Timothy W. Swain and Katherine A. Swain v. Claude S. Brinegar, Secretary of Transportation for the United States

517 F.2d 766, 21 Fed. R. Serv. 2d 169, 5 Envtl. L. Rep. (Envtl. Law Inst.) 20354, 7 ERC (BNA) 2046, 1975 U.S. App. LEXIS 14905, 7 ERC 2046
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 29, 1975
Docket74-1625
StatusPublished
Cited by55 cases

This text of 517 F.2d 766 (Timothy W. Swain and Katherine A. Swain v. Claude S. Brinegar, Secretary of Transportation for the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timothy W. Swain and Katherine A. Swain v. Claude S. Brinegar, Secretary of Transportation for the United States, 517 F.2d 766, 21 Fed. R. Serv. 2d 169, 5 Envtl. L. Rep. (Envtl. Law Inst.) 20354, 7 ERC (BNA) 2046, 1975 U.S. App. LEXIS 14905, 7 ERC 2046 (7th Cir. 1975).

Opinions

SWYGERT, Circuit Judge.

Plaintiffs brought this suit to enjoin further action on a segment of a proposed Federal-Aid Highway project in the state of Illinois. They contend that the procedures used in obtaining the approval of the Federal Highway Administration on the proposed freeway were insufficient in law and in violation of the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. and the National Environmental Policy Act [NEPA], 42 U.S.C. § 4321 et seq. Specifically, they say that the corridor selection process which took place in 1969 was arbitrary, capricious, and subversive of the legislative policy of full public disclosure and full public participation under the Federal-Aid Highway Act, and that an environmental impact statement [EIS] subsequently submitted in connection with the disputed project was insufficiently detailed under the applicable NEPA standards and illegally delegated to the state highway authorities at the critical drafting stage. They further contend that this suit may be maintained as a class action. On June 3, 1974 the parties consented to a temporary restraining order pending a further hearing on the matter. On June 19, 1974 a consolidated hearing on the merits of the dispute was conducted pursuant to Rule 65(a)(2) Fed.R.Civ.P. Thereafter the trial judge rendered a decision and order dissolving the restraining order and dismissing the complaint on its merits. Swain v. Brinegar, 378 F.Supp. 753 (S.D.Ill.1974). Plaintiffs appeal from that order.

I

In 1967, Wilbur Smith and Associates, consulting engineers, submitted a report entitled “Illinois Highway Needs and Fiscal Study” to the Illinois Department of Public Works and Buildings. The report, commissioned in 1964, presented the “findings of comprehensive studies of highway, road, and street needs and financing for complete modernization of the state and local systems to safely and efficiently serve travel requirements during the twenty years, 1966-1985, inclusive.” The Smith Report was essentially a predictive analysis of future highway needs and attendant costs. It was based primarily on an evaluation of economic and demographic characteristics and trends a$ they existed prior to 1967. The report itself recognized that unforeseen changes were likely to occur during the projected period and therefore recommended that “a comprehensive program be established for continual reappraisal” of highway needs. The report made no reference to environmental considerations such as pollution, energy resources, or preservation of tillable soil; it proceeded on the assumption that the pre-1967 population and economic trends would continue, that families would be accumulating larger and larger amounts of disposable income during the prediction period, that the motor vehicle industry would therefore continue to expand, and that “Illinois’ growing dependence on highway transportation and the extensive influence of automobile services on all segments of industrial activity” would continue unabated.

The report recommended, inter alia, the completion of a “trunk” system of interstate highways and supplemental freeways. This system was designed to connect every Illinois city of over 25,000 population; upon its completion, no part of the state would be more than 30 miles from one of its component routes. As presented in the report, the trunk system included a supplemental freeway connecting the cities of Peoria and Lincoln, Illinois. At the present time, these two cities are connected by Illinois Route 121, a two lane highway. The Smith Report did not include any specific reference to the particular need for the Peoria-Lin-[770]*770coin freeway or any specific discussion of the inadequacies of Route 121 or the possibility of upgrading this existing facility.

In response -to the Wilbur Smith Report, location studies were conducted for a supplemental freeway corridor from Lincoln to Peoria. The Lincoln-Peoria proposal, designated FAP 406, was divided into two component projects. The northerly portion of the freeway project, known as the District 4 project, ran from Peoria on the north to a point between Delavan and Hopedale, Illinois on the south. The southerly portion, which is the subject of this suit, ran from this general area south to an interchange with Interstate 1-551 just northwest of Lincoln. Prior to the submission of any public report or the holding of any public hearings regarding the suit project, a corridor approval was obtained for the District 4 project. At the time of the initial hearing on the suit project, therefore, the location of the southpoint of the District 4 project had been established adjacent to and west of Route 121 at a point east of Delavan and southwest of Hopedale.2

A corridor location report for the suit project was submitted to a public hearing on July 2, 1969. The report discussed and compared three proposed alignments for the project.3 It did not contain detailed figures or facts as to the need for the project,4 nor did it consider the alternative of upgrading Illinois Route 121. Discussion of environmental considerations was absolutely minimal and entirely conclusory. While the report did recognize the fact that farmland would be taken out of production, no further evaluation of this fact was made other than the simple recognition that it would happen.

At the corridor public hearing the three proposed alignments were explained to those in attendance. Again, no information was presented as to the need for the freeway other than a reference to the Wilbur Smith Report. Little reference was made to environmental considerations in the initial presentation, and this fact was recognized by several persons who participated in the meeting. When one citizen asked whether the proposed project had necessarily to be a fully controlled-access freeway his question was met with a simple assertion that “the supplemental freeway system is to be completely controlled-access highway.” No further explanation or justification was offered. In short, by the time of the submission of the corridor report, the decision to go ahead with the project would seem to have been all but made, and discussion at that point focused mainly on which of the predetermined corridor alignments presented the best alternative.

Plaintiffs contend that this corridor selection process was arbitrary and capri[771]*771cious and in violation of the Federal-Aid Highway Act, 23 U.S.C. § 1285 and PPM 20-86 promulgated thereunder. They say that the corridor report and corridor location hearing were merely pro forma, that the public at large was never fully informed of facts which would substantiate the need for the supplemental freeway or justify the selection of the three specific corridor location alternatives presented in the report, and that the public was thus denied the opportunity [772]*772to have án effective voice in the planning of the freeway project.

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517 F.2d 766, 21 Fed. R. Serv. 2d 169, 5 Envtl. L. Rep. (Envtl. Law Inst.) 20354, 7 ERC (BNA) 2046, 1975 U.S. App. LEXIS 14905, 7 ERC 2046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-w-swain-and-katherine-a-swain-v-claude-s-brinegar-secretary-of-ca7-1975.