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WADE v. LEWIS

April 6, 1983

JULIET WADE, PLAINTIFF,
v.
DREW LEWIS, SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS, AND JOHN D. KRAMER, SECRETARY OF THE ILLINOIS DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANTS-INTERVENORS.



The opinion of the court was delivered by: Will, District Judge.

        MEMORANDUM OPINION

The plaintiff seeks a permanent injunction against the construction of two bridges over the Illinois River at a point between Valley City and Florence, Illinois, known as Napoleon Hollow. The proposed bridges would be part of a four-lane expressway designated FAP 408 (Federal Aid Primary Route), which would extend from Decatur, Illinois, to the Mississippi River, a distance of approximately 145 miles. On June 26, 1980, after a hearing and after finding that substantial questions existed as to the adequacy of the Environmental Impact Statement, the application of section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) and section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, and the propriety of using funds appropriated for the Highway Bridge Replacement and Rehabilitation Program established pursuant to 23 U.S.C. § 144(a), we entered a preliminary injunction against construction of the bridges and against construction of FAP 408 beyond the point it had reached by that date, approximately four miles east of the proposed site for the bridges.

By agreement, rather than having the case remanded to the Department of Transportation for further administrative proceedings, the parties then compiled and, with the Court's permission, supplemented the administrative record. The issues raised in the plaintiff's amended complaint have been briefed on the basis of that record, which now consists of more than 1200 pages plus 29 appendices, some of which are multi-volume and some of which exceed one hundred pages in length. As might be expected, the record is archival in its scope and length and is occasionally esoteric, containing detailed descriptions and evaluations of the biological, environmental, archeological, and historic characteristics and significance of the area and the extent to which they would be affected by construction of the bridges as proposed. Nevertheless, the essential facts can be stated fairly briefly.

I. FACTUAL BACKGROUND

The Illinois River Valley

The Wade Property

When this action was filed, the proposed bridge and highway plan contemplated that the highway to and from the west end of the bridges would be built on a portion of the property owned by Sam Wade and his sister Juliet Wade.*fn1 The Wade property consists of 190 acres of farm land, pasture, and woodland approximately one mile west of the Illinois River. That property was settled by the plaintiff's ancestors during the 1830's, and contains a house, two "basement barns," and several smaller outbuildings. The house is limestone construction, dates from the late 1830's or early 1840's, and is significant as one of the earliest settlements in Pike County and as an example of an early nineteenth century stone farmhouse. A.R. at 455; A.R.App. 20 at 8-9. On July 31, 1978, the Wade property was determined by the Keeper of the National Register of Historic Places to be eligible for inclusion in the National Register of Historic Places. See preface to A.R.App. 20. Since such a listing gave the property the protections afforded by section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f), and section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f as well as the regulations of the Department of Transportation (23 C.F.R. § 771.135), the Illinois Department of Transportation (IDOT) has, since this action was filed, revised the highway plan to avoid construction of any part of the highway on the Wade property.*fn2

The Pike County Conservation Area and Napoleon Hollow

Between the Wade property and the west bank of the Illinois River lies the Pike County Conservation Area ("the PCCA"). The PCCA consists of approximately 862 square acres, is owned by the State of Illinois, and is operated by the Illinois Department of Conservation. The PCCA was not purchased by the Illinois Department of Conservation until 1970, which was after the federal authorities had already approved the proposed corridor on August 18, 1969. The PCCA is also subject to the requirements of section 4(f) and the related statutes and regulations. Both the earlier proposed highway alignment and the current alignment as modified to avoid the Wade property call for construction of the highway through a ravine, known as "Napoleon Hollow," in the middle of the PCCA, thereby destroying a portion of the PCCA and cutting the remainder into separate and smaller areas.

Defendants initially challenged the plaintiff's standing to bring this lawsuit and we denied that challenge in a memorandum opinion dated January 28, 1982.

Since the filing of this action, several "biota" studies of the flora and fauna of Napoleon Hollow and of other locations identified as possible highway crossings of the Illinois River have been undertaken by various authorities,*fn3 with particular reference to the extent that certain endangered species or threatened species inhabit or use Napoleon Hollow or any of the other locations suggested as alternative bridge and highway sites.*fn4 Most prominent among the species whose use of Napoleon Hollow (and its environs) has been watched and studied is the American Bald Eagle.

