UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ GALE BLACK Advisory Neighborhood Commissioner 4A08 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

STEPHEN A. WHATLEY Advisory Neighborhood Commissioner 4A03 LEWIS BASKERVILLE ELEANOR OLIVER PATRICIA HAHN

Civil Case No.

Plaintiffs v.

RAY LAHOOD SECRETARY US DEPARTMENT OF TRANSPORTATION 200 New Jersey Ave, SE

Washington, DC 20590 ERIC HOLDER United States Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 RONALD C. MACHEN, JR. US Attorney for the District of Columbia US Department of Justice 555 4th Street, NW Washington, DC 20530 IRVING NATHAN Acting Attorney General for the District of Columbia The John A. Wilson Building 441 4th Street, NW, Suite 1145 Washington, DC 20004 MARY PETERS Administrator US Federal Highway Administration Department of Transportation 1200 New Jersey Ave, SE Washington, DC 20590

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ROBERTO FONSECO-MARTINEZ Division Administrator US Federal Highway Administration FHWA Virginia 400 North 8th Street, Suite 750 Richmond, Virginia 23219-4825 TERRY BELLAMY Director District of Columbia
2

) ) ) ) ) ) ) ) ) )

Department of Transportation 55 M Street, SE, Suite 400 Washington, DC 20003 Defendants

) ) ) ) ) )

COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF I. Introduction 1. This is an action for a declaratory judgment pursuant to 28 U.S.C. 2201

and injunctive relief pursuant to 28 U.S.C. 1651 against Federal Defendants, Ray LaHood, Secretary of the U.S. Department of Transportation, Irving Nathan, Acting Attorney General for the District of Columbia; Ronald C. Machen, Jr., US Attorney General, US Department of Justice; Mary Peters, Administrator of the Federal Highway Administration (FHWA), Roberto Fonseco-Martinez, FHWA DC Division Administrator (hereinafter collectively referred to as FHWA) and Terry Bellamy, Director of the District of Columbia Department of Transportation (DDOT), challenging the adequacy of compliance with the National Environmental Policy Act (NEPA), and Section 109(h) of the Federal Aid Highway Act (FAHA), 23 U.S.C. 109(h), prior to approving a major, new use of the public right of way known officially as Klingle Road., consisting of proposed conversion of an existing (0.7 mile), and construction on a new multi-use
3

trail, to be called KLINGLE TRAIL (hereinafter the Klingle Project) within the boundaries of Klingle Road. This Complaint is filed in response to the May 6, 2011 Federal Register notice (76 FR 26336) (Exhibit 1) advising the public that the FHWA's approval of the Klingle Project was final for purposes of 23 U.S.C. 139(1)(1), and that any claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before November 2, 2011.

2.

If the Klingle project proceeds as described in the Final Environmental

Assessment (FEA) it will result in a de-facto deprivation of vehicular access to a public road which is classified as a collector road in the Federal-aid Highway System and is one of only four routes that connect the areas East of Rock Creek Park with those West of the park. There has been no determination that denying public vehicular access or fragmenting the highway network is necessary or desirable. Indeed, given traffic congestion in the District of Columbia, Klingle Road, though currently inaccessible, constitutes a very important part of the local and national roadway system.

3.

The first few pages of the FEA, attached to this complaint as Exhibit 2,

describe the improbable workaround proposed by FHWA and DDOT. These

agencies proposed to declare that Klingle Road is open for some purposes (hiking, biking, repairs of various kinds performed using motorized vehicles for the utilities) but at the same time declare that the road may not be used by the public for normal vehicular transportation.

4.

If completed, the Klingle Project will result in significant, irreversible,

adverse effects on land use, the efficiency of the transportation network, and negatively impact access to the natural, scenic, and ecological resources. The project area is threatened by years of neglect of the infrastructure, including, but not limited to, the forest habitat and the stream corridors. The barricading of the right of way is adding to traffic congestion nearby, water pollution with attendant impacts on public health. The proposed action will permanently expose persons who live, attend school or work in areas adjacent to the new trail to unnecessary traffic congestion and airborne pollution, including particulate matter and other mobile source air toxics that cause asthma and other respiratory diseases, cancer, cardiovascular disease, and other diseases that contribute to increased medical costs, lost work and school days, and early death.

5.

Plaintiffs seek a declaratory order pursuant to 28 U.S.C. 2201 that the

FHWA's approval of the conversion of a federal-aid road to an unnecessary trail is

unlawful and invalid, and seek injunctive relief pursuant to 28 U.S.C. 1651 prohibiting FHWA from providing financial assistance for the Klingle Trail Project and approving the Klingle Trail Project, and prohibiting DDOT and its contractors from contracting for, commencing, or continuing construction of the Klingle Trail Project, unless and until such time as FHWA has complied with all requirements of NEPA and FAHA.

