Case 43

Blue Grass Land &;Nature Trust, Inc. v. Adams, No. 77-65 (E.D. Ky. Sept. 7, 1979).

The Commonwealth of Kentucky and the United States Department of Transportation (DOT) proposed a joint highway construction project known as Paris Pike. DOT approved various aspects of the project in 1969, 1970, and 1973 and adopted in 1973 an environmental impact statement prepared under the National Environmental Policy Act. Plaintiffs, 35 individuals and 2 corporations, sought to enjoin the project on grounds that defendants had violated Section 4(f) of the Department of Transportation Act, Section 15(a) of the Federal-Aid Highway Act, the National Historic Preservation Act, and other laws.

The court first found that those plaintiffs who alleged use of the affected area or who owned property that would be subject to condemnation or impairment of use by the project had standing under the Administrative Procedure Act to maintain the lawsuit. Slip op. at 5.

Next, the court held that in considering defendants' defense of laches, the court must weigh the costs expended by defendants against the potential environmental benefits of compliance with the statutes at issue. Id. at 6. Because the project had not progressed so far that the costs outweighed the benefits, the court rejected the laches defense. Id. at 6-7.

Third, the court found that the action was not prohibited by the Eleventh Amendment of the United States Constitution because plaintiffs sought only prospective relief rather than payment from public funds from the State treasury. Id. at 7-8.

Finally, the court rejected defendants' argument that Section 4(f) did not apply because the land to be used was not formally determined to be historically significant until after the Federal approvals had been given. Section 4(f) requires that, prior to approving a project, the Secretary of Transportation must obtain a determination from the Federal, State, and local officials having jurisdiction over land to be used by a project as to whether any of the land is part of a historic site. Id. at 10. If any land from a historic site is to be used, then DOT must determine whether the site is of national, State, or local significance and, if so, must comply with Section 4(f). Lack of a formal determination of the eligibility of a property for the National Register of Historic Places by the Secretary of the Interior does not excuse DOT from its Section 4(f) duties. Id. at 10-11.

Although DOT had not complied with Section 4(f), the court examined the environmental impact statement to see if it revealed whether any land to be used was part a historic site, for if not, there would be no further Section 4(f) duties. When it could find no evidence that any inquiries had been made, the court enjoined defendants from proceeding with the project until DOT could comply with Section 4(f).

The court declined to decide the National Historic Preservation Act issues because they could become moot by DOT's compliance with Section 4(f). Id. at 13.

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