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April 28, 1967

Alan S. BOYD, individually and as Secretary of Transportation of the United States and Alexander D. Trowbridge, individually and as Acting Secretary of Commerce of the United States, Defendants

The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge.

 This is an action to review and set aside a determination of the Federal Highway Administrator, approved by the Secretary of Commerce, made under the Federal Highways Act (23 U.S.C. § 101 et seq.). The complaint seeks a declaratory judgment determining that "the selection and approval by defendants of the Chestnut Ridge alignment for Interstate Route 87 is arbitrary, capricious and otherwise not in accordance with law." It also asks for a permanent injunction requiring defendants to withdraw any approval heretofore given with respect to the Chestnut Ridge alignment, requiring them to advise the State of New York that such approval has been withdrawn, and restraining defendants from "interfering in any manner which is arbitrary, capricious or not in accordance with law with the selection by appropriate action of the State of New York in accordance with the provisions of Title 23 of the United States Code of alignment for that portion of Interstate Highway 87 which will connect Armonk and Katonah."

 The plaintiffs are the Town of Bedford, a civic association of Bedford residents, two wild life sanctuaries whose property will be adversely affected by the proposed road, certain individuals whose property will be taken for the road, and the Road Review League, a non-profit association which concerns itself with community problems, primarily those involving the location of highways. The defendants are the Secretary of Transportation and the Acting Secretary of Commerce. *fn1"

 Although the complaint mentions 28 U.S.C. §§ 2201 and 2202 (the declaratory judgment sections), 28 U.S.C. § 1361 (the mandamus section), and 28 U.S.C. § 1331 (the federal question section), it is fair to say that jurisdiction is grounded primarily upon Section 10 of the Administrative Procedure Act (5 U.S.C. § 706).

 Plaintiffs moved for a preliminary injunction. The motion came on before me on March 3, 1967. Upon the argument defendants orally moved to dismiss the action on the grounds that (1) defendants have an absolute discretion which is not reviewable by this court; (2) in any case these plaintiffs have no standing to ask this court to review it; (3) the State of New York is an indispensable party and this court cannot proceed in its absence.

 After consideration, I denied defendants' motion as far as the first two grounds were concerned, for reasons which will be mentioned hereinafter. As to the third ground, I held that the State of New York was at least a proper party and directed that it be brought in. Upon the return of an order to show cause for that purpose on March 27, 1967, the State appeared and pleaded sovereign immunity. I sustained that plea and denied the motion to bring the State in as a party by order dated March 31, 1967.

 In view of the importance of the question presented by this action, and because of the urgency created by the fact that construction of the road along the route complained of was already in progress, I directed, pursuant to Rule 65(a)(2), that the trial of the action on the merits be advanced and consolidated with the hearing on the motion for a preliminary injunction. I reserved decision until the completion of the trial on the question of whether the State is an indispensable party.

 Defendants filed an answer which, in addition to denials, alleged six affirmative defenses, i.e., (1) the complaint fails to state a claim for relief; (2) the State of New York is an indispensable party; (3) plaintiffs do not have standing to sue; (4) this court lacks jurisdiction of the subject matter; (5) plaintiffs are guilty of laches; (6) plaintiffs are guilty of "unclean hands." After formal pre-trial proceedings and the entry of a pre-trial order, the consolidated trial and hearing began on April 5, 1967 and continued until its conclusion on April 11, 1967.

 Upon the basis of the evidence adduced at the trial, I find the essential facts to be as follows.

 The Federal Highways Act provides for a program of federal grant-in-aid to the states to facilitate "the prompt and early completion of the National System of Interstate and Defense Highways" (23 U.S.C. § 101(b)). The routes of the system "to the greatest extent possible, shall be selected by joint action of the State highway departments of each State and the adjoining States, subject to the approval of the Secretary * * *." (§ 103(d)). The statute contemplates that the roads shall be planned, constructed and owned by the State. Approval of the federal authorities is necessary, however, in order to obtain grants of federal funds to finance the projects. These grants are 90 per cent of the cost (§ 120(c)).

 Interstate Route 87 is a part of this system. The number 87 is now given to the existing New York Thruway from Newburgh north to Albany, and to the Northway from Albany north to the Canadian line. The existing New York Thruway from Elmsford south to New York City is also part of Route 87. Between Elmsford on the south and Newburgh on the north, however, the proposed Route 87 does not follow the existing New York Thruway, nor does it go directly north in a straight line along the east bank of the Hudson from Elmsford to a point opposite Newburgh. Instead, the proposed Route 87 turns east from Elmsford, runs along the existing Cross Westchester Expressway (Route 287) to a point east of White Plains, thence north to Brewster, where it connects with Interstate Route 84. It then runs west along with Route 84 to Newburgh. Thus, in essence, the route traverses three sides of a square to get from Elmsford to Newburgh. This indirect route was conceived by the Department of Public Works of the State of New York and was embodied in a New York statute (Highway Law, McKinney's Consol. Laws, c. 25, § 340-a) which prescribes the "corridor" that the route is to follow. This corridor necessarily takes the road through Bedford. On December 22, 1960 the Federal Bureau of Public Roads approved this corridor at the request of the New York authorities.

 The New York statute did not specify the precise route or "alignment" which the road was to take. That was determined by administrative action, as will be recounted hereinafter. The alignment through Bedford which has been decided upon and of which plaintiffs complain, is called the Chestnut Ridge alignment. The alternative alignment or route which was also considered by state and federal officials is called the westerly route. It lies to the west of Chestnut Ridge, nearer the village of Mt. Kisco.

