City of Davis v. Volpe

No. Civil S-2598 (E.D. Cal. August 13, 1973)

Summary judgment is granted against the Department of Transportation and an injunction issued against further construction on an interstate highway interchange since plaintiff city was not afforded an opportunity to participate in a design hearing as required by § 23 of the 1968 Federal Aid Highway Act and FHWA PPM 20-8. The court rules, without elaboration, that plaintiff lacks standing under either NEPA or the California Environmental Quality Act to challenge the interchange project on the basis of adverse effects on the city's environment and water supply. Decision is postponed on plaintiff's claim for attorney's fees.

Counsel for Plaintiff
David Pesonen
Garry, Dreyfus, McTernan & Brotsky
Suite 501
341 Market Street
San Francisco, California 94105

Counsel for Defendants
D. Dwayne Keys U.S. Attorney
William B. Schubb Asst. U.S. Attorney
650 Capitol Mall
Sacramento, California 95814

Elias D. Bartas
P.O. Box 1499
Sacramento, California 95814

Counsel for Intervenor The Hawaiian Corporation
Chester A. Rogaski
Newman, Robinson & Dunn
241 Georgia Street
Vallejo, California 94590

[3 ELR 20890]

Wilkins, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The parties to this action have submitted to this Court a document entitled "Joint Findings of Fact and Conclusion of Law" (attached hereto as an appendix). After a thorough review of said "Joint Findings of Fact and Conclusions of Law", this Court hereby adopts the statement of the case history, the findings of fact and the conclusions of law contained therein insofar as the parties are in agreement;¹ insofar as the parties are not in agreement, the Court hereby issues its own findings of fact and conclusions of law.

This action was brought by plaintiff City of Davis by complaint filed on October 24, 1972, seeking declaratory and injunctive relief respecting a portion of a highway project known as the Kidwell Road Interchange. On January 9, 1973, the matter was heard on plaintiff's motion for summary judgment and cross-motions for summary judgment made by all named defendants and intervening defendants.

At the January 9th hearing, plaintiff appeared by its counsel David E. Pesonen, Esq., and the firm of Garry, Dreyfus, McTernan & Brotsky. Defendants California Department of PublicWorks, James A. Moe and Robert Datel ("state defendants" herein) appeared by their attorneys Elias D. Bardis and Bertram White; defendants John A. Volpe, Sheridan E. Farin adn Donald Trull ("federal defendants" herein) appeared through their attorneys Dwayne Keyes, United States Attorney, by William B. Shubb, Esq., Chief Assistant United States Attorney; intervening defendant City of Dixon appeared by and through its attorney E. C. Sylvia, Esq.; intervening defendant C. M. Syar and The Hawaiian Corporation appeared through its attorneys, Newman, Robinson and Dunn by Chester A. Rogaski, Esq.; and intervening defendant Welcome-American Fertilizer Company appeared by and through its attorney Joseph W. Raftery, Esq.

On April 11, 1973, this Court entered a temporary restraining order directed to defendants to restrain construction on the Kidwell Road Interchange pending a ruling on the aforementioned motions for summary judgment. Also on April 11, 1973, the Court entered its memorandum and order inviting further evidence and argument on the question of plaintiff's standing to maintain this proceeding. Further hearing on the issue of plaintiff's standing was had on April 27, 1973, all parties named herein appearing by their counsel or having notified the Court of waiver of their appearance.

At said hearing plaintiff, to prove standing, introduced testimony of its water expert to establish that the construction of the Kidwell Road Interchange would adversely affect its water supply.Plaintiff further introduced evidece by way of its planning expert, to show the adverse impact the construction of the Kidwell Road Interchange would have on the environment of City of Davis and its municipal facilities.

On May 9, 1973, the Court entered its memorandum and order (1) finding that the plaintiff had standing to maintain that portion of this action relating to its second cause of action, and (2) granting plaintiff's motion for summary judgment on the second cause of action of plaintiff's complaint, respecting violations by state and federal defendants of the design public hearing and notice requirements set forth in § 23 of the 1968 Federal-Aid Highway Act (23 U.S.C. § 128), and Policy and Procedure Memorandum 20-8 promulgated January 14, 1969, and declaring defendants' construction of the Kidwell Road Interchange to be in violation of said statute and the regulation adopted thereunder. Said memorandum and order provided for an injunction against further work on the project until the defendants submit satisfactory evidence of compliance with the design hearing requirements of 23 U.S.C. § 128 and Policy and Procedure Memorandum 20-8 promulgated January 14, 1969.

