Title: La Raza Unida et al., Plaintiffs, v. John A Volpe et al., Defendants
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Title: La Raza Unida et al., Plaintiffs, v. John A Volpe et al., Defendants
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - La Raza Unida et al., Plaintiffs, v. John A Volpe et al., Defendants (JDV Box 86)
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LA RAZA UNIDA v. VOLPE
Cite as 337 F.Supp. 221 (1971)


this Order, for which receipts will be
given by Local 638; and it is further
Ordered, that, as of the date of this
Order, said minority workers shall be
liable to pay the union dues charged to
other members of the A Branch similarly
situated and presently in force, on the
same basis as union dues paid by other
members of the A Branch, such payment
to commence two weeks from the date
of this Order, for which receipts will
be given by Local 638 until the formal
issuance of the appropriate A-Branch
Union Book; and it is further
Ordered, that within 45 days of the
date of this Order, or immediately upon
payment in full of the aforesaid initia-
tion or transfer fee, whichever shall
later occur, Local 638 shall issue or
cause to be issued formal membership
documentation, including the appropriate
A-Branch Union Book, to each of the
said minority workers as is issued to all
other journeymen members of said A
Branch; and it is further
Ordered, that within 30 days of the
date of this Order, Local 638 shall have
the right, if it deems any of said minor-
ity workers to be incompetent, to apply
to this Court for an Order striking the
name of such allegedly incompetent mi-
nority workers from Exhibit A, such ap-
plication being independent of but not in
lieu of the preceding paragraphs of this
Order; and it is further
Ordered, that within 60 days of the
date of this Order, Local 638 shall sub-
mit to the Court proposed objective
qualifications and procedures, including
a description of any practical and writ-
ten examinationss, for admission of
workers, regardless of race or national
origin, to full journeyman status in the
A Branch which, procedures shall take
effect upon approval by the Court, and
shall be applied to all applicants to the
-A Branch during the pendency of this
action; and is further
Ordered, that the Court retains ju-
risdiction for the purpose of effectuating
this decree.


LA RAZA UNIDA et aL, Plaintiffs,
V.
John A. VOLPE et al, Defendants.
No. 0-71 1166.
United States District Court,
N. D. California.
Nov. 9, 1971.


Action for declaratory and injunc-
tive relief in regard to state project, a
proposed section of federal-aid primary
highway system that would pass through
cities in which plaintiffs resided. The
District Court, Peckham, J., held that
the state project became federal-aid
highway project on date it received fed-
eral location approval and various stat-
utes and regulations relating to displaced
persons and environmental protection ap-
plied immediately and were not suspend-
ed until state applied for federal funds.
The Court granted preliminary injunc-
tion restraining state defendants from
acquiring any more property for right-
of-way for highway and enjoined federal
authorities from granting any further
approval of project or providing funds
for project until a satisfactory reloca-
tion assistance program was devised.
Preliminary injunction granted.

1. Eminent Domain -=274(1)
In a condemnation setting, state
normally cannot be enjoined from ac-
quiring land.
2. States =191(2)
State official who exceeds his au-
thority or violates Constitution is not
covered by the protective mantle of sov-
ereign immunity.
3. United States =125(24)
Sovereign immunity did not protect
federal officials from suits where they
allegedly had not complied with statu-
tory requirements.
4. Highways e=99/4
For purpose of applying various fed-
eral statutes and regulations, a "federal-






337 FEDERAL SUPPLEMENT


aid highway" is any project for which
state has obtained location approval; any
project for which even the possible pro-
tection and assistance of the federal gov-
ernment is sought falls within the stat-
utes and regulations. Federal-Aid High-
way Act of 1968, 30, 82 Stat. 830;
Department of Transportation Act, 4
(f), 49 U.S.C.A. 1653(f); 23 U.S.C.A.
138; Uniform Relocation Assistance
and Real Property Acquisition Policies
Act of 1970, 202, 203, 208, 42 U.S.C.A.
4622, 4623, 4628.
See publication Words and Phrases
for other judicial constructions and
definitions.
5. Highways -99 /4
Where federal divisional engineers
had given federal "location" approval
for route of proposed section of federal-
aid primary highway system, project was
a "federal-aid highway" project and
therefore Uniform Relocations Assist-
ance and Real Property Acquisition Poli-
cies Act of 1970 and statute requiring
Secretary of Transportation to minimize
harm to environment and various sup-
porting statutes and regulations applied
and were not suspended in application
until state applied for federal funds.
Federal-Aid Highway Act of 1968, 30,
82 Stat. 830; Department of Transpor-
tation Act, 4(f), 49 U.S.C.A. 1653
(f); 23 U.S.C.A. 138; Uniform Relo-
cation Assistance and Real Property Ac-
quisition Policies Act of 1970, 202,
203, 208, 42 U.S.C.A. 4622, 4623,
4628.
6. Municipal Corporations =1017
Action for declaratory and injunc-
tive relief with regard to state project,
a proposed highway that would pass
through city, could not be maintained
against city manager and mayor, where
to enjoin city from carrying on its part
of agreement by closing certain city
streets to facilitate construction would
be inadequate since state could build
highway anyway, city received very little
benefit from agreement and thrust of
complaint was directed against state, so
that it was unnecessary and confusing to
join municipal defendants.


7. Municipal Corporations C=1017
Action could not be maintained
against city manager and mayor of city
through which federally aided highway
was to be constructed on basis of urban
renewal statute relating to duty to in-
crease supply of low-cost housing, where
there was no contractual agreement be-
tween city and federal government in the
case and the project was not an urban
renewal project. Federal-Aid Highway
Act of 1968, 30, 82 Stat. 830; Housing
Act of 1949, 101, 101(c), 42 U.S.C.A.
1451, 1451(c); Uniform Relocation
Assistance and Real Property Acquisi-
tion Policies Act of 1970, 101 et seq.,
42 U.S.C.A. 4601 et seq.
8. Highways =991/
Statutes dealing with highway relo-
cation and Uniform Relocation Assist-
ance Act imposed no obligation upon city,
through which federally aided highway
was proposed to be constructed, to in-
crease supply of low-cost housing. Fed-
eral-Aid Highway Act of 1968, 30, 82
Stat. 830; Housing Act of 1949, 101,
101(c), 42 U.S.C.A. 1451, 1451(c);
Uniform Relocation Assistance and Real
Property Acquisition Policies Act of
1970, 101 et seq., 42 U.S.C.A. 4601
et seq.
9. Declaratory Judgment C=305
Plaintiffs who resided in cities
through which it was proposed to con-
struct federal-aid highway and who used
parks and lived near parklands and
forest that might be damaged by con-
struction had standing to bring class ac-
tion for declaratory and injunctive relief
in regard to proposed highway. Depart-
ment of Transportation Act, 4(f), 49
U.S.C.A. 1653(f); 23 U.S.C.A. 138.