 The two proposed routes diverge at a point near Armonk on the south and come together again at a point near Harris Road in the Town of Bedford on the north. The distance between these two points on the Chestnut Ridge route is 8.8 miles. On the westerly route it is.7 of a mile longer, i.e., 9.5 miles. Roughly halfway between Armonk and Harris Road, the Chestnut Ridge route crosses existing state Route 172 which runs generally east and west.

 The choice of a route between these two alternatives has given rise to a controversy which has gone on since early 1961. The principal events in that controversy may be briefly summarized as follows.

 On February 1, 1961, the New York Superintendent of Public Works, McMorran, requested approval of the Bureau of Public Roads for presentation at a public hearing to be held in the Town of Bedford, as required by statute (23 U.S.C. § 128) of the proposed Chestnut Ridge route. On February 2, 1961, the Division Engineer of the Bureau, Koch, advised McMorran that the proposed route was "satisfactory for presentation at the public hearing." The hearing was held on February 9, 1961. It was very well attended. Opposition to the Chestnut Ridge route was expressed by many, but there were others who favored it. A stenographic transcript of the hearing, and copies of various memoranda submitted by interested parties, were sent to the Bureau. Bureau engineers examined this material and summarized its contents in memoranda. Bureau engineers also made a physical inspection of the area.

 McMorran decided to consider the matter further and to make additional studies. In August he sent to the Bureau detailed studies of the two alternate routes. Koch examined these studies and reported on them to the Bureau's Regional Engineer, Swanson, who in turn transmitted them to the headquarters of the Bureau in Washington.

 On December 28, 1961, the State Superintendent requested the Bureau's approval for presentation at a second public hearing of the westerly route. The Bureau approved this request. Eventually, McMorran decided to present both routes at the public hearing.

 The second hearing was held on February 27, 1962. It was spectacular. Over 1,000 persons attended. There were demonstrations, placards and even balloons. Oratory was well nigh interminable. The meeting began at 1:30 P.M. on February 27 and lasted until 5:00 A.M. the following morning. Some speakers favored Chestnut Ridge; others opposed it. A stenographic transcript of this hearing and accompanying memoranda were sent to the Bureau and were examined by its engineers.

 McMorran was persuaded that his original choice of the Chestnut Ridge route was wrong and that the westerly route was preferable from the point of view of "the social, cultural and economic requirements of Westchester County, and the needs of the Interstate System generally." On May 1, 1962, he wrote to Koch, the Bureau's Division Engineer, expressing that opinion and formally requesting approval of the westerly route.

 Koch disagreed with this recommendation. On June 8, 1962, he wrote a memorandum to Swanson in which he stated that:

"* * * the 'Chestnut Ridge' location is superior from a purely engineering standpoint. It is the more direct and is estimated to be some $4 million cheaper than the 'westerly' location."

 On the other hand, he stated that:

"The 'westerly' location will more closely conform to the established land use pattern of the area. * * * From a purely planning standpoint, there is no question that the 'westerly' route would be adopted."

 He expressed the view that the possible adverse effects of the Chestnut Ridge location on the character of the area traversed had been exaggerated.

 In July 1962, a group of Bedford citizens opposed to the Chestnut Ridge Route, including some of the present plaintiffs, met with Regional Engineer Swanson and explained their position. This was the first of a long series of meetings between various members of this group and federal highway officials.

 On August 8, 1962, Swanson forwarded Koch's June 8 memorandum to the Director of Engineering of the Bureau in Washington with a covering letter in which he stated that he concurred in Koch's recommendation that the Chestnut Ridge location be adopted despite the State of New York's request for the westerly route. He expressed the opinion that the information developed at the public hearing and set forth in numerous presentations by various interested parties did not contain "sufficient justification * * * to warrant the expenditure of an additional approximately $4.3 million to construct the 'westerly' route rather than the 'Chestnut Ridge' route." He also concurred with Koch that "the possible adverse effects of the Chestnut Ridge location appear to have been exaggerated."

 Two days later on August 10, without, as far as appears, having received any instructions from Washington in the meantime, Swanson wrote to McMorran declining to approve the State's recommended location. Without mentioning Chestnut Ridge by name, he stated:

"There are alternate locations through this traffic corridor which provide essentially the same traffic service, which are estimated to cost as much as 4.3 million dollars less to construct and are 0.7 of a mile shorter than your recommended location."

 This was the Bureau's initial decision, to which it has adhered through the ensuing four and one-half years, although on several occasions it has reconsidered it at the request of those who disagreed with it. This initial decision, as has been pointed out, was made by the Regional Engineer of the Bureau, not by the Federal Highway Administrator. There is apparently nothing unusual in this. Comparatively few choices of route locations provoke enough dissension to require determination by the Administrator himself. In this case the furor was violent enough, not only to require the personal attention of the Administrator, but also that of two successive Secretaries of Commerce.

 Shortly after Swanson's decision of August 10, 1962, a group of aggrieved Bedford residents, including some of these plaintiffs, met with the Federal Highway Administrator, Whitton, and presented their arguments to him. At about this time also, various important public officials, including senators and congressmen, began to send communications opposing the Chestnut Ridge location to the Secretary of Commerce and to the Highway Administrator. There were many of these over the years.

 On November 28, 1962, McMorran "appealed" Swanson's decision to the Highway Administrator. The appeal took the form of a letter to Whitton in which McMorran stated that he considered the Bureau's decision to be "narrow, arbitrary and grossly unwarranted," and that it "coldly sacrifices the countless intrinsic values of existing and potential conservation areas which will be traversed if the easterly alignment is adopted." Apropos of this appeal, McMorran testified at the trial that he was "stunned" by Swanson's decision. On December 20, 1962, Whitton wrote McMorran stating that he had reconsidered the ...

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