Louisiana Environmental Society, Inc. v. Brinegar

Civ. A. No. 17233 (407 F. Supp. 1309) (W.D. La. January 28, 1976)

ELR Digest

This action to stop construction of an interstate highway bypass over Lake Cross, an artificial lake near Shreveport, Louisiana, was tried on the merits following court of appeals affirmance, 6 ELR 20093, of this court's refusal to grant a preliminary injunction. Despite plaintiffs' thorough four-pronged attack on the project, judgment must be entered for defendants. The applicable standard of review is set forth in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (U.S. 1971); the court will restrict its scrutiny to the administrative record, with limited factual supplementation.

The court must reject plaintiffs' challenge to the adequacy of two hearings held on the project under 23 U.S.C. § 128(a), ELR 41602. A subsequent charge in the design of the bridge drainage system was not so significant as to require a new hearing. And since defendants filed an environmental impact statement (EIS) on this project, the court will not apply the 1970 amendments to 23 U.S.C. § 128(a) retroactively so as to invalidate the hearings, which were held in 1964 and 1967. Township of Hopewell v. Volpe, 446 F.2d 167, 172, 1 ELR 20371 (3d Cir. 1971), followed. Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 3 ELR 20006 (2d Cir. 1972), and Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (4th Cir.), cert. denied, 409 U.S. 1000 (1972), distinguished.

The record belies plaintiffs' allegation that the Louisiana Highway Department (LHD) gave local authorities no voice in the planning of the project in violation of 23 U.S.C. § 134. For example, the governments of both Shreveport and Fossier Parish approved the project and agreed with the LHD to do a comprehensive transportation plan for the Shreveport metropolitan area.

The record likewise refutes the claims that EIS preparation was illegally delegated to the LHD, and that the EIS is so vague, indefinite and conclusory as to preclude effective review and comment. Specifically, the EIS and its supplement contain sufficient information on the bridge drainage system, on noise levels in the vicinity of Cross Lake, on the development of Caddo Lake as a potential water supply, on the need for the bypass highway, and on alternative routes for it.

The Secretary properly discharged his personal responsibilities under the federal parkland statutes, 23 U.S.C. § 138, ELR 41602, and 49 U.S.C. § 1653(f), ELR 41605, which require him "not to approve a highway project which uses a recreational area unless (1) there is no 'feasible and prudent alternative,' and then only if (2) the project 'includes all possible planning to minimize harm.'" The Secretary correctly concluded that the major alternative route, which would displace 900-1500 persons, 24 businesses and 1 church, and would split a minority community, was not "prudent." This is particularly so since the "taking" of parkland herein will be far smaller than in Overton Park, supra; here, the recreational area is an artificial lake, and the highway has been designed to minimize interference with its recreational use (as modified, it will have 38-foot clearance and 100-foot spans, in order to facilitate boating). Design modifications in connection with years of discussion meet the need for all possible planning. And the lengthy delay in completion of this project, which received location approval in 1965, is the sort of "unusual factor" contemplated by Overton Park as justifying use of parkland. The decision of the Secretary was within the scope of his authority and consistent with applicable standards.

The full text of this opinion is available from ELR (17 pp. $2.25, ELR Order No. C-1059).

Counsel for Plaintiffs
Billy R. Pesnell
P.O. Drawer B
Shreveport LA 71161
(318) 425-5393

Counsel for Defendants
Robert J. Jones, Asst. General Counsel
Sharon Frazier, Asst. General Counsel
Louisiana Department of Highways
P.O. Box 44245, Capital Station
Baton Rouge LA 70804
(504) 389-5536

Donald E. Walter, U.S. Attorney
L. H. Harris, Asst. U.S. Attorney
P.O. Box 33
Shreveport LA 71161
(318) 226-5277

Jean Rogers, Regional Counsel
Federal Highway Administration
8A00 Federal Bldg.
Fort Worth TX 76102
(817) 334-3221

Hunter, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]