10, Declaratory Judgment <=305
Residents of city through which
proposed federal-aid highway would pass
did not fail to satisfy requirements for
class action for declaratory and injulnc
tive relief on theory that there were no
questions of law or fact common to the
class, nor were there typical claims or
defenses common to all claims or clasS
they purported to represent. 23 U.S:


222







LA RAZA UNIDA v. VOLPE
Cite as 337 F.Supp. 221 (1971)


C.A. 138; Department of Transporta-
tion Act, 4(f), 49 U.S.C.A. 1653(f);
Uniform Relocation Assistance and Real
Property Acquisition Policies Act of
1970, 101(6), 42 U.S.C.A. 4601
(6); Fed.Rules Civ.Proc. rule 23(a), 28
U.S.C.A.
11. Declaratory Judgment S=258
Preliminary injunction would be
granted restraining state defendants
from acquiring any more property for
right-of-way for federal-aid primary
highway which would pass through three
cities and restraining federal authorities
from granting any further approval of
project or providing funds for projects
until a satisfactory relocation assistance
program was devised, where it appeared
that highway would cause displacement
of a substantial number of people, that
state had inadequate relocation assist-
ance program and had failed to comply
with federal relocation standards and
regulations, that harm to plaintiffs, who
would be relocated, and class they repre-
sented was clearly irreparable and there
was high probability that they would pre-
vail on merits. 23 U.S.C.A. 138; De-
partment of Transportation Act, 4(f),
49 U.S.C.A. 1653(f); Uniform Reloca-
tion Assistance and Real Property Acqui-
sition Policies Act of 1970, 101(6), 42
U.S.C.A. 4601(6).
12. Highways c-103
Where it appeared that state proj-
ect, section of federal-aid highway, would
probably cut through three parks and
portions would be constructed over
known fault areas, no more land should
be acquired or action undertaken which
would materially affect the environment
until Secretary of Transportation was
satisfied that no feasible alternative
route existed and that any harm to en-
'ironment had been minimized. Depart-
ment of Transportation Act, 4(f), 49
U.S.C.A. 1653(f); 23 U.S.C.A. 138;
National Environmental Policy Act of
196, 101, 42 U.S.C.A. 4331.

MFario Obledo, Miguel Angel Mendez,
1exican-American Legal Defense and


223


Educational Fund, San Francisco, Cal.,
Vernon W. Salvador, Roberto Gonzalez,
Stephen Ronfeldt, Legal Aid Society of
Alameda County, Oakland, Cal., Gilbert
Martinez Dorame, Centro Legal de La
Raza, Healdsburg, Cal., J. Anthony Kline,
Public Advocate, Inc., San Francisco,
Cal., Stephen P. Berzon, National Hous-
ing and Economic Development Law
Project, Earl Warren Legal Institute,
Berkeley, Cal., Phil S. Berry, Oakland,
Cal., R. Frederic Fisher, San Francisco,
Cal., for plaintiffs.
Donald M. Velasco, Robert R. Buell,
Norval Fairman, San Francisco, Cal., for
California Highway Comm., California
Dept. of Public Works, J. A. Legarra,
Chief Highway Engineer, State of Cali-
fornia.
John W. Scanlon, City Atty., Hayward,
Cal., for Leo Howell, Mayor of the City
of Hayward, Cal., R. E. Doran, City
Manager of City of Hayward.
Asst. U. S. Atty., Frances D. Boone,
San Francisco, Cal., for John A. Volpe,
Secretary of Transportation for United
States, Donald E. Trull, Fed. Div. of
Engineering, Dept. of Transportation.

MEMORANDUM AND ORDER
PECKHAM, District Judge.
I. Facts


This is a class action complaint for
declaratory and injunctive relief in re-
gard to State Project 238, a proposed
highway of 14 miles that will pass
through Hayward, Union City, and Fre-
mont.
The system of roads involved here is
the federal-aid primary highway system.
(There are four federal-aid systems, the
other three being interstate, urban, and
secondary.) California normally re-
ceives approximately fifty million dollars
per year for work on the primary sys-
tem; this money is available on a 50-50,
State-federal sharing basis.
Pursuant to 23 U.S.C. 103, federal
approval at various stages of highway
design and construction is required be-
fore the state can receive federal funds.


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337 FEDERAL SUPPLEMENT


First the state must approve a vague
corridor for the highway; this step is
called systems approval. Location ap-
proval is the second step in project de-
velopment; at that time the route within
the previously defined corridor is estab-
lished. Federal approval is required
here.
Pursuant to 23 U.S.C. 106(a) and
Policy and Procedures Memorandum
(PPM) 20-8, the State Highway Depart-
ment must obtain design approval and
subsequently approval of plans, specifica-
tions, and estimates (P, S, and E) to be
eligible for federal funding. The last
approval stage is construction approval,
at which time the state can receive fed-
eral funds. The state must have com-
plied with certain requirements along
the way in order to obtain the staggered
approvals.
Prior to location approval the State
must have held a public hearing, at which
time a "corridor" is agreed upon. 23
U.S.C. 128. Public hearings for the
overall route location were held on No-
vember 14, 1960 and on April 14, 1961
in Hayward. Additional hearings for
the portions in Fremont and in Union
City were held on September 29, 1965
and on April 20, 1967, respectively.
Plaintiffs allege that these meetings
failed to comply with the requirements of
23 U.S.C. 128 and Policy and Proce-
dure Memorandum 20-8.
On October 5, 1965, the California De-
partment of Public Works entered into a
"freeway agreement" with the .City of
Hayward. In that agreement, the City
approved that portion of Route 238
which would pass through Hayward and
agreed to close certain city streets when
necessary to facilitate construction of
the highway. The City also agreed to
maintain and repair frontage roads built
by the State. The Department of Public
Works has not yet entered into an
agreement with Union City, as Un-
ion City has refused to approve any ex-
tension of Route 238 within its city
limits.
On November 4, 1966, the Federal Di-
vision Engineer for California gave fed-


