ELR Citation: ELR 20239
No(s). 72-289 (S.D. Ohio Dec 15, 1972)

The court upholds the Secretary of Transportation's pre-NEPA approval of a highway right-of-way that reserved to the owner the right to cross the highway with mining equipment 10 times during a 40-year period. The Secretary's determination that the present review and approval of the first actual crossing is not a "major federal action" within the meaning of NEPA is also upheld. Further, approval of the reservation was not a violation of the Federal-Aid Highway Act because such "non-highway" use is permitted. Nor does the state's permission to cross the highway violate any state law or constitutional provision.

Counsel for Plaintiff
Joel T. Thomas
Isaac and Isaac
Suite 1650, 88 East Broad Street
Columbus, OH 43215

Gerald A. Jacover
Ohio Public Interest Action Group
613 East Oak Street
Columbus, OH 43215

Counsel for Defendant
David J. Guittar Assistant U.S. Attorney
255 Front St.
Columbus, OH 43215