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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

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					                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE MIDDLE DISTRICT OF GEORGIA
                                  MACON DIVISION

CAUTION MACON, INC.; CHET STRUNK;                     )
JUNE BRYANT; JOHN DOE                                         )
and JANE DOE,                                         )
                                                      )
       Plaintiffs,                                    )
                                                      )
5.                                                    )           CIVIL ACTION FILE
                                                      )           NO. 5:99-CV-383-2
CITY OF MACON, GEORGIA; BIBB                          )
COUNTY, GEORGIA; KENNETH R. WYKLE,                        )
as Administrator of The Federal Highway               )
Administration; LARRY R. DREIHAUP, as )
Division Administrator of The Federal Highway         )
Administration; GORDON J. LINTON,                     )
Administrator, Federal Transit Administration;        )
RODNEY SLATER, Secretary of THE UNITED                    )
STATES DEPARTMENT OF                                  )
TRANSPORTATION; THE UNITED STATES                     )
OF AMERICA; GEORGIA DEPARTMENT                        )
OF TRANSPORTATION, and Their Successors               )
in Office,                                            )
                                                      )
       Defendants.                                    )


      PLAINTIFFS= POST-HEARING BRIEF, MEMORANDUM IN OPPOSITION
      TO DEFENDANTS= MOTIONS TO DISMISS AND CLOSING ARGUMENT

       COME NOW Caution Macon, Inc., Chet Strunk, June Bryant, John Doe and Jane Doe, by

and through their counsel, and pursuant to the direction of the Court, file this Post-Hearing Brief,

Memorandum in Opposition to Defendants= Motions to Dismiss And Closing Argument, and

show this Court as follows:

I.     INTRODUCTION

       Plaintiffs allege that Defendants have violated the National Environmental Policy Act, 42

U.S.C. ' 4321, et seq. (ANEPA@). The complaint in this action, filed September 29, 1999,
seeks a determination by this court that the environmental assessment approved by the Federal

Highway Administration (AFHWA@) on August 17, 1998 (AEA@) and the Finding of No

Significant Impact (AFONSI@) for Georgia Project STP-3257 (1), Bibb County, P.I. #350820

(the AHouston Road Project@) issued by the FHWA on August 17, 1998, are invalid and that the

EA be remanded to the agency for review and that the remaining Defendants be enjoined from

constructing or implementing the Houston Road Project until further order of this Court and

upon the preparation of an Environmental Impact Statement (AEIS@), appropriate public

comment and the final approval of the EIS. The EA is found in the transcript as Plaintiffs=

Ex. 69. The FONSI is Plaintiffs= Ex. 68.

       The Defendant Georgia Department of Transportation (AGDOT@) is made a party to this

action pursuant to its capacity as the agency through which the funding is channeled for projects

in the State of Georgia which qualify for and are funded with federal funds. Pursuant to an

agreement with GDOT, Defendants City of Macon and Bibb County (AMacon-Bibb@) obtained

jurisdiction over the road improvements in the City of Macon and/or Bibb County. Under that

agreement, Macon-Bibb was responsible for the preparation of requisite environmental studies

and documents to be submitted to the GDOT for review and preparation of the environmental

document. (TR. Vol. I, pp. 28-29; Federal Defendants= Memorandum in Support of Motion to

Dismiss, Attachment and cover letter of Wayne Shackelford to Larry Dreihaup dated

August 12, 1998). Macon-Bibb entered into a contract with Moreland & Altobelli Associates,

Inc. to perform these duties. (TR. Vol. III, pp. 8, 12 & 27, 103).

       This Court has subject matter jurisdiction over the state law claims unless and until the

federal claims have been dismissed by this Court and pursuant to 28 U.S.C. ' 1367.

                                                 2
II.     STANDARD OF REVIEW

        The standard of review of the final agency action of the FHWA is conducted pursuant to

the Administrative Procedure Act, 5 U.S.C. '701, et seq. AUnder the Administrative Procedure

Act, a court shall set aside an action of an administrative agency where it is arbitrary, capricious,

or an abuse of discretion or not in accordance with law.@ Preserve Endangered Areas of

Cobb=s History, Inc. v. United States Army Corps. of Engineers, 87 F.3d 1242 (11th Cir. 1996),

citing 5 U.S.C. ' 706(2)(A) and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III.    STANDARD FOR INJUNCTIVE RELIEF

        A court may issue a preliminary injunction if the moving party shows (1) a likelihood of

success on the merits of its case, (2) a substantial threat of irreparable injury if the injunction

were not granted, (3) that the threatened injury to the plaintiffs outweighs the harm an injunction

may cause to the defendant, and (4) that granting the injunction would not be a disservice to the

public interest. Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994). Canal Authority v.

Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

IV.     ARGUMENT AND CITATION OF AUTHORITY

        A.      A Full-Blown EIS Is Appropriate For The Houston Road Project.

        This Court must decide whether Macon-Bibb may go forward with the Houston Road

Project with the aid of federal funds without this Court requiring a further review by the FHWA

of the EA and the requirement that the Defendants prepare a full-blown EIS.1 This Court must


        1
         See argument below on the issue of segmentation which will require that the Houston
Road Project be looked at as a larger project and therefore an EIS would be required.


                                                   3
affirm the Secretary=s decision unless the decision was Aarbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.@ 5 U.S.C. ' 706(1)(A). Pursuant to the

Administrative Procedure Act, the Court is required to consider whether:

               1.     The Secretary acted within the scope of his authority... .
               2.     The Secretary properly construed his authority to approve
                      the use of [Section 106 and Section 4(f) resources] as
                      limited to situations where none of the alternatives to such
                      use are feasible and prudent.
               3.     The Secretary could have reasonably believed that in the
                      case under review there are no feasible and prudent
                      alternatives.
               4.     The Secretary=s decision was based on a consideration of
                      the relevant factors.
               5.     The Secretary made a clear error of judgment.
               6.     The Secretary=s action followed the necessary procedural
                      requirements.

Stop H-3 Ass=n v. Dole, 740 F.2d 1442 (9th Cir. 1984). Although Athe Secretary=s decisions are

entitled to a presumption of regularity, that presumption does not >shield his action[s] from a

thorough, probing, in-depth review.=@ Id., quoting Overton Park, 401 U.S. at 415. The court

must also review the full administrative record. Id. at 1450.

       B.      Plaintiffs= Promptly Brought this Action and Are Not Barred by the
               Doctrine of Laches.

               Laches is purely an equitable doctrine by which equitable relief is
               denied to one who has been guilty of unconscionable delay in
               seeking that relief.

United States v. Olin Corp., 606 F. Supp. 1301 (N.D. Ala. 1985).

       Plaintiffs here seek judicial relief before Defendants Macon-Bibb have actually signed the

construction contract or commenced construction and during a period of time shortly after the EA

had been amended and approved as of August 10, 1999, (TR. Vol. III, pp. 106, 108-109; Federal



                                                 4
Defendants Memorandum in Support of Motion to Dismiss, p. 87). Airport Neighbors Alliance,

Inc. v. United States, 90 F.3d 426, 429 (10th Cir. 1996) (when most of environmental concerns

related to use of enlarged airport runway and not to its actual construction, NEPA challenge

relating to enhanced use not moot despite completion of enlargement). By analogy, a plaintiff

must act in such a way that the challenge of an agency=s EIS, for example, as being inadequate,

cannot be undertaken until the agency has made the final EIS publically available. Kleppe v.

Sierra Club, 427 US 390, 406 n.15, 96 S.Ct. 2718, 2728 n.15, 49 L. Ed.2d 576, 588 n.15 (1976).

Plaintiffs contend that the EA was, in fact, not complete in the sense of being final until it was

amended in August 1999. (Plaintiffs= Ex. 83).

       Plaintiffs have not delayed in filing this action to the extent that the equitable doctrine of

laches would apply. To assert that laches applies to an environmental case, the defendant must

show: (1) a delay in asserting a claim or right; (2) inexcusable delay; and (3) undue prejudice to

the party against whom the claim is asserted. Save Our Wetlands, Inc. v. United States Corp of

Engineers, 549 F.2d 1021 (5th Cir. 1977); Olin Corp., 606 F. Supp. at 1309-10; Hall County

Historical Society, Inc. v. Department of Transp., 447 F. Supp. 741, 748 (N.D. Ga. 1978). All

three requirements must be met by defendant. See, e.g., Ecology Center v. Coleman, 515 F.2d

860, 867 (5th Cir. 1975) (even though defendant showed unexplained delay of plaintiff, failure to

show prejudice barred defendant from successfully asserting laches); Watz v. Zapata Off-Shore

Co., 500 F.2d 628, 633 (5th Cir. 1974) (A[P]roof of either absence of prejudice or excuse for

delay will repel a claim of laches@). Laches is an equitable doctrine in which the trial judge

maintains a considerable discretion in deciding. Watz v. Zapata Off-Shore Co., 500 F.2d 628,

633-34 (5th Cir. 1974).