In the same memorandum and order referred to above, entered on May 9, 1973, the Court invited further hearing on the question of whether plaintiff should be required to post security as a condition of injunctive relief under the provisions of Federal Rules of Civil Procedure, Rule 65 (c). Thereafter, state defendants moved for a modification of the injunctive relief anticipated by the Court's May 9th order to permit construction of an overcrossing on Interstate Highway 80 at the Kidwell Project location. Hearing on this motion was consolidated with hearing on the matter of plaintiff's posting security and held on May 18, 1973.

On May 25, 1973, this Court entered its order denying state defendants' motions to modify or amend the scope of the injunction set forth in the Court's memorandum and order of May 9, 1973.

On June 18, 1973, this Court entered its order holding that the injunction provided for in the May 9th order was in ligal effect a final order, that Rule 65 (c) was inapplicable, and that plaintiffs are not required to post security as a condition of any order granting the injunction pursuant to the May 9, 1973, memorandum and order.

Still pending before this Court are the following matters:

(1) Motion under Federal Rule 24 (a) filed April 23, 1973, by Maynard Skinner, Joan Poulos, Robert B. Black, and Richard Holdstock for leave to intervent as plaintiffs; (2) Motions by defendants for summary judgment dismissing the first, third, fourth, and fifth causes of action of plaintiffs' complaint; and (3) Plaintiff's sixth cause of action for attorney's fees.

The matter having been fully briefed and argued, and the Court having considered the evidentiary testimony, affirdavits and exhibits, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACTS

1. The Kidwell Interchange, which is the subject of this action, [3 ELR 20891] would, if constructed, be a part of the federal Interstate and Defense Highway System, subject to 90% federal funding.

2. The parties to this litigation and their capacities are as follows:

(a) Plaintiff, City of Davis, is an incorporated municipality under the California Government Code. Plaintiff has a population of approximately 27,000 persons and is situated at the Western edge of Yolo County and approximately 1.4 air miles from the highway project herein complained of and 3.5 miles by road. The project is situated in Solano County.

(b) The named defendant, John A. Volpe, was at the time this action was commenced Secretary of the United States Department of Transportation (DOT). Pursuant to the Federal-Aid Highway Act, 23 U.S.C. §§ 101, 103 (c), et seq., defendant Volpe had the authority and the responsibility for FHWA to approve, inspect and accept the planning and construction of portions of the Interstate and Defense Highway System; said defendant Volpe had and his succesor now has the further responsibility to carry out the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347, as they apply to DOT.

(c) Defendant Sheridan A. Farin was the Regional Federal Highway Administrator of Region 9 of the Federal Highway Administration (FHWA), an agency within the DOT. Said defendant or his successor was the particular federal official who approves, inspects, and accepts planning and construction of portions of the Interstate and Defense Highway System within Region 9 (which encompasses California, Nevada, Arizona, Hawaii, Guam and American Samoa).

(d) Defendant Donald E. Trull is the Federal Division Engineer for the California Division of Region 9 of the FWHA. Said defendant is the particular federal official directly responsible for approving, inspecting and accepting the planning and construction in California of portions of the Interstate and Defense Highway System.

(e) Defendants Volpe, Farin and Trull are herein collectively referred to as "federal defendants."

(f) Defendant California Highway Commission is an agency of the State of California consisting of seven members appointed by the Governor of California to serve for periods of four years each. Pursuant to California Streets and Highways Code §§ 70-86, said defendant establishes policies and controls for locating, planning, and constructing the california highway system, including portions thereof which are part of the Interstate and Defense Highway System.

(g) Defendant California Department of Public Works is an agency of the State of California. Pursuant to California Streets and Highways Code § 90, said defendant is authorized and directed to lay out and construct all state highways, including those which are part of the Interstate and Defense Highway System, Between terminals designated by law and on the locations determined by defendant California Highway Commission. The sub-agency within defendant California Department of Public Works which performs most of these responsibilities is the california Division of Highways (CDH).

(h) Defendant James A. Moe is the Director of the California Department of Public Works.

(i) Defendant Robert Datel is the State Highway Engineer and Chief of the California Division of Highways (CDH). Pursuant to the provisions of California Streets and Highways Code §§ 51 and 51.5, defendant Datel is appointed by and is directly responsible to the Director of the California Department of Public Works for all California Division of Highways activities.

