IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CORRIDOR H ALTERNATIVES, INC. ) Route 1, Box 29B ) Kerens, WV 26276 ) ) CA No. 1:96CV02622(TFH) WEST VIRGINIA HIGHLANDS CONSERVANCY ) P.O. BOX 306 ) AMENDED COMPLAINT FOR Charleston, WV 25301 ) DECLARATORY AND INJUNCTIVE ) RELIEF WEST VIRGINIA CITIZEN ACTION GROUP ) 1324 Virginia St., East ) Charleston, WV 25301 ) ) WEST VIRGINIA ENVIRONMENTAL COUNCIL ) 1324 Virginia St., East ) Charleston, WV 25301 ) ) CONCERNED CITIZENS COALITION ) Otto Rt. Box 105a ) Spencer, WV 25276 ) ) HARRISON COUNTY ENVIRONMENTAL ) CITIZENS ORGANIZATION ) P.O. Box 2113 ) Clarksburg, WV 26302 ) ) OHIO VALLEY ENVIRONMENTAL COALITION ) 1101 Sixth Avenue, Suite 222 ) Huntington, WV 25701 ) ) DOWNSTREAM ALLIANCE ) P.O. BOX 1492 ) Morgantown, WV 26507 ) ) NORTHERN SHENANDOAH VALLEY AUDUBON ) SOCIETY ) 337 Thompson Street ) Strasburg, VA 22657 ) ) STUDENT ENVIRONMENTAL NETWORK ) P.O. Box 2837 ) Elkins, WV 26241 ) ) HEARTWOOD ) P.O. Box 492 ) Paoli, IN 47454 ) ) RESOURCE ALLIANCE ) P.O. Box 27AA ) Mathias, WV 26812 ) ) REYNOLDS ESTATES LANDOWNERS ) 9207 Shotgun Ct. ) Springfield, VA 22153 ) ) CEDAR CREEK BATTLEFIELD FOUNDATION ) P.O. Box 229 ) Middletown, VA 22645 ) ) SIERRA CLUB, WEST VIRGINIA CHAPTER ) P.O. Box 4142 ) Morgantown, WV 26504 ) ) Plaintiffs, ) ) v. ) ) FEDERICO PENA, SECRETARY ) U.S. DEPARTMENT OF TRANSPORTATION ) 400 7th Street, S.W. ) Washington, D.C. 20590 ) ) RODNEY SLATER, ADMINISTRATOR ) FEDERAL HIGHWAY ADMINISTRATION ) 400 7th Street, S.W. ) Washington, D.C. 20590 ) ) FRED VANKIRK, SECRETARY ) State Highway Engineer ) WEST VIRGINIA DEPARTMENT OF ) TRANSPORTATION ) Division of Highways ) State Capitol Complex, Building 5 ) Charleston, WV 25305 ) ) Defendants. ) ___________________________________ ) INTRODUCTION 1. Plaintiffs bring this action to challenge the decision of Defendants to construct a massive new 100-mile-long superhighway from the Virginia border through the heartland of the West Virginia highlands. This highway, called "Appalachian Corridor H," would slash through two national forests, requiring over 100 stream crossings, including four rivers on the National Rivers Inventory, would destroy important natural and scenic viewsheds, and would substantially impair two historic civil war battlefields and a National Register-eligible historic district. Defendants' approval of Appalachian Corridor H violates the National Environmental Policy Act (NEPA), 42 U.S.C. ¤¤ 4321-4370d and Section 4(f) of the Department of Transportation Act ("Section 4(f)"), 49 U.S.C. ¤ 303; 23 U.S.C. ¤ 138. 2. Costing more than $1 billion, Corridor H is the last, the most environmentally destructive, and most costly highway to be constructed as part of Appalachian Regional Development Highway System, a 1960's-era road-building program. Originally proposed to extend fourteen miles into Virginia to link up with Interstate 81, Corridor H was expressly rejected by the Commonwealth of Virginia several years ago, due to its unacceptable and unavoidable impacts to natural, cultural, and scenic resources. 3. The asserted transportation purpose of Corridor H -- to provide regional linkages to interstate highways and address deficiencies in existing roadways -- does not require construction of a four-lane superhighway in this sparsely populated area. Nor will the highway stimulate economic development that offsets the enormous costs of the project. Improving existing two-lane roads -- the alternative selected by the Commonwealth of Virginia -- would address the transportation needs to be served by Corridor H, at a fraction of the cost to federal and state taxpayers, while avoiding the devastating environmental impacts associated with constructing a new four- lane superhighway in what is presently an undisturbed natural area devoted almost entirely to national forests, historic properties, and rural agricultural uses. However, the Environmental Impact Statement (EIS) for the project fails to evaluate the alternative of improving existing roads, as opposed to building a highway on a new alignment, thereby depriving agency decisionmakers, responsible governmental officials, and the public of critical information about a viable transportation alternative. Moreover, numerous historic and other protected resources have not been accorded the substantial protection from highway impacts guaranteed by Section 4(f) of the Department of Transportation Act. 4. Plaintiffs request injunctive relief preventing the Defendants from taking any action to commence construction of Appalachian Corridor H, including the acquisition of right-of-way and the letting of construction contracts, until there has been adequate compliance with the applicable statutory and regulatory requirements of NEPA and Section 4(f). JURISDICTION AND VENUE 5. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. ¤ 1331(a), 28 U.S.C. ¤¤ 2201- 2202, 28 U.S.C. ¤ 1361, and 5 U.S.C. ¤¤ 701-706. Venue is proper in this district under 28 U.S.C. ¤ 1391(e) and 5 U.S.C. ¤ 703. PARTIES 6. Corridor H Alternatives, Inc., is a nonprofit organization with chapters in northern, central, state capital, and eastern West Virginia and Virginia. Its mission is to promote transportation systems that preserve and enhance the quality of life, the natural environment, local business and community cohesion, and local history and culture in the Potomac Highlands of West Virginia and the Shenandoah Valley of Virginia. Plaintiff Corridor H Alternatives brings this action on behalf of itself and its adversely affected members. 