                                                  5
               1.      Plaintiffs Have Not Delayed in Asserting Their Claim.

       Here, negotiations were undertaken and pursued, and an ad litem notice served on

Defendants in early 1999. (TR. Vol. III, pp. 141-142). Plaintiffs have not delayed in asserting

any of their rights with respect to the Houston Road Project. The court in Hall County

examined whether a plaintiff was guilty of inexcusable delay when the plaintiff=s rights under

several federal statutes became enforceable a few years prior to plaintiff filing suit to enjoin

construction of a federally-funded highway through a historical area. Hall County, 447 F. Supp.

at 748. The court considered plaintiff=s efforts to bring the unique historical character of the

district to the defendant=s attention using less intrusive means than filing a lawsuit. After

continued negotiations with defendant to no avail, plaintiff finally filed suit. Id. The court held

that laches was not applicable. Id. Thus, the courts recognize a plaintiff=s efforts to rectify his

complaint through non-legal means upon the maturity of his claims.

       Plaintiffs have not delayed their opposition to the Project, but have actively pursued

governmental authorities, readily voicing their complaints through numerous measures.

Plaintiffs have submitted numerous letters, attended public hearings and sought meetings with

public officials to express their concerns regarding the detrimental impacts of the project on the

community, historic structures, and environment. (TR. Vol. III, p. 14).

       Defendants argue that since the EA was issued in August 1998 and the lawsuit was filed

September 29, 1999, Plaintiffs are barred by laches. The evidence shows that plaintiffs sent an

ad litem letter to Defendants Macon-Bibb on March, 9, 1999, and on May 10, 1999. (TR.

Vol. III, pp. 141-142). The evidence further shows that the project was delayed during the

period in which the addendum to the EA was being prepared. The Addendum Assessment of


                                                  6
Effect for the Houston Road Project was approved in August 1999. (TR. Vol. III, p. 96, Ex. D

B/M 10). The FHWA=s witness, Faye Dimassimo, testified that, in effect, the EA is a living

document. In fact, the EA is subject to additional review upon the discovery of additional

substantive information or matters which would affect the environmental assessment of a project.

 (TR. Vol. III, pp. 109, 128).

       Unless the proposed action falls within a categorical exclusion, the agency must comply

with NEPA=s environmental assessment procedures, EIS procedures, or both. 40 C.F.R.

' 1501.4(a)-(b)(x). While NEPA and CEQ regulations may not mandate a supplemental EA,

the court has found that an agency=s failure to do so when new information had become known

was a failure to comply with NEPA. Leavenworth Audubon Adopt-A-Forest Alpine Lakes

Protection Soc=y v. Ferraro, 881 F.Supp. 1482, 1491 (W.D. Wash. 1995).

               2.      The timing of this lawsuit has not prejudiced Defendants.

               Defendant GDOT further argues that, since the contract for construction of the

Houston Road Project was let on September 24, 1999, following the publication of the request

for bids on September 17, 1999, that Plaintiffs were further barred by laches. By asserting that

Plaintiffs are guilty of laches, Defendants are forcing Plaintiffs to find a manufactured boundary

between ripeness and inexcusable delay. Like the Plaintiff in Hall County, Plaintiffs properly

and timely brought their Complaint in this case after pursuing non-legal means, and should

thereby be allowed to pursue their legal contentions.

       To assess prejudice, the courts examine the actual expenditures of the defendant agencies

and weigh the public interest in the transportation needs offered by the project with the

environmental harm. Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 868 (5th Cir.


                                                 7
1975); Save Our Wetlands, 549 F.2d at 1028 (balancing expenditures of agency with

environmental benefits to discontinuing the project). Defendants only cite a delay in the

completion of the project as a harm to the general public. Though Plaintiffs plainly

acknowledge that safer roads are important, Plaintiffs fervently assert that any benefits the public

would reap from the expanded road are outweighed by the detrimental impacts of the Houston

Road Project, including air pollution, flood damage, damage to historic structures, and a likely

increase in speeding, causing dangerous roadways. See id. at 869 (finding environmental

degradation as supportive of a finding that prejudice exists). Defendants cannot tie their

prejudice to the assumptions that the road will positively affect the community.

               3.      Plaintiffs= actions do not have the necessary detrimental effect to
                       constitute laches.

               Defendants have not made an adequate showing of factual evidence to support a

laches defense. Defendants= Motions to Dismiss focus only on Defendants= perceived

prejudice to the public of stopping the Houston Road Project and its unsubstantiated conclusion

that Plaintiffs seek Aa strategic advantage or to reopen the public debate.@ Surely, such a frail,

meager showing is not sufficient to overcome the hurdles to establish laches in this case.




                                                 8
       C.      Defendants= Conclusions Regarding Their AHard Look@ at the Effects of the
               Project Are A Nullity Because Defendants= Improperly Segmented the
               Project to Circumvent NEPA=s Procedures.

               NEPA=s requirements were not satisfied because Defendants improperly

segmented the Houston Road Project to avoid preparation of an EIS. NEPA requires that an EIS

be prepared when a governmental action has a significant impact on the quality of the human

environment. 42 U.S.C. ' 4332; Sadler v. 218 Housing Corp., 417 F. Supp. 348, 355 (N.D.

Ga. 1976). To avoid the procedural requirements imposed by NEPA, government entities

sometimes Asegment@ the project into several smaller projects that dilute large significant

impact into smaller effects, such that each smaller project does not have a significant impact. In

this way, the government avoids its obligation to formulate a full EIS. To combat this method

of avoidance, the Code of Federal Regulations require that the action be evaluated to Aconnect

logical termini and be of sufficient length to address environmental matters on a broad scope@

and A[h]ave independent utility or independent significance, i.e., be usable and be a reasonable

expenditure even if no additional transportation improvements are made in the area.@

C.F.R. 23 ' 771.111. Thus, the regulations require governmental entities to address their

proposed roadway projects with a broad view of the entire impact of the project on the

environment, establishing guidelines to define an independent project versus a segmented

project.

       A line of cases in this circuit demonstrate the use of this scheme of avoidance in the

highway context. Named Individual Members v. Texas Highway Dep=t, 446 F.2d 1013,

1022-23 (5th Cir. 1971) (rendering government=s division of highway project into two end

segments illegal and demonstrative of bad faith); Hawthorne Environmental Preservation Ass=n

                                                9
v. Coleman, 417 F. Supp. 1091, 1099-1100 (N.D. Ga. 1976) (holding that EIS must be conducted

after concluding that government improperly segmented highway project). To examine whether

a highway project is unfairly divided into smaller projects, courts look at whether the length of

the highway project is between two logical termini. See, e.g., Hall County, 447 F. Supp. at 749.

Other considerations include whether the segmented portion is an extension of the present road

or a connective link; has independent utility; and whether the segment serves local needs.

Hawthorn, 417 F. Supp. at 1100. The court has also analyzed whether the proposed segment

does not irretrievably commit federal funds for other related projects. Piedmont Heights Civic

Club, Inc. v. Moreland, 637 F.2d 430, 440 (5th Cir. 1981). When the roadway runs between two

cities, logical termini are readily apparent. In contrast, a roadway running within a city=s

termini are not always clear, so the project=s independent utility is more closely examined. Id.

       The Houston Road Project cannot be considered a separate utility under the guidelines of

the Code of Federal Regulations and case law of this circuit. The logical termini of the Houston

Road Project are not clearly apparent.

       The EA, on Page 1 in the ANeed and Purpose@ statement, asserts that A[t]he

improvements are proposed to begin at the existing intersection of Houston Road and Sardis

Church Road/Walden Road and extend north to the existing Houston Road and US 41/SR 11

intersection... .@ (Plaintiffs= Ex. 69). The EA, on Page 3, further asserts that the Alogical

northern terminus of the proposed improvement is at the existing intersection of Houston Road

and US 41/US 129/SR 11/SR 49/SR 247, a multi-lane facility, which will provide a desirable

multi-lane facility interface.@ In fact, the testimony reveals that the Houston Road Project, as

planned, ends several hundred feet before the intersection which is asserted as the logical


                                                10
northern terminus of the proposed improvement. It therefore fails to connect to a major

thoroughfare and terminates at a dangerous underpass that represents a congested area and

bottlenecks by reason of a sudden reduction of traffic lanes at that point. (TR. Vol. II,

pp. 103-104; pp. 117-118).

