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PENNSYLVANIA ENVTL. COUNCIL, INC. v. BARTLETT

April 30, 1970

PENNSYLVANIA ENVIRONMENTAL COUNCIL, INC., a Pennsylvania Corporation, the Allegheny Mountain Chapter of Trout Unlimited, an unincorporated association, Colson E. Blakeslee, Marion E. Brooks, Robert L. Kolek, Bertil L. Anderson, and Joseph H. Fritz, Plaintiffs,
v.
Robert G. BARTLETT, individually and as Secretary of the Department of Highways of the Commonwealth of Pennsylvania, John Volpe, individually and as Secretary of Transportation of the United States, Central Pennsylvania Quarry, Stripping and Construction Co., Stabler Construction Co., and Reed and Kuhn, Inc., Defendants


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

In this action, plaintiffs seek to enjoin defendants from proceeding further with the planned relocation of Pennsylvania Route 872 and from approving, granting or using any Federal funds for this project and, further, to order the defendant, Robert G. Bartlett, Pennsylvania Secretary of Highways, to upgrade and repair the existing roadbed of Route 872. *fn1" Plaintiffs are the Pennsylvania Environmental Council, Inc., and the Allegheny Mountain Chapter of Trout Unlimited, as well as several individual sportsmen. Defendants are the Pennsylvania Secretary of Highways, the Secretary of Transportation of the United States, and the contractors who were awarded construction contracts for the project. Plaintiffs contend that defendants are violating the National Evironmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (Supp. I, 1970); the Department of Transportation Act, 49 U.S.C. §§ 1651-1658 (Supp. 1970), particularly §§ 1651, 1653 and 1657; the Federal-Aid Highway Act, 23 U.S.C. §§ 101-141, specifically § 138; 23 C.F.R. Part 1, Appendix 1; the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.; the General Bridge Act of 1946, 33 U.S.C. § 525, and the Ninth Amendment of the United States Constitution. Hearings were held and evidence presented on April 20, 21, and 22, 1970, and oral argument made April 24, 1970. *fn2" From the testimony taken and exhibits received, the following facts appear:

 Pennsylvania Legislative Route 52001, also known as Traffic Route 872 (hereinafter Route 872), runs in a northerly-southerly direction for approximately fifty miles through Potter and Cameron Counties from its point of origin, where it intersects Route 6 near Coudersport, to its terminus, where it intersects Route 120 at the town of Sinnemahoning. The First Fork of Sinnemahoning Creek (First Fork) *fn3" runs in a southerly direction, immediately parallel and to the East of Route 872, from Wharton to Sinnemahoning for a distance of approximately twenty miles and then courses in an easterly direction for approximately ten miles to where it flows into the Susquehanna River. On the First Fork, approximately midway between Wharton and Sinnemahoning, Sinnemahoning State Park is located, a part of which contains the George B. Stevenson Dam, erected primarily for flood control purposes. Route 872 was constructed approximately forty years ago and is a narrow road which, at many points in the First Fork area, is cut out of the side of the mountain. The difference in elevation from the Sinnemahoning Creek to Route 872 ranges from 75 feet to 250 feet. Maintenance of this road for a distance of one mile South of the confluence of Bailey Run with First Fork has been difficult as slides occur after rainstorms and the retaining wall has had to be rebuilt on three different occasions. The present width of the template *fn4" in this one-mile stretch is as low as 20 feet and the paved portion runs from 6 feet to 10 feet in width. Because of the maintenance difficulties and the dangers presented for vehicular traffic by the present road, residents in the Potter and Cameron County vicinity have been agitating for the construction of a new road from the Potter-Cameron line, North through Potter County past the confluence of Bailey Run, to the village of Wharton, a distance of approximately 5.1 miles, in hopes of alleviating the present dangers. Prior to May, 1967, on recommendation of the Pennsylvania Highways Department, the Pennsylvania Highway Commission approved a proposal to improve this 5.1-mile stretch. Advertisements were placed in the Potter Enterprise, Coudersport, Pennsylvania, on May 8 and May 15, 1967, notifying all interested persons of the proposed construction; advising that plans were available for inspection in the office of the District Engineer in Clearfield, Pennsylvania, and that any interested citizens from the communities affected might request a public hearing respecting such proposed construction by delivering a written request to the District Engineer on or before May 22, 1968. No requests were made for such a hearing. Location studies were made by the Pennsylvania Highways Department in the Fall of 1967 and the Winter of 1968. Because of the narrowness of the road and past difficulty with slides and maintenance, the Highways Department considered three possible alternatives in improving a section of the road running South from the confluence of Bailey Run for a distance of 7/10 of a mile (this is the precise area involved in this lawsuit). The alternatives were: (a) widening and improving the existing road on the westerly side of the Creek; (b) leaving the present route at a point 7/10 of a mile South of the confluence of Bailey Run and placing a bridge across the Creek to the easterly side, proceeding up the easterly side to a point where it would be necessary to place another bridge across the curving Creek and then rejoin Route 872 above Bailey Run, and (c) leaving the present route at a point 7/10 of a mile South of the confluence of Bailey Run and extend partially into the streambed on the westerly side and continue North on the westerly side, connecting with the road above Bailey Run. Inasmuch as the template proposed for the improved road would be 52 feet, it was decided not to attempt to widen and improve the existing road because the sandy and silty soil would necessitate making a massive cut into the mountain, which would be extremely expensive and would lead to uncontrolled erosion. According to Assistant District Engineer David Bobanick, a 1-foot vertical rise for every two feet in distance would be required and this would mean sloping the entire mountain. In addition, the cut would extend for 900 feet and in the process of filling-in the easterly bank of the road, a large amount of soil would be caused to go into the Creek. The Highways Department decided that the proposal to extend into the Creek on the westerly side was the most preferred and design plans were prepared. This proposal provided for the placing of fill along a 4100-foot corridor, encroaching into the westerly side of the Creek for a minimum of 10 feet and a maximum of 60 feet, as well as a 2300-foot channel change at another point in the stream. The bridging of the Creek was not acceptable, presumably because it would be more expensive and would also involve constricting the stream channel and building up the area on the easterly side of the stream. Since December 30, 1963, a Memorandum of Understanding existed between the Department of Highways and the Pennsylvania Fish and Game Commissions whereby the Secretary of Highways has agreed, inter alia, to provide a copy of advance plans for each project to the Executive Directors of the Fish and Game Commissions and furnish a notice of all public hearings advertised and/or held concerning Federal-aid highway construction projects. The Executive Director of the Fish Commission was furnished with notices concerning the public hearings, but no plans were furnished until late September, 1968, when a blueprint was submitted requesting approval of a proposed channel change, which approval was granted on October 3, 1968. A new Memorandum of Understanding between the Highways Department and the Fish and Game Commissions was adopted on September 19, 1968, and sent to Field Representatives on October 12, 1968. On November 8, 1968, a meeting was held between representatives of the Fish Commission and the Highways Department and certain requirements of the Fish Commission, e.g., sloping the new channel toward the center and seeding the side slopes, were adopted. Since the plans were considered to be in the preliminary stages, the Fish Commission withheld approval or further comment until revised plans and cross-sections of the channel changes were submitted for review. Plans were then developed in accordance with the wishes of the representatives of the Fish Commission and transmitted to the Fish Commission on December 6, 1968. On December 20, 1968, the Department of Highways filed an application with the Pennsylvania Department of Forests and Waters, Water and Power Resources Board, seeking its consent to change the channel of the First Fork, and such consent was granted on January 16, 1969. On January 20, 1969, the Engineering Division of the Fish Commission approved the plan submitted on December 6, 1968. On January 21, 1969, the Bureau of Design for the Highways Department in Harrisburg notified the Potter County District Engineer that the channel change had been approved by the Pennsylvania Department of Forests and Waters and that the project may proceed accordingly. The Potter County District Engineer was also requested to provide a stone embankment (known as rip-rap) along the West bank of the channel change in order to protect it from erosion. On February 25, 1969, Dr. C.E. Blakeslee, one of the plaintiffs, transmitted a letter to Robert C. Bartlett, Pennsylvania Secretary of Highways, protesting the proposed plans relocating a portion of the First Fork because of its impact on the stream and suggesting an early meeting with representatives of the Fish Commission. On April 13, 1969, Dr. Blakeslee and other plaintiffs toured the project area with the bridge designer and on April 23, met with engineering representatives of the Highways Department and Fish Commission. On May 2, 1969, Mr. Bruce F. Speegle, District Engineer, informed Dr. Blakeslee that after conference with the Secretary of Highways and local community authorities it was decided that the project, as designed, would best meet the needs of the traveling public and the objectives of the various planning agencies in the area and, consequently, construction plans would be completed and bid-letting made as soon as possible. A meeting was subsequently held on May 12, 1969, between certain of the individual plaintiffs and representatives of the plaintiff organizations with Secretary of Highways Bartlett, but the decision to continue with present plans was not changed. On the same day, on recommendation of the Fish Commission and the Department of Forests and Waters, the plans were revised and the 2300-foot channel change was eliminated. In addition, design guidelines were prepared jointly by Fish Commission and Highways Department personnel. During the month of May, 1969, Dr. Blakeslee discussed the situation as it then existed with Michael J. Boyle, Esq., one of plaintiffs' counsel herein. Plaintiffs attended conferences at State College, Pennsylvania, on July 11 and 12, and August 6, 1969, concerning a certain number of highway projects, including the present one, which plaintiffs felt would unnecessarily damage the environment, and plans for litigation were discussed with Attorney Victor Yannacone, an Attorney from New York City. On October 20, 1969, final drawings for construction were recommended by Pennsylvania Highways Department District Engineer Bruce E. Speegle to his superiors. On November 6, 1969, the Pennsylvania Highways Department filed application with the Secretary of Transportation of the United States, pursuant to 23 U.S.C. § 117, and, upon receipt of the concurrence of the Fish Commission to the channel relocation, the project was approved by the Secretary on November 20, 1969. The final plans were ultimately approved by Secretary of Highways Bartlett and Governor Raymond P. Shafer on November 24, 1969. Bids were opened on December 19, 1969, and contracts awarded to the defendant contractors on December 29, 1969.