II. Jurisdiction and Venue

6.

This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. 1331 (federal question), 28 U.S.C. 1367 (supplemental jurisdiction), 28 U.S.C. 2201-2202 (declaratory judgment and further relief), 28 U.S.C. 1361 (mandamus), and 5 U.S.C. 702 (right of review under Federal Administrative Procedure Act (APA)).

7.

For purposes of the declaratory relief sought in this Complaint, an actual

case or controversy within the meaning of 28 U.S.C. 2201 exists between the parties as to whether the Defendants complied with the requirements of NEPA and FAHA as part of their approval of the Klingle Trail Project.

8.

Venue is proper in this district under 28 U.S.C. 1391(e) and 5 U.S.C.

703 and the local Rules of the U.S. District Court for the District of Columbia, the district in which the proposed project is located.

III. Parties

9.

Two of the individual parties, Gale B. Black and Stephen A. Whatley serve

as Advisory Neighborhood Commissioners for two ANC single member districts covering approximately 2,000 residents each in the neighborhoods of Crestwood and Shepherd Park.

10.

The ANC Commissioners and their respective constituents are within the

zone of interests intended to be protected by NEPA and FAHA. Their ANC residents used, enjoyed and appreciate the scenic, natural, and ecological resources in the land that will be displaced by the Klingle Trail Project. Their interest in using, accessing, protecting and appreciating those historic and natural features is threatened and adversely affected by the Defendants' proposed permanent actions and the omissions complained of herein. These members would thus have standing to sue in their own right because they are being deprived of their right to use a public resource. The residents of the ANC districts include residents of the
7

Crestwood Citizens Association, which is a non-profit grassroots civic organization and adjunct to the ANC 4A08, which represents Crestwood. The Association members are, and will continue to be, aggrieved and adversely affected by the actions of the Defendants, and they have suffered and will continue to suffer injury in fact due to the Defendants' past, current, ongoing, and prospective failure to comply with the law and keep the road truly open for public vehicular travel. They are also taxpayers, who pay more in taxes when there is wasteful, capricious actions made that are not in their interests and are inconsistent with the laws.

11.

Individual Plaintiff Gale B. Black resides at 1761 Crestwood Drive, NW

(Census Tract 26) in Washington, DC. 20011-5333. She resides within mile of the project area. She lives just west of 16th Street, NW, which is an evacuation route. She serves as the elected Advisory Neighborhood Commissioner for Crestwoods ANC 4A08. The DC Code [at Section 1-309.03] describes the boundaries of single member district 4A08, in pertinent part: Klingle Road, East to Beach Drive, Northeast to Piney Branch Parkway as the southern boundary of her district. See DC Code 1-309.03 Description of SMD 4A08 Boundaries [May 10, 2002, DC Law 14-133, Section 2(a); and October 19, 2002.] The single member district ANC 4A08 covers approximately 2,000 residents. Plaintiff and
8

her family used the road as a vehicular connection to the schools, hospitals and shopping on the west side of Connecticut Avenue. Plaintiffs interests also include public health and safety. She is concerned about the citys failure to address the storm-water management issues and the unabated severe water pollution that exists in, and near, the project area and the effect on public health and safety by not having unrestricted vehicular access to all of the available public vehicular rights of way.

12.

Individual Plaintiff Stephen A. Whatley is the current Chair of the Advisory

Neighborhood Commission 4A. He resides at 1315 Fern Street, NW in the neighborhood of Shepherd Park.

13.

Individual Plaintiff Lewis Baskerville is an avid biker in Ward 4 and another

resident of Crestwood, who offered comments in opposition to the proposed plan to place a trail in the middle of this federal-aid road. He resides at 1812 Allison Street, NW.

14.

Individual Plaintiff Eleanor Oliver resides near 34th and Ordway Streets,

NW in Cleveland Park in Ward 3. She frequently traveled the right-of-way and surrounding areas to enjoy the aesthetic beauty of the area. She enjoyed the
9

convenience of driving from the East side of the city to the West side without encountering the traffic congestion on Connecticut Avenue. She resides near the barricaded section and has witnessed increased traffic, and property damage. The plaintiffs believe that their use, enjoyment, and appreciation of the Rock Creek Park, the streams, and scenery will be adversely affected and impaired by construction of a trail without motorized access, and that they will suffer adverse health impacts as a result of the increased vehicular pollution that they now have to breathe as a result of unavailability of the road and the failure to address the stormwater management issues. As a senior with mobility issues, she is being denied access and full use of this public right of way.

15.

