IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CAUTION MACON, INC.; CHET STRUNK; )
JUNE BRYANT; JOHN DOE )
and JANE DOE, )
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, )
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:
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.
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
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.
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
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
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
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).
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
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.
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
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.
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
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
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
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,
See argument in Section F related to the flawed traffic counts and accident data.
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
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
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).
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
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
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
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
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
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
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
See, Blaug, Use of the Environmental Assessment by Federal Agencies in NEPA
Implementation, 15 Envt=l Professional 57, 61 (1993).
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
alternatives, the Circuit Court reviewed the EIS analysis and was content with its analysis of the
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.@
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.
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@).
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
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
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
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
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
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
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
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
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
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
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
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).
F0 The EA Is Procedurally Defective in Numerous Instances Which Show
Substantial Threat of Irreparable Injury If the Houston Road Project
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,
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.
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
Ms. Rivers testified she was unaware of any addendum to the EA at the time of the
hearing. (TR. Vol. II, p. 9).
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).
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
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,
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
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
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
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
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
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
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.
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).
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,
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
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
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.
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
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.
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.
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.
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.
Atlanta, Georgia 30303-1747
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CAUTION MACON, INC.; CHET STRUNK; )
JUNE BRYANT; JOHN DOE )
and JANE DOE, )
6. ) CIVIL ACTION FILE
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, )
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.
Atlanta, Georgia 30303-1747