(D.C. Civil Action No. 1500-72). Appeal from the United States District Court for the District of New Jersey.
Seitz, Chief Judge, Staley and Hunter, Circuit Judges.
This is an appeal from an order of the United States District Court for the District of New Jersey denying plaintiffs' application for a preliminary injunction and granting defendants' motion for summary judgment.
Plaintiffs are the Hopewell Township Citizens I-95 Committee ("Committee") and Lewis Terpening, Keith Robertson, Martin Katz and Win Straube, individually. They filed this action to enjoin the federal and state defendants from proceeding with the construction of a section of Interstate Highway 95 ("I-95") in Hopewell Township, New Jersey. This section is approximately 3.4 miles in length and, if built as presently planned, will connect the existing westerly terminus of I-95 at Scotch Road in Hopewell Township with Interstate Route 295 in the vicinity of Federal City Road in Lawrence Township to the east. The validity of the New Jersey Department of Transportation's recommendation regarding the location of this segment of I-95 and the federal approval thereof has already been challenged unsuccessfully in two different lawsuits brought by the Township of Hopewell. Township of Hopewell v. Goldberg, 101 N.J. Super. 589, 245 A.2d 67 (App. Div. 1968), certif. denied, 52 N.J. 500, 246 A.2d 457 (1966), and Township of Hopewell v. Volpe, Civil No. 1390-68 (D. N.J. December 12, 1969), aff'd. 446 F.2d 167 (3d Cir. 1971). Location approval is not involved in this appeal.
In granting defendants' motion for summary judgment, the district court characterized the instant action as "old hat" and concluded that there was no genuine issue of material fact and that the defendants should prevail as a matter of law. In addition, without using the formal legal terms, the court also seemed to rest its decision on the alternative ground that plaintiffs' claims were barred by the doctrines of res judicata and collateral estoppel. Plaintiffs challenge both of these rulings, and their central argument is that the state defendants failed to hold a design public hearing on the 3.4 mile section of I-95 in dispute here prior to federal approval of and participation in the project. We reverse the summary judgment because we find that there exists a genuine fact issue as to whether or not federal design approval or its equivalent was completed before the requirement for a public design hearing became effective. We also find that res judicata and collateral estoppel do not apply in this case because we believe that the issue of a design public hearing was not adjudicated and could not reasonably have been adjudicated in the previous litigation.
On August 23, 1968, Congress amended § 128(a) of the Federal Aid-Highway Act ("FAHA") to specifically require any state highway department to certify not only that it has considered the economic effects of a location, but also that it has considered "social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." 23 U.S.C. § 128(a) (Supp. V, 1970). The Department of Transportation has construed § 128(a) of the FAHA in Policy and Procedure Memorandum 20-8 ("PPM 20-8"), 23 C.F.R., Part I, App. A (1972), which became effective on January 29, 1969. PPM 20-8 deals with what a state highway department must do before submitting location and design proposals to the Federal Highway Administration ("FHWA") for approval.*fn1 It provides for two hearings, a corridor public hearing and a highway design public hearing,*fn2 and paragraph 4(b) defines a highway design public hearing as one 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, environmental, and other effects of alternate designs."
Consequently, under § 128(a) of the FAHA and PPM 20-8, a design public hearing must precede federal design approval of Federal-aid highway projects like I-95.
In Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332, 335 (3d Cir. 1972), and Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273, 1274 (3d Cir. 1971), this court determined that § 128(a) of the FAHA and PPM 20-8 do not apply retroactively to projects which received federal design approval or its equivalent prior to the passage of either provision. Therefore, the basic problem confronting the district court in this case was whether or not the FHWA had approved the design for the section of I-95 between Scotch Road and I-295 before August 23, 1968, the effective date of § 128(a) of the FAHA. If such approval had been given by this date, no further hearings would be necessary. If it had not been given by then, the statutory and regulatory scheme described above would apply.
In resolving this critical question, the district court had before it a number of items of evidence including two affidavits which on their face appear contradictory. One of these affidavits was taken from Robert I. Kellum, the Division Engineer for the FHWA ...