7. West Virginia Highlands Conservancy is a membership organization formed to promote the conservation and prudent use of West Virginia's natural resources, and has opposed the Corridor H project for more than 25 years. The organization has focused on the central highlands of West Virginia, the area most affected by the proposed Corridor H. West Virginia Highlands Conservancy brings this action on behalf of itself and its adversely affected members. 8. West Virginia Citizens Action Group is a 20,000-member consumer advocacy organization, the largest in the state. The organization is concerned about the environmental and economic impact of the proposed Corridor H. West Virginia Citizens Action Group brings this action on behalf of itself and its adversely affected members. 9. West Virginia Environmental Council is an organization formed to facilitate communication and cooperation among citizens promoting environmental protection in the state. The organization is concerned about the possible environmental damage to the Monongahela National Forest caused by the proposed highway. West Virginia Environmental Council brings this action on behalf of itself and its adversely affected members. 10. Concerned Citizens Coalition is an unincorporated grassroots organization with members in three counties formed to address environmental and social justice issues. The organization is opposed to the proposed highway as a threat to rare ecosystems. Concerned Citizens Coalition brings this action on behalf of itself and its adversely affected members. 11. Harrison County Environmental Citizens Organization is an unincorporated, local environmental group formed to educate the public on environmental issues so that informed decisions can be made about protecting and preserving the environment. The organization is opposed to the construction of the proposed highway on both economic and environmental criteria. Harrison County Environmental Citizens Organization brings this action on behalf of itself and its adversely affected members. 12. Ohio Valley Environmental Coalition is a grassroots environmental organization with approximately 650 members, located in Huntington, West Virginia. The organization opposes the proposed highway on the grounds that it would cause harmful environmental impacts to sensitive, undeveloped areas in West Virginia, including designated wilderness areas. Ohio Valley Environmental Coalition brings this action on behalf of itself and its adversely affected members. 13. Student Environmental Network is a state-wide nonprofit organization based in Elkins, West Virginia, created to provide a forum for the environmental concerns of West Virginia's youth. The organization is concerned about the irreparable damage that will be caused to state resources by the proposed highway. Student Environmental Network brings this action on behalf of itself and its adversely affected members. 14. Downstream Alliance is an organization formed to protect and prevent pollution to the environment of West Virginia communities. The organization is concerned about protecting state streams and wilderness areas from air, water, and noise pollution resulting from sources such as the proposed highway. Downstream Alliance brings this action on behalf of itself and its adversely affected members. 15. Northern Shenandoah Valley Audubon Society is the Virginia chapter of the National Audubon Society, whose purpose is to participate in the enhancement and preservation of the natural world. Northern Shenandoah Valley Audubon Society brings this action on behalf of itself and its adversely affected members. 16. Heartwood is a nonprofit coalition of organizations, individuals and businesses dedicated to the health and well- being of the native forests of the Central Hardwood region and of its interdependent plant, animal and human communities. Its members include over 500 individuals and businesses, and more than 70 organizations who recognize the critical role played by the public forests of the Central Hardwood region in protecting native biological diversity, maintaining air and water quality, and providing plant and animal habitat not readily available on private land. Heartwood brings this action on behalf of itself and its adversely affected members. 17. Resource Alliance is a unincorporated membership organization whose purpose is the preservation of the Potomac headwaters, and which is concerned about the environmental threat Corridor H poses to the region. Resource Alliance brings this action on behalf of itself and its adversely affected members. 18, Reynolds Estates Landowners is an unincorporated association of landowners concerned with maintaining the economic sustainability of the landscape formed by two mountain ridges, Paddy Mountain and Great North Mountain, formerly known as the Reynolds Estate, and who are concerned about the effect of Corridor H on the landscape of the Potomac Highlands. 19. Cedar Creek Battlefield Foundation is a nonprofit organization whose purpose is to interpret and preserve the Cedar Creek Battlefield in the Shenandoah Valley of Virginia, which is concerned about the degradation of area surrounding this historic battlefield. The Cedar Creek Battlefield Foundation brings this action on behalf of itself and its adversely affected members. 20. Sierra Club is a national environmental organization concerned with protecting the integrity of the environment. The Sierra Club's chapter in West Virginia is concerned about the effects of Corridor H on the Monongahela National Forest, historic resources, and the bio-region in general. Sierra Club brings this action on behalf of itself and its adversely affected members. 