 The contract provided that the contractor must (a) seed and stabilize all stream banks upon completion of grading; (b) cross flowing channels with equipment only on dry roadways in order to prevent constant turbulence and siltation; (c) direct flowing water away from excavation area and refrain completely from removing material covered by water; (d) refrain from stream fordings; (e) seed all erodible cut and fill slopes when they reach a vertical height of 20 feet or when directed by the Engineer, and (f) place 80 boulders of 9 to 12 cubic feet each in the stream under observation of representatives of the Fish Commission. Siltation tests were commenced on January 7, 1970, by the Highways Department and taken periodically up to and including April 14, 1970. Representatives of the Highways Department, defendant contractors, Pennsylvania Fish Commission, Pennsylvania Game Commission, and utility companies met in Clearfield, Pennsylvania, on January 15, 1970, relative to commencing work on the project. Actual construction was commenced on February 2, 1970, and thereafter the clearing and grubbing of trees and shrubbery took place. This lawsuit was then filed on March 31, 1970, by the individual plaintiffs and the plaintiffs, Pennsylvania Environmental Council, Inc. (incorporated January 30, 1970) and the Allegheny Mountain Chapter of Trout Unlimited, an unincorporated association. Since the commencement of this lawsuit, on April 8, 1970, the Highways Department accepted the recommendation of the Department of Forests and Waters to raise the flood plane on the easterly side of the bank from 1.5 feet to 3.5 feet along the entire 4100-foot area involved. The following day, on April 9, defendant contractors were reprimanded for entering the streambed with a piece of construction equipment.

 In addition to the chronological sequence of events, certain evidence should appropriately be mentioned here. A good trout stream requires cool, clear water with gravel, boulders and uneven streambed roughness in order to allow insect life to develop. It should have shady banks and a good balance of riffles and pools. If a stream is wide and shallow with inadequate water velocity, then the water temperature is susceptible to an excessive and rapid increase in the summer months when the flow is reduced and this presents a critical obstacle to trout survival. On the other hand, excessive water velocity is more harmful to smallmouth bass, *fn5" while siltation is detrimental to both fish species. Because of the width and shallowness, First Fork is not considered by the Fish Commission to be a prime trout stream and it is classified as mediocre in terms of reproduction and carryover. It is stocked regularly by the Fish Commission and, consequently, is recognized as a good "put and take" trout stream. While plaintiffs feel that the value of First Fork as a trout stream will be seriously impaired, Robert Bielo, Executive Director of the Pennsylvania Fish Commission, testified that the Commission will continue to stock in this area and is also of the opinion that the damage to fisheries resources will be very limited; that the construction of the stream channel through this 4100-foot corridor will be an improvement in terms of water flow, and, with the placing of boulders, a better fish habitat will result. Similarly, Dr. Maurice K. Goddard, Pennsylvania Secretary of Forests and Waters, stated that he is in full accord with narrowing the channel; that the raising of the flood level to 3.5 feet would decrease siltation, and the requirements imposed upon the contractors and the Highways Department are in accord with his views on environmental control. Finally, turbidity tests have been taken along the 4100-foot corridor on 13 occasions since January 7, and during the period when grubbing and clearing work was being performed and, with the exception of the test taken April 2, after a heavy rainfall, the siltation ratio did not increase.