eral "location approval" for Route 238.
A key question here is what significance
should be attached to this location ap-
proval. As stated above, this approval
was the initial action necessary to quali-
fy Route 238 for federal funds. State
highway officials must still obtain fed-
eral design approval, P.S. & E. approval,
and construction approval before the fed-
eral government is committed to finance
construction. No such approvals have
taken place.
The State has not requested, nor has
it obtained, any federal funds for this
project. There is a dispute as to wheth-
er the State will eventually request fed-
eral funds, plaintiffs saying "definitely"
and defendants saying "probably not".
The State has already acquired a sig-
nificant amount of land in Hayward-
approximately 30-40% of the land it will
need for the highway in that area. As
a result of the State acquisition of land
(and housing) in Hayward, persons re-
siding on the right-of-way have been
encouraged to leave and have left the
area. There is a dispute as to the num-
ber of people who have left as "voluntary
relocatees." Virtually no land has been
purchased as yet in Union City or Fre-
mont.
Plaintiffs have brought several causes
of action to this court, seeking for the
most part declaratory and injunctive re-
lief. Under the first cause of action,
they seek (a) a declaratory judgment
that plaintiffs and their class are "dis-
placed persons" under the Uniform Re-
location Act, and that federal and state
defendants do not have a satisfactory re-
location program as required by the stat-
utes; (b) an injunction enjoining the
State defendants from acquiring any
more property for right-of-way under
the project and enjoining the federal de-
fendants from granting any further ap-
proval of the project or providing funds
for the project until a satisfactory relo-
cation assistance program is devised;
and (c) an order compelling state and
federal defendants to show cause why
funds committed to or available for the


224


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LA RAZA UNIDA v. VOLPE
Cite as 337 F.Supp. 221 (1971)


project should not be allocated for the
construction or rehabilitation of housing
units.
Second, plaintiffs seek a declaratory
judgment and injunction against the
City of Hayward in regard to replace-
ment housing problems.
Third, plaintiffs allege that forcing
the plaintiffs to confront a discrimina-
tory and very tight housing market vio-
lates the equal protection clause of the
fourteenth amendment, and seek relief
consistent with this allegation.
Fourth, plaintiffs seek a declaratory
judgment that the project falls within
the National Environmental Policy Act
and that defendants have failed to com-
ply with the Act, as well as an injunc-
tion both preventing State defendants
from acquiring any more land for the
project and forbidding the federal de-
fendants from giving further approval
to the project until the NEPA is com-
plied with.
Fifth, plaintiffs seek similar relief
under 4(f) of the Department of
Transportation Act of 1966 [49 U.S.C.
1653(f)] and 138 of 23 U.S.C., both of
which deal with the environment and
which require the Secretary to minimize
the harm to the environment after first
assuring himself that no viable alterna-
tireS exist.
Sixth, plaintiffs allege that various
hearing requirements have not been sat-
ified and that all work and approval of
the project should be enjoined until the
hearing requirements are complied with.
Seventh, plaintiffs further allege that
the failure to hold adequate public hear-
infg constitutes a violation of due proc-
-s. They seek relief consistent with
this allegation.
In an amendment to their complaint,
plaintiffs claim that the state defendants
are in violation of two State laws: the
Ralph Act (Streets and Highways Code
i 1.-5.3-135.7) and the State Environ-
-"en"al Quality Act of 1970. The Ralph
Act -tablishes a program for providing
new or refurbished housing to "low-in-
Co"me individuals and families" who re-
317 F.Supp.-15


225


side in an "economically depressed area."
Plaintiffs seek a mandatory injunction
under the Ralph Act and declaratory re-
lief and an injunction under the State
Environmental Quality Act of 1970.

II. Defendants' Motion to Dismiss

A. Jurisdiction over the Person
[1, 2] Both the state and federal de-
fendants claim that sovereign immunity
prevents the court from assuming juris-
diction here. In a condemnation setting
the state normally cannot be enjoined
from acquiring land. In the present
case, however, there is a question as to
(1) the constitutionality of the state
action, and (2) whether the officials in-j
volved have complied with state and fed-)
eral statutes. Under Ex Parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908), these two situations are gen-
erally considered exceptions to the sov
ereign immunity doctrine. A state of-
ficial who exceeds his authority or who
violates the Constitution is not covered
by the protective mantle of sovereign im-
munity. See, e. g., Urbano v. Board of
Managers, 415 F.2d 247 (3d Cir. 1969).


[3] In regard to the federal defend-
ants, several cases, most notably Larson
v. Domestic and Foreign Commerce
Corp., 337 U.S. 682, 69 S.Ct. 1457, 93
L.Ed. 1628 (1949), indicate rather
strongly that if the federal official ex-
ceeds the authority vested in him sov-
ereign immunity does not apply, under
the rationale that the person, not the
sovereign, is being sued. Plaintiffs al-
lege that the federal officials have not
complied with statutory requirements;:
thus, sovereign immunity does not pro-
tect the federal officials here. See also
Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971).

