Ecology Center of Louisiana, Inc. v. Coleman

Civ. A. No. 74-737 G(H) (E.D. La. January 8, 1976)

The court approves a stipulation settling this NEPA action which was brought to challenge construction of an interstate highway connector through a wetlands area south of New Orleans. The parties have stipulated that the defendants, the state highway department and the Federal Highway Administration, will abandon a 45-mile segment of proposed I-410 which was to run through undeveloped wetlands in Jefferson Parish, Louisiana. In addition, the defendants agree to prepare a supplemental environmental impact statement on the remaining 13 miles of the planned highway, which include a bridge over the Mississippi River. Plaintiffs may appoint three experts who will have the right of full participation in drafting the supplemental impact statement and in proposing and monitoring design and construction modifications in the remaining highway segment. The court expressly retains jurisdiction over the action for the purpose of making such other or further orders as may become necessary.

Counsel for Plaintiffs
J. Arthur Smith, III
Carlos E. Lazarus
201 Napoleon Street
Baton Rouge LA 70802
(504) 383-7716

Michael Osborne
First National Bank of Commerce Building
New Orleans LA 70112
(504) 529-5551

Michael A. Duplantier
806 Perdido St., Suite 206
New Orleans LA 70112
(504) 581-7011

John M. Holohan
Whitney Bank Building
New Orleans LA 70130
(504) 524-5558

Counsel for Defendants
Sharon P. Frazier
Robert Jones
Louisiana Department of Highways
P.O. Box 44245, Capitol Station
Baton Rouge LA 70804
(504) 389-6431

John R. Schupp, Asst. U.S. Attorney
500 Camp Street
New Orleans LA 70130
(504) 589-2921

Ralph L. Kaskell, Jr.
Deutsch, Kerrigan & Stiles
1 Shell Square
New Orleans LA 70130
(504) 581-5141

[6 ELR 20195]

West, J.:

CONSENT DECREE

The Ecology Center of Louisiana, Inc., the Orleans Audubon Society, Inc., the Sierra Club, and the Louisiana Shrimp Association, Inc., having filed their complaint herein on March 18, 1974, the defendants having appeared by their respective attorneys, and the parties having entered into a settlement in accordance with the stipulation annexedto this decree,

IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

I. The court has jurisdiction of the subject matter and of all persons and parties hereto.

II. The stipulation filed herein by the parties is considered fair and reasonable, and the same is hereby approved and made an order of the court.

III. The court orders compliance by the parties with the stipulation heretofore entered into and approved by the court and filed with this decree, all of which is hereby incorporated in this decree by reference.

IV. The jurisdiction of this cause is expressly retained by this court for the purpose of making such other or further orders as may become necessary.

STIPULATION

It is agreed and stipulated by and among the following parties: Plaintiffs, the Ecology Center of Louisiana, Inc., the Orleans Audubon Society, Inc., the Sierra Club, the Louisiana Shrimp Association, Inc.; Defendants, William T. Coleman, in his official capacity as Secretary of the United States Department of Transportation, Norbert R. Tiemann, in his official capacity as Administrator of the Federal Highway Administration (hereinafter FHWA) of the United States Department of Transportation, W. T. Taylor, Jr., in his official capacity as Director of the Louisiana Department of Highways (hereinafter LDH), Morris C. Reinhardt, in his official capacity as Division Administrator of the Federal Highway Administration of the United States Department of Transportation, and Gladney L. Manuel, Sr., in his official capacity as Chairman of the Louisiana Board of Highways; and Intervenors, Massman Construction [6 ELR 20196] Company and A.L. Johnson Construction Company, a joint venture, and St. Charles Parish, a political subdivision of the State of Louisiana, through the St. Charles Parish Police Jury; each being duly authorized, that:

A. Upon entry of a consent decree based upon this stipulation, the state defendants will promptly prepare and expeditiously process a legally sufficient unconditional request in accordance with 23 U.S.C. § 103 for the final withdrawal from the Interstate System of that portion of Interstate 410 extending from U.S. 90 near Boutte, Louisiana, generally east to the northern bank of the Mississippi River Gulf Outlet Canal east of New Orleans, Louisiana, (hereinafter referred to as the "deleted portion") as more fully shown in red on the attached map marked Exhibit 1. [omitted. — Ed.]^* The Administrator of the Federal Highway Administration under delegation from the Secretary of the Department of Transportation will grant the request of the Louisiana Department of Highways upon receipt of a legally sufficient request. Regardless of whether the matters contemplated in the foregoing two (2) sentences occur, it is expressly agreed that the LDH will not use the interstate funds and mileage currently allocated to the deleted portion for the construction of the deleted portion. However, the parties agree that this stipulation shall not be construed so as to preclude the use of said interstate mileage and funds elsewhere in the State of Louisiana but only so as to preclude the use of said interstate mileage and interstate funds for the deleted portion. Further, this stipulation shall not be construed to withdraw, delete and/or reallocate the interstate mileage and/or interstate funds for the proposed portion of Interstate 410 between the northern bank of the Mississippi River Gulf Outlet Canal and (I-10) east of New Orleans, Louisiana, as more fully shown in yellow on Exhibit 1, and for the proposed portion of I-410 from I-10 (west) to U.S. 90 near Boutte, Louisiana, as more fully shown in green on Exhibit 1.