As IDOT itself notes, "there is strong evidence of continued, uninterrupted use of the Pike County Conservation Area by bald eagles as a wintering site." A.R.App. 7 at 1-2. Such evidence consists in part of the observations of recent study groups, the observations of Robert Smith, a tenant farmer occupying part of the PCCA, A.R. at 927, and reports from 50 to 70 years ago of eagles nesting in the area. A.R.App. 19 at 9; A.R.App. 7 at 4-6.

The Bald Eagles

Bald eagles generally inhabit and migrate through two areas of North America, the Pacific Coast up into Alaska, and the valleys formed by the Mississippi and Illinois Rivers. A.R.App. 19 at 2. During the winter months, Illinois is host to approximately 14% of the North American bald eagle population: More bald eagles winter in Illinois than in any of the other lower 48 states. A.R.App. at 1.

A group or a "community" of eagles will return year after year to a particular wintering area as long as a sufficient supply of food and sufficient protection from the elements remain available. A.R.App. 19 at 2-3. These "roosting" sites are used both by particular communities of eagles as their winter habitation and by other eagles en route to or from other winter roosting sites if severe weather occurs during migration. Id. at 3. There is some evidence that maintenance of the population of bald eagles at its current level*fn5 requires a chain of roosts along the rivers which serve the eagles as migration routes.*fn6 Id. at 5.

Nocturnal roosts and the features thought to be important for a suitable wintering site are discussed in several places in the administrative record. See A.R. at 930, et seq.; A.R.App. 7 at 4 and 7; A.R.App. 13 at 35-36; see also A.R.App. 19 at App. II. Trees used as nocturnal roosts along the Illinois River are on "east-facing slopes that are protected from the prevailing westerly winds." A.R. at 928. Roosts are usually large trees, and include oaks, cottonwoods, sycamores, and silver maples. Id. A severe weather nocturnal roost requires greater protection from the wind than does a fair weather nocturnal roost. A.R.App. 7 at 4. Although a roost tree must be sheltered from the wind, it must also have an "open branch system" which faces the "flyway of the ravine." A.R.App. 13 at 35. In other words, the shelter must be easily accessible from the flyway or common flight pattern.

Also important are the physical characteristics of the ravine, particularly its depth, the steepness of its slopes, and its general direction. Given the prevailing westerly winds in the area, a general direction of NE-SW or E-W is preferred. Id. The nature and amount of human activity in the area are also relevant to a ravine's suitability as a roosting site. A.R.App. 7 at 7.

The eagles' tolerance of nearby human activity is a matter of some debate. Automobile traffic is considered less disturbing to eagles than is the presence of pedestrians, particularly if cars do not slow down or stop so that their occupants can look for eagles. A.R.App. 7 at 9-10; A.R.App. 19 at 12-13. There are instances of known eagle activity near other bridges and highways in Illinois.

  At the major eagle wintering area at Lock and Dam
  19 on the Mississippi River, one feeding site is
  as close as 400 feet, several feeding, eating and
  loafing sites are within 1500 feet, and many
  others are within a mile of the Keokuk Bridge,
  which carries an estimated average of 6600
  vehicles per day. Moreover many of these same
  eagles use Mink Island as a mild weather night
  roost. Mink Island is within one-fourth mile of
  Warsaw Road, which is used by an estimated
  average of 2300 vehicles per day. The Oak Valley
  Eagle Refuge, a night roosting area near Lock and
  Dam 14 on the Mississippi, is within one-eighth
  to three-eighths of a mile from State Route 84
  which has an estimated average of 5500 vehicles
  per day.

A.R.App. 7 at 10.

However, the noise which accompanies major construction might be enough to drive away the eagles if construction occurs during the period when the eagles are present. Apparently, a similar disturbance caused eagles to leave another location

  in 1966 when loggers were cutting trees near the
  mouth of Eagle Valley in southwestern Wisconsin.
  Even though the loggers were 1/2 mile from the
  roost and were not visible from the roost itself
  the eagles would not use the roost because of the
  constant noise of the chain saws and tractors
  operating during the day. Within one week after
  the loggers had begun their work, the number of
  eagles in the winter use area had dropped to just
  one or two. Even during the following winter few
  eagles used the roost or the entire use area as
  compared to the previous six winters.

