ELR Citation: ELR 20752
No(s). 70-123 Civ (M.D. Pa. Apr 30, 1970)

A suit to enjoin the planned relocation of a Pennsylvania highway and to order mandatorily the repair and upgrading of the roadbed is dismissed. The court holds inter alia that: (1) the defendant state officials and independent contractors are immune to suit; (2) the National Environmental Policy Act (NEPA) is not retroactive in view of the lack of express statutory command to the contrary, and, assuming, arguendo, that it is, the Secretary of Transportation complied with it although he did not independently assess environmental impact; (3) the Federal Highway Act has not been violated as there is no feasible and prudent alternative to the route approved; and (4) the Rivers and Harbors Act of 1899 is inapplicable due to the non-navigability of the stream in dispute.

Counsel for Plaintiffs
Robert Broughton
Killian, Gephart & Snyder
216 Pine Street
Harrisburg, PA 17101

Counsel for Defendants
Robert W. Cunliffe
Edward Hosey
Pennsylvania Department of Highways
Harrisburg, PA

Francis J. Locke
Regional Counsel, Region 2
Department of Transportation
Federal Office Building
31 Hopkins Plaza
Baltimore, MD 21201

S. John Cottone U.S. Attorney
Federal Building
Scranton, PA 18501

J. Thomas Menaker
100 Pine Street
Harrisburg, PA

McNees, Wallace & Nurick
P.O. Box 1166
Harrisburg, PA 17108