(j) Defendants California Highway Commission, California Department of Public Works, James A. Moe, and Robert Datel are herein collectively referred to as "state defendants."

3. Maynard Skinner, Joan Poulos, Robert N. Black, and Richard Holdstock moved this Court for leave to intervene as plaintiffs; said prospective plaintiffs are citizens, residents, taxpayers and duly elected members of the City Council of plaintiff The City of Davis.

4. The Kidwell Interchange is a part of a Federal-Aid Highway project. The interchange is part of a larger construction project involving widening of Interstate Highway 80 for a distance of approximately 2.4 miles. The interchange is situated approximately midway in the project at approximately Engineering Station number 395; the northeastern portion of the interchange project lies approximately 1.4 air miles southwest of the city limits of the City of Davis and 3.5 miles by road.

5. Upon completion, the Kidwell Interchange would not be joined to any existing roads connecting with Interstate 80.Immediately adjacent, on both sides of the interchange, are areas designated for industrial development by the Solano County General Plan of 1967, consisting of a roughly triangular area of approximately 1,320 acres to the northwest of the interchange and approximately 2,120 acres in an elongated parcel running northeasterly from the City of Dixon parallel to Interstate 80 southeast of the highway. Both the aforementioned proposed industrial areas abut the South Fork of Putah Creek, which is also the southwestern boundary of property occupied by the University of California at Davis.

6. On February 3, 1958, state defendants requested approval of basic design features from the Bureau of Public Roads, now FHWA, for widening, minor realignment and elimination of grade access, including certain interchanges, on that portion of Interstate 80 from the City of Vacaville to the Yolo County line in the County of Solano, a distance of approximately 16 miles. On February 18, 1958, said request was approved and covered the segment of Interstate 80 that is the subject of this litigation.

7. On October 21, 1958, the California Division of Highways and the Solano County Board of Supervisors executed a freeway agreement pertaining to approximately 2.8 miles of Interstate 80 in the vicinity of the project that is the subject of this litigation. Said freeway agreement provided for parallel frontage roads, affording access to adjoining landowners, and did not provide for construction of an interchange at or near the Kidwell Interchange location. Said freeway agreement provided that it could be modified by mutual consent of the parties.

8. On January 2, 1962, the Solano County Board of Supervisors executed a modification of the October 21, 1958, freeway agreement, providing for an interchange at approximately Station 417, approximately 2,200 feet from the Station 395 location now proposed for the Kidwell project.

9 The FHWA approved the basic design features of the Kidwell Road Interchange, but agree to participate only in that portion of the cost of these features which does not exceed the estimated cost of acquiring existing private access rights. Consequently, the Division of Highways notified the Solano County Board of Supervisors on June 10, 1963, that the state declined to execute the January 2, 1962, proposed freeway agreement and recommended that planning of access control, right-of-way acquisition and construction proceed on the basis of the October 21, 1958 agreement.

10. On July 7, 1970, a freeway agreement was executed between the State Division of Highways and the Solano County Board of Supervisors, superseding the October 21, 1958, agreement and providing for an interchange at the Kidwell project location.

11. The interchange is a portion of a Federal-Aid Highway project involving the by-passing of the City of Davis.

12. At no time during the planning stages, nor during the stages in which the state defendants sought federal funding and approval of the interchange, did the state defendants afford plaintiff an opportunity to participate in a design hearing as required by 23 U.S.C. 128 and Policy and Procedure Manual 20-8 promulgated January 14, 1969.

13. On the effective date of the 1968 amendment to 23 U.S.C. § 128, to wit, August 23, 1968, and on the effective date of Policy and Procedure Memorandum 20-8, to wit, January 14, 1969, the Kidwell Road Interchange project had not reached such a stage of completion [3 ELR 20892] that compliance with said statute and regulation were impracticable. The Court finds that defendants have failed to produce sufficient evidence to support a finding of design approval.

14. FHWA approval of plans, specifications and estimates (PS&E approval) for the project including the Kidwell Road Interchange was received by state defendants on April 18, 1972.

15. FHWA authorization for state defendants to advertise for bids on the project was given on May 30, 1972. The state defendants awarded the construction contract for this highway project to C. M. Syar and The Hawaiian Corporation, a joint venture, on August 28, 1972.