A.R.App. 19 at 12. The defendants have agreed to limit construction to the period from March 1 to November 15 to avoid most of the period when eagles inhabit the area. See A.R.App. 7 at 8.

The various discussions of eagles' tolerance of human activity suggest that whether the eagles would stay in this area if the bridge and highway are built is likely to depend on how close the traffic would be to the eagles' remaining roosting, feeding and loafing sites, and upon the visibility of those sites from the highway. With regard at least to the location of roosting sites, such a determination appears to be very difficult to make in advance; as indicated below, the various reports disagree as to how many nocturnal roosts are or are likely to be within Napoleon Hollow. Additionally, these reports disagree as to the locations of the sites which they identify as nocturnal roosts, whether those sites are within the path of the highway, and, if not within that path, the distance between the roosts and the highway.

Archeological Sites from the Middle Woodland Period

On November 7, 1977, archeological sites known as the Napoleon Hollow Village and associated Russell Mound Group were found to be eligible for the National Register of Historic Places. A.R. at 720-18. These archeological sites date from what is known as the "Middle Woodland" period, circa 100 B.C. to 450 A.D. The village site covers 30 acres between the base of the bluffs and the west bank of the Illinois River and extends into the mouth of Napoleon Hollow. A.R. at 492; A.R.App. 16 at 4. The Russell Mound Group overlooks the village site and consists of 26 burial mounds and two possible burial knolls. A.R. at 492; A.R.App. 16 at 4. The proposed highway alignment would destroy much of the village site and many of the burial mounds.*fn7 See A.R. at 489-88, A.R.App. 16 at 15.

The Russell Mound Group first came to the attention of archeologists in 1882 when Judge John G. Henderson of Winchester, Illinois, described one of the mounds (Naples Mound No. 8) and artifacts found in it in the Smithsonian Institution Annual Report for 1882. A.R. at 492. However, the village site and most of the other burial mounds were not discovered until the 1970's, during surveys of the region by the Northwestern University Archeological Program (the N.U.A.P.). Id. at 489. Although the N.U.A.P. has performed test excavations at the village midden and at some of the burial mounds, id. at 488, very little excavation and data recovery have yet occurred. Dr. Jane Buikstra of the N.U.A.P. estimates that one group of six burial mounds alone (the Elizabeth mounds) contains about 180 human skeletons. A.R.App. 16 at 6.

Archeologists hypothesize the existence of a trade network stretching at least from Wyoming (obsidian) through the Great Lakes region (copper) to the Gulf Coast of Florida (marine products) during the Middle Woodland period. Id. at 9. One theory is that certain sites located along major river arteries in the Midwest served as trade centers. Id. Although six Middle Woodland mortuary sites are known to have been located in the lower Illinois River valley, the Russell Mound group and the Napoleon Hollow village site comprise the only one of these possible trade centers known to archeologists that has not yet suffered major destruction at the hands of modern man.*fn8 Id.

The Mormons and This Area

The general environs of the PCCA and the Wade property, and in particular one of the burial mounds in the Russell Mound Group, also have some significance in the history and theology of the Church of Jesus Christ of the Latter Day Saints, better known as the Mormon Church. In 1834, the Mormon prophet Joseph Smith led about 150 of his followers from Ohio to Missouri. Phillips' Ferry, where Smith and his group crossed the Illinois River, was located near Valley City. The Mormons continued along a road, now known as "Church Hollow Road," part of which forms part of the northern boundary of the Wade property. Of the Mormons' Ohio to Missouri route, known as "the Zion Trail," the only part which remains in a condition substantially similar to its condition in 1834 is a segment of Church Hollow Road. A.R. at 751-50, 745-42, 738, 668-67. The current proposed alignment for FAP 408 would cut through this portion of Church Hollow Road, and force a "rerouting" or elimination of that part of the road which borders the Wade farm.*fn9 See A.R.App. 20 at 12-13 and compare maps on pages 5, 7 and 15.