       A closer examination of the traffic counts and accident data, which were the subject of

the testimony of Faye Dimassimo and Jim Evans, shows that such data took into account the

entirety of Houston Road and includes data accumulated at the actual intersection of Houston

Road and SR 247 (which intersection is not part of the Houston Road Project).2 Both

Walter Kulash and Douglas Hayes testified to their concerns relating to safety issues because the

Houston Road Project illogically terminates several hundred feet before the intersection.

Accordingly, the Houston Road Project does not have logical termini.

       The Houston Road Project does not have independent utility or serve local needs. The

Houston Road Project does not serve a purpose independent from the other portions of the

roadway that have been omitted from the entire roads program project and earmarked for later

development. Contra Preserve Endangered Areas of Cobb=s History, Inc. v. United States

Corps of Engineers, 87 F.3d 1242, 1248 (11th Cir. 1996) (finding independent utility when new

road would take residents from the western part of the county to the eastern part of the county,

connecting commercial activity and lessening traffic volume). The origin of the funding also

suggests a lack of separateness of the Houston Road Project from the overarching Macon-Bibb

Roads Improvement Program. The initial funding for the Macon-Bibb Road Improvement

Program came about from a single referendum in 1994. Sierra Club v. Callaway, 499 F.2d 982,
       2
           See argument in Section F related to the flawed traffic counts and accident data.


                                                 11
987-88 (5th Cir. 1974) (AThe element of time is materially important and cannot be ignored in

determining the issue as to whether the projects are separate.@). The treatment of the Houston

Road Project as an independent utility apart from the larger roads project for no apparent reason

is a blatant attempt to circumvent NEPA=s requirements for the preparation of an EIS for the

entire roads project.

       D.       The Violations of the Statutory Scheme of NEPA in the Preparation and
                Approval of the EA Is Arbitrary, Capricious, an Abuse of Discretion, and
                Not in Accordance with the Law.


                1.      The Plaintiffs Have Met Their Burden To Show That Defendants
                        Acted Arbitrarily and Capriciously In The Preparation And Approval
                        of The EA.

       The court has announced its intention to be guided by the law as stated in the case of

Citizens to Preserve Overton Park, Inc. v. Volpe, 404 U.S. 402 the Administrative Procedure

Act, 5 U.S.C. ' 706(2)(A). The court should further be guided by the Federal Declaration

Judgment Act.

       The case of National Helium Corp. v. Morton, 486 F.2d 995, 1000 (10th Cir. 1973), Cert.

denied, 416 U.S. 993 (1974), held that NEPA furnishes a jurisdictional base for federal court

action. The relief under NEPA is declaratory and injunctive. Its purpose is to maintain the

status quo until the agency has complied with NEPA=s procedures abiding a decision based on

consideration of all relevant environmental consequences of the proposed action. Once the

agency has complied with NEPA=s procedures, the Plaintiffs understand that they cannot

judicially prevent the agency from pursuing its action however environmentally unwise that




                                                12
action may be. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835,

1846, 104 L.Ed.2d 351 (1989).

       The federal courts apply the traditional test for injunctive relief which, with some

variations depending on the circuit, inquires whether the plaintiff has shown: (1) a substantial

likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction

is denied; (3) the threatened injury outweighs the threatened harm the injunction may cause the

defendants; and (4) the public interest will not be disserved by granting the injunction. Canal

Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

       The U.S. Supreme Court, in Marsh v. Oregon Natural Resources Council, 490 U.S. 360,

109 S. Ct. 1851, 1860; 104 L.Ed.2d 377 (1989), applying 5 U.S.C. ' 706(2)(A), settled a conflict

among the circuits by determining that the appropriate standard of review for agency=s decision

not to supplement an EIS was an arbitrary and capricious standard of the Administrative

Procedure Act and not the reasonableness standard formerly applied by some circuits. The court

states, however, that the difference between the standard was, Anot a great pragmatic

consequence.@ Id. 109 S. Ct. at 1861 n. 23; North Buckhead Civic Association v. Skinner, 903

F.2d 1533, 1538 n.20 (11th Cir. 1990). The Supreme Court=s holding regarding the standard of

review requires a reviewing court to set aside an agency=s decision, if it is Aarbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with the law.@ 5 U.S.C. ' 706(2)(A).

The reviewing court must also Aconsider whether the decision was based on a consideration of

the relevant factors and whether there has been a clear error in judgment.@ The inquiry is

required to be searching and careful but the ultimate standard of review is a Anarrow one.@

Marsh, supra.; Citizens to Preserve Overton Park, Inc. v. Volpe, 404 U.S. 402, 416 (1971).

                                                  13
Further, the court may not substitute its judgment for that of the agency and requires the plaintiff

to accept the initial burden of proof in challenging the agency=s determination not to prepare an

EIS based on the showing that the proposed action does not significantly affect the human

environment. Missouri Coalition for the Env=t v. Corps. of Engineers, 866 F.2d 1025, 1032 (8th

Cir. 1989) (plaintiff has initial burden to demonstrate facts omitted from the record which, if true,

would show substantial impact on the environment).

       The 5th Circuit has also accepted the alternative that the plaintiff carries its burden by

showing that a determination of significance could not be fairly made at that time because the

agencies determination is based on a flawed analysis. Fritiofson v. Alexander, 772 F.2d 1225,

1238 (5th Cir. 1985); Foundation on Economic Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir.

1985). In the Fritiofson decision, the court stated the test was Awhether there is a possibility,

not a certainty, of significant impacts.@ While the Plaintiff=s allegation must be supported by

specific evidence [Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 68 (D.C.

Cir.1987)], if the plaintiffs meet their burden of proof, the burden shifts to the agency. Missouri

Coalition, supra. at 1032.

       The agency=s decision not to prepare an EIS will not be upheld unless the agency=s

decision was supported by a Ahard look@ at the proposed action=s potential environmental

affects. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87,

103 S.Ct. 2246 (1983).

       As presently prepared, it is clear that the Secretary ultimately found the EA lacking and

insufficient, particularly as relates to the need for the amendment for the historic data that was

accomplished only in August of 1999. (Plaintiffs= Ex. 83) NEPA=s requirements are mandated


                                                 14
in addition to the statutes affecting the agency in the assessment process. The Addendum

(Ex. 83) was relegated to a time when the environmental assessment really became the

instrument to rationalize and justify the prior decision. See Save the Yaak Comm. v. Block, 840

F.2d 714, 718 (9th Cir. 1988). Further, the traffic engineer offered by the Defendants, Mr.

Evans, during testimony in which the Plaintiffs offered evidence of erroneous figures, admitted

his first draft was only Afor review@ and had Atypographic@ errors that required a resubmission

(TR. Vol. III, p. 169; D B/M Ex. 11). Both the resubmission and critique by Plaintiffs= witness,

Mr. Hayes, were both accomplished only after the NEPA process was a fait d=accompli. (TR.

Vol. III, pp. 161, 168-171). Further, Mr. Evans= traffic count figures were not restricted to the

section to be built along the Houston Road segment, including the SR 247 underpass and curve

(TR. Vol. III, pp. 172-173, 177 & 183; Plaintiffs= Ex. 84), nor did he consider speed limit

changes, enforcement policies or quantify the use of private driveways and curb cuts, which

surely would have been relevant to a rigorous analysis. Evans= testimony revealed in toto

something less than a careful and considered analysis and was absolutely flawed as a matter of

technical accuracy..

       As relates to use issue of segmentation, Mr. Evans did not address the matter. His

testimony was based on traffic projections to year 2025 which were not generated by his own

research but figures produced by the DOT, an agency with an interest as a decision-maker; they

therefore included counts beyond the limits of the project. (TR. Vol. III, pp. 166-168). Even




                                                15
after his data selection outside of the project was modified and corrected of errors, it was

submitted to the Aroads program@ and not as a part of the EA.3

       Thus, the traffic data in toto constitutes misleading and erroneous information on the vital

issue of traffic, including the traffic accidents, i.e., what type and what kind, the cause, and

whether they occurred at intersections, mid-blocks or at driveways, and the misleading traffic

volume figures taken from areas outside the project. And finally, the question remains as to why

the corrected information was not dealt with in the EA or at least in the same manner as the

historic data, that is, by a formal amendment. The answer is, of course, that accuracy and

comprehensive data review were not considered essential to the project. It was first, and last, a

perfunctory effort.

