Author: Aldisert; Gibbons
This is an appeal from a final judgment denying a permanent injunction and dismissing the complaint. The plaintiff-appellants seek to enjoin a planned relocation of Pennsylvania Route 872 and to prevent the use of federal funds for the relocation project. Plaintiffs are the Pennsylvania Environmental Council, Inc., a Pennsylvania nonprofit corporation, the Allegheny Mountain Chapter of Trout Unlimited, an unincorporated association, and several individual sportsmen. The defendants are the Secretary of Transportation of the United States, the Pennsylvania Secretary of Highways, and the contractors who prior to the commencement of the suit were awarded construction contracts for the projects. The opinion of the district court is reported. Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238 (M.D.Pa.1970). That opinion sets forth the facts in considerable detail, and we will repeat only those which we deem necessary for our disposition of the case.
The project involved the relocation, entirely within land owned by the Pennsylvania Department of Forest and Waters and the General State Authority of the Commonwealth of Pennsylvania, of eight-tenths of a mile of Pennsylvania Legislative Route 52001, also known as Traffic Route 872. That road runs in a northerly-southerly direction through Potter and Cameron Counties. For part of its fifty mile length it parallels the First Fork of Sinnemahoning Creek, a tributary of the Susquehanna River frequented by sports fishermen. The challenged relocation, decided upon by the Pennsylvania Highways Department after consultation with the Pennsylvania Fish and Game Commission and consent by the Pennsylvania Department of Forests and Waters, Water and Power Resources Board, involved an incursion of the roadway into the bed of Sinnemahoning Creek.
On November 6, 1969, the Pennsylvania Highways Department filed an application with the Secretary of Transportation, pursuant to 23 U.S.C. § 117 (1971) for federal assistance for the improvement as a part of the Federal-aid secondary system. The Secretary approved the project on November 20, 1969; bids were received on December 19, 1969, and contracts awarded on December 29, 1969. The contractors commenced construction on February 2, 1970, and the plaintiffs' complaint was filed on March 31, 1970. After the complaint was filed on April 8, 1970, the plans were revised by the Pennsylvania authorities to elevate a proposed flood plane along the entire length of the project. This was done on the recommendation of the State Department of Forests and Waters for environmental reasons. The trial took place on April 20-22, 1970, and the final judgment was entered on August 25, 1970. As we will develop hereinafter, several of these dates become crucial in the resolution of the legal issues tendered by the plaintiffs.
When the district court declined to issue an injunction the plaintiffs applied to this court for an injunction pending appeal, which was denied on December 9, 1970. We have been advised, by an affidavit dated October 15, 1971, that the relocated road has been completed and was open to traffic by September 3, 1971.
Plaintiffs' contentions may be summarized as follows:
(1) The project was approved by the Secretary of Transportation in violation of the hearing requirements of the Federal Aid Highway Act, 23 U.S.C. § 128 (1971) as that statute is interpreted in the regulations of the Department of Transportation, 23 C.F.R. Part 1, Appendix 1 (1971).
(2) The project was approved by the Secretary of Transportation in violation of the statutes dealing with protection of parklands, Federal Aid Highway Act, 23 U.S.C. § 138 (1971); Department of Transportation Act, 49 U.S.C. § 1653(f) (1971).
(3) The project involves the incursion of a dike into a navigable stream, and in the absence of consent by Congress and approval of plans by the Chief of Engineers and by the Secretary of the Army,*fn1 violates The Rivers and Harbors Act of 1899, 33 U.S.C. § 401 (1971).
(4) The project was approved by the Secretary of Transportation in violation of the National Environmental Policy Act. Act of Jan. 1, 1970, Pub.L.No.91-190 § 1 et seq.; 42 U.S.C. § 4321 et seq. (1971).
The defendants contend that each of the aforesaid statutes had been fully complied with or is inapplicable. All assert as defenses:
(A) That the plaintiffs lacked standing to bring the suit;
(B) That the plaintiffs were guilty of laches.
The defendant Bartlett and the contractor defendants assert, as well, the defense that they are instrumentalities of the Commonwealth, and hence immune from suit under the eleventh amendment. Finally all defendants suggest that the appeal has become moot because the project is completed.
I. Compliance With The Notice And Hearing Requirements
The Federal Aid Highways Act recognizes three separate highway systems: the primary, the secondary, and the interstate systems. 23 U.S.C. § 103(a) (1971). Different statutory and regulatory standards apply to each system. The application for a federal grant by Pennsylvania for the relocation of Route 872 was made as a part of the secondary system. It was submitted pursuant to 23 U.S.C. § 117 (1971), which in part provides:
"(a) The Secretary may, upon the request of any State highway department, discharge his responsibility relative to plans, specifications, estimates, surveys, contract awards, design, inspection, and construction of all projects on the Federal-aid secondary system by his receiving and approving a certified statement by the State highway department setting forth that the plans, design, and construction for each such project are in accord with those standards and procedures which (1) were adopted by such State highway department, (2) were applicable to projects of this category, and (3) were approved by him."
In the case of secondary system applications, in other words, the Secretary may rely upon a state certificate of compliance with federal standards, apparently without undertaking any independent investigation. The Secretary's freedom of action under § 117 must, however, be deemed to be limited by at least two other statutes. One is the public hearing provision, 23 U.S.C. § 128 (1971).*fn2 Another is § 2(b) (2) of the Department of Transportation Act, 49 U.S.C. § 1651(b) (2) (1971), which provides:
"(2) It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites."
Implementing 23 U.S.C. § 128 and 49 U.S.C. § 1651 (b) (2), the Secretary has issued Policy and Procedure Instructional Memorandum 20-8 (P.P.M. 20-8) promulgated pursuant to 23 C.F.R. § 1.32 (1971) and reproduced in 23 C.F.R. Appendix A (1971). This Instructional Memorandum setting forth the Secretary's interpretation of the governing statutes, provides when and for what purposes public hearings on highway projects shall be held. Indeed P.P.M. 20-8 may have a vitality of its own aside from §§ 128 and 1651(b) (2) by virtue of Section 9(e) (2) of the Department of Transportation Act, 49 U.S.C. § 1657(e) (2) (1971) which gives the Secretary rule making powers.*fn3
P.P.M. 20-8 is by its express terms applicable to all Federal-aid highway projects. P.P.M. 20-8 § 3. It defines two separate types of public hearings; a "corridor public hearing" ( § 4(a)) which is held before a route location is approved and before a State highway department is committed to a specific proposal, and a "highway design public hearing." A "highway design public hearing" is a public hearing that:
"(1) Is held after the route location has been approved, but before the State highway department is committed to a specific design proposal;
(2) Is held to ensure that an opportunity is afforded for effective participation by interested persons in the process of determining the specific location and major design features of a Federal-aid highway; and
(3) Provides a public forum that affords a full opportunity for presenting views on major highway design features, including the social, economic, ...