Apparently after crossing the Illinois River and before proceeding west along Church Hollow Road, Joseph Smith and some of his followers happened upon one of the burial mounds mentioned above (Naples Mound No. 8, the same mound which later was the subject of Judge Henderson's study). Smith wrote in his book, History of the Church:

    Our enemies had threatened that we should not
  cross the Illinois river, but on Monday the 2nd
  we were ferried over without any difficulty. The
  ferryman counted, and declared there were five
  hundred of us, yet our true number was only about
  one hundred and fifty. Our company had been
  increased since our departure from Kirtland by
  volunteers from different branches of the Church
  through which we had passed. We encamped on the
  bank of the river until Tuesday the 3rd.
    During our travels we visited several
  of the mounds which had been thrown up by
  the ancient inhabitants of this country    The
  — Nephites, Lamanites, etc., and    Finding
  this morning I went up on a high mound,    of near
  the river, accompanied by the         Zelph
  brethren. From this mound we could overlook the
  tops of trees and view the prairie on each side of
  the river as far as our vision could extend, and
  the scenery was truly delightful.
    On the top of the mound were stones which
  presented the appearance of three altars having
  been erected one above the other, according to
  the ancient order: and the remains of bones were
  strewn over the surface of the ground. The
  brethren procured a shovel and a hoe, and
  removing the earth to the depth of about one
  foot, discovered the skeleton of a man, almost
  entire, and between his ribs the stone point of a
  Lamanitish arrow, which evidently produced his
  death. Elder Burr Riggs retained the arrow. The
  contemplation of the scenery around us produced
  peculiar sensations in our bosoms: and
  subsequently the visions of the past being opened
  to my understanding by the Spirit of the
  Almighty, I discovered that the person whose
  skeleton was before us was a white Lamanite, a
  large, thick-set man, and a man of God. His name
  was Zelph. He was a warrior and chieftain under
  the great prophet Onandagus. * * *

Reprinted in A.R. at 367. Smith's visions and conclusions are the basis for the Mormon belief that the human race began in the middle of North America, and that a great "Jaredite" civilization existed on this continent during the period from 2300 B.C. to about 400 A.D. but eventually divided into factions which destroyed each other. See A.R. at 371-70.*fn10

The "Burnt Hill" Archeological Sites

The Napoleon Hollow village and associated Russell Mound Group, and the Burnt Hill MRA, by their eligibility for inclusion in the National Register of Historic Places are subject to the same statutory and regulatory protections to which we referred previously in connection with the Wade property and the PCCA. IDOT proposes to mitigate in part the harm to these archeological sites through "preservation or conservation where prudent and feasible" and, alternatively, through data recovery. A.R.App. 17 at 14; see A.R.App. 16 at 14. With regard at least to the Burnt Hill MPA, however, IDOT conceded, though before modification of the alignment to avoid the Wade farm, that "[t]he complete excavation of all known significant cultural resources . . . which will be adversely impacted may be impossible due to the constraints imposed by limits of time and available funding." A.R.App. 17 at 14; see also A.R.App. 16 at 25. Apparently, even after modification, this will still be true.

The Bridges

The highway alignment calls for two separate bridges, one to carry westbound traffic and the other to carry eastbound traffic. Each bridge will have roadways forty feet wide, accommodating two twelve foot lanes with a ten foot shoulder on the right and a six foot shoulder on the left. A.R.App. 16 at 1-2.

As originally planned, the separate spans were to be approximately parallel and from 600 to 700 feet apart. As IDOT stated in a so-called "mitigation report" prepared in December of 1978, on the west side of the river, "[t]he split alignment . . . locates the freeway along the gently sloping gradient of Napoleon Hollow, holding unsightly rock cuts to a minimum. A rest stop located on the north side of the freeway has been incorporated into the conservation area with an overlook which will provide users with a scenic view of the Illinois River." A.R.App. 16 at 1.

U.S. 36-54 and Its Bridge at Florence, Illinois

Approximately 4 and 1/2 miles south of Napoleon Hollow, U.S. 36-54, designated FAP 757, crosses the Illinois River just north of Florence, Illinois. FAP 757 is a two-lane open access highway, and roughly parallels the proposed alignment for FAP 408. According to IDOT, U.S. 36-54 is inadequate for its present volume of traffic and has a high accident rate. A.R.App. 20 at 1; A.R.App. 4 at 63. The volume of traffic in this area is expected to increase over time. A.R.App. 20 at 1.