       Preparation of the EA on applications to an agency should have begun close to the time

when the application was made and should have been completed and commented upon and

available to the public sometime before the sales tax referendum in 1994. (TR. Vol. III, p. 171) .

Aside from admitting that the job that was done was unsatisfactory, the Addendum prepared in

August of 1999, shows that the EA is, by its own admission, a document which was being

amplified and modified right up to the time when they proposed to advertise the acceptance of

construction bids. Such timing is too late for an effective use of the document and is clearly a

post hoc rationalization of its prior delegation to parties and contractors who have a palpable

interest in seeing that the road is constructed without delay. While the Secretary may delegate

the preparation of an EA to consultants and to applicants for federal funding, the regulations
       3
         This fact explains D B/M Ex. 11 document with the corrected figures (in cloud bubbles)
submitted by Mr. Hayes. It does not and cannot explain why the figures were not a part of the
EA.


                                                  16
require that federal officials independently review the EA and verify the data in it. Save Our

Wetlands, Inc. v. Sands, 711 F.2d 634, 641-43 (5th Cir. 1983); See, Sierra Club v. Alexander, 484

F. Supp. 455, 466-67 (1980).

       In the case at hand, the agency, contrary to the usual practice, did not prepare its own

EA.4    If information significantly relied upon by the agency is challenged as being inaccurate

and insufficient, the agency must conduct an independent investigation to verify or discredit the

information. Van Abbema v. Fornell, 807 F.2d 633, 639-42 (7th Cir. 1986); North Carolina v.

Hudson, 665 F. Supp. 428, 442 (E.D.N.C. 1987). The exercise of Aconsiderable caution@ is

required when federal agencies review an EA prepared by an entity [such as Moreland &

Altobelli] with an interest in the proposed action so that the agency does not substitute the

entity=s analysis for its own. 42 U.S.C. ' 5304(g); Brandon v. Pierce, 725 F.2d 555, 560 (10th

Cir. 1984). A federal agency is responsible for the scope and content of the environmental

assessment. 40 C.F.R. ' 1506.5(b), See, Stephens v. Adams, 469 F.Supp. 1222, 1227 (E.D. Wis.

1979). Among those things that should be discussed in the EA is the alternatives to the

recommended action, if the proposed action Ainvolves unresolved conflicts concerning

alternative uses of available resources.@ 42 U.S.C. ' 4332(2)(E).

       In any case, The EA and the FONSI must provide a reviewable record of an agency=s

decision not to prepare an EIS. The EA=s analysis may be less rigorous then that of an EIS, but

may not be perfunctory or conclusory. Citizen Advocates for Responsible Expansion, Inc. v.

Dole, 770 F.2d 423, 434 (5th Cir. 1985). While the agency is left to choose its methodology in

       4
        See, Blaug, Use of the Environmental Assessment by Federal Agencies in NEPA
Implementation, 15 Envt=l Professional 57, 61 (1993).


                                                 17
its EA, its methodology, nevertheless, must be scientifically justifiable. City of New York v.

United States Department of Transportation, 715 F.2d 732, 751 (2d Cir. 1983).

       Macon-Bibb=s Exhibit 12 (TR. Vol. III, p. 121) makes the point of the inherent problem

confronting the public in obtaining the information needed to make decision for a public

improvement. Both the document and 23 C.F.R. ' 771 are supposed to be guidelines and

regulations that prescribe the documentation for an EA. As described in Ms. Dimassimo=s

testimony (TR. Vol. III, p. 123; L. 6-19), the EA is to assist in determining whether an EIS is

required. In making the determination, Ms. Dimassimo offers this startling opinion, A... the EA

should address only those resources or features which the FHWA decides would have a

likelihood for being significantly impacted.@ This excludes detailed information or long

descriptions Aor analysis@ which may have been conducted for the proposed action. Surely, this

point of view arrogates to the agency a discretion which, if taken literally, is beyond review of

any other decision-maker. It goes beyond that which was intended by the CEQ and NEPA.

               2.      The Defendants Have Violated NEPA By Not Considering All
                       Prudent And Reasonable Alternatives To The Project As Required By
                       City of Alexandria, Virginia v. Slater, 1999 LEXIS 32702 (D.C. Cir.
                       Dec. 17, 1999).

       The Court has requested the parties to analyze City of Alexandria, Virginia v. Slater, 1999

U.S. App. LEXIS 32702. Since the case deals with a full EIS and involves a project studied

over some ten years, it deals with a different set of rules for an obviously larger, higher profile

project. At issue, however, is the spare and terse document (the EIS) prepared by the

Administration. While the District Court found it inadequate because it failed to consider




                                                  18
alternatives, the Circuit Court reviewed the EIS analysis and was content with its analysis of the

impact.

          The EA and FONSI get the Plaintiffs in this case no meaningful analysis. Further, it

elicits the response that none is needed because the project deserves no more than a cursory,

superficial look. Plaintiffs point out that the statute and regulations require a Ahard look@ and

rigorous analysis. As the Slater opinion points out, Plaintiffs cannot abide an analysis which

ventures from the Aterse to the intolerably mute,@ as recognized in Greater Boston Television

Corp. v. FCC, 444 F2d, 841, 852.

          The frustration with an unhelpful EA that shrugs off important concerns with sweeping

conclusions of Ano impact@ and declarations of indifference to omissions and errors rises to

fortissimo, when Plaintiffs consider the effort they made to inquire and participate and their effort

to apprize themselves as to the status of the project.

          There also were efforts directly to obfuscate the facts and to leave omissions unresolved.

Nor was the issue of segmentation and stated reasons for issuing a FONSI dealt with in the EA.

Slater presented, in a word, an issue of substitution of judgment of the Administration=s

alternatives and plan. Plaintiffs here have had no opportunity to argue and scrutinize any plan

because the FONSI issued, and it was too spare to offer any basis for judgment. Not only were

the neighborhood Plaintiffs= efforts to have this project meaningfully reviewed to no avail, but

the entire process and the procedures employed amongst the federal, state and local entities and

their contractors were so incestuous as to effectively result in a conspiratorial effort to comply

with so meager a work product that it became non-dimensional and Aintolerably mute.@




                                                  19
       The matter cannot be assessed without the same kind of judicial scrutiny that the District

Court and Circuit Court applied in Slater,--but essential to that analysis is the EIS and, prefatory

to that, a serious-minded effort in compiling an EA that considers Awhen the proposed action is

an integral part of a coordinated plan to deal with a broad problem, the range of alternatives that

must be evaluated is broader.@ Slater at 7, citing Natural Resources Defense Council, Inc. v.

Morton, Id. at 835.

       Thus, in spite of the lack of direct factual distinction between the EA and EIS, a

discussion of other relevant issues may be helpful.

       The Defendants have not followed NEPA=s mandate that it consider all reasonable

alternatives in its decision-making process. City of Alexandra, Virginia v. Slater, 1999 LEXIS

32702 (D.C. Cir. Dec. 17, 1999) lays the framework for analyzing whether a government agency

properly considered all reasonable alternatives before arriving at its preferred alternative project

plan. Defendants have run afoul of the requirements set forth in the Slater interpretation of

NEPA=s reasonable alternative procedural prong. Defendants= must properly proceed through

the procedural steps of NEPA, which ensure that all the impacts of a federal action upon the

environment are thoroughly considered.5 Though NEPA is a procedural act, Congress instituted

it to effectuate environmental protections, forcing government to consider all feasible

alternatives. Defendants should not be permitted to side-step this important focal point which

arose to the creation of NEPA even at the critical EA level.


       5
          Paul S. Weiland, Amending the National Policy Act: Federal Environmental Protection
in the Twenty-first Century, 12 J. Land Use & Envtl. Law 275, 281 (1997) (reviewing Senate
sponsor of NEPA, Dr. Lynton K. Caldwell=s assurance that the purpose of the Act is Ato adopt a
national policy for the environment in the context of the planetary biosphere@).


                                                 20
       To ensure that all prudent and reasonable alternatives are considered, Slater requires the

governmental body to identify the prudent and reasonable alternatives. Merely considering a

build or non-build alternative misses the mark. (TR. Vol. III, pp. 119-120). Slater developed

considerations for defining a prudent and reasonable alternative. When focusing on viable

alternatives, Slater requires a correct assessment of the properties impacted by the project and

the reasonability of the other Project objectives considered by the government to create a baseline

from which to judge alternatives. Only with the environmental impacts identified can

alternatives addressing environmental problems be analyzed. The Defendants= assessment of

alternatives must be evaluated in light of the framework enunciated by Slater. The deficiencies

become transparent. Once alternatives have been identified, NEPA requires assessment of

environmental impacts of each alternative. Thus, Slater develops a rather in-depth framework

for the reasonable alternative inquiry.

       a.      Defining a Reasonable Alternative

       The reasonableness of an alternative can only be determined in light of the objectives of

the federal action. Slater, 1999 LEXIS 32702 at *13-14. First, the objectives of the entity

conducting the federal project must be identified and defined. Id. An alternative can only be

excluded from consideration in an EIS when it does not achieve the ends of the federal action.