B. The parties agree that neither the named defendants nor their agency, employees or anyone acting under their control, shall take any action whatsoever to reallocate the interstate funds and interstate mileage currently allocated to the deleted portion for the construction of the deleted portion. It is recognized, however, by the parties that this paragraph is binding only as to the parties to this stipulation. The defendants represent that there is no plan now contemplated at the present time by any of the defendants to propose for construction any roadway along the approximate route of the deleted portion.

C. Moreover, it is recognized that the plaintiffs expressly reserve their rights to seek all legal and equitable relief with respect to any portions of the highway for which their complaint has not been dismissed with prejudice pursuant to Paragraph V herein, including, but not limited to, their rights to seek all legal and equitable relief should the deleted portion of I-410 not be withdrawn from the Interstate System or should plans for the deleted portion of I-410 ever be reinstated or should plans for any other highway or roadway along the approximate route of the deleted portion of I-410 ever be proposed for construction. Furthermore, plaintiffs expressly reserve their rights to seek legal and equitable relief should any action be taken to propose or build interchanges on that portion of the proposed highway from I-10 (west) to U.S. 90 near Boutte, Louisiana other than those interchanges currently proposed at the intersections at I-10 (west), U.S. 61, La. 18, La. 48, La. 3127 (Donaldsonville-Boutte highway) and U.S. 90, as more fully shown by circles on the green on Exhibit 1. Should such litigation be in stituted, the defendants reserve their rights to defend such litigation and assert any defenses.

D. Moreover, it is recognized that the defendants expressly reserve their rights to seek all legal and equitable relief to any challenges by litigation or otherwise by any of the plaintiffs, their members, agents, employees or anyone acting under their control or their successors should plans for any other highway or roadway along the approximate route of the deleted portion of I-410 ever be proposed for construction. Should additional interchanges on that portion of I-410 from I-10 (west) to U.S. 90 near Boutte, Louisiana, other than those currently proposed at I-10 (west), U.S. 61, La. 18, La. 48, U.S. 90 and La. 3127 (Donaldsonville-Boutte highway) be planned, and should such additional interchanges be challenged by litigation or otherwise the defendants reserve all rights to defend such litigation and assert any available defenses thereto.

II.

A. The parties agree that a supplement (draft and final) to the existing final EIS shall be prepared for that portion of I-410 from I-10 (west) to U.S. 90 near Boutte, Louisiana, in accordance with existing laws including, but not limited to, the National Environmental Policy Act, 42 U.S.C. § 4332. This supplement shall be circulated to all appropriate agencies for review and comment as if it were an initialEIS. The parties, except intervenors, shall participate and cooperate in the preparation of this supplement without undue delay. For the preparation of this supplement, the LDH will retain an independent, competent environmental consulting firm with experience and expertise in Louisiana wetlands ecology, hereinafter referred to as the "consultant." The plaintiffs shall engage no more than three (3) experts who shall participate fully in the preparation of the EIS supplement as set forth below. Intervenor, Massman-Johnson, will pay up to a total of $500.00 out-of-pocket expenses in the aggregate necessarily incurred by plaintiffs' experts in connection with the work they do in the preparation of the EIS provided supporting vouchers are submitted. State and federal defendants shall make reasonable efforts to cooperate with plaintiffs' experts to minimize their out-of-pocket expenses in connection with work done in preparation of the FEIS supplement in accordance with defendants' travel regulations.

Prior to the beginning of the work on the EIS supplement, the consultant, LDH and FHWA personnel shall meet with plaintiffs' experts and receive their suggestions as to the factors which should be studied in the EIS supplement process. All suggestions submitted by said plaintiffs' experts shall be considered in the EIS supplement to the fullest extent practicable and in an objective and good faith manner. Each suggestion submitted by plaintiffs' experts shall be incorporated into the design features and construction methods of the highway if found to be reasonably feasible by the state and federal defendants after a careful and equal balancing of economic, social, and environmental factors. It is understood that in determining whether a proposed design feature or construction method is reasonably feasible, the state and federal defendants will consider all relevant factors including, but not limited to, economic, social, environmental, safety, operational, and engineering factors.

