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March 19, 1986

TOWN OF FENTON, Plaintiff,

The opinion of the court was delivered by: MUNSON



After years of planning, debate, reconsideration and the preparation of Environmental Impact Statements [EIS]s, the Secretary of the United States Department of Transportation [USDOT] has made a final selection of a route for the construction of the I-88/I-81 Connector at the southwest end of I-88 which will complete the last segment of Route I-88 between Schenectady and Binghamton, New York. Plaintiff, the Town of Fenton, opposes the selection of the connector route chosen from the alternatives considered and has moved for a preliminary injunction to prevent the construction of the selected route, known as the "Modified River Crossing".


 In December, 1968 the Federal Highway Administration of the USDOT [FHWA] approved the development of a highway for inclusion in the Interstate Highway System to be designated Interstate Route 88 [I-88] connecting I-90 in Schenectady, New York to I-81 north of Binghamton, New York, a distance of approximately 130 miles. The existing highway at that time between the Albany and Binghamton areas was Route 7 which remained essentially as it was constructed forty to fifty years prior; it was not regarded as a modern highway and was deemed deficient for medium and long distance travel and inadequate to serve future projected traffic demands. *fn1" Interstate Route 88, a limited-access highway was intended to provide adequate capacity to carry the forecasted traffic volume and a high degree of comfort and safety for the traveler between Albany and Binghamton. Administrative Record [A.R.] 1, p. CS-2.

 Local citizen groups and individuals commenced this action in May 1972 seeking to enjoin the construction of I-88 until the state and federal Departments of Transportation complied with various environmental statutes. *fn2" The late Judge Port of this court issued a preliminary injunction on November 14, 1973 restraining the FHWA from (1) disbursing any further funds for construction of those sections of the project which were then currently under construction but for which EISs has not been filed, and (2) granting Plans, Specifications, and Estimates [PS&E] approval for those segments for which EISs had not been filed. *fn3"

 As the defendants completed EISs, Judge Port, in a series of orders, released all segments of the project from the injunctive restraint with the exception of PIN 9357.18, the remaining unconstructed section of I-88 known as the I-88/I-81 connector which is the subject of the present controversy before the court. A final EIS [FEIS] on PIN 9357.18 was issued on October 3, 1983. The Secretary of Transportation issued her Record of Decision [ROD] on September 20, 1984 indicating her final selection from among the alternative routes for the Connector. *fn4" Defendants thereafter moved to vacate the injunction to allow construction of the selected route for this final segment of I-88. The Town of Fenton, which had been granted leave to intervene on October 31, 1979, opposed the defendants' motion and filed a cross-motion for the issuance of a superseding preliminary injunction. Finding that the equities had shifted upon defendants' apparent compliance with the National Environmental Policy Act [NEPA] by completing the FEIS, this court on April 10, 1985 vacated Judge Port's order enjoining the FHWA from approving the plans for construction of PIN 9357.18. The Town of Fenton was granted leave to file an amended complaint on the same date.

 A hearing on the plaintiff Town of Fenton's motion for a preliminary injunction consolidated with a trial on the merits was held on July 2, 1985. Briefs were subsequently submitted by the parties. Plaintiff presented no testimony as the hearing but introduced into evidence the Administrative Record and documents obtained through discovery. Plaintiff makes the following arguments in support of its motion for a preliminary injunction:

 (1) The Secretary of Transportation erroneously determined that there exist no prudent and feasible alternatives to the route chosen which traverses a public park and will destroy a historic site in violation of § 4(f) of the Department of Transportation Act of 1966, recodified in 49 U.S.C. § 303, and § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138.

 (2) The public hearing held by the New York State Department of Transportation ["NYSDOT" or "State DOT"] did not comply with 23 U.S.C. § 128 because the State DOT had irrevocably committed itself to the selected route prior to holding the statutorily mandated public hearing.

 (3) The FEIS insufficiently sets out facts which would allow for a fully-informed choice on the route to be selected in contravention of NEPA, 42 U.S.C. § 4331-35.

 (4) The state and federal defendants, as evidenced by the FEIS, failed to give sufficient consideration to environmental effects of the proposed highway construction, in violation of NEPA.


 Studies and planning for the I-88/I-81 Connector proceeded separately from the planning for the remainder of I-88. Preliminary reports developing and analyzing alternative routes for the Connector were prepared and circulated among federal and state DOTs and federal, state and local agencies from May 1972 through 1977. NYSDOT and FHWA prepared an EIS issued in August of 1977 which discussed six alternatives for construction. Project Report V, A.R. 2. The proposed route was a river crossing alternative north of the route currently proposed. Local officials requested a reevaluation of locations for the Connector; the 1977 EIS was withdrawn. NYSDOT hired an independent consulting firm, Tippetts, Abbott, McCarthy-Stratton [TAMS] to study alternative routes.