Id. As a result, Defendants are bound by NEPA to consider any alternative that may satisfy

project needs. This is precisely what Walter Kulash alluded to when he testified about modeling

 and its current accessibility with the aid of electronic programs and alternatives shown on the

cost benefit analysis. (TR. Vol. I, p.76). The court cannot prioritize the importance of the

project objectives, but the court must compel the government to engage in all relevant inquiries


                                                21
indigenous to the federal action. In general, a roadway project=s objectives will involve

environmental concerns as well as traffic and safety issues. See, e.g., Slater, 1999 LEXIS 32702

at *14-15 (considering region=s traffic needs and environmental goals in bridge project). All

objectives must be identified and evaluated. Thus, an alternative is reasonable if it brings about

the ends of the federal action and must be included in the EA/EIS for the project. Id. at *14.

        In the instant action, Defendants must define the Project objectives. Defendants state

that transportation needs and cost efficiency in achieving them were considered as an objective of

the Project. (TR. Vol. I, p. 120; EA p. 1) Specifically, the EA identifies the purpose and need

of the Project as road efficiency, traffic movement, and safety. EA at 1. Safety was also an

objective. (TR. Vol. I, p. 73 ). The GDOT evaluated the impact of high speed traffic routed

through or near residential communities. Id. at 127. In addition, the EA identified traffic

accidents as a project objective. The Defendants identified some environmental objectives,

including damage to local neighborhoods, air quality, historic impacts, and air/water quality. Id.

at 120-28 (generally discussing environmental concerns). Defendants attempts were merely

cursory and dismissive, omitting important project impacts. Accordingly, Defendants= stated

objectives are not reasonable because environmental project focuses are omitted. EA at 6-31.

Id. at *13.

        b.     Defendants did not evaluate all the Project=s objectives, resulting in a failure to
               properly identify all the adverse consequences of each alternative as required by
               NEPA.

        Defendants failed to identify all environmental impacts of the Project. Without

identifying these impacts, Defendants could hardly identify the environmental consequences of

each alternative. Slater, 1999 LEXIS 32702 at *22 (reiterating requirement of NEPA that


                                                22
Aadverse environmental effects@ of each alterative be identified). A reasonable and prudent

alternative must effect as little environmental damage as possible. To properly assess which

alternatives are reasonable and prudent, the adverse environmental effects must be identified as a

preliminary matter so that the court can assess whether project alternatives address them and the

impact on them. Slater, 1999 LEXIS 32702 at *22. Without having an understanding of the

environmental concerns surrounding the Project, Defendants could not adequately identify

reasonable and prudent alternatives, an exercise essential to a ' 106/4(f) determination. As

shown in this case, the impact on the historic property was not finally determined until the

amendment was filed and accepted. (August 10, 1999, Ex. 83). For example, the court in

Slater recognized the need to examine whether ancillary construction activities near the project

had an environmental impact significant enough such that their impacts should have been

included in the government=s consideration. Id. at *30-31. As a result of limiting

environmental impacts to a build or no-build alternative, the Defendants= identification of

reasonable alternatives and then identifying the adverse environmental consequences is to

convert the process to one of non-analysis.

       Defendants omitted significant environmental impacts from their analyses, dramatically

affecting their decision regarding the feasibility of alternatives. The fall line city terrain and

landscape of Macon presents a Adeceivingly large impact@ that the defendants have

underestimated. (TR. Vol. I, p.74). Due to the old road structure of Macon, widening Houston

Road requires new cut and fill slopes to be placed close to homes. Due to the creation of new

slopes, fill, and road widening, significant vegetation must be removed. Id. at 75 (large swath of




                                                  23
vegetation gone). Defendants did not consider the impact on the ecosystem of removal of

significant vegetation of the socio-economic impact on the neighborhood.

       In addition, moving power poles beyond the new right-of-way requires trees to be cut.

Id. Defendants failed to consider this environmental impact. Defendants also did not fully

evaluate the impacts of flooding of the Project. The flood plain crosses Houston Road according

to the 2015 plan. (TR. Vol. II, p.115). The EA incorrectly states that the flood plain does not

cross the road, dismissing stream impact flooding and drainage as a concern. Id. The EA does

not resolve the flooding issue. Id. at 129-30. Thus, Defendants have omitted development of

several important environmental concerns that must be addressed in an EA under NEPA.

Failure to identify or give credence to flooding concerns, tree demolition, and removal of

vegetation prevented Defendants from accurately defining reasonable alternatives and analyzing

the environmental impacts of each.

       The EA lacked any analytic discussion of the limited number of impacts that were

identified in the EA. The Slater court examined the government=s depth of discussion of

alternatives and project objectives to determine whether the government truly gave pause to the

stated objectives. Defendants in this case overtly dismissed important environmental concerns,

imprudently casting off their NEPA obligations. Alternative courses of action to the preferred

alternative have only received Afragmentary and incomplete@ review by the government,

preventing a true evaluation of the trade-offs that can be made to accomplish all project goals.

(TR. Vol. I, p.86). The EA also did not even undertake a thorough analysis of its chosen

alternative. See, e.g., id. at 95 (where Walter Kulash states, AI cannot assume [accidents have]

been part of the process because I don=t see a rigorous analysis of what getting those left-turn


                                                24
vehicles out of the stream would have done, for example, to the rear-end collisions . . . . I see just

a blanket statement that we must have five lanes to solve this problem.@).

       c.      Defendants failed to consider all reasonable and prudent alternatives as required
               by NEPA

       Defendants failed to pursue all reasonable and prudent alternatives as required by NEPA

and Slater. As a result, Defendants has not chosen an alternative that addresses and mitigates

the weighty environmental effects of the Project. Plaintiffs can demonstrate the deficiencies in

Defendants= procedural process by presenting viable alternatives that were not considered. In

addition, circumstantial evidence apparent in Defendants= procedural process shows an utter

lack of attention to alternatives, but instead, evidences Defendants= true intent to railroad the

Project through the procedural process, shortcutting NEPA.

       Plaintiffs present viable alternatives that Defendants have curiously overlooked. Slater

requires that Plaintiffs= proposed alternative meet all the project objectives, bringing about the

ends of the federal action. Slater, 1999 LEXIS 32702 at *13-14. Plaintiffs assert that an

Alternate Networking alternative should have been considered. (TR. Vol. I, p.77-78).

Presently, Macon has a single arterial road infrastructure in which development connects only to

that arterial road. Id. at p.77. The Alternate Networking alternative would involve creation of

new links to the local and state roadway network so that alternate paths would divert traffic from

the single artery. Id. at 78. In the instant action, numerous alternate routes are available. Id.

The EA, however, did not include even a fragment of the alternate networking process as part of

any of Defendants= alternatives. Id. The Alternate Networking alternative would accomplish

Defendants= overarching goal of moving traffic as fast as possible. Id. at 85. But see



                                                 25
TR. Vol. I, p. 82-83) (describing problems with major arterial improvements, such as the build

alternative, with accomplishing end goals of satisfying traffic demands).

       Plaintiffs also propose consideration of Amiddle-ground@ alternatives. TR. Vol. I, p.70).

 Intermediate alternatives that are conspicuously absent from the EA usually make the best

alternativesByielding the benefits of the project through an efficient model. Id. at 71.

Defendants did not consider a three-lane alternative with selected right-turn lanes combined with

interaction improvements. This alternative would provide many project benefits while

minimizing the costs and impacts, creating only a small footprint on the landscape. Id. at 72.

       In addition, Plaintiffs propose an alternative to reduce Houston Road to a two-lane,

bringing it up to a standardized roadway system, and increasing the Industrial Highway to an

improved four-lane road. (TR. Vol. II, p. 140-41). Traffic would be diverted from Houston

Road and drainage issues would be resolved because the Industrial Highway is beyond the

drainage problem. Id.

