ELR Citation: ELR 20022
No(s). 75-1214 (D.C. Cir. Oct 28, 1976)

The D.C. Circuit partially affirms and partially reverses the lower court in a suit challenging Federal Highway Administration regulations concerning public hearings on federal-aid highway projects. In affirmance, the court holds, in a matter of first impression, that procedural regulations governing the timing and number of public hearings before building a federal-aid highway come under the "public property, loans, grants benefits or contracts" exception to the notice and comment requirements of the Administrative Procedure Act. Nevertheless, the court reverses the lower court and holds that Congress intended, when it amended the Federal-Aid Highway Act in 1968 and specifically dealt with advance acquisitions and public hearings, that federal funds could not generally be used to finance advance acquisitions of right-of-way parcels prior to a location hearing. Furthermore, the court holds that the matter is ripe for decision even though no specific advance acquisition is in dispute because the point at issue is legal rather than factual, and no additional guidance would be obtained from a factual record.

A dissent disputes the ripeness conclusion and urges that Congress, rather than the court, is the proper forum in which to settle the issue.

Counsel for Appellant
Russell H. Carpenter Jr.
888 16th St., NW
Washington DC 20006
(202) 452-6384

Oliver A. Houck
National Wildlife Federation
1412 16th St., NW
Washington DC 20036
(202) 797-6800

Counsel for Appellees
Francis J. Mulcahy Jr.
Federal Highway Administration
Department of Transportation
400 Seventh St., SW
Washington DC 20590
(202) 426-0539

Earl J. Silbert, U.S. Attorney
John A. Terry
Eric B. Marcy
Mary-Elizabeth Medaglia
Stuart M. Gerson Asst. U.S. Attorneys
United States Courthouse
3rd and Constitution Ave., NW
Washington DC 20001
(202) 426-0817

Before: McGOWAN, LEVENTHAL, and WILKEY, Circuit Judges.