MEMORANDUM AND ORDER
PECKHAM, District Judge.
I. Facts
This is a class action complaint for declaratory and injunctive relief in regard to State Project 238, a proposed highway of 14 miles that will pass through Hayward, Union City, and Fremont.
The system of roads involved here is the federal-aid primary highway system. (There are four federal-aid systems, the other three being interstate, urban, and secondary.) California normally receives approximately fifty million dollars per year for work on the primary system; this money is available on a 50-50, State-federal sharing basis.
Pursuant to 23 U.S.C. § 103, federal approval at various stages of highway design and construction is required before the state can receive federal funds.
Pursuant to 23 U.S.C. § 106(a) and Policy and Procedures Memorandum (PPM) 20-8, the State Highway Department must obtain design approval and subsequently approval of plans, specifications, and estimates (P, S, and E) to be eligible for federal funding. The last approval stage is construction approval, at which time the state can receive federal funds. The state must have complied with certain requirements along the way in order to obtain the staggered approvals.
Prior to location approval the State must have held a public hearing, at which time a "corridor" is agreed upon. 23 U.S.C. § 128. Public hearings for the overall route location were held on November 14, 1960 and on April 14, 1961 in Hayward. Additional hearings for the portions in Fremont and in Union City were held on September 29, 1965 and on April 20, 1967, respectively. Plaintiffs allege that these meetings failed to comply with the requirements of 23 U.S.C. § 128 and Policy and Procedure Memorandum 20-8.
On October 5, 1965, the California Department of Public Works entered into a "freeway agreement" with the City of Hayward. In that agreement, the City approved that portion of Route 238 which would pass through Hayward and agreed to close certain city streets when necessary to facilitate construction of the highway. The City also agreed to maintain and repair frontage roads built by the State. The Department of Public Works has not yet entered into an agreement with Union City, as Union City has refused to approve any extension of Route 238 within its city limits.
On November 4, 1966, the Federal Division Engineer for California gave federal "location approval" for Route 238. A key question here is what significance should be attached to this location approval. As stated above, this approval was the initial action necessary to qualify Route 238 for federal funds. State highway officials must still obtain federal design approval, P.S. & E. approval, and construction approval before the federal government is committed to finance construction. No such approvals have taken place.
The State has not requested, nor has it obtained, any federal funds for this project. There is a dispute as to whether the State will eventually request federal funds, plaintiffs saying "definitely" and defendants saying "probably not".
The State has already acquired a significant amount of land in Hayward — approximately 30-40% of the land it will need for the highway in that area. As a result of the State acquisition of land (and housing) in Hayward, persons residing on the right-of-way have been encouraged to leave and have left the area. There is a dispute as to the number of people who have left as "voluntary relocatees." Virtually no land has been purchased as yet in Union City or Fremont.
Plaintiffs have brought several causes of action to this court, seeking for the most part declaratory and injunctive relief. Under the first cause of action, they seek (a) a declaratory judgment that plaintiffs and their class are "displaced persons" under the Uniform Relocation Act, and that federal and state defendants do not have a satisfactory relocation program as required by the statutes; (b) an injunction enjoining the State defendants from acquiring any more property for right-of-way under the project and enjoining the federal defendants from granting any further approval of the project or providing funds for the project until a satisfactory relocation assistance program is devised; and (c) an order compelling state and federal defendants to show cause why funds committed to or available for the
Second, plaintiffs seek a declaratory judgment and injunction against the City of Hayward in regard to replacement housing problems.
Third, plaintiffs allege that forcing the plaintiffs to confront a discriminatory and very tight housing market violates the equal protection clause of the fourteenth amendment, and seek relief consistent with this allegation.
Fourth, plaintiffs seek a declaratory judgment that the project falls within the National Environmental Policy Act and that defendants have failed to comply with the Act, as well as an injunction both preventing State defendants from acquiring any more land for the project and forbidding the federal defendants from giving further approval to the project until the NEPA is complied with.
Fifth, plaintiffs seek similar relief under § 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. § 1653(f)] and § 138 of 23 U.S.C., both of which deal with the environment and which require the Secretary to minimize the harm to the environment after first assuring himself that no viable alternatives exist.