21. Members of plaintiffs' organizations are subject to present and threatened harm attributable to Defendants' decisions to approve construction of Appalachian Corridor H. Many of plaintiffs' members live and own property in the areas that will be traversed by the proposed highway, and will be harmed by, among other things, the destruction of scenic viewsheds, increased water, air, and noise pollution generated by traffic and increased highway runoff, and the degradation of the area's streams, rivers, and watersheds from construction of the highway, including blasting and borrow-and-fill activities, and the adverse environmental effects of increased development that will result from construction of a four-lane highway in this pristine area. 22. Many of plaintiffs' members also frequently use, enjoy, and appreciate the national forests, rivers, streams, scenic byways and viewsheds, and cultural resources that will be affected by the challenged action, and but for the proposed project, intend to continue to use, enjoy, and appreciate these resources with the same degree of frequency and regularity for a variety of activities including walking, exploring, hunting, fishing, seeking solitude, and enjoying the scenery, and studying and appreciating the wildlife, history, and environmental processes. The interests of plaintiffs' members in preserving and protecting these scenic, natural, recreational, and cultural resources will be harmed by the proposed action. 23. Plaintiffs' members have been actively involved in community organizing, administrative action, and lobbying to secure adequate consideration of alternatives that do not involve construction of a massive 100-mile superhighway, and that would meet the purported goals of the proposed project. 24. Given their interest in and advocacy on behalf of protecting this undisturbed natural area in the heartland of West Virginia and Virginia, plaintiffs and their members have a strong interest in ensuring that Defendants comply with the procedural requirements of NEPA, and with the procedural and substantive mandates of Section 4(f). The interests of Plaintiffs and their members are within the zone of interests intended to be protected by NEPA and Section 4(f). The interests of Plaintiffs and their members are and will continue to be aggrieved and adversely affected by the actions of Defendants complained of herein. Plaintiffs and their members have suffered and will continue to suffer injury in fact due to the Defendants' current and prospective failure to comply with NEPA and Section 4(f), unless the relief sought here is granted. Neither the claims asserted herein, nor the relief requested, requires the participation of individual members of the Plaintiffs in this lawsuit. 25. Defendant Pe–a is named here solely in his official capacity as Secretary of the United States Department of Transportation. In that capacity, Defendant Pe–a is responsible for the administration, operations, and activities of the Department of Transportation, including the Federal Highway Administration (FHWA), and for the agencies' compliance with NEPA and Section 4(f). 26. Defendant Slater is named here solely in his official capacity as Administrator of the FHWA. In that capacity, Defendant Slater is responsible for the administration, operations, and activities of the FHWA, and for the agency's compliance with federal laws, including NEPA and Section 4(f). 27. Defendant VanKirk is sued solely in his official capacity as the Secretary of the West Virginia Department of Transportation, Division of Highways. In that capacity, Defendant VanKirk is responsible for the design and construction of Appalachian Corridor H. Facts 28. As originally proposed, Appalachian Corridor H was a four-lane divided highway of between 160 and 190 miles in length, starting from Interstate 79 in West Virginia and terminating at Interstate 81, in Virginia. A 40-mile section of Corridor H, from I-79 to Elkins, West Virginia has already been completed. However, the section of Corridor H from Elkins, West Virginia to Interstate 81 -- the section at issue here -- has been postponed for thirty years due to its high cost, and the difficult terrain and sparse population of the area it will traverse. 29. The original purpose of the Appalachian Regional Development Highway System, as proposed thirty years ago, was "to provide a highway system which will open up an area or areas with development potential where commerce and communication have been inhibited by lack of adequate access." Pub. L. No. 89-3, ¤ 201(a); 72 Stat. 885 (1965). However, a majority of studies of Appalachian Regional Development highways indicate that highway improvements in sparsely populated areas are not a significant factor in generating economic development. 30. In 1981, a Draft Environmental Impact Statement (DEIS) for Corridor H was circulated for public review and comment. The alignments considered in the DEIS included a southern alignment, which would have brought the highway close to the Spruce Knob/Seneca Rocks National Recreation Area in the Monongahela National Forest, as well as northern alignments. 31. In 1984, the Corridor H project was put on hold and no Final EIS or Record of Decision was issued. 32. On September 21, 1990, however, the FHWA issued a Notice of Intent to prepare a Supplemental Draft EIS (SDEIS) for the Corridor H project. A scoping meeting was held on October 30, 1990. In addressing the scope of the environmental document, the U.S. Environmental Protection Agency (EPA) urged the consideration of several additional alternatives, which would eliminate or minimize environmental impacts, stating: Such alternatives would include the feasibility of upgrading existing roads and consideration of a 3-lane road rather than strictly adhering to the four lane highway concept. We invite you to explore innovative approaches for designing a highway which will meet the needs of the communities and travelers while maintaining the integrity of the unique areas through which the highway would traverse. Letter to Mr. Fred VanKirk, WV-DOT from Diana Esher, EPA (Dec. 5, 1990). This request was also made by the numerous citizens groups attending the scoping meeting. 