       Defendants cannot in good faith assert that they considered all reasonable and prudent

alternatives. Defendants considered three alternatives: (1) the build or preferred alternative; (2)

a no-build alternative; and (3) two four-lane alternatives with slight derivations to the preferred

alternative. (EA at 6; TR. Vol. I, p. 69-71). Defendants failed to consider a wide range of

alternatives between the no-build option and the preferred alternative. Id. at 72 (AThese are the

[intermediate] alternatives that we don=t find in the EA. We find the makings of what would

have been a good alternative.@). In contrast, the agency in Slater considered seven build

alternatives and one no-build alternative prior to deciding upon the preferred alternative. Slater,

1999 LEXIS 32702 at *5-6. The agency in Slater undertook a detailed analysis of mitigation


                                                 26
plans for environmental effects, including historical sites, drainage, and wetland mitigation. Id.

Defendants in this case have not engaged in any similar analysis. The Defendants= superficial

attempt to demonstrate it even identified all reasonable and prudent alternatives fails.

       Not only did Defendants fail to identify all alternatives, but Defendants did not seriously

consider or apply the same rigor to the no-build alternative or any other intermediate alternatives.

 As engineering expert Mr. Kulash stated at the hearing before the Court, AI did not find a full

and reasonable analytical examination of even the no-build . . . . Because we have no basis for

guaging [sic] reasonable intermediate alternatives. We have a basis for guaging [sic] the

full-build alternative, and that assessment is causing considerable, considerable concern.@ (TR.

Vol. I, p. 72-73). For example, in the EA and supporting materials, EA preparers did not

perform a travel demand forecast model for the no-build alternative. Id.

       Slater=s framework conclusively shows flaws in Defendants= consideration of all

reasonable and prudent alternatives. Without adequately defining the environmental objectives

of the Project, Defendants could not assess what viable alternatives meet those needs. Further,

Defendants have ignored alternatives that would have satisfied the ends of the federal action.

NEPA mandates they be considered. Thus, Defendants are unable to meet the requirements of

Slater to show they adequately considered all reasonable and prudent alternatives.

       E0      The EA Is a Substandard and Incomplete Document, Admittedly a ALiving@
               Document, and the Court Will Necessarily Inquire into Matters Outside the
               Document.

       Judicial review is restricted to the administrative record with a few exceptions. One

exception is the admission of expert testimony on scientific or technical matters, not in the

administrative record to demonstrate that the agency=s research and analysis of factors mandated


                                                 27
by NEPA were inadequate. See National Audubon Society v. US Forest Service, 46 F.3d 1437,

1448 (9th Cir. 1993), County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1384-1385 (2nd

Cir. 1977).

       Newly discovered evidence or evidence showing the agency=s possible bad faith and

evidence regarding a plaintiff=s suggested alternative should be admitted. Sierra Club v. U.S.

Army Corps. of Engineers, 935 F. Supp. 1556, 1566-68 (S.D. Ala. 1996).

       As the Court noted, exceptions to going outside the record apply: 1) if a court finds it

necessary to do so when an explanation of the agency=s action is necessary to prevent the

frustration of judicial review; 2) if the agency appears to have relied on documents or materials

not in the record; 3) if technical terms of complex or complex subject matter and the agency

action require explanation; or 4) if the plaintiff makes a strong showing of bad faith by the

agency. Town of Norfolk v. EPA, 761 F. Supp. 867, 875-76 (D. Mass. 1991), Aff=d. 960 F.2d

143 (1st Cir. 1992); Preserve Endangered Areas of Cobb=s History, Inc. v. U.S. Army Corps. Of

Engineers, 87 F.3d 1242 (1996).

       When an agency has decided by its conduct or omission that NEPA does not apply to a

proposed action, the administrative record may be devoid of submissions regarding NEPA

considerations. In such case, a reviewing court may permit parties to the action to present

evidence outside the administrative record. Landmark West! v. United States Postal Service,

840 F. Supp. 994, 1004 (S.D. N.Y. 1993), Aff=d. 41 F.3d 1500 (2d Cir. 1994).




                                                28
         F0     The EA Is Procedurally Defective in Numerous Instances Which Show
                Substantial Threat of Irreparable Injury If the Houston Road Project
                Proceeds.

         The Plaintiffs in this case have asserted that the EA is inadequate from both the

substantive and the procedural point of view. In those instances where studies were not

performed by Defendants or were omitted from the EA, the procedural deficiencies are

significant and glaring. In those instances where the substantive conclusions are inferences

drawn from incomplete sources or studies that lack detail, the relevance of such flawed findings,

undermines the substantive and procedural aspects of a acceptable EA. In the case before the

Court, the omissions of analysis for such matter as the northern intersection of Houston Road and

SR 247 at the overpass, the exaggerated accident counts due to the inclusion of portions of

Houston Road and intersecting streets outside the subject project, as well as the exaggerated

traffic counts as testified to by Mr. Evans (TR. Vol. III, p. 170), clearly indicate that

Macon-Bibb=s agent, Moreland & Altobelli, was attempting to reach a conclusion and justify a

finding of no significant impact.

         The Addendum to the EA (Plaintiffs= Ex. 83) demonstrates two immutable principles:

to-wit, (1) that the accepted EA upon which the FONSI issued was inadequate and had to be

amended to include the historic properties that were omitted in the EA, and (2) Macon-Bibb and

its agents engaged in predatory practices which were drawn to Mayor Jim Marshall=s attention

and this information prompted his memorandum to the Executive Committee for the Roads

Program and its attorneys. (Plaintiffs= Ex. 53). Both episodes represent a strong showing of

bad faith and improper behavior in the preparation of the EA. Preserve Endangered Areas,

supra.


                                                  29
        Suzan Rivers testified about the citizens= intervention and their efforts to engage Senator

Brown to obtain what should have been a regular procedural step in the process of submitting a

report for comment. The subsequent resignation of Mark Edwards after his proposed letter was

suppressed by Adecision-makers@ and cooperating department heads, including the Department

of Natural Resources, is sufficient to call into question the credibility and legitimacy of the EA

filed in this case. (TR. Vol. I, pp. 162-164, 167; TR. Vol. II, pp. 86-89; Plaintiffs= Ex. 53; Ex.

59).6

        Further, as Daniel Fisher testified, the omission of the flood plain map and substitution in

lieu thereof of an insurance rate map in the EA when the County=s 2015 Land Use Plan

identifies problems of serious flooding in South Bibb County are indications of erroneous review

and conclusions. (TR. Vol. I, pp. 120-121). Marilyn Meggs testified that the EA fails to deal

with the flooding conditions in South Bibb County. Ms. Meggs pointed out that the EA contains

only two (2) sentences with regard to floodplains, and both statements are false. (TR. Vol II,

p. 80; Plaintiffs= Ex. 69, p. 30.7 The EA did not contain comment by any reviewing agency

relative to the wetlands, storm water run-off or flooding, and no further statement was made

other than vague commitments to construct the road in accordance with the 100-year flood plain

standard and Afeatures to prevent storm water run-off.@ (Plaintiffs= Ex. 69, p. 33).

        Ms. Meggs testified that she hired a professional to prepare a hydrology study of

Watershed 10, which is the drainage basin affecting her property, and the results were submitted
        6
         Ms. Rivers testified she was unaware of any addendum to the EA at the time of the
hearing. (TR. Vol. II, p. 9).
        7
        The EA asserts compliance with Executive Order 119988, but fails to recognize
problems created by run-off of storm water. (TR. Vol. II, p. 82).


                                                 30
to the Defendants; however, neither the information contained in that study, nor any other

hydrology study, is contained in or eluded to in the EA. (TR. Vol. II, p. 81). Deborah

Varnadoe testified that she had concerns that the Houston Road Project would create drainage

onto her residential lot at a faster rate than present, and that presently her property has been the

subject of overflowing water and flooding. (TR. Vol. II, pp. 58-59). Testimony of these

witnesses is Astakeholder@ testimony based on the experience of living and working in the area.

Its receipt and consideration in an EA of this type of information is a core consideration of the

process. It cannot be legitimately ignored by Adecision-makers@ who remain aloof and remote

to the existing conditions.

       In fact, Macon-Bibb had a flood study prepared by Tribble & Richardson, Inc. dated May

18, 1998, which indicated the need for an additional storm water detention facility to be

constructed in conjunction with the road widening. (TR. Vol. III, p. 106; Plaintiffs= Ex. 65;

Vol. III, pp. 194-195). When Ms. Varnadoe attempted to obtain an updated flood study, she was

told it was unavailable. (TR. Vol. II, p. 72).

       A document entitled Houston Road Flood Study, dated June 16, 1999, some ten (10)

months after the EA was issued, was introduced into evidence by Macon-Bibb as Ex. D B/M5.