The prevailing view of state and federal officials is that construction of a limited access freeway in this area of Illinois will enhance its economic development, in particular that of Quincy, Illinois, a city of approximately 45,000 people. A.R. at 1058. See A.R.App. 17 at 1 and 17. FAP 408 would also serve as a link in the freeway network between Indianapolis and Kansas City.

IDOT noted in 1978 that the bridge at Florence was unsafe and in need of immediate rehabilitation. A.R.App. 16 at 3. That bridge was built in 1930 and must be raised in order for some river boats to pass beneath it. Plaintiff's Exhibit 14 at I-2 and I-35. In 1980, the state rehabilitated the Florence bridge, thereby adding approximately 20 years to its useful life. See Plaintiff's Exhibits 15 and 17. The record appears not to indicate the cost of this rehabilitation, but that cost was estimated to be "a large sum of money (probably a few million dollars or more)." Plaintiff's Exhibit 14 at I-35; see generally Plaintiff's Exhibit 15 and 31. No federal funds were spent on this bridge rehabilitation project. Defendants-Intervenors' Brief at 36 n. 15.

Assuming that FAP 408 is built along the alignment proposed for it, with two bridges over the Illinois River at Napoleon Hollow, the state has no plans to abandon, demolish, or close the Florence bridge. The bridges planned for Napoleon Hollow would not join and carry over the Illinois River the existing FAP 757 (U.S. 36-54). On the contrary, U.S. 36-54 would continue to carry traffic, though it is anticipated that the volume of its traffic might decrease substantially. See A.R.App. 2 at 32; A.R. App. 5, Vol. I at 62; Defendants-Intervenors' Brief at 36.

Alternatives to the Existing Proposed Alignment for FAP 408

During the 1960's, the state held public hearings and commissioned or conducted various feasibility studies and location studies regarding construction of a limited access four-lane freeway in west central Illinois. Three possible general routes were identified:

  Route A — from Decatur to Springfield to
    Jacksonville to the Mississippi River along
    U.S. 36-54;
  Route B — along Route A, above, as far as
    Jacksonville (about 20 miles east of the
    Illinois River) but then following Illinois
    Highway 104 (approximately parallel to and 15
    miles north of U.S. 36-54) to the Mississippi
    River;
  Route C — from Springfield to Quincy along
    Illinois Highway 125 and U.S. 24 (generally 10
    to 15 miles north of Route B).

In a letter dated August 18, 1969, the federal government (via a Division Engineer in the Bureau of Public Roads, the predecessor of the Federal Highway Administration) concurred in the selection of Route A to the extent of determining that "additional corridor hearings will not be required" but indicating that it remained "understood that design studies and hearings must be held in order to determine the final design of the supplemental freeways." A.R. at 10; see A.R.App. 4 at 1. Thus, federal and state authorities initially committed themselves to a freeway route which would track existing U.S. 36-54 at least to the extent of being in the general vicinity of U.S. 36-54.

While the Location Study addressed possible alignments within Route A with some specificity, see A.R.App. 2 at 9 and at 39, and recommended that the highway be constructed North of U.S. 36-54 and cross the Illinois River between Valley City and Florence, see A.R.App. 2, Map 18, the need for further study of specific alignments was implicit in the Location Study and is explicit in the tentative federal approval of Route A given on August 18, 1969.

The state then began a Design Location Study (A.R.App. 5, Vols. I, II and III) limited to the Jacksonville to Barry, Illinois, segment — which requires a crossing of the Illinois River — of the proposed freeway, and, in conjunction with that study, prepared a combined Environmental Impact Statement/4(f) Determination (the EIS/4(f) Statement) (A.R.App.4). These studies *fn13 considered various alternatives to the alignment which would cross the Illinois River at Napoleon Hollow. The alternatives considered were the following:

  (1) developing existing two-lane U.S. 36-54 into
  either a limited access four-lane freeway or a
  full access four-lane freeway;
  (2) keeping the current proposed alignment except
  in the area immediately to each side of the
  Illinois River, and crossing the Illinois River
  at
    (a) Florence, at or near the site of the
    existing U.S. 36-54 bridge;

(b) the Blue Creek Basin;

    (c) the Flint Creek Basin, just South of Valley
    City (where the Norfolk and Western Railroad
    crosses the river);
    (d) a ravine about 0.4 miles North of Napoleon
    Hollow but still within the PCCA:

(3) not building the freeway at all.