33. On October 21, 1992, the FHWA approved a Corridor Selection Draft Supplemental Environmental Impact Statement (CSDEIS), and circulated this document for public comment. The CSDEIS focused on the broad issue of selecting a 2,000-foot-wide corridor for the highway. The CSDEIS considered only two alternatives: a no build and a build alternative involving the construction of a four-lane Appalachian Corridor H. Within the build alternative, five broad corridors, called "Schemes," each with corresponding subschemes, were evaluated. 34. The CSDEIS failed to consider an "Improved Roadway Alternative," involving geometric improvements to the existing Elkins-to-Interstate 81 routes by adding truck climbing lanes, widening roadways and shoulders, regrading steep slopes, and realigning where sight distances are inadequate. The CSDEIS stated that such an Improved Roadway Alternative was eliminated from consideration because it did not meet the purpose and need for the project. 35. In response to the CSDEIS, nearly 7,000 comments were submitted by members of the public. Of these comments, nearly one-half expressed opposition to construction of Corridor H. 36. On or about March 5, 1993, the U.S. Department of the Interior (DoI) submitted comments on the CSDEIS. The DoI comment letter recommended further study of the alternative of improving existing roads, stating: [B]y upgrading and improving existing facilities, the economy and environmental resources would be more in balance, as would the promotional aspect of attracting tourists with the need to protect the environmental qualities for which the region is known. Letter to Mr. Billy R. Higginbotham, FHWA Division Administrator, from Jonathan Deason, DoI, at 1 (March 5, 1993). The DoI letter noted in particular that Scheme D would have significant and avoidable adverse impacts to National Resource Waters and native trout streams by stream channelization, and would also adversely impact other high quality fish and wildlife resources, and wetlands, and "would adversely affect listed and eligible cultural and natural Section 4(f) resources." Id., at 1, 10. 37. By resolution dated May 20, 1993, the Virginia Commonwealth Transportation Board urged that the study process for Corridor H "comprehensively evaluate alternative improvements to existing highways which might satisfy the objectives of the Corridor H program without requiring construction of a new highway." 38. Despite these recommendations from other agencies, on July 26, 1993, the FHWA approved the CSDEIS, selecting the 2,000- foot corridor identified as Scheme Option D5. The Corridor Selection Decision document noted that, while improvements to existing roads did not meet the purpose and need for the project, a more detailed investigation of an Improved Roadway Alternative would nonetheless be undertaken in the Alignment Selection SDEIS in response to the resolution of the Virginia Commonwealth Transportation Board. 39. In November, 1994, the Alignment Selection SDEIS (ASDEIS), which evaluated the impacts of alternative alignments within the selected corridor (Scheme Option D5), was issued for public comment. The ASDEIS did not evaluate the alternative of making improvements as needed to the geometrics of existing roadways. Instead, the ASDEIS evaluated an alternative which it misnamed the "improved roadway alternative" ("IRA"), which was, in fact, a new two-lane highway located within the 2,000-foot pre-selected corridor Scheme D5. Rather than actually improving existing roads, the "IRA" was essentially a two-lane version of Corridor H, on a slightly different alignment. For example, the IRA utilized new right-of-way for 62 percent of the route and would have caused a level of environmental harm and community disruption comparable to the four-lane highway alignments under consideration for Corridor H itself. 40. Like the CSDEIS, the ASDEIS evaluated the environmental impacts of the different alignments, including the IRA. However, the ASDEIS failed to include an evaluation of impacts to resources protected under Section 4(f) of the Department of Transportation Act, 49 U.S.C. ¤ 303, because the Defendants had failed to complete the process of identifying historic properties that were potentially affected by the highway. As a result, the preferred alignment encroached on the boundaries of both the Moorefield and Corricks Ford Civil War battlefields, and bisected the Old Fields Rural Historic District. The ASDEIS also failed to disclose that the preferred alignment would be constructed over the closed Moorefield landfill, located near the Route 55 interchange, an uncontrolled open dump site that has since been covered with fill but that has never been remediated. Instead, the ASDEIS erroneously states: "Neither Line A or any of the Option Areas would have an involvement with CERCLA sites, RCRA sites, UST sites, or landfills." ASDEIS, at III-520 (emphasis added). 