Movement Against Destruction v. Volpe

No. 73-2136 (4th Cir. March 19, 1974)

The Fourth Circuit Court of Appeals affirms, on the opinion of the district court, a decision denying injunctive and declaratory relief to plaintiffs seeking to halt construction of an interstate highway in Baltimore pending satisfactory compliance with NEPA, the Federal-Aid Highway Act, the Clean Air Act Amendments of 1970, and the Department of Transportation Act. After noting that the lower court dismissed the complaint without prejudice to plaintiff's right to amend so as to raise points not already decided, the court expresses no opinion as to the relevance to the issues presented by this appeal of statutes and regulations enacted and promulgated since entry of the final order below. The court also declines to award plaintiffs attorney's fees. For the lower court's opinion, see 3 ELR 20667.

Counsel for Plaintiffs
John C. Armore
Suite 425, The Rotunda
711 W. 40th Street
Baltimore, Maryland 21211

Alfred H. Kreckman
20th Floor
10 Light Street
Baltimore, Maryland 21202

Counsel for Federal Defendants
Wallace H. Johnson Asst. Attorney General
Terrence L. O'Brien
George R. Hyde
Irwin L. Schroeder
Department of Justice
Washington, D.C. 20530

George Beall U.S. Attorney
Jean C. Rogers Special Asst. U.S. Attorney
U.S. Courthouse
111 W. Calvert Street
Baltimore, Maryland 21202

Counsel for State Defendants
Francis B. Burch Attorney General
Lloyd J. Hammond Special Attorney
Randy H. Lee Asst. Attorney General
1400 One South Calvert Building
Baltimore, Maryland 21202

Counsel for City Defendants
George L. Russell City Solicitor
City Hall
100 Holliday Street
Baltimore, Maryland 21202

Lawrence F. Rodowsky
Frank, Bernstein, Conaway & Goldman
2 Hopkins Plaza
Baltimore, Maryland 21202

[4 ELR 20278]

Per Curiam

The Movement Against Destruction (MAD) along with other community associations and individuals prayed an injunction and declaratory judgment from the District Court in October 1972, to bar further construction of the "3-A System", or segments thereof, of the Federal Aid Interstate System in Baltimore, Maryland, until the defendants — the Secretary of the Department of Transportation of the United States and the Chief of the Interstate Division for Baltimore — had satisfied the Court that they were complying with the aims and exactions of: The National Environmental Policy Act (NEPA), 42 USC § 4331 et seq., The Federal-Aid Highway Act, as amended, 23 USA § 101 et seq., The Clean Air Amendments of 1970, particularly 42 USC § 1857 et seq., and The Department of Transportation Act, as amended, 49 USC § 1651 et seq.

A class action was made of the suit by order of February 28, 1973, admitting as plaintiffs certain persons seeking to represent those citizens of Baltimore directly or adversely affected by such construction. The City was also allowed to intervene. Eventually, the suit was consolidated with two others which posed some of the questions presented in the master cause. The order of February 28, 1973 also framed the issues at stake.

The consolidated litigation was heard by District Judges Thomsen and Miller, sitting together. Their findings and conclusions are stated in an opinion filed June 22, 1973 and reported as Movement Against Destruction v. Volpe, 361 FS 1360. It comprises a strikingly comprehensive compendium of the multi-factual context of the suit, with lucid resolution of the many legal complications.

By a final order dated June 26, 1973 injunctive relief was denied in each of the combined actions. Also, the Court refused a declaratory judgment of violation by the defendants of any of the statutes heretofore listed. The two suits joined with the MAD action were left upon their respective calendars for adjudication as to issues not decided in the consolidated cause. Further, a reservation appears in the final order as follows:

"The Complaint in Movement Against Destruction, et al. v. John A. Volpe, Secretary of Transporation, et al., Civil No. 72-1041-M, be and the same is hereby dismissed, without prejudice to the right of the Plaintiffs originally named therein, or any of them, to file an Amended Complaint on or before November 1, 1973, with respect to any of the roads or segments in the 3-A configuration, raising any points which have not been theretofore decided."

On this appeal from the final order we affirm upon the opinion of the District Court. We decline to award plaintiffs counsel fees and we deny the petition for an injunction pending appeal which had been deferred for hearing along with the final argument of the appeal.

In oral argument appellant's counsel noted that since the entry of the final order, officials of the Federal Executive Department have promulgated regulations, and the Maryland legislature has passed laws, that might affect certain aspects of the proposed means of transportation in Baltimore. See e.g.: Presidential Executive Order No. 11, 748, December 4, 1973, and Environmental Protection Agency's revised regulations, 39 Fed. Reg. No. 10, Part 3, Jan. 15, 1974; 41 Maryland Code Anno. 15B, as amended November 13, 1973: Executive Order, Governor of Maryland, effective February 12, 1974. Defendants, in this connection, refer to the Emergency Highway Energy Conservation Act, Pub. L. 93-239, § 3, 87 Stat. 1046, 42 USLW 21 (1974), and to Presidential messages reported as 10 Pres. Docs. 72, 122, 140, 161 and 165. The District Court, of course, did not consider these matters and we express no opinion upon their relevancy to the issues presented on this appeal.

Affirmed.