B. Jurisdiction Over the Subject
Matter
In most of the environmental protec-
tion and housing displacement cases
where an injunction has been sought, the
Secretary involved had already approved


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337 FEDERAL SUPPLEMENT


federal funds for the project. See, e. g.,
Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971); Western Addition
Community Organization v. Weaver, 294
F.Supp. 433 (N.D.Cal.1968); Citizens
for Hudson Valley, the Sierra Club v.
Volpe, et al., 425 F.2d 97 (2 Cir. 1970),
cert. denied Parker v. Citizens Committee
for Hudson Valley Committee, 400 U.S.
949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970).
In the present case, however, no federal
funds have been contributed or author-
ized. Defendants argue that the project
is therefore not a "federal-aid highway",
and that the federal statutes and regula-
tions do not apply until the project be-
comes a "federal-aid highway." Conse-
quently, defendants have moved to dis-
miss plaintiffs' first and fourth causes
of action on the grounds that plaintiffs
have failed to state a claim upon which
relief can be granted.
If a highway project is determined to
be a "federal-aid highway", certain re-
strictions will eventually attach to the
project against both the State and fed-
eral governments. For example, there
must be (1), adequate hearings prior to
location approval (23 U.S.C. 128); (2)
an adequate relocation assistance pro-
gram with replacement housing (23 U.S.
C. 502, 205, 210 of the Uniform Re-
location Assistance and Real Property
Acquisition Policies Act of 1970, DOT
Instructional Memorandum (IM) 80-1-
68, IM 80-1-71); and (3) assurances
and determinations that any adverse con-
sequences to the environment have been
considered and deemed necessary, in
light of possible alternatives. ( 138 of
23 U.S.C., 4(f) of the Department of
Transportation Act of 1966, and DOT
Order 5610.1).
Defendants argue that while a project
becomes part of the federal-aid highway
system upon location approval, the vari-
ous restrictions do not apply until fed-

1. See e. g., Wickard v. Filburn, 317 U.S.
111, 63 S.Ct. 82, 87 L.Ed. 122 (1942).
2. For example, under 103 the federal-
aid primary highway system within a


eral funds have been approved or fed-
eral participation is assured. Since
Project 238 has received only location
approval, the federal requirements, ac-
cording to defendants, do not yet apply.
Any relief should be limited to an injunc-
tion preventing the Secretary of Trans-
portation from giving his approval to
further stages of the project until the
state complies with the federal regula-
tions. Plaintiffs, on the other hand.
seem to argue that the statutes and regu-
lations apply either upon location approv-
al or when federal participation becomes
inevitable.
Much of the argument on defendants'
motion to dismiss has centered around
semantic distinctions, but this court be-
lieves the basic issue to be as follows:
do the federal regulations and statutes
apply to a highway project upon location
approval, construction approval, or some
intermediate point when federal partici-
pation is assured?
One may conceptualize the problem as
follows: there are three types or groups
of highway projects. The first consists
of those highways for which federbL
funds have been approved or are immedi-
ately sought. The parties agree that
highways in this group are federal-aid
highways. Federal participation here i
apparent,, as federal funds have been ap-
propriated or are about to be appropri-
ated to the project.
The second group involves those state
highways constructed without federal
funds, and for which federal participa-
tion has never been sought, at any level.
Congress very likely possesses the pow-
er to regulate the construction of these
highways; but one would be distorting
the language of the statutes and regular
tions if one were to hold that the .t-I.
utes and regulations apply to these high-
ways.2 It seems rather apparent tha
these "group II" highways are not fed
eral-aid highways.

state can be no more than 7% of the total
mileage of a state highway system.
.


226




























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The third group of highways are those
projects that may eventually receive fed-
eral funds. Normally there may be six
Sto eight years between the corridor pub-
lic hearing and construction approval. It
is rather difficult to predict six years
ahead of time whether or not federal
funds will be needed; consequently, most
states keep open the option on expensive
projects by securing federal approval at
various stages, in compliance with fed-
eral statutes.
The crucial question before this court
is which of these "group III" projects
are "federal-aid highways". As stated
above, the state and federal defendants
concede that a project becomes part of
the federal-aid highway system upon lo-
Scation approval; they assert, however,
that the statutes and regulations do not
apply until the state actively seeks fed-
eral funds. Only at that point does a
project become a "federal-aid highway"
for the purpose of applying the statutes
and regulations.3 Plaintiffs seem to ar-
gue that a project becomes a federal-aid
highway-and the. federal regulations
apply-when federal funding is highly
likely or inevitable, or when the state
indicates a definite intention to seek
federal funds. (See Plaintiffs Supple-
mental Memorandum of September 13,
1971 at 19-23).
Both sides cite as authority Named
Individual Members of San Antonio Con-
servation Society v. Texas Highway De-
partment, 446 F.2d 1013 (5th Cir.,
1971); but that case is distinguishable
from the one before us. In the Conser-
ration Society case, the federal govern-
ment had indicated at an early stage its
S intention to supply funds to the project.
S n the present case the state defendants
have not received such assurances; in-
deed, the state asserts that it is highly
Unlikely that it will seek federal funds.
In short, unlike the Conservation Society
Case, federal funding is far from "inev-
itable" here.

1 In other words, a project can be part
of the federal-aid highway system but not
be a federal-aid highway until federal
fInds are approved. This semantic dis-


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LA RAZA UNI
Cite as 337 F.Si


- L -r a,


- i. I I


:DA v. VOLPE 227
ipp. 221 (1971)
The state defendants cite a recent case
to support their proposition that a proj-
ect does not become a federal-aid high-
way-and the statutes do not apply-
until federal funds are requested.
Northeast Area Welfare Rights Organi-
zation v. Volpe, No. 3437 (D.Wash.1970).
In that case, however, the project had
not even received location approval, the
most basic requirement for remaining
eligible for federal funds. Unlike Proj-
ect 238, the project in that case falls
within "group II".

[4] The court believes that for the
purpose of applying the various federal
statutes and regulations a federal-aid
highway is any project for which the
state has obtained location approval.
The state should not have the considera-
ble benefits that accompany an option
to obtain federal funds without also as-
suming the attendant obligations. Any
project that seeks even the possible pro-
tection and assistance of the federal gov-
ernment must fall within the statutes and
regulations.
Several factors have convinced this
court that the various federal restric-
tions are to apply against the defendants '
immediately. First, Congress has issued
extremely strong policy statements
against displacement and environmental
destruction. 23 U.S.C. 501 reads as
follows:
Congress hereby declares that the
prompt and equitable relocation and
reestablishment of persons, business-
es, farmers, and nonprofit organiza-
tions displaced as a result of the Fed-
eral highway programs and the con-
struction of Federal-aid highways is
necessary to insure that a few indi-
viduals do not suffer disproportion-
ate injuries as a result of programs
designed for the benefit of the pub-
lic as a whole. Therefore, Congress
determines that relocation payments
and advisory assistance should be pro-

tinction merely disguises the crucial is-
sue: when do the federal statutes and
regulations apply to a project?