Not to build the freeway was deemed imprudent given the volume of traffic and the high accident rate on U.S. 36-54, and given the perception that the lack of a four-lane freeway in west central Illinois was economically disadvantageous. See A.R.App. 4 at 61-62, 65. The conversion of U.S. 36-54 into a four-lane freeway was also rejected as imprudent. According to both the EIS/4(f) Statement and the Design Location Study, this alternative would require extensive severance of valuable farm property, would require relocation of homes and commercial buildings, and would leave much of the existing U.S. 36-54 as frontage abutting other residences and commercial buildings which did not have to be relocated. A.R.App. 4 at 15 and 61; A.R.App. 5, Vol. I at 6-7. Expansion of the existing U.S. 36-54 would also necessarily present at least some of the same problems presented by the alternative of crossing the Illinois River at Florence.

Two reasons were given for rejecting a crossing of the Illinois River at Florence. First, the incorporation of the existing "lift" bridge (of U.S. 36-54) into a freeway (which requires bridges high enough to allow river boats to pass under them without interruption to highway traffic) was deemed not feasible. Second, the amount of rock cuts (in the bluffs) required for a crossing at Florence was deemed imprudent compared to the amount of rock cuts required by a crossing at Napoleon Hollow. A.R.App. 5, Vol. I at 9.

The magnitude of rock cuts at Blue Creek Basin was a factor in the determination that a crossing at that location was also imprudent. A.R.App. 4 at 23. Additionally, the Blue Creek Basin alignment would have required either "destruction or alteration" of the dam built at the western end of the Blue Creek Valley to form Lake Pittsfield.*fn14 Id.

The EIS/4(f) Statement noted that "the Flint Creek Valley is wide and somewhat long," but rejected that valley as imprudent for the location of the FAP 408 bridge:

  Unfortunately, the southern edge of the valley is
  utilized for the existing alignment of the
  Norfolk and Western Railroad which was realigned
  for a new crossing of the Illinois River in 1958.
  Any crossing of the Illinois River through Flint
  Creek Valley would necessitate a costly
  relocation of the Norfolk and Western Railroad
  amounting to over one half mile in addition to
  introducing extra curvature for the railroad. It
  would also result in additional damage to the
  ecology of the area, by introducing extra fill
  for the freeway and the railroad. An additional
  amount of adverse travel to the motoring public
  would also result from such a crossing. This
  additional distance is almost one mile longer
  than a crossing through Napoleon Hollow.

A.R.App. 4 at 23.

Finally, the EIS/4(f) Statement rejected, apparently as not feasible, a crossing through one of the ravines north of Napoleon Hollow but still within the PCCA:

  South of Flint Creek there are two very short
  abrupt draws penetrating the bluff in addition to
  the confines of the valley of Napoleon Hollow.
  The scale of the valley of Napoleon Hollow with
  its gentle gradient and width is compatible to
  the geometrics of this proposed facility while an
  alignment through either one of the short draws
  would penetrate an extremely small opening much
  shorter and narrower than required for a freeway
  facility of this type. Any other location through
  the bluffs would be unfeasible for reasons of
  cost and environmental damage.

A.R.App. 4 at 23.

Thus, the state concluded that no "feasible and prudent alternative" existed to the use of Napoleon Hollow for a freeway bridge or bridges over the Illinois River. On May 15, 1972, the U.S. Department of the Interior concurred in this conclusion, as it appeared in the Draft EIS/4(f) Statement. A.R.App. 4 at 125. On September 18, 1972, the Chief of the Regional FHWA approved the Final EIS/4(f) Statement, embodying the same conclusion, A.R. at 107-05, and on October 25, 1972, the Acting Federal Highway Administrator sent the EIS/4(f) Statement to the Secretary of the U.S. Department of Transportation for approval. A.R. at 110-08. Eventually, ...


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