Stephens v. Adams

No. 78-C-390 (469 F. Supp. 1222, 13 ERC 1031) (E.D. Wis. May 4, 1979)

ELR Digest

The court grants summary judgment for defendants in a case in which plaintiffs sought declaratory and injunctive relief against the proposed widening of a 4.33-mile segment of secondary highway in New Berlin, Wisconsin on the grounds that defendants violated the Federal-Aid Highway Act (Highway Act), the National Environmental Policy Act (NEPA), and provisions of the United States Constitution guaranteeing due process of law. After preparing and receiving federal approval of a negative declaration, i.e., a statement that under NEPA the project was not a "major Federal action" and thus did not warrant preparation of an environmental impact statement (EIS), the state held a public hearing concerning both the location and design of the proposed project. Plaintiffs claim that consideration of the location and design issues together in one hearing was impermissible under the Highway Act and that the negative declaration was inadequate under NEPA with respect to both its substance and its result.

The court rules that while separate design and location hearings are generally required under the Highway Act, this obligation is not inflexible and is not strictly applicable in this case. See 23 C.F.R. § 790.5. As to the NEPA claims, the court finds that the negative declaration adequately addressed alternative locations for the project since it summarized the alternatives proposed at the public hearing and provided responses thereto. In addition, the document adequately discussed the environmental impacts expected to result from the highway widening. Thus, the actions of the federal defendants in approving the project were neither arbitrary and capricious nor unreasonable under NEPA. In view of the above rulings, the court rejects plaintiffs' claim that their due process rights were violated by defendants' alleged failure to hold adequate hearings or to comply with NEPA. The court concludes that since there remains no genuine issue of material fact and defendants are entitled to judgment as a matter of law, summary judgment is awarded to defendants.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1183).

Counsel for Plaintiffs
James C. Newcomb
611 N. Broadway, Milwaukee WI 53202
(414) 278-0563

Counsel for Federal Defendants
Joseph P. Stadtmueller, Ass't U.S. Attorney
330 Fed. Bldg., 517 E. Wisconsin Ave., Milwaukee WI 53202
(414) 291-1700

Counsel for State Defendants
Michael E. Perino, Ass't Attorney General
Department of Justice
114 E. State Capitol, Madison WI 53702
(608) 266-1221

Counsel for Municipal Defendants
Willis J. Zick, County Corporation Counsel
Waukesha County Cthse., Waukesha WI 53186
(414) 544-8244

Warren, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]