337 FEDERAL SUPPLEMENT


vided to all persons so displaced in ac-
cordance with the provisions of this
title.
Section 201 of Title II of the Uniform
Relocation Assistance and Real Property
Acquisition Policies Act of 1970 reads as
follows:
The purpose of this title is to estab-
lish a uniform policy for the fair and
equitable treatment of persons dis-
placed as a result of Federal and fed-
erally assisted programs in order that
such persons shall not suffer dispro-
portionate injuries as a result of pro-
grams designed for the benefit of the
public as a whole.
Section 138 of 23 U.S.C. reads as fol-
lows:
It is hereby declared to be the na-
tional policy that special effort should
be made to preserve the natural beauty
of the countryside and public park and
recreation lands, wildlife and water-
fowl refuges, and historic sites. The
Secretary of Transportation shall co-
operate and consult with the Secre-
taries of the Interior, Housing and
Urban Development, and Agriculture,
and with the States in developing
transportation plans and programs
that include measures to maintain or
enhance the natural beauty of the
lands traversed. After the effective
date of the Federal-Aid Highway Act
of 1968, the Secretary shall not ap-
prove any program or project which
requires the use of any publicly owned
land from a public park, recreation
area, or wildlife and waterfowl refuge
of national, State, or local significance
as determined by the Federal, State, or
local officials having jurisdiction
thereof, or any land from an historic
site of national, State, or local signifi-
cance as so determined by such offi-
cials unless (1) there is no feasible
and prudent alternative to the use of
such land, and (2) such program in-
cludes all possible planning to mini-
mize harm to such park, recreational
area, wildlife and waterfowl refuge, or
historic site resulting from such use.


Section 101 of the National Environ-
mental Policy Act (NEPA) reads as
follows:
Sec. 101. (a) The Congress, recog-
nizing the profound impact of man's
activity on the inter-relations of all
components of the natural environ-
ment, particularly the profound influ-
ences of population growth, high-den-
sity urbanization, industrial expan-
sion, resource exploitation, and new
and expanding technological advances
and recognizing further the critical
importance of restoring and maintain-
ing environmental quality to the over-
all welfare and development of man,
declares that it is the continuing policy
of the Federal Government, in coop-
eration with State and local govern-
ments, and other concerned public and
private organizations, to use all prac-
ticable means and measures, including
financial and technical assistance, in a
manner calculated to foster and pro-
mote the general welfare, to create
and maintain conditions under which
man and nature can exist in productive
harmony, and fulfill the social, econom-
ic, and other requirements of present
and future generations of Americans.
(b) In order to carry out the policy
set forth in this Act, it is the continu-
ing responsibility of the Federal Gov-
ernment to use all practicable means,
consistent with other essential con-
siderations of national policy, to im-
prove and coordinate Federal plans,
functions, programs, and resources to
the end that the Nation may-
(1) fulfill the responsibilities of
each generation as trustee of the en-
vironment for succeeding genera-
tions;
(2) assure for all Americans safe,
healthful, productive, and esthetical-
ly and culturally pleasing surround-
ings;
(3) attain the widest range of
beneficial uses of the environment
without degradation, risk to health
or safety, or other undesirable and
unintending consequences;


228


I _I_







LA RAZA UNIDA v. VOLPE
Cite as 337 F.Supp. 221 (1971)


(4) preserve important historic,
cultural, and natural aspects of our
national heritage, and maintain,
wherever possible, an environment
which supports diversity and variety
of individual choice;
(5) achieve a balance between
population and resource use which
will permit high standards of liv-
ing and a wide sharing of life's
amenities; and
(6) enhance the quality of renew-
able resources and approach the
maximum attainable recycling of de-
pletable resources.
(c) The Congress recognizes that
each person should enjoy a healthful
environment and that each person has
a responsibility to contribute to the
preservation and enhancement of the
environment.
Section 4(f) of the Department of Trans-
portation Act of 1966 (DOT Act of 1966)
is substantially the same as 138 of 23
U.S.C.
The legislative history of the Federal-
Aid Highway Act of 1968, the Uniform
Relocation Assistance Act of 1970, Sec-
tion 4(f) of the DOT Act of 1966, and
the National Environmental Policy Act
of 1969 shows an intense concern by the
Congress over the problems of highway
displacement and environmental protec-
tion. Prior to 1968, for example, the
state was not required to make relocation
payments to persons displaced by fed-
eral-aid highway projects. The 1968 Act
required such payments, and the 1971
Act raised the level of such payments.
See 505, 506 of 23 U.S.C. and 202,
203 of the Uniform Relocation Assistance
Act of 1970. See also 1968 U.S. Code
Congressional and Administrative News,
Pp. 3482-3539. Moreover, the 1968 and
1970 Acts both provide for federal ad-
vances for relocation payments before
construction approval. See 504 and
208, with accompanying provisions. It
seems rather clear to this court that
Congress was well aware of the realities
and hardships of highway displacement
when it passed these acts, and that the


229


main thrust and purpose of the 1968 and
1970 Acts was to protect displaced per-
sons even before construction.
One reaches similar conclusions when
examining the legislative history of the
various environmental statutes and regu-
lations; but one need not search that far
to discover the Congressional intent
here. NEPA, 23 U.S.C. 138, and 4
(f) of the DOT Act of 1966 state in the
strongest terms the importance that Con-
gress attaches to environmental protec-
tion. As Justice Black stated in his con-
currence in Overton Park, 401 U.S. at
421, 91 S.Ct. at 826, 28 L.Ed.2d at 156,
That congressional command [23
U.S.C. 138] should not be taken
lightly by the Secretary or- by this
Court. It represents a solemn deter-
mination of the highest law-making
body of this Nation that the beauty
and health-giving facilities of our
parks are not to be taken away for
public roads without hearings, fact-
findings and policy determinations un-
der the supervision of a Cabinet offi-
cer-the Secretary of Transportation.
It is obvious, then, that strong federal
policies exist towards adequate reloca-
tion assistance and protection of the en-
vironment.
A second factor this court believes sig-
nificant is the language of the statutes
and regulations themselves. By their
very wording the statutes and regula-
tions in question seem to apply to fed-
eral-aid projects before money has been
appropriated and as early as location ap-
proval. Section 101(6) of the Uniform
Relocation Assistance Act defines a dis-
placed person as
any person who, on or after the ef-
fective date of this act, moves from
real property, or moves his personal
property from real property, as a re-
sult of the acquisition of such real
property, in whole or in part, or as
the result of the written order of the
acquiring agency to vacate real prop-
erty, for a program or project under-
taken by a Federal agency, or with
Federal financial assistance.


