COMPLAINT Plaintiffs bring this action against the U.S. Department of Transportation, Federal Highway Administration, the Administrator of the Federal Highway Administration, and the Administrator of the VA Department of Transportation in their capacities as heads of their respective agencies and in the case of the Administrator of the Virginia Department of Transportation, in his individual capacity, and alleges that:

I. The Parties

1. The Plaintiff, the New River Valley Greens, is an unincorporated association, whose members are encouraged to work on issues that they find important to them which also promote and sustain the ten key values of the Greens. These ten key values are: eco logical wisdom, grassroots democracy, personal and global responsibility, social justice, non-violence, decentralization, community-based economics, post-patriarchal values, respect for diversity and future focus/sustainability. New River Green members live in the New River Valley in Blacksburg, Christiansburg, and Radford.

2. Defendants Department of Transportation and the Federal Highway Administration are U.S. government agencies.

3. Defendant, Federico F. Pena, is the Secretary of the Department of Transportation, in his official capacity.

4. Defendant, Rodney Slater, is the Administrator of the Federal Highway Administration, in his official capacity.

5. Defendant Robert E. Martinez is the Administrator of the Virginia Department of Transportation (VA DOT) and is being sued in his individual capacity as acting ultra vires to his legal authority in approving the Final Environmental Impact Statement.

II. JURISDICTION

6. The jurisdiction of this court is conferred by and invoked pursuant to federal question jurisdiction under 28 U.S.C. ¤1331.

7. The jurisdiction of this court is also conferred by and invoked pursuant to the Administrative Procedure Act, 5 U.S.C. ¤702, and ¤704.

8. The jurisdiction of this court is also conferred by and invoked pursuant to 28 U.S.C. ¤1346 by virtue of the naming of one agency of the U.S. Government as defendant to this action.

III. STATEMENT OF THE CLAIM Background

9. On June 21, 1990, the Commonwealth Transportation Board recommended that the Department of Transportation initiate studies that would consider the construction of additional highways that would achieve two goals - to serve as a link from Blacksburg, VA to Roanoke, VA and that would serve as a "smart highway" project.

10. On June 21, 1990, the Commonwealth Transportation Board approved the location for Alternative 3A (hereinafter New Bypass) for construction.

11. Project 3A consists of a constructed connector between the Christiansburg Bypass and the Blacksburg Bypass whose purpose is to reduce congestion in the Route 460 area.

12. To accomplish the second announced goal of the Commonwealth Transportation Board, the provision of a more direct route from Blacksburg to Roanoke, the VA Department of Transportation [hereinafter VA DOT] undertook a study to determine possible routes for this new highway.

13. The VA DOT produced three alternative location routes for the proposed siting of the Blacksburg to Roanoke highway. These were designated as Alternative 6, Alternative 7, and Alternative 10.

14. In August of 1991, the VA DOT released a Draft Environmental Impact Statement that designated Alternative 6 as the chosen alternative with the least environmental impacts. Plaintiff organizations submitted comments concerning the Draft Environmental I mpact Statement.

15. On September 26, 1991, a public hearing was held by the VA DOT to receive public comments concerning the location of the highway. A total of 217 persons attended the public hearing.

16. Of the 217 that attended the hearing, 139 persons were opposed to the project, and 14 persons were in favor of the project. Also received into the administrative record was a petition from 33 Montgomery County residents opposing the project and a reso lution from the Montgomery County Board of Supervisors supporting the project. Plaintiffs submitted comments concerning the impacts of the proposed highway into the administrative record.

17. On February 20, 1992, Alternative 6 was selected by the Commonwealth Transportation Board as the best possible route from an examination of several factors, including the goal of relieving present and future congestion on existing Route 460, of provid ing a high-speed direct link between Roanoke and Blacksburg, of minimizing the impact to the environment by avoiding environmentally sensitive areas, and by analyzing the costs of the proposed improvements.

18. On March 5, 1993, the Final Environmental Impact Statement (FEIS) was approved by the Chief Engineer of the Virginia Department of Transportation.

19. On May 26, 1993, the FEIS was approved by the Director of the Office of Planning and Program Development of Region 3 of the Federal Highway Administration [hereinafter FHWA].

20. On August 13, 1993, the FHWA and Virginia Department of Transportation signed the Record of Decision (ROD) for the Blacksburg/Roanoke Connector.

21. On June 5, 1995, the Fish and Wildlife Service, Department of the Interior issued a Biological Opinion in compliance with Section 7(a)(2) of the Endangered Species Act (ESA)(16 U.S.C. ¤1531 et seq.). The Biological Opinion concerned the existence of a federally endangered plant species in the path of the proposed highway.