Sixth, plaintiffs allege that various hearing requirements have not been satisfied and that all work and approval of the project should be enjoined until the hearing requirements are complied with.
Seventh, plaintiffs further allege that the failure to hold adequate public hearings constitutes a violation of due process. They seek relief consistent with this allegation.
In an amendment to their complaint, plaintiffs claim that the state defendants are in violation of two State laws: the Ralph Act (Streets and Highways Code §§ 135.3-135.7) and the State Environmental Quality Act of 1970. The Ralph Act establishes a program for providing new or refurbished housing to "low-income individuals and families" who reside in an "economically depressed area." Plaintiffs seek a mandatory injunction under the Ralph Act and declaratory relief and an injunction under the State Environmental Quality Act of 1970.
II. Defendants' Motion to Dismiss
A. Jurisdiction over the Person
Both the state and federal defendants claim that sovereign immunity prevents the court from assuming jurisdiction here. In a condemnation setting the state normally cannot be enjoined from acquiring land. In the present case, however, there is a question as to (1) the constitutionality of the state action, and (2) whether the officials involved have complied with state and federal statutes. Under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), these two situations are generally considered exceptions to the sovereign immunity doctrine. A state official who exceeds his authority or who violates the Constitution is not covered by the protective mantle of sovereign immunity. See, e. g., Urbano v. Board of Managers, 415 F.2d 247 (3d Cir. 1969).
In regard to the federal defendants, several cases, most notably Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), indicate rather strongly that if the federal official exceeds the authority vested in him sovereign immunity does not apply, under the rationale that the person, not the sovereign, is being sued. Plaintiffs allege that the federal officials have not complied with statutory requirements; thus, sovereign immunity does not protect the federal officials here. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
B. Jurisdiction Over the Subject Matter
In most of the environmental protection and housing displacement cases where an injunction has been sought, the Secretary involved had already approved
If a highway project is determined to be a "federal-aid highway", certain restrictions will eventually attach to the project against both the State and federal governments. For example, there must be (1), adequate hearings prior to location approval (23 U.S.C. § 128); (2) an adequate relocation assistance program with replacement housing (23 U.S. C. § 502, §§ 205, 210 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, DOT Instructional Memorandum (IM) 80-1-68, IM 80-1-71); and (3) assurances and determinations that any adverse consequences to the environment have been considered and deemed necessary, in light of possible alternatives. (§ 138 of 23 U.S.C., § 4(f) of the Department of Transportation Act of 1966, and DOT Order 5610.1).
Defendants argue that while a project becomes part of the federal-aid highway system upon location approval, the various restrictions do not apply until federal funds have been approved or federal participation is assured. Since Project 238 has received only location approval, the federal requirements, according to defendants, do not yet apply. Any relief should be limited to an injunction preventing the Secretary of Transportation from giving his approval to further stages of the project until the state complies with the federal regulations. Plaintiffs, on the other hand, seem to argue that the statutes and regulations apply either upon location approval or when federal participation becomes inevitable.
Much of the argument on defendants' motion to dismiss has centered around semantic distinctions, but this court believes the basic issue to be as follows: do the federal regulations and statutes apply to a highway project upon location approval, construction approval, or some intermediate point when federal participation is assured?
One may conceptualize the problem as follows: there are three types or groups of highway projects. The first consists of those highways for which federal funds have been approved or are immediately sought. The parties agree that highways in this group are federal-aid highways. Federal participation here is apparent, as federal funds have been appropriated or are about to be appropriated to the project.
The second group involves those state highways constructed without federal funds, and for which federal participation has never been sought, at any level. Congress very likely possesses the power to regulate the construction of these highways;
The crucial question before this court is which of these "group III" projects are "federal-aid highways". As stated above, the state and federal defendants concede that a project becomes part of the federal-aid highway system upon location approval; they assert, however, that the statutes and regulations do not apply until the state actively seeks federal funds. Only at that point does a project become a "federal-aid highway" for the purpose of applying the statutes and regulations.