41. More than 89 percent of the over 4,200 letters received by Defendants during the comment period expressed opposition to the construction of any four-lane alignment of Corridor H. 42. On or about February 16, 1995, the Virginia Commonwealth Transportation Board voted to disapprove the construction of Corridor H in Virginia, stating BE IT RESOLVED that the Commonwealth of Virginia adamantly cannot support the four-laning alternative of Corridor H in Virginia, . . . [and] cannot support the Improved Roadway Alternative (IRA), presented at the public hearing, due to the breadth of its impacts to residences, businesses, and cultural and environmental resources. Instead, the Board directed the Virginia Department of Transportation "to study the Route 55 corridor safety aspects such as horizontal and vertical alignments, possible need for truck climbing lanes, intersection safety improvements, and other safety related features of the roadway." 43. In March 1995, the U.S. Environmental Protection Agency (EPA), Region III office in Philadelphia, Pennsylvania, developed a draft, 24-page comment letter providing detailed technical comments on the ASDEIS. The Region III draft comment letter gave the ASDEIS a rating of "EU" (Environmentally Unsatisfactory). The "EU" rating signified that, unless the unsatisfactory impacts were corrected at the final EIS stage, the proposal would be recommended for referral to the Council on Environmental Quality (CEQ). The draft comment letter was to be signed by then-EPA regional administrator Peter Kostmayer. 44. Following press reports concerning the possibility of an unsatisfactory project rating from EPA Region III, a number of influential West Virginia public officials, including Governor Gaston Caperton and Senator Robert Byrd, wrote to the EPA headquarters in Washington, D.C., concerning the EPA's proposed "EU" rating for the project. On or about March 20, 1995, a meeting was held in Washington, D.C. between EPA, headquarters officials and various West Virginia public officials to discuss West Virginia's concern that the EPA's proposed "EU" rating would delay the project by requiring a referral to the Council on Environmental Quality (CEQ), pursuant to 40 C.F.R. Part 1504. 45. The EPA Region III comment letter was never sent. Instead, on March 24, 1995, a drastically-abbreviated final comment letter on the ASDEIS was signed by Steven Herman, the Assistant Administrator of EPA in Washington, D.C. That letter gave the ASDEIS a rating of "EO" (Environmental Objections), which would not require referral to the CEQ. 46. On April 13, 1995, the U.S. Department of the Interior (DoI) submitted a letter providing extensive comments on the ASDEIS. The DoI stated in its letter: [T]he IRA failed to offer a realistic alternative to the No- Build or 4-lane options. The design constraints resulted in a significant portion (62 percent) of the IRA requiring construction on new alignment or relocation. We envisioned a less intrusive approach that involved road widening and horizontal and vertical curve improvements as reasonably permitted by topographical, environmental, and social constraints. Letter to Mr. Billy R. Higginbotham, FHWA Division Administrator, from Willie R. Taylor, DoI (April 13, 1995). 47. By letter dated June 25, 1995, the President's Advisory Council on Historic Preservation notified the FHWA that both the CSDEIS and the ASDEIS were "incomplete in their consideration of historic properties and rely on subsequent work to take into account any effects on historic resources." The Advisory Council further requested that the issue of the eligibility for listing in the National Register of Historic Places and the appropriate boundaries for two civil war battlefields -- the Corricks Ford Battlefield, in Tucker County, and the Moorefield Battlefield, in Hardy County -- should be submitted to the Keeper of the National Register for a determination. 48. On November 8, 1995, the Advisory Council executed a Programmatic Agreement with the FHWA and the West Virginia State Historic Preservation Officer (SHPO), which set forth the terms under which the FHWA would take into account the project's effects on historic properties as required by Section 106 of the National Historic Preservation Act, 16 U.S.C. ¤ 470f. Under the Programmatic Agreement, the evaluation of the project's impacts on historic properties will take place after final approval of the project by the FHWA, and concurrently with final design of the project. This process has not yet been completed. 49. On December 15, 1995, the Keeper of the National Register determined that the Moorefield Battlefield was eligible for listing in the National Register, overruling the contrary determination of both the West Virginia SHPO and the FHWA. The Keeper of the National Register also determined that the boundaries of the Corricks Ford Battlefield included the Kalar's Ford area, again overruling the contrary determination of both the SHPO and the FHWA. 50. On numerous occasions, Plaintiff Corridor H Alternatives advised the FHWA that the preferred alignment for Corridor H would also require the use of land from the Old Fields Historic District, which is eligible for listing in the National Register as a rural historic landscape. 51. By letter dated May 2, 1996, FHWA advised Corridor H Alternatives that in FHWA's view any historic district in the Old Fields area would not be used by the preferred alternative, and that FHWA would review its boundary determination during the final project design, pursuant to the process established under the Programmatic Agreement. FHWA refused Plaintiff's request to submit the boundary dispute concerning the Old Fields Historic District to the Keeper of the National Register prior to issuing its Final EIS. 52. On or about April 8, 1996, the Regional Administrator of the FHWA signed the Final EIS (FEIS) for Appalachian Corridor H. The FEIS redefined the project as a 100-mile, four-lane highway from Elkins to the Virginia state line, thereby precluding Corridor H from serving its intended purpose of creating a direct four-lane highway to Interstate 81. 