Before Ganey, Van Dusen and Gibbons, Circuit Judges.
Plaintiff, a non-profit New Jersey corporation dedicated to the preservation of wildlife and waterfowl areas, appeals from an order of the district court granting the defendants' motion for summary judgment. The complaint seeks temporary and permanent injunctive relief against the Secretary of the United States Department of Transportation, the Commissioner of the New Jersey Department of Transportation and other State officials to bar further action with respect to Federal-Aid Highway Project No. I-280-6(28)-47. That project involves the erection of part of Interstate Highway No. 280, an east-west connector road from Newark to a westerly terminus at Interstate Highway No. 80. Project No. I-280-6 includes a part of the route which traverses Troy Meadows, a fresh water marsh in the Passaic River drainage basin. The plaintiff owns land in the marsh, part of which was condemned for the project in proceedings in the New Jersey courts. The State also owns land in the marsh, acquired under its Green Acres Program for preservation as a wildlife refuge and recreational area. N.J.Rev.Stat. § 13:8A-1 et seq. The project highway in issue does not traverse the State owned wildlife area. The complaint alleges that completion of the project as proposed will do irreparable harm to the unique and irreplaceable ecology of the Troy Meadow. It charges that disbursement of federal funds for the project is illegal: (1) because neither the Secretary of Transportation nor the State of New Jersey have held the public hearings required by the Federal-Aid Highways Act, 23 U.S.C. § 101 (1964) et seq., as amended by the Federal-Aid Highways Act of 1968, 23 U.S.C. § 101 (Supp. V, 1970) et seq., and set forth in Policy and Procedure Memorandum 20-8 issued by the federal Bureau of Public Roads, 23 C.F.R., Chapter 1, appendix A; and (2) because the Secretary has not made the findings required by § 4(f) of the Department of Transportation Act of 1966, as amended by § 18(b) of the Federal-Aid Highways Act of 1968, 49 U.S.C. § 1653(f) (Supp. V, 1970) and 23 U.S.C. § 138 (Supp. V, 1970). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971).
Plaintiff moved in the district court for a preliminary injunction. The court took testimony on this application, and on January 19, 1970, declined to issue a preliminary injunction on the ground that the plaintiff's likelihood of ultimate success was slight and the public interest in completion of the project great. At that time the contract for construction had already been awarded (June 25, 1969) and construction had commenced (August 4, 1969). On January 24, 1970, the federal defendants moved for judgment on the pleadings or alternatively for summary judgment, relying on the affidavits submitted and the testimony taken at the hearing on the motion for a preliminary injunction. The plaintiff filed no opposing affidavits, but contended that the matters already before the court showed the existence of a genuine fact issue. That fact issue, plaintiff contends, is the date on which the project received design approval.
The date of design approval is critical to the application of the statutes and the Policy and Procedure Memorandum upon which plaintiffs rely.
Section 4(f) of the Department of Transportation Act of 1966, which as amended is found in 49 U.S.C. § 1653(f) (Supp. V, 1970) as well as 23 U.S.C. § 138 (Supp. V, 1970) originally provided:
'(f) The Secretary shall cooperate and consult with the Secretaries 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 this Act, the Secretary shall not approve any program or project which requires the use of any land from a public park, recreation area, wildlife and waterfowl refuge or historic site unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.' 49 U.S.C. § 1653(f) (Supp. III, 1968).
That statute was amended by §§ 18(a) and (b) of the Federal-Aid Highway Act of 1968 in several respects. First, a declaration of policy was added:
'It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreational lands, wildlife and waterfowl refuges, and historic sites.'
Second, the duty of the Secretary with respect to parks, recreational areas, wildlife or waterfowl refuges was restricted to projects which required the use of publicly owned land in such sites. The statute was also narrowed to include only sites of national, state or local significance.
The effective date of the 1966 Department of Transportation Act is April 1, 1967. Exec.Order No. 11340, 3 C.F.R. 267 (Supp.1967). The case was argued to this court on the assumption that the effective dates of 23 U.S.C. § 138 (Supp. V, 1970) and 49 U.S.C. § 1653(f) (Supp. V, 1970) were August 23, 1968. That date appears in § 1653(f) because it is the effective date of the Federal-Aid Highway Act of 1968. Section 138 refers specifically to the effective date of that act as its effective date. Actually, however, the Secretary had a broader duty from April 1, 1967, to August 23, 1968, than thereafter, and we will assume the earlier date for purposes of our decision. From April 1, 1967, approval of a project requiring use of a wildlife preserve required the findings which are specified in Citizens to Preserve Overton Park, Inc. v. Volpe, supra.
The public hearing statute, 23 U.S.C. § 128 (Supp. V, 1970), had a much earlier genesis. It appears at least as early as § 13 of the Federal-Aid Highway Act of 1950, Act of Sept. 7, 1950, Ch. 912, § 13, 64 Stat. 791. It was broadened in § 116(c) of the Federal-Aid Highway Act of 1956, Act of June 29, 1956, Ch. 462, § 116(c), 70 Stat. 385 and was included as § 128 in the Recodification of Title 23 enacted as Pub.L. No. 85-767, Aug. 27, 1958, 72 Stat. 902. Until 1968, however, State or local officials were required to certify to the Secretary only that a hearing had been held to afford the public an opportunity to voice objections about the economic impact of the project. The Federal-Aid Highway Act of 1968 amended § 128 to require that the State or local officials certify that hearings have been held, and that the submitting department 'has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.' 23 U.S.C. § 128 (Supp. V, 1970) (emphasis supplied). As pointed out above, the effective date of the Federal-Aid Highway Act of 1968 is August 23, 1968.
It is undisputed that the New Jersey Department of Transportation did not for the project in question furnish to the Secretary the certificate as to environmental effects required since August 23, 1968, by 28 U.S.C. § 128 (Supp. V, 1970). It is undisputed that the Secretary did not, with respect to the project, make the findings required since April 1, 1967, by Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (Supp. III, 1968), as amended 49 U.S.C. § 1653(f) (Supp. V, 1970), for approval of any project in a wildlife preserve. The defendants contend that neither step was required because the project had been approved long prior to either critical date.
The Department of Transportation has construed 23 U.S.C. § 128 (Supp. V, 1970) in Policy and Procedure Memorandum 20-8 issued by the Bureau of Public Roads. 23 C.F.R., Chapter 1, appendix A. That memorandum sets out specific requirements for state highway department hearings. It provides for two hearings, a corridor public hearing and a ...