 The following issues have been presented: (1) whether plaintiffs have standing to maintain this action; (2) whether plaintiffs are barred by the doctrine of laches from maintaining this action; (3) whether the Eleventh Amendment precludes maintenance of this suit against Pennsylvania's Secretary of Highways and his contractors; (4) whether the National Environmental Policy Act of 1969, supra, should be applied retroactively; (5) if so, whether the United States Secretary of Transportation violated the provisions of the National Environmental Policy Act in approving the road relocation of Route 872 and channel encroachment in the First Fork of the Sinnemahoning Creek without making an independent determination of the effect thereof on the environment; (6) whether the United States Secretary of Transportation violated the Federal-Aid Highway Act, 23 U.S.C. § 138, by not considering whether a feasible and prudent alternative to the channel encroachment existed; (7) whether the notice provisions of the Instructional Memorandum dated May 12, 1963, by the Bureau of Public Roads, United States Department of Commerce, were violated by the United States Secretary of Transportation and the Pennsylvania Secretary of Highways, and (8) whether the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, was violated when the consent of Congress was not obtained for the construction of a dike across an allegedly navigable waterway, the First Fork of the Sinnemahoning Creek.

 I. STANDING

 The United States Supreme Court recently reviewed the question of standing in related decisions, Assn. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 838, 25 L. Ed. 2d 192 (1970). In these cases, a two-pronged test was applied: (1) whether the plaintiff had alleged that the challenged action has caused him injury in fact, economic or otherwise, and (2) whether the interest asserted by the plaintiff is arguably within the zones of interests sought to be protected or regulated by the statute or constitutional guarantee in question. The Pennsylvania Secretary of Highways, who alone challenges plaintiffs' standing to sue, contends (1) that plaintiffs have not made the required allegations as to injury, and (2) that no statute exists which protects the particular interests asserted by the plaintiffs.

 I am satisfied that plaintiffs meet the two-pronged test of the Data Processing and Barlow cases. First of all, it is alleged in the complaint (1) that one of the principal purposes of the Pennsylvania Environmental Council, Inc. is to protect and conserve the material resources, aesthetic qualities and recreational value of areas, such as the Sinnemahoning Creek Valley and the nearby Sinnemahoning State Park; (2) that the members of the Allegheny Mountain Chapter of Trout Unlimited use and enjoy the waters of the Sinnemahoning Creek and the land and water in the nearby Sinnemahoning State Park, and (3) that the individually-named plaintiffs are Pennsylvania citizens who use and enjoy the land and the waters of the Sinnemahoning Creek Valley and the Sinnemahoning State Park. Secondly, it is alleged under Count I that the plaintiffs are, both individually and as a group, representative of the present and future generations who have a property right in the area in question and therefore have a right to have the resources not wasted or damaged and to prevent the expenditure of Federal funds in violation of law. The plaintiffs also allege that to permit the project to proceed would cause irreparable damage to Sinnemahoning Creek as a trout stream and recreation source and as an irreplaceable natural and aesthetic resource, specifically citing the siltation problem and the disturbances to the biotic community in the Creek. Under Count II, damage as a result of the present plans for Route 872 is also alleged to the Sinnemahoning Creek Valley and the George B. Stevenson Dam downstream. Count V raises plaintiffs' rights to the preservation of the natural resources of Pennsylvania guaranteed under the Ninth Amendment of the Constitution of the United States. While Counts III and IV are more concerned with the technical pleadings of statutes and regulations, their import is clear, viz., unless the road relocation project is enjoined, injury in fact will occur to plaintiffs and, although not economic, sufficiently damaging to their interests as citizens, sportsmen and environmentalists. Thus, I find from the allegations made by plaintiffs that the dispute sought to be adjudicated is presented in an adversary context, capable of being judicially resolved.

 Insofar as the second part of the twopronged test is concerned, I find that the aesthetic, conservational and recreational interests sought to be protected by the plaintiffs are arguably within the zone of interests to be protected or regulated by the National Environmental Policy Act of 1969, the Federal-Aid Highway Act, 23 U.S.C. § 138, and the Department of Transportation Act, 49 U.S.C. §§ 1651(b)(2) and 1653(f). The rule is that "* * * if the statutes involved in the controversy are concerned with the protection of natural, historic, and scenic resources, then a congressional intent exists to give standing to groups interested in these factors and who allege that these factors are not being properly considered by the agency." Citizens Committee for Hudson Valley v. Volpe, 302 F. Supp. 1083 (S.D.N.Y. 1969). See Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 1965); Road Review League v. Boyd, 270 F. Supp. 650 (S.D.N.Y. 1967). Here, a cursory examination of the National Environmental Policy Act, the Federal-Aid Highway Act, and the Department of Transportation Act, all of which are concerned with the protection of natural, historic and scenic resources, establishes the existence of a zone of interests that encompasses the individual plaintiffs and groups, such as the Pennsylvania Environmental Council, Inc., and the Allegheny Mountain Chapter of Trout Unlimited. Accordingly, I conclude that the plaintiffs are persons "aggrieved by agency action within the meaning of a relevant statute" as those words are used in the Administrative Procedure Act, 5 U.S.C. § 702. Citizens Committee for Hudson Valley v. Volpe, supra; Powelton Civic Home Owners Assoc. v. HUD, 284 F. Supp. 809 (E.D. Pa. 1968). See Landis and Sugerman, Annual Survey of Legal Developments -- Civil Rights Law, XLI Pa. Bar Assn. Quarterly 268-274 (March, 1970).

