Native Claims Settlement Act of 1971.³

The case comes before the court on plaintiffs' application for a preliminary injunction. This application has been submitted without oral argument pursuant to stipulation filed July 26, 1973, and approved by the court on July 31, 1973. The court has previously denied plaintiffs' application for a temporary restraining order on the grounds that plaintiffs had not shown any threat of immediate and irreparable injury and that they had not shown that the activity sought to be restrained was a major federal action significantly affecting the quality of the human environment. See order filed June 29, 1973.

Under general principles of equity, there are two requirements for the issuance of a preliminary injunction. The applicant must show that he will suffer irreparable injury if the preliminary injunction is not issued, and he must also show that there is a strong liklihood that he will ultimately prevail on the merits. Sierra Club v. Hickel, 433 F.2d 24, 33 (9th Cir. 1970) aff'd 405 U.S. 727 (1972); Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969). Both requirements have been applied in this circuit to a case very much like the present one, La Raza Unida v. Volpe, 337 F. Supp. 221, 233 (N.D. Cal. 1971). See also Sierra Club. v. Hickel, supra.

This is not an "exceptional case' like Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), in which a departure from established equitable doctrine is justified. Lathan was a suit to prevent further construction of an interstate highway passing through the Central Area of Seattle until, inter alia, an impact statement had been submitted. The court held that Lathan was "one of those comparatively rare cases in which, unless the plaintiffs receive now whatever relief they are entitled to, there is danger that it will be of little or no value to them or to anyone else when finally obtained." 455 F.2d at 1117 (emphasis in original). Here the proposed highway will not pierce an urban neighborhood. Also, as the Lathan court emphasized, the defendants in that case admitted that an impact statement would eventually be required; the issue was when. Here the defendants vigorously contend that the present construction activity consists strictly of non-federal maintenance and repair of an existing roadway, and that there is nothing in the present activities which will lead inevitably to major federal involvement.⁴

Therefore the court holds plaintiffs must show that irreparable harm will result if the preliminary injunction is not issued and that there is a strong liklihood they will prevail on the merits.

Plaintiffs have confined their argument on the merits of the applicability of NEPA to the present construction activity. They have not attempted to make any showing with respect to the other allegations in their complaint. With respect to NEPA, they have concentrated on arguing that the present actions by the state are part of the federal project. On this point plaintiffs have been persuasive.⁵ However, they have not discussed as throughly the other [3 ELR 20745] requirement of NEPA, that the federal action be a "major" one "significantly affecting the quality of the human environment."⁶ Moreover, the record is not clear as to the present status and coverage of the various impact statements that have been prepared.⁷ In view of these deficiencies it would be inappropriate to decide from the present record whether there is a strong liklihood that plaintiffs will ultimately prevail.

Although plaintiffs may be able ultimately to prove that the present activities are part of a federal action, and perhaps a major one significantly affecting the quality of the human environment, the court finds that plaintiffs will not be irreparably injured if a preliminary injunction is denied. Plaintiffs' primary contention is that as the repair work progresses there will be a corresponding permanent loss of wilderness characteristics in the area along the west bank of the Copper River. This argument depends for its validity upon the probability of a large influx of people. This probability is slight, however, due not only to the rugged condition of the road even after repair but also to the road's origin in Cordova, a small town itself accessible only by water or air. Also, plaintiffs contend that present restoration work will likely require some additional gravel and rip-rap. This hardly qualifies as irreparable injury in the present context. Next, plaintiffs speculate that the state will elect to depart from the route contemplated in the impact statements by extending the road along an existing railroad bed to Chitina, where it would link up with the existing highway system. This, plaintiffs contend, would greatly magnify the influx of people and require additional physical alteration of the land. However, such harm is presently speculative and remote, because the departure would not occur until mile 82 and present work is apparently centered at and below the Million Dollar Bridge at mile 49. Finally, plaintiffs suggest that with the repair of the Million Dollar Bridge and of a major washout some 20 miles further the old railroad bed would be drivable in its entirety between Chitina and Cordova by certain types of vehicles. Again, this possibility is presently too speculative and remote to constitute threatened irreparable injury, especially in the absence of any evidence as to the number of vehicles that could be expected to attempt such a trip. For these reasons, the court finds that plaintiffs have failed to make the requisite showing of threatened irreparable injury.