Both sides cite as authority Named Individual Members of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1013 (5th Cir., 1971); but that case is distinguishable from the one before us. In the Conservation Society case, the federal government had indicated at an early stage its intention to supply funds to the project. In the present case the state defendants have not received such assurances; indeed, the state asserts that it is highly unlikely that it will seek federal funds. In short, unlike the Conservation Society case, federal funding is far from "inevitable" here.
The state defendants cite a recent case to support their proposition that a project does not become a federal-aid highway—and the statutes do not apply — until federal funds are requested. Northeast Area Welfare Rights Organization v. Volpe, No. 3437 (D.Wash.1970). In that case, however, the project had not even received location approval, the most basic requirement for remaining eligible for federal funds. Unlike Project 238, the project in that case falls within "group II".
The court believes that for the purpose of applying the various federal statutes and regulations a federal-aid highway is any project for which the state has obtained location approval. The state should not have the considerable benefits that accompany an option to obtain federal funds without also assuming the attendant obligations. Any project that seeks even the possible protection and assistance of the federal government must fall within the statutes and regulations.
Several factors have convinced this court that the various federal restrictions are to apply against the defendants immediately. First, Congress has issued extremely strong policy statements against displacement and environmental destruction. 23 U.S.C. § 501 reads as follows:
Section 201 of Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 reads as follows:
Section 138 of 23 U.S.C. reads as follows:
Section 101 of the National Environmental Policy Act (NEPA) reads as follows:
Section 4(f) of the Department of Transportation Act of 1966 (DOT Act of 1966) is substantially the same as § 138 of 23 U.S.C.
The legislative history of the Federal-Aid Highway Act of 1968, the Uniform Relocation Assistance Act of 1970, Section 4(f) of the DOT Act of 1966, and the National Environmental Policy Act of 1969 shows an intense concern by the Congress over the problems of highway displacement and environmental protection. Prior to 1968, for example, the state was not required to make relocation payments to persons displaced by federal-aid highway projects. The 1968 Act required such payments, and the 1971 Act raised the level of such payments. See §§ 505, 506 of 23 U.S.C. and §§ 202, 203 of the Uniform Relocation Assistance Act of 1970. See also 1968 U.S. Code Congressional and Administrative News, pp. 3482-3539. Moreover, the 1968 and 1970 Acts both provide for federal advances for relocation payments before construction approval. See § 504 and § 208, with accompanying provisions. It seems rather clear to this court that Congress was well aware of the realities and hardships of highway displacement when it passed these acts, and that the main thrust and purpose of the 1968 and 1970 Acts was to protect displaced persons even before construction.
One reaches similar conclusions when examining the legislative history of the various environmental statutes and regulations; but one need not search that far to discover the Congressional intent here. NEPA, 23 U.S.C. § 138, and § 4 (f) of the DOT Act of 1966 state in the strongest terms the importance that Congress attaches to environmental protection. As Justice Black stated in his concurrence in Overton Park, 401 U.S. at 421, 91 S.Ct. at 826, 28 L.Ed.2d at 156,
It is obvious, then, that strong federal policies exist towards adequate relocation assistance and protection of the environment.
A second factor this court believes significant is the language of the statutes and regulations themselves. By their very wording the statutes and regulations in question seem to apply to federal-aid projects before money has been appropriated and as early as location approval. Section 101(6) of the Uniform Relocation Assistance Act defines a displaced person as
DOT Instructional Memorandum (IM) 80-1-71(6) states that the regulations for displacement from highway projects apply to "any person who as of January 2, 1971 has not been displaced by any highway project on which federal-aid highway funds or other federal funds are or will be used."
IM 80-1-71(7) also restricts the state at any phase of the project, not simply after federal funds have been appropriated.
IM 80-1-71(12) provides as follows:
IM 80-1-71(15) provides as follows:
There is also strong evidence that the environmental regulations are to apply immediately. DOT Order 5610.1 indicates that 4(f) statements are required for any formal approval by the Secretary. Paragraph 4(A) provides as follows:
Paragraphs 3(c) (3) of the definitional guidelines that accompany DOT Order 5610.1 states that "federal actions" (that is, those programs to which the regulations apply) include "approval of State highway programs and plans prior to grant of money."