53. The FEIS showed a modification of the preferred alignment to avoid any direct use of the Corricks Ford Battlefield (called "Line A, Modified Option Area S"). This modification brought the alignment outside the original 2,000- foot corridor that was evaluated in both the CSDEIS and the ASDEIS. The FEIS also modified the alignment of the preferred alternative to pass within 200 feet of the boundaries of the Moorefield Battlefield. 54. As a result of this modification, the selected alignment for Corridor H will be constructed on the side of Fork Mountain, within the viewshed of Corricks Ford Battlefield, and will loom directly over the battlefield for virtually its entire length. Defendants have not conducted any assessment or evaluation of the direct impacts of this new alignment on the geology of Fork Mountain, its watershed, and other natural resources. 55. Despite the fact that the West Virginia Department of Highways was aware of proposed highway's involvement with the Moorefield Landfill, the FEIS reiterates that "The Preferred Alternative (WV) and Line A (VA) would not involve CERCLA sites, RCRA sites, UST sites, LUST sites, or landfills." FEIS, at III- 42 (emphasis added). 56. On or about July 15, 1996, the U.S. Forest Service (USFS), Northeastern Forest Experiment Station, advised the FHWA that the modified alignment, by elevating the roadway onto the very steep, mountainous terrain of Fork Mountain, would have even more substantial and negative visual, noise, and air quality impacts on the Fernow Experimental Forest, as well as on the neighboring Otter Creek Wilderness, a Class I wilderness area, and that the extensive blasting on the mountainside, which would be necessary for constructing the road supports, would have a damaging effect on the hydrology of the Experimental Forest. 57. On or about July 31, 1996, the U.S. Department of the Interior issued a comment letter reviewing the FEIS, stating that: The Federal Highway Administration's decision to conduct Section 4(f) studies concurrently with construction of the highway blurs the effectiveness of Section 4(f) in selecting a prudent and feasible alternative which would avoid the loss of significant cultural or natural resources. The conclusion that the Preferred Alternative avoids all identified Section 4(f) sites and no use of these resources will result from the construction of the highway is not entirely true. We believe that the Old Fields Historic District and Corricks Ford Battlefield will be impacted from constructive use. Therefore, we recommend that Section 4(f) studies, especially pertaining to constructive use, be conducted prior to the issuance of the Record of Decision for this proposed highway. Letter to Mr. David S. Gendell, FHWA Regional Administrator, from Willie R. Taylor, DoI (July 31, 1996) (emphasis added). 58. Notwithstanding these negative comments from DoI, just two days later David C. Lawton, Director of Office of Planning and Program Development in the FHWA regional office in Baltimore, Maryland, signed a Record of Decision (R.O.D) on August 2, 1996, approving the selection of the preferred alternative for Appalachian Corridor H. 59. The R.O.D. concluded that the preferred alignment would not require the use of any Section 4(f)-protected resources. However, the R.O.D. also noted that "the Section 106 process is still ongoing and could conceivably result in a determination that a Section 4(f) resource would be used by the current alignment of the Preferred Alternative." R.O.D. at 16. 60. Revised alignment maps dated October 2, 1996 show that the selected alignment for Corridor H was modified in the vicinity of Backbone Mountain, bringing the alignment outside the original 2,000-foot corridor that was evaluated in both the CSDEIS and the ASDEIS, and directly within the headwaters of Big Run Bog, a designated Natural National Landmark. The impacts of this modified alignment on Big Bog Run and other natural resources is not evaluated or disclosed in the FEIS or the R.O.D. 61. On or about October 15, 1996, the U.S. Forest Service (USFS), Northeastern Forest Experiment Station, the division of the USFS with official jurisdiction over the Fernow Experimental Forest, advised the FHWA that one of the primary purposes of the Fernow Experimental Forest is as a wildlife management area, and is therefore a resource protected by Section 4(f). The USFS further concluded that the Fernow Experimental Forest will be substantially impaired by Corridor H. 62. On or about November 4, 1996, Defendant West Virginia Department of Transportation advised the Virginia Department of Transportation that current designs for Corridor H now terminate at a point west of the Wardensville, West Virginia Historic District, and that construction of the a 6.77 mile segment from Wardensville to the Virginia state line would be deferred to an indefinite point in the future. 63. Defendants are now in the process of finalizing the design of the highway, and it is Defendants' intention to proceed with right-of-way acquisition, core drilling, and letting contracts for the construction of the project as rapidly as possible. 64. Only $148 million of the estimated $880 million in federal funds needed to construct Appalachian Corridor H has been appropriated -- enough to construct only ten miles of the proposed highway. There is no assurances that full funding for the entire project will be secured. 