Accordingly it is ORDERED that plaintiffs' application for a preliminary injunction is denied without prejudice.

1. 42 U.S.C. 4332.

2. 49 U.S.C. 1653(f).

3. 43 U.S.C. 1616(d)(2).

4. Furthermore, in La Raza Unida v. Volpe, 337 F. Supp. 221, 233 (N.D. Cal. 1971), the court applied the traditional test even though the highway sought to be preliminarily enjoined would pass through a heavily populated area. However, there are three reasons why it is doubtful that this decision undermines Lathan. First, it was decided a week earlier. Second, in La Raza there was disagreement over whether federal funds would be utilized. The absence of such disagreement in Lathan was one of the reasons given by the court for dispensing with the traditional test. Third, the La Raza court did not consider whether the usual test would have to be satisfied, but simply held that it was. In any event, the present case is distinguishable from both by the absence here of urban dislocation problems.

5. Plaintiffs begin by pointing out that the requirements of NEPA cannot be avoided by segmenting a joint state-federal project into separate state and federal parts, La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1971, Sierra Club v. Volpe, 351 F. Supp. 1002 (N.D. Cal. 1972), or by segmenting a major project into minor parts, Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir. 1971) (similar holding under Department of Transportation Act), Thompson v. Fugate, 347 F. Supp. 120 (E.D. Va. 1972), Indian Lookout Alliance v. Volpe, 345 F. Supp. 1167 (D. Iowa 1972).

Then to show that present state activities are part of a single, on-going, partly-federal project, plaintiffs make the following contentions. Except for present activities, no bridge repair has been attempted since the 1964 earthquake. (Defendants contend access to the bridges has become available only this year.) In 1964 the federal government conducted a feasibility study of the entire proposed highway in order to decide whether to authorize federal funds to restore that portion of the highway existing before the earthquake. Hearings were held to determine the design and location of the remaining unbuilt portion of the proposed highway. Impact statements were prepared. Federal funds have been expended on every section of the highway since the earthquake. The Federal Highway Administration had approved the use of federal funds for restoration work before the present suit was instituted, and withdrew its approval during the pendency of this litigation with the assurance that approval would be reinstated once the state had complied with NEPA.

These contentions, if correct, clearly would support the conclusion that the state would not be undertaking its present activities except for the apparent liklihood of federal support for the entire Copper River Highway project. However, in the view this court takes of the present motion, it is not necessary to decide whether present state activities are probably in violation of NEPA.

6. 42 U.S.C. 4332.

7. Plaintiffs state at page 1 of their brief filed July 6, 1973, that an impact statement covering mile 39 to mile 82 of the proposed highway was issued on March 5, 1973. However, the impact statement plaintiffs apparently refer to appears as Exhibit Y to the affidavit of Bruce Campbell filed July 31, 1973, and purports to cover mile 39 to the end at mile 116. Also, plaintiffs state at page 19 of their brief filed March 6, 1973, that defendants apparently do not intend to prepare an impact statement covering the highway from its beginning at Cordova (mile 0) to mile 39. However, exhibit Z to the Campbell affidavit purports to amend the earlier impact statement to include coverage from mile 0 to mile 39. (This later statement was apparently prepared after plaintiffs submitted their March 6th brief.)

Furthermore, there is no indication in the record whether these impact statements, apparently drafts, have been finalized in accordance with the Guidelines of the Council on Environmental Quality, 36 Fed. Reg. 7724 (April 23, 1971). Nor is there any indication of the extent to which the impact statements have been "taken into account" by the responsible officials as impliedly required by the Act. See Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332-1333 (4th Cir. 1972).

The parties seem to believe that no final statement has been submitted and thus that NEPA, if applicable, has not been complied with. However, it would be helpful to the court if affidavits were filed to clarify these matters.