22. The Biological Opinion contained a list of recommendations for the defendants to undertake, including the purchase of conservation easements, restriction of seeding activities, restriction of exotic species introduction, and stringent controls on herb icide applications in the area surrounding the habitat of a federally endangered plant species.

23. On October 5, 1995, a public "information" hearing concerning the FEIS was held by the VA DOT. At this public hearing an "addendum" was released, which purported to contain new information gained by the VA DOT during the period after the signing of the Record of Decision (ROD).

24. The "addendum" contained significant new information that was not stated in the Final Environmental Impact Statement, concerning a complete change of highway alignment, additional noise impact, air quality, changes in traffic projections, and a conclusion that the Executive Order on Environmental Justice did not apply because the project would not have a disproportionate impact on low-income individuals.

25. On October 18, 1995, a "design" public hearing was held at which more public comments were received by the VA DOT. Plaintiff submitted extensive oral and written comments at this public hearing which included an objection to VDOT's refusal to prepare a Supplemental Environmental Impact Statement (SEIS).

26. On September 11, 1995, the VDOT submitted a Notice of Intent to Acquire between 140-142 acres of Agricultural/Forestal District land to the Montgomery County Board of Supervisors. The FEIS declared that only 120.68 acres of AFD land would be necessary for the project.

27. On September 25, 1995, the Board of Supervisors decided to postpone a decision on the Notice of Intent to Acquire until a public hearing was held to determine whether the AFD lands should be condemned. A public hearing was set for November 15, 1995 at 7:00 p.m.

28. The ROD is a "final agency action" as defined by the Administrative Procedure Act, at 5 U.S.C. ¤704.

29. The Blacksburg/Roanoke Connector (Alternative 6) is a "major federal action" that "significantly affect[s] the quality of the human environment" and is thus subject to the requirements of the National Environmental Policy Act [hereinafter NEPA], codif ied at 42 U.S.C.A. ¤4331 et seq.

30. The FHWA regulations that direct the Agency's compliance with the NEPA are promulgated at 23 C.F.R. part 771 et seq.

31. The Council on Environmental Quality has promulgated regulations to define NEPA's terminology and intent at 40 C.F.R. part 1500 - 1517.

32. Under 40 C.F.R. ¤1502.1, the Agency must "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives. . . Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analysis."

33. Under 40 C.F.R. ¤1502.2, the Agency is required to discuss impacts Òin proportion to their significance."

34. The two central justifications for the Blacksburg/Roanoke Connector (Alternative 6) are to reduce congestion on Route 460 in and around Christiansburg and to provide a direct route between Blacksburg and Roanoke.

35. Plaintiff would be adversely affected by the construction of the Blacksburg/Roanoke Connector (Alternative 6) in the following ways:
A. Linda and Gary Vaught are members of the New River Valley Greens and are landowners who reside at 2195 Den Hill Road in Christiansburg, Virginia. Their home and land are located approximately 550 feet from the right of way for the highway project. They would be concretely adversely affected by the road construction, the noise produced by traffic on the highway, reduction in property values, and the visual impacts that they would suffer from being in close proximity to the roadway.
B. Belva Parrott is a member of the New River Valley Greens and is a landowner who resides at 2187 Den Hill Road in Christiansburg. Her home and land are located approximately 600 feet from the right of way for the highway project. She would be concretely adversely affected by the road construction, the noise produced by traffic on the highway, reduction in property values, and the visual impacts that she would suffer from being in close proximity to the roadway.

36. The Plaintiff organization has "standing" to sue based upon the concrete, adverse impacts and potential future impacts experienced by members of the Plaintiff organization.

COUNT I DEFENDANTS' VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT

37. The Defendants did not fully consider the no-build alternative in the planning process and in the FEIS, and thus violated 40 C.F.R. part 1502.14 and 23 C.F.R. part 771.111(h)(2)(v)(a-e).

38. The Defendants did not adequately consider the alternatives to the construction of the highway, giving inadequate and conclusory treatment to the subject of mass transit services and transportation systems management, and the possibility of enlarging the 3A alternative, in violation of 42 U.S.C. ¤4332(C)(iii) and the subsequent regulations at 40 C.F.R. part 1502.14 which requires agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives", and to "[d]evote substantial treat ment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits."

39. The defendants completed an inadequate bird survey and failed to prepare a wildlife survey for the purposes of the Environmental Impact Statement and the inadequate survey and the non-existent survey did not allow the VDOT to make a reasonable decisio n concerning the impacts of the project, in violation of 42 U.S.C. ¤4332 (C) and the subsequent regulations at 40 CFR part 1502.2 and 1502.16. The bird survey was inadequate because it used outdated information of bird surveys and it lacked comprehensiveness, listing only one species of bird in one entire study area.