65. Absent equitable relief from this Court, the natural, scenic, and historic resources identified above will be severely and irreparably harmed. Plaintiffs and their members have no adequate remedy at law, and they will suffer irreparable and permanent injury if they are not awarded relief by this Court. COUNT I (National Environmental Policy Act) 66. Plaintiffs repeat and reallege the foregoing allegations. 67. The National Environmental Policy Act (NEPA) requires federal agencies to prepare a detailed statement evaluating the environmental impacts of and alternatives to any proposed "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. ¤ 4332(2)(C). 68. Section 102(E) of NEPA requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. ¤ 4332(2)(E). 69. The FHWA failed to evaluate the alternative of making improvements to existing roads, such as correcting horizontal and vertical alignments, adding truck-climbing lanes, and making intersection safety improvements, which would satisfy all or most of the transportation needs to be served by Corridor H. 70. The current traffic projections for the design year (2020) do not require construction of a four-lane highway to provide an acceptable level of service on existing roads. 71. The Commonwealth of Virginia's decision to reject the four-lane Corridor H, and instead to improve its existing roads from the West Virginia border to Interstate 81, confirms that improving existing roads is a viable, reasonable alternative that can satisfy the legitimate transportation needs for regional linkages and elimination of roadway deficiencies. 72. The FEIS failed to demonstrate that Corridor H will increase industrial development in West Virginia. 73. Defendants' failure to thoroughly evaluate the alternative of making improvements to existing roads was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Accordingly, Defendants should be enjoined from any and all activities in connection with this project that may adversely affect West Virginia's and Virginia's unique natural, scenic and historic resources until such time as Defendants have fully complied with NEPA. Unless Defendants are so enjoined, plaintiffs and their members will be irreparably harmed. COUNT II (National Environmental Policy Act) 74. Plaintiffs repeat and reallege the foregoing allegations. 75. The FHWA failed to evaluate the alternative of postponing construction of the project until full funding is secured. 76. Defendants' failure to thoroughly evaluate the alternative of postponing construction of the project until full project funding is secured was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Accordingly, Defendants should be enjoined from any and all activities in connection with this project that may adversely affect West Virginia's and Virginia's unique natural, scenic and historic resources until such time as Defendants have fully complied with NEPA. Unless Defendants are so enjoined, plaintiffs and their members will be irreparably harmed. COUNT III (National Environmental Policy Act) 77. Plaintiffs repeat and reallege the foregoing allegations. 78. Defendants have significantly modified the selected alignment for Corridor H after the issuance of the Final EIS, which modifications will bring the highway outside of the 2,000- foot corridor whose environmental impacts were evaluated in the ASDEIS and FEIS. One of these modifications will bring the highway on the side of Fork Mountain in the vicinity of Corricks Ford Battlefield, and another will bring the highway in the vicinity Backbone Mountain, and directly within the headwaters of the Big Run Bog National Natural Landmark. There has been no assessment or evaluation of the direct impacts of these changes in the alignment on the geology of Fork Mountain, its watershed, or on the Big Run Bog National Natural Landmark, its waterahed, and no adequate assessment of the impact of these alignment shifts on significant adjacent natural and cultural resources, such as Corricks Ford Battlefield, Fernow Experimental Forest, and or on other affected natural or cultural resources. 79. Defendants' failure to thoroughly evaluate the environmental impacts associated with these significant modifications to the alignment of Corridor H was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Accordingly, Defendants should be enjoined from any and all activities in connection with this project that may adversely affect West Virginia's unique natural, scenic and historic resources until such time as the Defendants have fully complied with NEPA. Unless Defendants are so enjoined, plaintiffs and their members will be irreparably harmed. COUNT IV (Section 4(f) of the Department of Transportation Act) 80. Plaintiffs repeat and reallege the foregoing allegations. 81. Section 4(f) of the Department of Transportation Act, provides, in pertinent part, that the Secretary of Transportation: shall not approve 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 significance as so determined by such officials 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. 23 U.S.C. ¤ 138; 49 U.S.C. ¤ 303(c) (emphasis added). 82. The Keeper of the National Register of Historic Places is the federal official responsible for making final determinations concerning the significance of historic sites and their potential eligibility for the National Register. 83. The FHWA failed to complete the process of assessing the project's impacts on historic resources, and failed to comply with Section 4(f), prior to the issuance of the Record of Decision. Instead, the FHWA has explicitly deferred its evaluation of whether or not the project complies with Section 4(f) until after approving the project. 