I II


hl- I AM, I ,S~






337 FEDERAL SUPPLEMENT


The House Report accompanying the
Bill describes this section as follows:
If a person moves as a result of such
a notice to vacate, it makes, no differ-
ence whether or not the real property
actually is acquired.
It is immaterial whether the real
property is acquired before or after
the effective date of the bill, or by
Federal or State agency; or whether
Federal funds contribute to the cost of
the real property. The controlling
point is that the real property must
be acquired for a Federal or Federal
financially assisted program or proj-
ect. For example:
(a) A number of State highway de-
partments frequently acquire rights-
of-way for Federal-aid highways .
with non-Federal funds, and seek Fed-
eral financial assistance only for the
actual construction work. Persons re-
quired to move from such rights-of-
way are recognized as displaced per-
sons under the relocation provisions
of the Federal-Aid Highway Act of
1968 and this bill affirms that princi-
ple.
1970 U.S. Code Congressional and Ad-
ministrative News, p. 5853.
DOT Instructional Memorandum (IM)
80-1-71(6) states that the regulations
for displacement from highway projects
apply to "any person who as of January
2, 1971 has not been displaced by any
highway project on which federal-aid
highway funds or other federal funds
are or will be used."
IM 80-1-71(7) also restricts the state
at any phase of the project, not simply
after federal funds have been appropri-
ated.
"7.a. No State highway depart-
ment shall be authorized to proceed
with any phase of any project which
will cause the relocation of any per-
son, or proceed with any construction
project concerning any right-of-way
acquired by the State without Federal
participation and coming within the
provisions of paragraph 6a of this
memorandum until it has furnished


satisfactory assurances on a statewide
basis that:
(1) relocation payments and serv-
ices were or will be provided as set
forth in this memorandum;
(2) the public was or will be ade-
quately informed of the relocation
payments and services which will be
available as set forth (below)."
IM 80-1-71(12) provides as follows:
States shall establish a relocation
assistance advisory services progrunm
in order to provide the maximum as-
sistance possible to persons required
to relocate because of a Federal or
Federal-aid highway program.
IM 80-1-71(15) provides as follows:
The division engineer shall not au-
thorize the state to proceed with nego-
tiations on any project which will
cause the relocation of any person un-
til the State has submitted and he
has approved the project assurances
as provided for in paragraph 7b of this
memorandum and the relocation plan
required by subparagraph "b" below.
There is also strong evi6lce thn.t
the environmental regulations are to ;a-
ply immediately. DOT Order 5610.1 in-
dicates that 4(f) statements are require 'i
for any formal approval by the Secre-
tary. Paragraph 4(A) provides as fol-
lows:
The requirements in this order
calling for either a negative declara-
tion or a statement pursuant to Sec
tion 102(c) of the NEP Act apply to
but are not limited to, the following

all grants, loans, contracts,
plans, formal approvals ((
g., of nonfederal work plans)
[emphasis added].
Paragraphs 3(c) (3) of the definition
al guidelines that accompany DOT Ord<
5610.1 states that "federal actions" (th,
is, those programs to which the regul
tions apply) include "approval of Sta
highway programs and plans prior
grant of money."


230


--------~ ~lBl1B IPeY"~'-








LA RAZA UNIDA v. VOLPE
Cite as 337 F.Supp. 221 (1971)


Finally, paragraph 1 of the definition-
al guidelines states "When there is doubt
whether or not to prepare a statement it
should be prepared."
From the regulations alone it appears
to this court that 4(f) statements and
adequate relocation assistance programs
are required before location approval,
prior to federal funding of a project.
Finally, in addition to the strong pol-
icy statements and the wording of the
statutes and regulations, common sense
dictates that the federal protective de-
vices apply before federal funds are
sought. It does little good to shut the
Sbarn doors after all the horses have
run away. If the federal statutes and
regulations are to supply any protection
at all it must be prior to the time the res-
idents have left and the deleterious ef-
fects to the environment have taken
place. All the protections that Congress
sought to establish would be futile ges-
tures were a state able to ignore the
spirit (and letter) of the various acts
and regulations until it actually receives
federal funds.4 Given the realities of
actual highway displacement and con-
struction, the statutes and regulations
must apply immediately or their purpose
will be frustrated.
[5] Plaintiffs have demonstrated
that Project 238 is a federal-aid high-
way project, and this court now holds
that Sections 205 and 210 of the Uni-
form Relocation Assistance Act of 1970,
4(f) of the Department of Transporta-
tion Act of 1966, 23 U.S.C. 138, and
various supporting statutes and regula-
tions presently apply against the State
and federal defendants. Consequently

4. Indeed, we have seen what happens
when a court refuses to apply the pro-
tections at an early stage of construc-
tion. See Triangle Improvement Council
v. Ritchie. 429 F.2d 423 (4th Cir.
1970), cert. dismissed as improvidently
granted. 402 17.S. 497, 91 S.Ct. 1650, 29
L.Ed.2d 61.
5. In the Conscrration Society case the
Fifth Circuit held that once a project is
considered a federal-aid highway, and the
federal statutes and regulations apply to
the project, these statutes and regula-


the motion by the State and federal de-
fendants to dismiss the first and fourth
causes of action for failure to state a
claim upon which relief can be granted
must be denied.5
*
The City Manager and Mayor of the
City of Hayward have also moved to dis-
miss for failure to state a claim upon
which relief can be granted. Plaintiffs
basically assert two theories for holding
these defendants responsible for possible
violations of federal regulations: (1)
The Freeway Agreement dated October
5, 1965 between the State of California
and the City of Hayward links the City
with any wrongdoings by the State; (2)
the City has an obligation under 42
U.S.C. 1451(c) to increase the supply
of low-cost housing.