From the regulations alone it appears to this court that 4(f) statements and adequate relocation assistance programs are required before location approval, prior to federal funding of a project.
Finally, in addition to the strong policy statements and the wording of the statutes and regulations, common sense dictates that the federal protective devices apply before federal funds are sought. It does little good to shut the barn doors after all the horses have run away. If the federal statutes and regulations are to supply any protection at all it must be prior to the time the residents have left and the deleterious effects to the environment have taken place. All the protections that Congress sought to establish would be futile gestures were a state able to ignore the spirit (and letter) of the various acts and regulations until it actually receives federal funds.
Plaintiffs have demonstrated that Project 238 is a federal-aid highway project, and this court now holds that Sections 205 and 210 of the Uniform Relocation Assistance Act of 1970, § 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138, and various supporting statutes and regulations presently apply against the State and federal defendants. Consequently the motion by the State and federal defendants to dismiss the first and fourth causes of action for failure to state a claim upon which relief can be granted must be denied.
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The City Manager and Mayor of the City of Hayward have also moved to dismiss for failure to state a claim upon which relief can be granted. Plaintiffs basically assert two theories for holding these defendants responsible for possible violations of federal regulations: (1) The Freeway Agreement dated October 5, 1965 between the State of California and the City of Hayward links the City with any wrongdoings by the State; (2) the City has an obligation under 42 U.S.C. § 1451(c) to increase the supply of low-cost housing.
Neither of plaintiffs' theories is valid here. Plaintiffs first want this court to enjoin the City from carrying out its part of the highway agreement, which is to close certain city streets in order to facilitate construction. Such an injunction, however, would be both inadequate and unfounded. If the City refuses to close the streets the State, at obvious inconvenience, could build the highway anyhow.
Plaintiffs' third cause of action, which alleges a violation of 42 U.S. C. § 1451 by the municipal defendants, must also be dismissed. Section 1451 is an urban renewal statute which may impose upon a city that has entered into a contractual agreement for urban renewal funds the duty to increase the supply of low-cost housing. Unlike West v. Housing Authority of the City of Atlanta, No. 13571 (N.D.Ga. 1971) and Ley v. Shell Oil Co., et al., No. C-71 1645 R.F.P., which raise questions concerning the scope of § 1451(c), there is no contractual agreement between the city and the federal government here; nor is this an urban renewal project. Moreover, the relevant statutes dealing with highway relocation — 23 U.S.C. §§ 501-11, and the Uniform Relocation Assistance Act of 1970 — impose no obligation upon the city to increase its supply of low-cost housing.
C. Standing
Defendants allege that all of the plaintiffs lack standing to raise the environmental issues in this suit. Certainly the plaintiffs residing in Hayward, Union City and Fremont have standing, as they shall be affected directly by any activities adverse to the environment. It is their parklands and forests that may be damaged. The State implies that plaintiffs must show that they own property adjacent to the park areas; the court disagrees. A showing that they use the park and live nearby is enough to satisfy the standing requirement for these plaintiffs.
Whether the Sierra Club has standing in this case is a more difficult question. Despite the Club's well-known history as a vigorous advocate of environmental causes, recent Ninth Circuit decisions would seem to preclude standing in this case. Sierra Club v. Hickel, 433 F.2d 24, cert. granted, 401 U.S. 907, 91 S.Ct. 870, 1970; Alameda Conservation Assn. et al. v. State of California et al., 437 F.2d 1087 (1971). These cases contrast sharply with decisions in several other circuits. See Citizens Committee for Hudson Valley, the Sierra Club v. Volpe et al., 425 F.2d 97 (2d Cir. 1970), cert. denied 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970); Environmental Defense Fund, Inc. v. Hardin, 138 U.S. App.D.C. 391, 428 F.2d 1093 (1970); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971). In order to resolve this conflict the Supreme Court has granted certiorari in Sierra Club v. Hickel.
In light of certain agreements by the parties and the history of the Sierra Club as a dedicated speaker for environmental causes, this court will grant the Sierra Club "conditional standing" to litigate this case, pending the Supreme Court decision in Sierra Club v. Hickel.