Thereafter, the LDH, the FHWA and consultant personnel shall have monthly status conferences to review the work-in-progress by the consultant and any documents reflecting said work-in-progress. The plaintiffs' experts shall be given seven (7) days prior to written notice of said status conferences and shall be afforded the opportunity to participate in the status conferences. In the event that plaintiffs' experts do not attend these status conferences, said conferences shall proceed as planned in their absence. Status conferences may be cancelled, rescheduled, or added upon agreement of the LDH, the FHWA, the plaintiffs' experts and the consultant.

Throughout the process by which the EIS supplement is prepared, the experts selected by the plaintiffs shall have access at reasonable times and places to all data and other information concerning the FEIS supplement, proposed design features and construction methods for the highway, and any other information to which they would be entitled under public information laws, and to all personnel participating in the preparation of the EIS supplement, and to all personnel participating in the selection of design features and construction methods of the highway. The plaintiffs' experts shall be afforded the right to make suggestions on an ongoing basis as to the preparation of the FEIS supplement and to review work-in-progress by the consultant, but in a manner so as not to impede the work of the consultant. All such suggestions made in writing by these experts must be received and these experts must receive a written explanation if their suggestions are modified or rejected.

In addition, the LDH shall hold at least one informational public hearing concerning the proposed highway from I-10 (west) to U.S. 90 near Boutte, Louisiana and may, from time to time, hold informal meetings.

In addition, the LDH and FHWA shall fully coordinate, consult and cooperate with all appropriate agencies pursuant to the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 et seq.

It is understood by all parties that it is not the function of the [6 ELR 20197] plaintiffs or the plaintiffs' experts to a) determine the final content of and recommendations contained in the supplement to the FEIS; b) balance the social, economic, and environmental factors set forth above in this paragraph; or, c) make final administrative decisions regarding this highway, including but not limited to the location, design features, and construction methods, but rather it is the intent of the parties hereto that these decisions are reserved to the state and federal defendants in accordance with law. Further, nothing herein contained shall be construed so as to derogate from the responsibility and discretion vested in the state and federal defendants by applicable laws, regulations, and operating procedures, nor to diminish the state and federal defendants' responsibilities to comply with applicable laws, regulations, and operating procedures. Furthermore, nothing herein contained shall be so construed as to diminish plaintiffs' rights to judicial review under the law.

B. Each design feature and/or construction method found by the LDH and FHWA to be reasonably feasible at the conclusion of the EIS supplement and the Fish and Wildlife Coordination Act review processes mentioned hereinabove shall be incorporated into the contracts for the construction of the highway from I-10 (west) to U.S. 90 near Boutte, Louisiana. If the LDH does not insure that the design features and/or construction methods found to be reasonably feasible are incorporated into said construction contracts, the plaintiffs may apply to the court for an order compelling the LDH to include said design features and construction methods into the construction contracts.

C. It shall be the responsibility of the LDH to insure that the contractors fully comply with the provisions of the contracts incorporating said design features and construction methods. In addition, plaintiffs' experts will be afforded reasonable access to the construction sites upon reasonable notice to the LDH so that they may view construction activities for compliance with such provisions of these contracts. If plaintiffs' experts believe that there have been violations of the said contract provisions, they may give notice of these alleged violations to the LDH; and the LDH shall take appropriate action to investigate said violations and, if the LDH finds that violations have in fact occurred, to correct said violations. If the plaintiffs' experts disagree with the action taken or not taken by the LDH to remedy alleged violations, the plaintiffs may apply to the court for an order compelling the LDH to remedy the alleged violations.

III.

The parties agree that the letting of contracts and the construction of the I-410 bridge near Luling, Louisiana, (substructure and superstructure mainspan and bridge approaches) as more fully shown in yellow on the attached maps marked Exhibit Nos. 2, 3,and 4 [all omitted. — Ed.], shall proceed without delay and plaintiffs will take no action to impede or delay the proposed bridge construction. It is expressly stipulated, however, that the construction of the Luling Bridge shall in no way prejudice the studies described in Paragraph IIA hereinabove as to the location of, or design of that portion of the proposed highway from I-10 (west) to U.S. 90 near Boutte, Louisiana; provided, however, it is expressly recognized as to location that the termini of said portion of the proposed highway at either end of the Luling Bridge are fixed. The parties agree that the defendants' contention is that the building of that portion of the proposed highway from I-10 (west) to U.S. 90 near Boutte, Louisiana would not necessitate the construction of the deleted portion or any other highway or roadway along the approximate route of the deleted portion and that the portion of I-410 from I-10 (west) to U.S. 90 near Boutte, Louisiana would be a facility independent of the deleted portion.