 In 1980 NYSDOT and FHWA decided to prepare a new EIS to study alternatives for the Connector. Public participation in the planning process was sought through the involvement of the Binghamton Metropolitan Transportation Study [BMTS] Policy Committee of the designated Metropolitan Planning Organization pursuant to 23 U.S.C. § 134, *fn5" and the Community Advisory and Review Team [CART]. BMTS was comprised of local officials and state commissioners; CART was made up of local officials of potentially-affected communities: Binghamton, Port Dickinson, Chenango, Fenton, Dickinson, Kirkwood, Colesville and Windsor. CART met six times from October 1980 to June 1981 but reached no agreement on a preferred route for the Connector. When BMTS could not reach an agreement on a preferred route, BMTS created an Ad Hoc Committee, which included the CART representatives, to make recommendations to BMTS. The Ad Hoc Committee held five meetings in which each affected community presented and discussed their concerns as outlined in the FEIS (Chapter 10). A strong area of disagreement among the communities was in the location at which the Connector would cross the Chenango River to connect with I-81 on the west side. Though some of the towns objected to particular locations for the crossing of the Connector over the Chenango, the Town of Fenton remained opposed to any crossing of Chenango River. The committee considered the alternatives, and at the final meeting of the Ad Hoc Committee on June 28, 1982 the Committee endorsed the Modified River Crossing alternative. The Committee's endorsement was presented to the BMTS Policy Committee on July 1, 1982 at which time BMTS adopted Resolution 82-3 endorsing the Modified River Crossing route. NYSDOT requested authorization to hire a consultant to design the proposed Connector on September 29, 1982. A draft EIS [DEIS] was prepared in November 1982 which was circulated for review and comment to various agencies and to the public. Following receipt of comments on the DEIS and a public hearing as mandated by 23 U.S.C. § 128, the FEIS was issued in October 1983. The ROD of the Secretary was issued on September 20, 1984.

 The three build alternatives considered are as follows:

 Modified River Crossing

From Port Crane, this alternative would proceed along existing Route 7 to a crossing of the Chenango River on a new bridge located at the Town of Fenton/Town of Dickinson line. It would tie into Interstate 81 in the Town of Chenango near the Town of Dickinson line. The 2.5 mile, four lane divided highway would have some sections of depressed roadway in constricted areas. Service roads adjacent to the connector roadways would maintain local access. Interchanges with grade separation structures and access ramps would be constructed at Route 12A and Fenton and Phelps Street in Port Dickinson . . . . The Chenango Street interchange in Port Dickinson would be reconstructed. The existing Route 12A and the Delaware and Otsego Railroad bridges would be replaced.
Modified Brandywine. This alternative would follow existing Route 7 (Brandywine Highway) for 4.3 miles through the Town of Fenton and Village of Port Dickinson into the City of Binghamton (North Side) where it would connect with Interstate 81 at the I-81/Route 7 interchange. It would have the same alignment and construction features in Fenton as the Modified River Crossing alternative but would continue south of Phelps Street without service roads. Grade separation structures would be provided at Chenango Street, Phelps Street and Old State Road in the Village of Port Dickinson. Local street improvements would be made in the vicinity of Bevier Street along with modification and widening of access ramps at the I-81/Route 17/Route 7 Interchange.
Fox Hollow A-B. This alternative would depart from existing I-88 just west of the Sanitaria Springs exit and proceed south across a rural area in the Towns of Fenton, Colesville and Kirkwood. It would connect with I-81/Route 17 in the vicinity of Colesville Road. There are no intermediate interchanges throughout its 4.4 mile length. A grade separated structure would join the connector's southbound roadway at its northerly terminus to I-88. Other grade separation structures would be required where the connector crosses Route 7, the D & H railroad, Fuller Road, Old State Road, and Stratmill Road. The connector would join I-81/Route 17 with grade separation structures and ramps, developed to be compatible with Colesville Road/I-81 access improvements.

 In addition, a no-action alternative was evaluated:

No Action. A No-Action alternative was assessed which assumed the continuation and maintenance of existing facilities, the continuation of existing transportation policies, and the completion and maintenance of committed projects within the project corridor and the region. These projects include Routes 11 and 12 Town Line Extensions in the Town of Chenango, and the Colesville road reconstruction in the Town of Kirkwood.

 FEIS, A.R. 12, pp. i-ii.


 Plaintiff argues that the Secretary's selection of the Modified River Crossing route which requires the use of public park land violates § 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138 and 49 U.S.C. § 303. The proposed highway will pass through the Village of Port Dickinson Recreational Area, a "public park . . . of local significance", id., and will destroy a national historic site of the Owasco Indians, both of which areas are protected by § 4(f). The statute dictates that the Secretary shall not approve a project which will harm a park, recreational area, or historic site unless it is determined that "there is no feasible and prudent alternative to the use of such land." Id. The statute imposes the additional obligation on the Secretary of assuring that a project include "all possible planning to minimize harm to such park, recreational area . . . or historic site resulting from such use." Id.

 Plaintiff argues that the Secretary's selection of the Modified River Crossing route violates § 4(f) because the Fox Hollow alternative constitutes a "feasible and prudent" alternative. Plaintiff argues that the Secretary exceeded her scope of authority in her determination that no feasible and prudent alternative to the Modified River Crossing route exists; that she could not have reasonably believed that no feasible and prudent alternative to the Modified River Crossing exists or that Fox Hollow presented unique problems; and her determination was not based on relevant factors thereby evidencing a clear error of judgment.

 Judicial review of the Secretary's decision with respect to § 4(f) is governed by the Administrative Procedure Act, 5 U.S.C. § 706 . Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 28 L. Ed. 2d 136, 91 S. Ct. 814 ; Sierra Club v. United States Corps of Engineers, 772 F.2d 1043, 1050 (2d Cir. 1985). The first determination to be made by the court is whether the Secretary acted within the scope of her statutory authority under § 4(f): whether the Secretary properly construed her authority to approve the use of parklands as limited to situations where there are no feasible alternatives or where feasible alternative routes involve uniquely difficult problems. Overton Park, 401 U.S. at 415-16. Second, the court must determine whether the actual choice made was "arbitrary, capricious, an abuse of discretion, ...

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