40. The defendants prepared an inadequate plant survey, thus preventing the defendants from fully considering the impact of the highway project on existing plant species in the area of the highway project, in violation of 42 U.S.C. ¤4332 (C) and the subse quent regulations at 40 CFR part 1502.2 and 1502.16 and 1502.22 and 1502.24. The plant survey was conducted over a period of days for sections of the highway, an inadequate process under NEPA's mandate of extensive environmental impact analysis.

41. The defendants violated 42 U.S.C. ¤4332 (C) and the subsequent regulations at 40 CFR part 1502.17 by not providing a complete list of preparers of the bird and plant surveys within the Environmental Impact Statement (EIS).

42. The defendants violated 42 U.S.C. ¤4332 (C) by failing to provide to the public, through the EIS, the traffic model used to project future traffic volumes, thus eliminating the ability of policymakers and the public to analyze the strengths and weakne sses of the traffic projections, upon which the need for the project rests. The traffic modeling information was neither accessible nor readily available to the commenting public.

43. The defendants violated 42 U.S.C. ¤4332(C) and 40 CFR ¤1502.24 by making an "arbitrary and capricious" choice in applying an inadequate traffic model to determine future vehicle traffic to support the need for the highway. The traffic model incorporated by the defendants did not incorporate conservation measures and other assumptions into its calculations.

44.The defendants violated 40 CFR ¤1502.9 and 23 CFR ¤771.130 by not compiling the additional information contained within the "addendum" into a Supplemental Environmental Impact Statement (SEIS) to be subjected to NEPA requirements for public notice and comment. An SEIS was made necessary by the changes to the roadway due to the discovery of an endangered plant species along the original route, the original failure of the defendants to consider Executive Order 12898, the proposed construction of addition al bridges, the revision of the acres of Agricultural/Forestal Districts to be condemned by the roadway, the revisions in the numbers of relocated individuals, and the revisions in the cost estimates for the construction. Count II Environmental Justice

45. The Defendants acted arbitrarily and capriciously and abused their discretion in proceeding with planning and construction of the highway in violation of Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations." The construction of the highway is also in direct conflict with the Department of Transportation's own "Proposed Order to Address Environmental Justice in Minority Populations and Low Income Populations", published at 60 FR 33 899. In addition, the defendants failed to explain their conclusion in either the FEIS or the "addendum" that the Executive Order did not apply to the project.

46. The proposed highway project has a disproportionate impact on low-income families and individuals, due to the number of low income individuals who would be displaced by the project. Count III Administrative Procedure Act (APA)/ESA

47. The defendants acted arbitrarily and capriciously and abused their discretion in not implementing the "conservation recommendations" provided by the Fish and Wildlife Service under the authority of the Endangered Species Act (ESA), 16 U.S.C. ¤1531 et seq.

IV. Demand for Judgment For Relief Plaintiff requests this court grant the following relief: (a) That the court declare that the agency decisionmaking, including but not limited to the ROD, the EIS, and other approvals, failed to comply with NEPA, the APA, and the ESA; (b) That the court declare that the Plaintiff will be adversely affected by the Project; (c) That the court remand the matter for the preparation of a new ROD following a full environmental impact review in compliance with NEPA; (d) That the court enter an order requiring that all revisions to the EIS required by this decision be separately set forth in a supplement to the EIS, which clearly describes the revisions and their rationale, and that the supplement be resubmitted to all decisionmakers who used the invalid EIS prior to the preparation of a new ROD; (e) That the court grant final injunctive relief against further commitment of resources to the Project, or its continued design and construction, until such time as a new ROD is issued in compliance with all requirements of law which authorizes such commitment of resources or design and construction of the Project; (f) That the court, in its discretion, award reasonable attorney's fees, expert witness fees and court costs to plaintiff as provided through the Equal Access to Justice Act, 28 U.S.C. ¤2412 (b), and (d); (g) That in the alternative to the above remedies, if the court deems the EIS to be adequate, that the court issue an order requiring the defendants to ensure to the plaintiff that all mitigation measures outlined in the EIS are being fully complied with, and that the court preserve the plaintiffÕs ability in the future to bring suit to ensure that the mitigation measures are being complied with; (h) Such further and additional relief as this court deems to be appropriate.

WHEREFORE, the Plaintiff, pro se, respectfully requests the Court to enjoin construction of the project until the defendants comply with the mandates of the National Environmental Policy Act, the Executive Order on Environmental Racism, and the Endangere d Species Act. Signed, The New River Valley Greens, pro se By ________________________________ Michael Scanlon, pro se 907 Progress Street Blacksburg, VA 24060 (703) 552-8755