IV.

The parties agree as follows: 1) Until such time as the District Court has determined pursuant to Paragraph V herein that the defendants have fully complied with Paragraph IIA of this stipulation and all applicable laws and regulations, or 2) until such time as the time for the filing of an opposition by the plaintiffs pursuant to Paragraph V herein has elapsed and an opposition has not been filed; that: A) no new construction contracts will be let and no new construction work will be done on that portion of I-410 from I-10 (west) to U.S. 90 near Boutte Louisiana, except on the Luling Bridge (substructure and superstructure mainspan and bridge approaches) as shown on Exhibits Nos. 2, 3, and 4; and B) no new right-of-way will be acquired for the I-10 (west) to U.S. 90 near Boutte, Louisiana portion of I-410 except: 1) Right-of-Way Parcels designated Nos. 3-4, 3-5, 3-6, 3-7, 3-8, 3-9, 3-10, and 3-11 as shown in red on Exhibit 3; and 2) except in hardship cases and for protective buying purposes as determined by the defendants in areas other than between I-10 (west) and U.S. 61. Provided however, neither the acquisition of right-of-way nor the cost of acquisition of right-of-way shall influence the studies described in Paragraph IIA as to the decisions relative to location for the proposed highway from I-10 (west) to U.S. 90 near Boutte, Louisiana.

When the LDH in cooperation with the FHWA, has completed the final supplement to the FEIS, it shall be forwarded to FHWA for approval and concurrently a copy will be mailed to the plaintiffs. If approved by FHWA, the approved final supplement to the FEIS will be filed with the Council on Environmental Quality and will concurrently be filed with the court and mailed to the plaintiffs. Each of the plaintiffs shall have thirty (30) days from the date of the filing of the final supplement to the FEIS with the Council on Environmental Quality within which to file an opposition with the court seeking legal and equitable relief from the acquisition of right-of-way and/or the construction of the highway, if there is a genuine dispute as to whether defendants have complied with all applicable laws, rules, regulations, and Paragraph IIA of this stipulation. In the event no opposition is filed, defendants shall be free to proceed without an order of court, and plaintiffs will dismiss their complaint with prejudice as to that portion of I-410 between I-10 (west) and U.S. 90 near Boutte, Louisiana, subject to the reservation of jurisdiction over the provisions of Paragraphs IIB and IIC of this agreement pursuant to Paragraph X herein, and dismiss their complaint without prejudice as to the remainder of the highway. In the event an opposition is filed, the parties shall have the right to present evidence and argument on a hearing date fixed in accordance with the Federal Rules of Civil Procedure and rules of court for the Eastern District of Louisiana. Should the court determine after hearing that there has been compliance by the defendants with all applicable laws, rules, regulations, and Paragraph IIA of this stipulation, the court will enter a final judgment dismissing the plaintiffs' complaint with prejudice as to that portion of I-410 between I-10 (west) and U.S. 90 near Boutte, Louisiana, subject to the reservation of jurisdiction over the provisions of Paragraphs IIB and IIC of this agreement pursuant to Paragraph X herein, and dismissing the plaintiffs' complaint without prejudice as to remainder of the highway. Provided, however, these dismissals shall be subject to the right of any party to appeal in accordance with law.

VI.

It is expressly stipulated that neither the construction of the Luling Bridge and its approaches nor the acquisition of right-of-way shall prejudice the rights of plaintiffs under existing law.

VII.

The parties agree that the federal defendants will pay all costs taxable under applicable law including, but not limited to, 28 U.S.C. § 1920 upon submission and approval of a bill of costs.

VIII.

Plaintiffs and defendants reserve their rights to apply for attorneys' fees; and, plaintiffs and defendants reserve their rights to oppose any such application by the opposing party.

IX.

The above agreement and stipulation is binding upon all named parties to this stipulation, their officers, agents, members, servants, employees, attorneys and upon those acting in active concert or participation with them who receive actual notice of this stipulation, and on their respective successors, except as provided in Paragraph IB hereinabove.

It is the desire of the parties that the court maintain jurisdiction of this action to enforce the provisions of Paragraphs IIB and IIC of this stipulation after the dismissals referred to in Paragraph V hereinabove.

* Exhibits 1-4, omitted in this print, may be obtained from ELR (4 pp. $0.50, ELR Order No. C-1020) — Ed.