D. Class Action Questions
The federal defendants allege that plaintiffs have failed to satisfy the requirements for a class action under Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, they assert that "there are not questions of law or fact common to the class, nor are there typical claims or defenses common to all the plaintiffs or the class they purport to represent." (Federal Defendants' Brief of August 17, 1971 at p. 21). The court disagrees. See Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968).
III. Plaintiff's Motion for Preliminary Injunction
From the above discussion it is apparent that Project 238 became a federal-aid highway project on November 4, 1966, the day it received federal location approval. Such status necessarily entails certain responsibilities with regard to displaced persons and environmental protection. The various statutes and regulations apply immediately; they are not suspended until the State applies for federal funds. The court must now determine
The various statutes and regulations, as discussed above, impose numerous constraints upon both the State and Federal governments in the cases of federal-aid highway projects. From various affidavits it appears that a substantial number of people have been displaced or are about to be displaced from the project. From the evidence thus far presented it also appears that, despite sincere efforts, the State has an inadequate relocation assistance program, as defined by § 205 of the Uniform Relocation Assistance Act of 1970 and IM 80-1-71. The State, albeit in good faith, has failed to comply with the federal relocation statutes and regulations.
It is the determination of this court that a preliminary injunction should issue for these violations. Plaintiffs satisfy all of the requirements for a preliminary injunction:
1. The harm to plaintiffs and the class they represent is clearly irreparable. One who is forced to vacate his chosen neighborhood or city, to sever long-standing friendships, to confront a tight and possibly discriminatory housing market, and to incur other indignities that are likely to be present here suffers severe and irreparable injury. Only after legislatively-authorized procedures have been complied with should displacement be permitted.
2. There is a high probability that plaintiffs will prevail on the merits.
3. The public interest favors the granting of the injunction. See 23 U.S. C. § 501, IM 80-1-71, and Policy and Procedure Memorandum 20-8.
4. Any harm to defendants is clearly outweighed by the harm to plaintiffs were the preliminary injunction not issued.
The environmental regulations can be approached in a similar fashion. Though the State presently is attempting to compile 4(f) statements, no such statements have yet been submitted. As was discussed above, such statements are required when a project is likely to have an impact on the environment. See DOT Order 5610.1.
From the evidence presented it appears that Project 238 will have a most significant impact on the environment. The highway will probably cut through three parks: the Hayward Botanical Gardens, Hayward Memorial Park, and Fremont Central Park. There is also evidence that certain portions of Project 238 are proposed to be constructed over known fault areas. See Plaintiffs' Exhibit 42, affidavit of Professor George P. Simonds. These were the types of factors Congress deliberately wanted to be taken into account when it said in § 4(f) and § 138:
The court finds that a § 4(f) statement is required for the 238 Project at the present stage of development. No more land should be acquired nor should any action be undertaken which would materially affect the environment until 4(f) statements have been prepared and the Secretary is satisfied that (1) no feasible alternative route exists, and (2) any harm to the environment has been minimized.
PRELIMINARY INJUNCTION
1. It is hereby ordered, adjudged, and decreed, that pending the further Order of the Court, state defendants, their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them or any of them are, each and all, hereby restrained and enjoined from:
2. It is further hereby ordered, adjudged and decreed, that commencing immediately, and thereafter until the further order of this Court, defendant Volpe, his officers, agents, servants, employees, attorneys, and all persons in active concert with them or any of them, each and all, are hereby restrained and enjoined from continuing to accord or to accord any approval to the Route 238 Project or plans, maps, or other documents connected therewith.
3. It is further hereby ordered, adjudged and decreed, that no person restrained and enjoined by this Preliminary Injunction shall undertake to avoid compliance by any indirection.
4. Any person enjoined by this Preliminary Injunction may move for termination upon showing that Federal and State defendants have fully and reasonably complied with Sections 205 and 210 of the Uniform Relocation Assistance and Land Acquisition Policies Act of 1970, P.L. 91-646, 84 Stat. 1894; Section 502(3) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 502(3); Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f); Section 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, and all Federal regulations promulgated under each of said statutes.
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