 Finally, I note that no evidence exists in any of the aforementioned acts which would indicate a Congressional intent to preclude judicial review of administrative rulings and decisions on road projects, such as the improvement of Route 872 in this case. City of Chicago v. United States, 396 U.S. 162, 164, 90 S. Ct. 309, 24 L. Ed. 2d 340 (1969); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967).

 II. LACHES

 The Pennsylvania Secretary of Highways and the United States Secretary of Transportation have raised the equitable defense of laches in asserting that plaintiffs are not entitled to the injunctive relief sought. The plaintiffs object to the raising of this defense, contending that the defendants are estopped by their conduct from raising this defense. Of course, since the United States Secretary of Transportation was never a party to plaintiffs' prior contacts with the Secretary of Highways, it cannot be successfully maintained that he is estopped in any manner from raising the issue of laches. The estoppel question with respect to the Secretary of Highways need not be decided, however, in view of the following determination on the existence of laches.

 Laches is determined in the light of all the existing circumstances and requires that the delay be unreasonable and cause prejudice to the adversary. Sobosle v. United States Steel Corp., 359 F.2d 7 (3d Cir. 1966). The mere lapse of time is not sufficient to constitute laches. Ritter v. Rohm & Haas Co., 271 F. Supp. 313 (S.D.N.Y. 1967). In the circumstances of this case, I cannot find with absolute certainty that the plaintiffs knowingly slept on their rights. Granted that suit was not begun by plaintiffs until ninety days after the awarding of the construction contracts, but this is not the kind of deliberate delay with which we are normally confronted in laches situations. Here, the Pennsylvania Environmental Council, Inc. was not incorporated as a non-profit corporation until January 30, 1970, and had its first organizational meeting on March 14, 1970. The present suit was instituted on March 31, 1970. Under these circumstances, there was no unreasonable delay on the part of the Pennsylvania Environmental Council, Inc. in bringing suit.

 Moreover, the individual plaintiffs and the Allegheny Mountain Chapter of Trout Unlimited cannot absolutely be charged with unreasonable delay in bringing suit. The time delay, in fact, is considerably shortened when February 2, 1970, the first day of construction, is compared with the date of the institution of suit. Furthermore, there is simply no evidence of prejudice to the United States Secretary of Transportation or to the Secretary of Highways by whatever delay may have occurred in the filing of this suit. Accordingly, I conclude that the defense of laches cannot be sustained on the present record.

 III. SOVEREIGN IMMUNITY OF PENNSYLVANIA SECRETARY OF HIGHWAYS

 The situation with respect to defendant Bartlett is precisely the same as that faced by J. Burch McMorran, Commissioner of the Department of Transportation of the State of New York, in Citizens Committee for Hudson Valley v. Volpe, 297 F. Supp. 809 (S.D.N.Y. 1969). Both were named in their official capacities by conservationists and environmentalists challenging construction of the highways. As in that case, even though Bartlett is sued individually, relief can only realistically be granted against the State itself. In McMorran's case, the Court found that the Eleventh Amendment of the United States Constitution immunized him from suit since the State had not consented to suit or waived its sovereignty. For the reasons so well expressed by the Court in the Hudson Valley decision, I hold that plaintiffs are precluded from maintaining this action against Secretary Bartlett since it is in reality a suit against the Commonwealth of Pennsylvania to which it has not consented and which immunity it has not waived. Urbano v. Board of Managers, 415 F.2d 247 (3d Cir. 1969); Harris v. Pennsylvania Turnpike Commission, 410 F.2d 1332 (3d Cir. 1969); S.J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F. Supp. 568 (D.N.J. 1967). It is immaterial whether or not the doctrine of sovereign immunity could be raised by the Commonwealth ...


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