[6] Neither of plaintiffs' theories is
valid here. Plaintiffs first want this
court to enjoin the City from carrying
out its part of the highway agreement,
which is to close certain city streets in
order to facilitate construction. Such an
injunction, however, would be both inad-
equate and unfounded. If the City re-
fuses to close the streets the State, at
obvious inconvenience, could build the
highway anyhow.6 But even if this
were not so, the municipal defendants
have done nothing to justify such an in-
junction. The City of Hayward has sim-
ply entered into an agreement with the
State-not the federal government-to
assist in some way in the construction
of Project 238. The submitted affida-
vits and exhibits have shown that the
City receives very little benefit from
such an agreement. In some cases a city

tions will continue to apply even if the
project is financed completely by state
funds. The court believes it is unneces-
sary to consider at this time whether the
federal protective devices would continue
to apply if the State forecloses the pos-
sibility of federal assistance. As long
as the State remains eligible for federal
assistance, the project will be considered
a federal-aid highway and the various fed-
eral regulations and statutes apply.
6. See California Streets and Highways
Code Sections 100.1 and 100.2.


1 --9.


M F ,_ MM


---







337 FEDERAL SUPPLEMENT


might be bound through an "agency"
theory, but this is not such a case. The
thrust of plaintiffs' complaint is di-
rected against the State; it is unneces-
sary and confusing to join the municipal
defendants to the action.
[7, 8] Plaintiffs' third cause of ac-
tion, which alleges a violation of 42 U.S.
C. 1451 by the municipal defendants,
must also be dismissed. Section 1451 is
an urban renewal statute which may
impose upon a city that has entered into
a contractual agreement for urban re-
newal funds the duty to increase the
supply of low-cost housing. Unlike West
v. Housing Authority of the City of At-
lanta, No. 13571 (N.D.Ga. 1971) and
Ley v. Shell Oil Co., et al., No. C-71
1645 R.F.P., which raise questions con-
cerning the scope of 1451(c), there
is no contractual agreement between the
city and the federal government here;
nor is this an urban renewal project.
Moreover, the relevant statutes dealing
with highway relocation-23 U.S.C.
501-11, and the Uniform Relocation As-
sistance Act of 1970-impose no obliga-
tion upon the city to increase its supply
of low-cost housing.

j C. Standing
[9] Defendants allege that all of the
plaintiffs lack standing to raise the en-
vironmental issues in this suit. Certain-
ly the plaintiffs residing in Hayward,
Union City and Fremont have standing,
as they shall be affected directly by any
activities adverse to the environment. It
is their parklands and forests that may
be damaged. The State implies that
plaintiffs must show that they own prop-
erty adjacent to the park areas; the
court disagrees. A showing that they
use the park and live nearby is enough
to satisfy the standing requirement for
these plaintiffs.
Whether the Sierra Club has standing
in this case is a more difficult question.
Despite the Club's well-known history
as a vigorous advocate of environmental
causes, recent Ninth Circuit decisions
would seem to preclude standing in this
case. Sierra Club v. Hickel, 433 F.2d


24, cert. granted, 401 U.S. 907, 91 S.Ct.
870, 1970; Alameda Conservation Assn.
et al. v. State of California et al., 437
F.2d 1087 (1971). These cases contrast
sharply with decisions in several other
circuits. See Citizens Committee for
Hudson Valley, the Sierra Club v. Volpe
et al., 425 F.2d 97 (2d Cir. 1970), cert.
denied 400 U.S. 949, 91 S.Ct. 237, 27
L.Ed.2d 256 (1970); Environmental
Defense Fund, Inc. v. Hardin, 138 U.S.
App.D.C. 391, 428 F.2d 1093 (1970);
West Virginia Highlands Conservancy v.
Island Creek Coal Co., 441 F.2d 232 (4th
Cir. 1971). In order to resolve this con-
flict the Supreme Court has granted
certiorari in Sierra Club v. Hickel.
In light of certain agreements by the
parties and the history of the Sierra
Club as a dedicated speaker for environ-
mental causes, this court will grant the
Sierra Club "conditional standing" to
litigate this case, pending the Supreme
Court decision in Sierra Club v. Hickel.
D. Class Action Questions
[10] The federal defendants allege
that plaintiffs have failed to satisfy the
requirements for a class action under
Rule 23(a) of the Federal Rules of Civil
Procedure. Specifically, they assert that
"there are not questions of law or fact
common to the class, nor are there typical
claims or defenses common to all the
plaintiffs or the class they purport to
represent." (Federal Defendants' Brief
of August 17, 1971 at p. 21). The court;
disagrees. See Norwalk Core v. Norwalk
Redevelopment Agency, 395 F.2d 920 (2d0
Cir. 1968).
III. Plaintiff's Motion for Prelimi-
nary Injunction
From the above discussion it is appar-
ent that Project 238 became a federal-i
aid highway project on November 4.
1966, the day it received federal location ;
approval. Such status necessarily entails
certain responsibilities with regard to
displaced persons and environmental
protection. The various statutes and
regulations apply immediately; they are
not suspended until the State applies for
federal funds. The court must now d'"


232







LA RAZA UNI
Cite as 337 F.Su
termine (1) whether the State has sat-
isfied the requirements of the statutes
and regulations, and (2) if it has not
satisfied these requirements, whether a
preliminary injunction should issue.

[11] The various statutes and regu-
Slations, as discussed above, impose nu-
merous constraints upon both the State
and Federal governments in the cases of
federal-aid highway projects. From var-
ious affidavits it appears that a sub-
stantial number of people have been dis-
placed or are about to be displaced from
the project. From the evidence thus far
presented it also appears that, despite
sincere efforts, the State has an inade-
quate relocation assistance program, as
defined by 205 of the Uniform Reloca-
tion Assistance Act of 1970 and IM 80-
1-71. The State, albeit in good faith,
has failed to comply with the federal
relocation statutes and regulations.
It is the determination of this court
that a preliminary injunction should is-
sue for these violations. Plaintiffs sat-
isfy all of the requirements for a pre-
liminary injunction: 7
1. The harm to plaintiffs and the
class they represent is clearly irrepara-
ble. One who is forced to vacate his
chosen neighborhood or city, to sever
long-standing friendships, to confront a
tight and possibly discriminatory hous-
ing market, and to incur other indigni-
ties that are likely to be present here suf-
fers severe and irreparable injury. Only
after legislatively-authorized procedures
have been complied with should displace-
rent be permitted.
2. There is a high probability that
plaintiffs will prevail on the merits.