This study includes the May 18, 1998 report as an Ainitial review@, and concludes, in its

summary, that the road widening will have negligible effect on run-off.       Plaintiffs= Ex. 65 and

its conspicuous absence from detailed discussion in the EA represents a substantial oversight in

the review process. Ex. D B/M5 represents another attempt by Macon-Bibb and its agent,

Moreland & Altobelli, to justify, after the fact, the finding of no significant impact. The




                                                  31
amended and redacted version, which was only later revealed, provides stark evidence of a

manipulated process and can only serve to draw suspicious attention to a bad faith endeavor.

       Plaintiffs argue that a defective environmental document cannot be cured by subsequent

reports and studies. See, Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072

(1st Cir. 1980). NEPA requires, however, that new information or data should be the subject of

supplemental review. Price Road Neighborhood Ass=n. V. U.S. Department of Trans., 113 F.3d

1505 (9th Cir. 1997). The review is ongoing as Mr. Dimassimo conceded. (TR. Vol. III,

p. 128).

       A court may Aproperly be skeptical as to whether an [environmental document=s]

conclusions have a substantial basis in fact if the responsible agency has apparently ignored the

conflicting views of other agencies having pertinent expertise.@ Sierra Club v. U.S. Army

Corps. of Engineers, 401 F.2d 1101, 1030 (2nd Cir. 1983).

       The attempts by Defendants to suppress materials relative to the EA and which should

have been reviewed by the agency is both deceptive and if further evidence of improper behavior.

 Plaintiffs assert it represents an abuse of discretion sufficient for this Court to enjoin this project

pending a further review by the agency.

       Neither drainage, connector roads, alternative roads or speed limits were considered in

the agencies review of this project. The two transportation engineer experts offered by

Plaintiffs, Mr. Kulash and Mr. Hayes, testified that considerations of such alternatives were, as a

matter or procedure, required. Mr. Hayes drew maps for floodplains, density, connector roads

and other charts which were more detailed and provided needed depth to substantiate the findings

in the EA. In spite of citizen efforts to draw these matters to the attention of the contractor and


                                                  32
agency preparing the EA, they were ignored in violation of Executive Order 11988. Ms.

Dimassimo opined in her testimony that to minimize volume, the EA should use good quality

maps and exhibits... .@ (TR. Vol. III, p. 123). A rudimentary comparison of the citizens report

and information (Caution Macon=s little EIS) clearly indicates that its maps, charts and data is

more informative, error-free and reliable than the information supplied by the

government-prepared EA.

        Had the comments by citizens described on pages 34-36 and the public hearing comments

been considered as required by law, a more meaningful document would have emerged.

Unfortunately, they were ignored and the ultimate product was rendered virtually self-serving as

a result.

        Ms. Dimassimo testified there were 79 accidents over a one-year period. Dough Hayes

testified that he reviewed the traffic and accident data provided by Moreland & Altobelli and

found it to be erroneous. (See TR. Vol. II, pp. 110, 113 and Traffic Accident Report for the

years 1995, 1996, 1997 and 1998 prepared by Moreland & Altobelli.

        This data supports Plaintiffs= contentions that the accident data included the entire length

of Houston Road and that most accidents occurred at the intersections which admittedly need

improvement or at the SR 247 underpass which is not in the project. Clearly, this raises issues

which to the very heart of the need for this project. There was no discussion of intersection, left

and right turn lanes, exactions of property to improve access to commercial driveways or other

subdivision access points which could remedy local and short trips along Houston Road and

reduce traffic. Said information was simply omitted in favor of a five-lane (middle Asuicide

lane@), high-speed thoroughfare which carried vehicles to a dangerous intersection and attempted


                                                 33
to push them through a restricted two-lane underpass into a curve and busy intersection.

Altogether, the SR 247 quality of safety considerations pales in the light of evidence of such

engineering malfeasance.

           The lack of non-conclusory evidence in the EA is substantial, significant and critical to

the determination of the need for an EIS. It indicates that the undertaking to satisfy NEPA failed

as a clearly arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law.

 Volpe, Id. This is not a mere question of spare details. The evidence here suggests clear error

in judgment and a lack of attention to the kind of searching and careful analysis required by the

statute.

           Significantly, other evidence of arbitrary and capricious action is the fact that the EA was

not made available at the federal field office as required by law, but was made available only at

the Georgia DOT office on Roff Avenue (TR. Vol. II, pp. 85-86). Nor was it on view for a

minimum of 15 days in advance of the public hearing. (TR. Vol. II, pp. 16, 84).

           G0     Plaintiffs Have Standing To Pursue Their Claims In This Action.

           Defendants assert that Plaintiffs do not have standing to pursue this matter in federal

court, citing Warth v. Seldin, 422 U.S. 490, 499 (1975). Plaintiffs contend that, if Aat the very

least@, as asserted by Defendants, a plaintiff must allege a personal stake in the outcome, Chet

Strunk and June Bryant are such stakeholders based on their close proximity to the construction

area. Other members of Caution Macon, Inc. (specifically, Deborah Varnadoe and Marilyn

Meggs) have testified that the failure to adequately address the flooding issue will severely

impact their properties. See argument under Section F.




                                                    34
       Plaintiffs also contend that, as a private citizens group, they have standing to pursue this

action. AWhere a municipality dedicates property to a public use, it inures to the benefit of all

who are at the time, or may afterwards become, citizens of the municipality, such dedication

being in the nature of an estoppel in pais; and...the municipality may be enjoined by any person

interested.@ DOT v. City of Atlanta, 255 Ga. 124 (1985), citing Mayor & c. of Macon v.

Franklin, 12 Ga. 239 (5, 6).

       H0      This Court Has Jurisdiction over the State Law Claim [Relating to the Sales
               Tax Referendum] If Plaintiffs Prevail on the Federal Issue.

       Deborah Varnadoe testified that the 1994 referendum represented 76 proposed road

improvements, including Houston Road to be a widening from 22-foot lanes to 24-foot lanes.

(TR. Vol. II, p. 61). She testified that she voted in favor of the 1994 referendum and relied on

the Macon-Bibb Resolution adopted November 1, 1994, and the attachment dated August 1,

1994, as to what was to be built with the sales tax funds. (TR. Vol. II, pp. 73-75; Plaintiffs=

Ex. 34 and 25).

       This court has subject matter over the state law jurisdiction claims unless and until the

federal claims have been dismissed by the Court and pursuant to 28 U.S.C. ' 1367. The

evidence shows [and counsel for Macon-Bibb freely admits they felt no need to (TR. Vol. I,

p. 37)], the Defendants Macon-Bibb did not go back to the voting taxpayers when the project was

changed substantially from what was voted on in 1994. A[T]he process requires that redress be

available when taxes have been collected unlawfully.@ Shadix v. Carroll County, 239 Ga.

App. 191 (1999), citing Reich v. Collins, 513 U.S. 106, 115 S.C. 547 (1994).




                                                35
V      CLOSING ARGUMENT

       If the purpose of NEPA, the Macon-Bibb 1994 Resolution and the FONSI are to

accurately reflect what the project is and what the environmental impact will be in building the

project, and thereby to provide Bibb County and the City of Macon citizens sufficient

information to make a knowing decision as to whether to support this public improvement or not,

the process has failed miserably. The preparers of the EA and the decision-makers that issued

the FONSI have unwittingly or intentionally engaged in a profound obfuscation throughout the

process, and in some instances, have deliberately attempted to withhold information or convey

information which is simply inaccurate and misleading.

       Plaintiffs in this case are dismayed to learn the distance with which these environmental

acts have, in fact, missed the mark. The evidence, both from expert witnesses, lay witnesses and

based on the documents produced in this case, demonstrates unquestionably that not only were

procedures, which are designed to insure that the data and information is accurate and

alternatives are fully discussed in an even-handed manner, misapplied or omitted but that the

conclusions reached from such discussions are unreliable and erroneous. Unfortunately, a

cursory reading of the EA indicates that there has been no independent analysis by disinterested

persons who seek to review the evidence in a fair-minded way. On the contrary, the Secretary

has attempted to water down the requirements of the President=s Council on Environmental

Quality (hereinafter ACEQ@) by passing its own regulations, codified as 23 C.F.R. ' 770, but has

further permitted the Georgia Department of Transportation to hire as a contractor to do the

environmental study, the firm of Moreland & Altobelli (affectionately called DOT II because its

employees are mostly retired and former DOT employees, including its two principals,


                                                36
Mr. Altobelli and Mr. Moreland), thereby assuring that there will be no independent research,

review or analysis of the important questions that are to be scrutinized in formulating the EA.

