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June 26, 2000


The opinion of the court was delivered by: Katz, Senior District Judge.


Now before the court are the parties cross-motions for summary judgment in this action challenging an agency's decision under the Administrative Procedure Act (APA).

I. Background*fn1

A. The Trail

This litigation concerns a long-standing and highly contentious plan to develop an abandoned train track in Radnor Township as a public multi-use trail. The Pennsylvania Department of Transportation (PennDOT) acquired the right-of-way along the track from the former Pennsylvania and Western Railway Company (P & W) in 1955. See Administrative Record (AR) at 467. In 1976, PennDOT reached an agreement with the township to use the area for a bicycle and hiking path. See id. at 526-29.

In February 1994, PennDOT applied for federal funds under the Congestion Mitigation and Air Quality program (CMAQ), 23 U.S.C. § 104(b)(2), 217, to develop the P & W track into a 2.2 mile-long, multi-use path (P & W trail or trail project). See id. at 367-69. Eighty percent of the project's budget was to be provided by the federal funds, with PennDOT sponsoring the balance. See id. at 467. In December 1994, the Delaware Valley Regional Planning Commission (DVRPC) approved PennDOT's application.*fn2 See id. at 813-14. Apparently, PennDOT's commitment to developing the P & W trail was contingent upon Radnor Township's favorable or neutral disposition towards the project. See id. at 467. The township indicated its support of the project in May 1995, when a township referendum asking whether the agency should proceed with the trail project passed with a 61% "yes" vote and carried thirteen out of the township's fourteen precincts. See id. at 424-25.

PennDOT planned that the project would proceed in three stages: a preliminary engineering stage, a final design stage, and a construction stage. In September 1996, PennDOT requested funds for the preliminary engineering stage of the project from the Federal Highway Administration (FHWA). The agency approved the request and committed the federal funds on October 10, 1996. See id. at 90-97; Def. Renewed Summ. J. Mem., Ex. A ¶ 12. PennDOT's contractor completed a central component of the first stage, a feasibility study, in November 1998. See AR at 530-61.

In February 1999, the issue of the trail came before the township again, this time to decide whether Radnor would accept the responsibility of maintaining the trail. The Board of Commissioners voted "yes," in effect reaffirming the township's support of the project. See id. at 574.

B. The Agencies

Although this suit challenges the final decision of a federal agency under the APA, PennDOT performed much of the review of the trail project. The court, therefore, will briefly examine the relationship between the federal and state agencies. The P & W trail is a non-National Highway System federal aid project and, under federal law, subject to an exemption agreement between PennDOT and the FHWA. See 23 U.S.C. § 106(b)(2)(1991) (amended 1998); id. § 117(a) (1991) (repealed 1998).*fn3 The state and federal agencies entered into the exemption agreement relevant to the instant case in 1992, see AR at 577-621, and revised it slightly in a manner not relevant to this action in 1993. See id. at 622-26. The agreement provides, inter alia, that "PennDOT will assume the responsibilities assigned to the FHWA under Title 23 for Federal-aid projects[,]" and that the agreement "does not replace the fundamental provisions of law in Title 23 with respect to the basic structure of the Federal-aid program." Id. at 588.*fn4

Relying on the exemption agreement, the FHWA assumes that PennDOT's actions are properly considered to be those of the federal agency for purposes of this APA review. See, e.g., Def. Renewed Summ. J. Mem. at 8-10, 16. The plaintiffs agree that PennDOT had the authority to certify that the P & W trail complied with federal requirements. See Pls. Summ. J. Mem. at 3*fn5; Pls. Resp. at 10. Their contention that the federal agency retained ultimate responsibility regarding the trail project does not undercut the FHWA's position. Thus, for purposes of convenience, the court will refer to only to the FHWA as the agency under APA review.

C. The Opposition

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