3. The public interest favors the
granting of the injunction. See 23 U.S.
C. 501, IM 80-1-71, and Policy and
Procedure Memorandum 20-8.
4. Any harm to defendants is clearly
o'Utweighed by the harm to plaintiffs
Were the preliminary injunction not is-
sued.


DA v. VOLPE 233
pp. 221 (1971)
[12] The environmental regulations
can be approached in a similar fashion.
Though the State presently is attempting
to compile 4(f) statements, no such state-
ments have yet been submitted. As was
discussed above, such statements are re-
quired when a project is likely to have
an impact on the environment. See DOT
Order 5610.1.

From the evidence presented it appears
that Project 238 will have a most signifi-
cant impact on the environment. The
highway will probably cut through three
parks: the Hayward Botanical Gardens,
Hayward Memorial Park, and Fremont
Central Park. There is also evidence
that certain portions of Project 238 are
proposed to be constructed over known
fault areas. See Plaintiffs' Exhibit 42,
affidavit of Professor George P. Si-
monds. These were the types of factors
Congress deliberately wanted to be taken
into account when it said in 4(f) and
138:
It is hereby declared to be the na-
tional policy that special effort should
be made to preserve the natural beau-
ty of the countryside and public park
and recreation lands, wildlife and wa-
terfowl refuges, and historic sites.
The Secretary of Transportation shall
cooperate and consult with the Secre-
taries of the Interior, Housing and
Urban Development, and Agriculture,
and with the States in developing
transportation plans and programs
that include measures to maintain or
enhance the natural beauty of the
lands traversed. After the effective
date of the Federal-Aid Highway Act
of 1968, the Secretary shall not ap-
prove any program or project which
requires the use of any publicly owned
land from a public park, recreation
area, or wildlife and waterfowl refuge
of national, State, or local significance.
as determined by the Federal, State,
or local officials having jurisdiction
thereof, or any land from an historic
site of national, State, or local signifi-
cance as so determined by such offi-


7. See 7 Moore, Federal Practice 1 65.04.


337 F.Supp.-15V2


- L L c----- I, LF-r Ill



- I r rl II IIII II







337 FEDERAL SUPPLEMENT


cials unless (1) there is no feasible
and prudent alternative to the use of
such land, and (2) such program in-
cludes all possible planning to mini-
mize harm to such park, recreational
area, wildlife.and waterfowl refuge, or
historic site resulting from such use.
The court finds that a 4(f) state-
ment is required for the 238 Project at
the present stage of development. No
more land should be acquired nor should
any action be undertaken which would
materially affect the environment until
4(f) statements have been prepared and
the Secretary is satisfied that (1) no
feasible alternative route exists, and (2)
any harm to the environment has been
minimized.8

PRELIMINARY INJUNCTION

1. It is hereby ordered, adjudged, and
decreed, that pending the further Order
of the Court, state defendants, their of-
ficers, agents, servants, employees, at-
torneys, and all persons in active concert
or participation with them or any of
them are, each and all, hereby restrained
and enjoined from:
(a) Acquiring any further real prop-
erty in the Cities of Hayward, Union
City, and Fremont, California, for
right-of-way for the Route 238 Proj-
ect; and

(b) Attempting to remove, threaten-
ing to remove, or acting to remove (by
initiating contacts or making solicited
or unsolicited offers or otherwise) any
resident of premises located on or near

8. Plaintiffs also claim that (1) defendants'
forcing them and members of their class
to confront an allegedly discriminatory
housing market violates the equal protec-
tion clause of the Fourteenth Amendment
(third cause of action); (2) defendants
have violated the National Environmental
Policy Act of 1969 (fourth cause of ac-
tion); (3) defendants have failed to hold
proper hearings in compliance with 23 U.
S.C. 128 (sixth cause of action); (4)
the failure to hold adequate hearings de-
nied plaintiffs due process of law (seventh


proposed right-of-way for the Route
238 Project; and
(c) Undertaking any other actions
whatsoever in connection with the
Route 238 Project that would mate-
rially affect the environment.
2. It is further hereby ordered, ad-
judged and decreed, that commencing im-
mediately, and thereafter until the fur-
ther order of this Court, defendant
Volpe, his officers, agents, servants, em-
ployees, attorneys, and all persons in ac-
tive concert with them or any of them,
each and all, are hereby restrained and
enjoined from continuing to accord or to
accord any approval to the Route 238
Project or plans, maps, or other docu-
ments connected therewith.
3. It is further hereby ordered, ad-
judged and decreed, that no person re-
strained and enjoined by this Prelimi-
nary Injunction shall undertake to avoid
compliance by any indirection.
4. Any person enjoined by this Pre-
liminary Injunction may move for termi-
nation upon showing that Federal and
State defendants have fully and reason-
ably complied with Sections 205 and 210
of the Uniform Relocation Assistance
and Land Acquisition Policies Act of
1970, P.L. 91-646, 84 Stat. 1894; Section
502(3) of the Federal-Aid Highway Act
of 1968, 23 U.S.C. 502(3) ; Section 4(f)
of the Department of Transportation Act
of 1966, 49 U.S.C. 1653(f); Section
138 of the Federal-Aid Highway Act of
1968, 23 U.S.C. 138, and all Federal
regulations promulgated under each of
said statutes.

-cause of action); (5) state defendants
have violated the Ralph Act, California
Streets and Highways Code 135.3-
135.7 (eighth cause of action); and (6)
state defendants have violated the State
Environmental Quality Act of 1970, Cal-
ifornia Public Resources Code, 21000 et
seq. (ninth cause of action). The com-
plex questions raised by these claims need
not be considered at this point in the
litigation, as a preliminary injunction is
sufficiently supported by other considera-
tions.


234




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