16. State defendants completed acquisition of 84 acres of right of way for the entire project on or about September 28, 1972.

17. Site preparation and construction of the interchange commenced approximately October 1, 1972. At the time of the commencement of this litigation, extensive earthwork had been completed on the Kidwell Road Interchange, the imported fill material for the interchange was in place and approximately 50% of the interchange was complete.

18. On June 21, 1971, state defendants submitted a document entitled "Negative Declaration of Environmental Impact," said document was submitted for FHWA concurrence and concurred in by defendant Trull on behalf of federal defendants on July 16, 1971.

19. At all times pertinent to this litigation and at the present time the land on either side of the Kidwell Road Interchange location has been and now is devoted entirely to agriculture and contains no structures. There exist a number of private, at grade, road openings directly onto Interstate 80; approximately 4,500 feet to the west of Station 395, there is a county road crossing at grade known as Tremont Road which would be closed by accompanying widening of Interstate 80.

20. The channel of Putah Creek near the Kidwell Interchange is not publicly owned land consisting of a public park, recreation area, or wildlife and waterfowl refuge of national, state, or local significance as determined by the federal, state, or local officials having jurisdiction thereof within the meaning of 23 U.S.C. 138.

CONCLUSIONS OF LAW

1. Plaintiff City of Davis has standing to bring this action under § 10 of the Administrative Procedure Act (5 U.S.C. § 702) in that it is a community that is being bypassed by the Kidwell Road Interchange within the meaning of 23 U.S.C. § 128 and Policy procedure Manual 20-8 promulgated January 14, 1969.

2. The City of Davis is not barred from relief on its second cause of action, to wit, violation of 23 U.S.C. 128 and Policy and Procedure Manual 20-8 promulgated January 14, 1969, by reason of laches and unreasonable delay.

3. With respect to the Kidwell Road Interchange, the state and federal defendants acted in violation of the requirements imposed upon them by § 23 of the 1968 Federal-Aid Highway Act (23 U.S.C. § 128) effective on August 23, 1968, and Policy and Procedure Memorandum 20-8 promulgated on January 14, 1969.

4. With respect to plaintiff's third cause of action alleging that federal defendants have not complied with the provisions of 23 U.S.C. § 138 requiring approval of the Secretary of Transportation of any interstate highway project that would use park, recreation and wildlife lands, defendants' motion for summary judgment is granted for the reason that Putah Creek in the vicinity of the Kidwell Road Interchange is not publicly owned land within the meaning of that statute.

5. With respect to plaintiff's first cause of action (National Environmental Policy Act of 1969 (42 U.S.C. §§ 4331-4337)) and fourth cause of action (California Environmental Quality Act of 1970, California Public Resources Code § 2100 et seq.), the Court finds that plaintiff does not have standing to maintain said causes of action.

6. With respect to plaintiff's fifth cause of action alleging a violation by state and federal defendants of the rights guaranteed to plaintiff and its citizens under the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States, plaintiff's motion for summary judgment is denied for the reason that relief granted pursuant to plaintiff's claim under 28 U.S.C. § 128 makes it unnecessary for this Court to reach these constitutional questions.

By reason of each of the foregoing findings of fact and conclusions of law, plaintiff is entitled to a permanent injunction, prohibiting defendants and each of them, their agents, servants and employees and all persons acting in concert with them, from expending moneys for and constructing the Kidwell Road Interchange or any part thereof, until state and federal defendants have submitted satisfactory confirmation to this Court that they have held a hearing and submitted the reports and transcripts required by 23 U.S.C. § 128 and Policy and Procedure Manual 20-8 promulgated January 14, 1969, and 23 C.F.R., Part 790 (38 F.R. 12103 et seq., May 9, 1973).

The motion of Maynard Skinner, Joan Poulos, Robert N. Black, and Richard Holdstock is granted.

Let judgment of dismissal be entered on the first cause of action.

Let judgment be entered in favor of plaintiff and against defendants on the second cause of action.

Let judgment be entered in favor of defendants and against plaintiffs on the third cause of action.

Let judgment of dismissal be entered on the fourth cause of action.

Let judgment of dismissal be entered on the fifth cause of action.

Judgment on the sixth cause of action shall await further deliberation.

1. However, the Court does not adopt the parties' joint proposal that the motion of Maynard Skinner, Joan Poulos, Robert N. Black, and Richard Holdstock be denied without prejudice.