       Accordingly, it is no surprise that the FHWA has approved an EA that is a conclusory and

altogether inadequate document, which has revealed in the evidence of this case several

misstatements, omissions and incorrect inferences drawn to support positions that are not

maintainable. The DOT environmental standards officer, Mr. Studstill, signed off and submitted

the EA to the FHWA, which promptly (five days after receiving it) approved the document and

issued the FONSI. It is hard to imagine a procedure which is more perfunctory than that which

was performed for this approval. (Plaintiffs= Ex. 69 and attachment to Federal Defendants=

Memorandum in Support of Motion to Dismiss).

       Indeed, a cursory review of the document by the Court itself, even without reference to

the testimony in this case, will confirm the fact that the document is so conclusory and lacking in

 in-depth analysis as to be an arbitrary and capricious deviation from the standard set by the CEQ

 and NEPA and foils the purpose of the statute and the lofty purpose that it is suppose to serve.

The Secretary, in suggesting that the document be accepted and serve as the basis for the issuance

of a FONSI, has sought nothing more or less than to make his actions non-reviewable,--that is,

agency action committed to agency discretion,--a standard of review enjoyed by few, if any,

agency actions and administrative determinations. In a word, the Secretary=s true

interpretations of NEPA and the CEQ is to serve his own interests, and he suggest to this Court

that no other review standard may be used except that which is set forth in 23 C.F.R. ' 770, that

the court is to ignore the CEQ guidelines altogether, and that, because the law supports the notion

that agency=s determination should not be subject to the substitution of judgment by a court in


                                                37
the approval process, that it is a useless endeavor for any private citizen=s group to inquire in to

the quality and sufficiency of the environmental data accumulated for purposes of assessing its

impact on the project.

       In addition to the less than adequate analysis which is passed off as an environmental

assessment, the agency in this case has engaged in a segmentation of the project for the purpose

and intent of seeking to minimize the project to the point where it could not be deemed worthy of

real consideration. Such activity is, strictly speaking, a ruse designed to obviate the necessity of

confronting the environmental reporting burden contained in NEPA and the regulations

emanating therefrom.

       An analysis of the legal standard for reviewing environmental action does include a

standard of arbitrary, capricious and no legal basis to support it. Plaintiffs contend that they

have met that burden in this case and can point to volumes of evidence which supports the

proposition that the Secretary has accepted and tolerated acts of bad faith and predatory and

misleading practices which are designed to obtain easy approval of a project. Not only is it

segmented, but it is shot through with errors and omissions which require that it be the subject of

a fuller environmental impact statement which must be duly submitted for comment by other

agencies in order that the basic intent and purpose of NEPA is satisfied.

       The interpretation pressed upon the Court by the Secretary reduces the entire process to

nothing more or less than a federal boondoggle designed to obfuscate and disguise the real

environmental affect of such a project. The approval process is a weak pretext for the job that

was to be accomplished by the EA.




                                                 38
       The Plaintiffs in this case sought to present, through expert witnesses, persons who were

disinterested, i.e., Walter Kulash, who operates out of Orlando, Florida and who was hired by

Moreland & Altobelli for an assessment of the Roads Program (thereby vouching for his

credentials), and persons who are interested in the ways only that direct constituents can be

interested. Such witnesses hold such specialized skill, knowledge and experience, as to be able

to testify as experts. All the experts who submitted evidence in this case were unequivocally

and confirmed in their opinion that the EA was a document of marginal significance. It lacked

not only the substantive elements of a scientific and acceptable study, but more importantly, the

procedures that were employed were not sufficient to supply the document with the credibility

that permitted it to be useful to citizens attempting to obtain information about the projects

planned.

       Significantly, Walter Kulash testified that the procedures were entirely unsatisfactory

because the EA only looked at the two extremes, i.e., the no-build and full-build alternative. No

witness testified that the no-build alternative was acceptable for the substandard road, but the

alternative of the maximum five-lane road (with the median serving as a suicide lane) which was

both more costly and was considered the more effective at accomplishing the narrow purpose of

moving cars along a given corridor at speeds that were deemed maintainable (but not optimum),

was also deemed unacceptable by the commuters. Mr. Kulash=s opinion, unequivocally stated,

was that other feasible alternatives had not been investigated which would have significantly

accomplished the goals of the Roads Program, at less cost and with much less environmental

damage and neighborhood discombobulation.




                                                 39
       Mr. Kulash suggested that, while he had not been asked to make a recommendation, the

attempt to avoid making the comparisons of alternatives were contrary to the CEQ and skewed

the decision-making process. He clearly recommended an independent analysis of the

alternatives would benefit the decision-makers. He used the term decision-makers and

stakeholders which accurately describes the positions of the two respective classes of affected

parties. Decision-makers spend tax money and have as their ultimate goal the expedious

accomplishment of the project with as few obstacles as possible. The other class, stakeholder,

are directly affected and are struggling to maintain their homes and a healthy and wholesome

existence. For other decision-makers its public approbation and approval, for the stakeholder, it

is an exaction of their lifestyle and property so vehicle drivers can reach their destinations five

minutes earlier. It is trees versus pavement, flooding, noise, foul air and traffic versus historic

preservation and neighborhoods. The countervailing interest must be carefully studied, analyzed

and considered through the lawful procedure of an EIS. It cannot be accomplished with a

FONSI based on a segmented project.

                                          CONCLUSION

       Plaintiffs, having met their burden in this action, ask this Court to enjoin the Defendants

from proceeding with the Houston Road Project and require a serious review of the EA,

including the data and analysis omitted therefrom. Plaintiffs request that the Court require the

Defendants to prepare a full-blown EIS.




                                                 40
              So certified this 28th day of January, 2000.



                                            ____________________________
                                            RICHARD N. HUBERT
                                            Georgia State Bar No. 373900
                                            Attorney for Plaintiffs

Chamberlain, Hrdlicka, White,
    Williams & Martin
191 Peachtree Street, N. E.
9th Floor
Atlanta, Georgia 30303-1747
(404) 649-1410




                                               41
                        IN THE UNITED STATES DISTRICT COURT
                        FOR THE MIDDLE DISTRICT OF GEORGIA
                                   MACON DIVISION

CAUTION MACON, INC.; CHET STRUNK;                    )
JUNE BRYANT; JOHN DOE                                    )
and JANE DOE,                                        )
                                                     )
       Plaintiffs,                                   )
                                                     )
6.                                                   )       CIVIL ACTION FILE
                                                     )       NO.5:99-CV-383-2
CITY OF MACON, GEORGIA; BIBB                         )
COUNTY, GEORGIA; KENNETH R. WYKLE,                       )
as Administrator of The Federal Highway              )
Administration; LARRY R. DREIHAUP, as )
Division Administrator of The Federal Highway        )
Administration; GORDON J. LINTON,                    )
Administrator, Federal Transit Administration,       )
RODNEY SLATER, Secretary of THE UNITED                   )
STATES DEPARTMENT OF                                 )
TRANSPORTATION; THE UNITED STATES                    )
OF AMERICA; and GEORGIA DEPARTMENT                   )
OF TRANSPORTATION,                                   )
                                                     )
       Defendants.                                   )

                                CERTIFICATE OF SERVICE

                This is to certify that I have this day served a copy of the within and foregoing
PLAINTIFFS= POST-HEARING BRIEF, MEMORANDUM IN OPPOSITION TO
DEFENDANTS= MOTION TO DISMISS AND CLOSING ARGUMENT) upon counsel of
record in this action via facsimile and by depositing same in the United States mail, with
adequate postage thereon, addressed as follows:

O. Hale Almand, Jr., Esq.
Almand & Ruffin
P. O. Box 1605
Macon, Georgia 31202-1605
James C. Thomason, III, Esq.
Office of Regional Counsel for
   The Federal Highway Administration
Atlanta Federal Center
61 Forsyth Street, S. W.
Atlanta, Georgia 30303-2219

Cathy Ann Cox-Brakefield, Esq.
State Law Department
132 State Judicial Building
40 Capitol Square, S. W.
Atlanta, Georgia 30334-1300

H. Randolph Aderhold
Assistant U.S. Attorney
433 Cherry Street
Macon, Georgia 31201

John A. Draughon
Special Assistant Attorney General
Bell & Melton
P. o. Box 229
577 Mulberry Street
Macon, Georgia 31202-0229

          This 28th day of January, 2000.

                                            _______________________________
                                            RICHARD N. HUBERT
                                            Georgia State Bar No. 373900
                                            Attorney for Plaintiffs

Chamberlain, Hrdlicka, White,
    Williams & Martin
191 Peachtree Street, N. E.
9th Floor
Atlanta, Georgia 30303-1747
(404) 649-1410



62149.1




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