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SWAIN v. BRINEGAR

July 26, 1974

TIMOTHY W. SWAIN AND KATHERINE A. SWAIN, PLAINTIFFS,
v.
CLAUDE S. BRINEGAR, INDIVIDUALLY AND AS SECRETARY OF TRANSPORTATION FOR THE UNITED STATES, WASHINGTON, D.C., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.

  DECISION AND ORDER

By this action, the plaintiffs seek to permanently enjoin the defendant Illinois and federal highway officials from taking further steps toward the acquisition of right-of-way or the construction of a proposed federal aid highway, designated as FAP 406. A temporary restraining order was entered by consent of the parties on June 3, 1974. On motion of the defendants, the hearing on the plaintiffs' application for a preliminary injunction was consolidated with the trial of the case on the merits, as permitted by Rule 65(a)(2) of the Federal Rules of Civil Procedure. Evidence was taken at an extended hearing on June 19, 1974, and the court has had the benefit of scholarly briefs from counsel for the parties.

The proposed highway, which is in issue here, would run between Lincoln, Illinois, and the Delavan junction of Illinois Route 121. Upon completion of the program, the cities of Peoria and Springfield would be connected with limited access freeways by interchanging with I-74 southeast of Peoria and with I-55 near Lincoln. The origins of FAP 406 date back to a 1967 study of Illinois' highway needs which was commissioned by the State. That study recommended the creation of a supplemental freeway system for Illinois, of which FAP 406 is just one part, which would be built to Interstate highway standards and supplement existing Interstates.

As finally approved, FAP 406 will traverse the plaintiffs' jointly-owned, 440-acre farm, which is located in Tazewell County, and necessarily subject part of that farm to condemnation proceedings. Plaintiffs contend that this will divide and destroy the farm as a producing unit as presently operated. Such contention is not effectively disputed here; but it would appear that this is a subject which can be properly evaluated in condemnation. In Count I of this complaint, the named plaintiffs sue in their own behalf, and their standing to sue in that capacity is not disputed.

In Count II of the complaint, the same named plaintiffs seek to sue on behalf of two described classes of persons, pursuant to Rule 23 of the Federal Rules of Civil Procedure.*fn1 A class action is inappropriate in the circumstances of this case, however, because the plaintiffs clearly fail to show satisfaction of the prerequisite of Rule 23(a)(4), that they be representative parties who "will fairly and adequately protect the interests of [either] class."

By this lawsuit the plaintiffs seek inter alia to force the defendants to reconsider the location of FAP 406. If they are successful in that, it is most likely that a different route would ultimately be selected, and other members of either class, whom the plaintiffs here seek to represent, might lose land to a highway. Thus, it is apparent that the interests of the named plaintiffs may be antagonistic to the interests of some of the members of the class they seek to represent. Furthermore, there is no indication of desires of any members of either class, and it is entirely possible that many members desire completion of the highway as planned as soon as possible. It seems of some interest in this connection that plaintiffs are among very few owners whose land is needed for this project who have not already committed it. Accordingly, a class action may not be permitted, and Count II must be dismissed without further consideration.

At the time of the hearing herein, the state and federal defendants filed a motion to dismiss, which was taken under advisement. Therein they asserted three grounds for dismissal of plaintiffs' action, each of which must be rejected, for reasons as follows:

(1) The plaintiffs have successfully stated a claim upon which relief might be granted. Substantial federal issues are raised relating to the adequacy of the corridor and design studies and hearings, which may be resolved only in light of the particular facts surrounding the proposed federal project and not through the cold and summary assertions of the pleadings.

(2) The doctrine of laches is an equitable doctrine to be invoked in the discretion of the court. While the defendants point to cases wherein it has been invoked to bar belated environmental challenges to governmental projects, in this case any delay by plaintiffs is clearly not so unreasonable nor any prejudice to the defendants so great as to justify dismissal. Though much right-of-way has been acquired and substantial planning costs have been incurred, the "public interest status accorded ecology preservation by the Congress" militates against an application of laches here. See First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1372 (CA 7 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329-1330 (CA 4 1972).

(3) The defendants' contention that the plaintiffs failed to exhaust their administrative remedies has almost no basis in fact. To a significant degree, the plaintiffs voiced their objections to the proposed project, almost from the beginning, both orally and in writing. The only issue which the defendants claim the plaintiffs did not raise in the administrative proceedings — namely, the impact on the world food shortage of the removal of the farmland involved from production — is so obvious that the defendants must have been aware of it as a consideration.

Before turning to a discussion of the principal issues, two lesser questions may be disposed of, with only brief discussion. First, the plaintiffs' due process of law challenge to the conduct of the design hearing is without merit. The State defendants' refusal to discuss corridor alternates at that hearing may properly be subject to attack under NEPA, but it simply does not raise any question of constitutional dimensions. Second, it is contended by plaintiffs that a new corridor hearing should be required on the theory that the 1969 hearing was rendered a nullity by the Illinois Supreme Court's decision holding the Illinois Trust Authority Act unconstitutional. Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority Act, et al., 45 Ill.2d 243, 258 N.E.2d 569 (1970). This argument is equally insubstantial. The validity of the corridor hearing is in no way related to the validity of the state highway act in effect at the time of the hearing. The adequacy of the corridor hearing is dependent only upon Section 128 of Title 23, United States Code. New hearings will not be required simply because FAP 406 will be paid for from a different fund than that from which it was expected to be paid for in 1969.

BASIC ISSUES AND SCOPE OF REVIEW

Three basic issues are raised by this ...


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