Richard J. Brooks, a Citizen v. John A. Volpe, as Secretary of the United States Department of Transportation

Individual and corporate plaintiffs appeal from a judgment dismissing their action against state and federal officials to stop the construction of a segment of Interstate Highway 1-90 because of non compliance with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 , 4331-4335, 4341-4347 (NEPA).

The district court held that the NEPA provisions did not apply to the challenged highway. Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash.1970), 329 F.Supp. 118 (1971). This view of NEPA was rejected in a case dealing with a nearby segment of the same highway. Lathan et al. v. Volpe et al., 455 F.2d 1111 (9th Cir. 1971), on petition for rehearing, 455 F.2d 1122 (1972). Much of the decision in Latham applies to this ease. Department of Transportation Policy and Procedure Memorandum (PPM) 90-1 (issued August 24, 1971, after this case was tried) likewise directs compliance with NEPA.

The federal defendants now concede that NEPA requires an environmental-impact statement. They say they are preparing the statement and will file it. While the state defendants do not make this concession, Lathan allows no further debate.

Plaintiffs assert that the district court erred in finding, as a…