84. Defendants' preliminary determinations of non- eligibility with respect to most of the historic resources that will be affected by Corridor H, including but not limited to the Old Fields Rural Historic District, Martin Farm, and the Peter Casey House, have not been subject to review by the Keeper of the National Register. 85. Defendants have failed to assess the extent to which the project will use or substantially impair historic resources that will be affected by Corridor H, including but not limited to the Old Fields Rural Historic District, Martin Farm, the Wardensville Historic District, and the Peter Casey House. 86. Until these determinations have been made, Defendants have no reasonable basis for concluding that Corridor H will not require the "use" of any historic sites protected by Section 4(f). 87. Defendants' failure to complete the process of identifying historic properties that may be used or substantially impaired by the project prior to issuance of the R.O.D. is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law. Accordingly, Defendants should be enjoined from any and all activities in connection with this project that may "use" historic resources that are subject to Section 4(f). Unless Defendants are so enjoined, plaintiffs and their members will be irreparably harmed. COUNT V (Section 4(f) of the Department of Transportation Act) 88. Plaintiffs repeat and reallege the foregoing allegations. 89. The preferred alignment will use or substantially impair land from numerous historic resources, including the Old Fields Historic District and the Martin Farm, and two Civil War battlefields -- Moorefield and Corricks Ford Battlefields -- which are eligible for listing in the National Register of Historic Places. 90. The preferred alignment will also substantially impair the Fernow Experimental Forest, the oldest experimental forest in the United States. Fernow Experimental Forest has a primary function as a wildlife management area according to the U.S. Forest Service, which has jurisdiction over the Forest, and is therefore protected under Section 4(f). 91. The alternative of making improvements to existing roads, such as correcting horizontal and vertical alignments, adding truck climbing lanes, and making intersections safety improvements, is a prudent and feasible alternative, which would avoid or minimize the project's use of resources protected by Section 4(f). 92. Defendants have approved the preferred alternative for Appalachian Corridor H without making a legally sufficient determination that feasible and prudent alternatives, which avoid or minimize the use of these resources, would involve "unique problems," or that the cost or community disruption resulting from a preservation alternative would reach "extraordinary magnitudes." 93. Defendants have also failed to undertake all possible planning to minimize harm to the Fernow Experimental Forest, the Corricks Ford Battlefield, the Moorefield Battlefield, the Old Fields Historic District, the Wardensville Historic District, and other Section 4(f)-protected resources used or substantially impaired by the preferred alternative for Corridor H. Accordingly, Defendants should be enjoined from any and all activities in connection with this project that may adversely affect these protected resources until such time as Defendants have fully complied with Section 4(f). Unless Defendants are so enjoined, plaintiffs and their members will be irreparably harmed. RELIEF WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief: 1. Declare the obligations and duties of Defendants to comply fully with the requirements of NEPA and Section 4(f) prior to any further planning, financing, contracting, or construction of the project; 2. Issue injunctive relief directing all Defendants to refrain from any further planning, acquiring right-of-way, financing, contracting, or construction of the project until it has complied with the requirements of NEPA and Section 4(f); 3. Award Plaintiffs their attorneys' fees, costs, and disbursements; and 4. Award such other and further relief as the Court may deem appropriate. Respectfully submitted, ___________________________________ Andrea C. Ferster D.C. Bar # 384648 1400 16th Street, N.W. Suite 300 Washington, D.C. 20036 (202) 797-5427 Thomas R. Michael Michael & Kupec 228 Court Street Clarksburg, WV 26301 (304) 623-1027 Attorneys for Plaintiffs Corridor H Alternatives, West Virginia Highlands Conservancy, West Virginia Citizen Action Group, West Virginia Environmental Council, Concerned Citizens Coalition, Harrison County Environmental Citizens Organization, Ohio Valley Environmental Coalition, Downstream Alliance, Northern Shenandoah Valley Audubon Society, Student Environmental Network, Heartwood, Resource Alliance, Reynolds Estates Landowners, and Cedar Creek Battlefield Foundation ___________________________________ Jason Huber Forman & Crane P.O. Box 2148 Charleston, WV 25328 (304) 346-6300 Attorney for Sierra Club, West Virginia Chapter February 11, 1997 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Amended Complaint for Declaratory and Injunctive Relief was mailed first-class, postage pre-paid, on December 23, 1996, on the following parties/counsel of record: Janet Reno U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 Eric Holder U.S. Attorney for D.C. 555 4th Street, N.W. Washington, D.C. 20001 Federico Pena U.S. Department of Transportation 400 7th Street, S.W. Washington, D.C. 20590 Rodney Slater Federal Highway Administration 400 7th Street, S.W. Washington, D.C. 20590 Sheila D. Jones Eliot Cutler William G. Malley Cutler & Stanfield 700 Fourteenth Street, N.W. Washington, D.C. 20005 ___________________________ Andrea C. Ferster