Individual Plaintiff Patricia Hahn resides near 30th Street and Porter Streets,

NW in Cleveland Park in Ward 3. She resides within one-half mile of Klingle Road and within two blocks of the intersection of Porter Street, NW and Connecticut Avenue, NW. Her ability to use the latter two roads has been impaired by the additional cars using that intersection due to the unavailability of Klingle Road. In addition, she shares the concerns of the other plaintiffs about adverse impacts of vehicular pollution resulting from increased traffic congestion. At the three public hearings held on the project, she offered comments in opposition to the trail construction, citing of historic preservation, environmental
10

justice and project cost.

16.

The individual Plaintiffs have been and continue to be irreparably harmed by

the acts and omissions of Defendants as alleged herein, have suffered a legal wrong, and are adversely affected and aggrieved by such acts and omissions within the meaning of the APA, 5 U.S.C. 702. Plaintiffs' interests herein fall within the zone of interest protected by the laws sought to be enforced in this action.

17.

Defendant Ray LaHood is Secretary of the United States Department of

Transportation, and is sued in his official capacity.

18.

Defendant Irving Nathan is the Acting Attorney General for the District of

Columbia and is sued in his official capacity.

19.

Ronald C. Machen, Jr., is the US Attorney for the District of Columbia and

is sued in his official capacity. Eric Holder is the Attorney-General of the United States and is sued in his official capacity.

20.

Defendant Mary Peters is the Administrator of the Federal Highway

Administration and is sued in her official capacity.

21.

Defendants Roberto Fonseca-Martinez and Joseph C. Lawson are the

Division Administrators of the Federal Highway Administration and are sued in their official capacity. Joseph C. Lawson was the signatory for the January 7, 2011 Final Environmental Assessment for Klingle Valley Trail.

22.

Defendants LaHood, Peters, and Fonseca-Martinez are responsible for the

approval, authorization, environmental review, and administration of federally funded and assisted transportation projects, and are responsible for compliance with the National Environmental Policy Act, the Federal Aid Highway Act, and implementing regulations.

23.

Defendant Terry Bellamy is named here solely in his official capacity as the

Director of the DC Department of Transportation. In that capacity, Defendant Bellamy is responsible for the maintenance and upkeep of DC streets and transportation resources, and for recommending any revisions to the federal-aid plan. DDOT has worked in partnership with the FHWA in developing the Final Environmental Assessment Statement as a joint state and federal project.

24.

At all relevant times, the Defendants acted in their official capacity and
12

under color of state and/or federal law.

IV. Facts 25. The general location for the Klingle Trail Project is within the boundaries of

the public transportation federal-aid road and right-of way, that is officially Klingle Road. (See map submitted as Exhibit 3.) The federal government designates its function as a road. See Klingle Road Draft Environmental Impact Statement, June 2005, page 6-12, which states Since 1839, land has been committed for the current alignment of Klingle Road for use as a transportation corridor.

26.

Klingle Road is currently listed on the Federal-aid highway system

functional classification of streets and roadways in the District of Columbia as a collector street. See FEA, Executive Summary, S-2. (http://www.klingletrail.com/EA.asp, accessed October 30, 2011.) Klingle Road also appears on the District of Columbia Comprehensive Plan Amendment Act of 2006 (DC Law 16-300, effective March 8, 2007.)

27.

The road consists of a two-lane, divided highway with public vehicular

access in both directions. The road remains currently impassable for and unsafe for vehicular, pedestrian and bicycles. It was barricaded under the Mayors
13

Emergency Powers due to damage.

28.

This pre-Civil War road was dedicated for use as a public highway. and

now falls into the alphabetical order of DC streets. The public transportation right of way conveyed to the District (see paragraph 24, below) is an historic crosstown route and bypass to Connecticut Avenue, which is an evacuation route.

29.

The land for the Klingle Road right of way was conveyed to the District of

Columbia forever for the purpose of a public highway, as recorded in DC Surveyors Office on June 3, 1885. It had been known as Joshua Peirces Road and Klingle Ford Road and became an important public transportation cross-town thoroughfare.

30.

Defendants maintain that removal of Klingle Road from the Federal aid

highway system does not affect the Districts ownership and jurisdiction of the Klingle Road right-of-way (FEA, Executive Summary, S-3).

31.

The proposed project area extends to Woodley Road, NW to the west and to

Rock Creek Trail to the east. FEA Executive Summary, S-2. The proposal creates a trailhead, which would cause fragmentation of the road network. The EA
14

Executive Summary describes the Modified Preferred Option as a multi-use trail six to eight feet in width along the south side of Klingle Road . . . The existing 20foot wide vehicle travel lane will be redesigned to 12 to 14 feet wide. The FEA adds the trail would be constructed within the existing footprint of the existing roadway, and no new impervious surface would be added. FEA, Executive Summary, S-8. The permanent closure destroys the connectivity that is still officially expected under the current designation as a public street.

32.

In the Finding of No Significant Impact (FONSI) dated March 2011,

(submitted as Exhibit 4) the proposed action states that it furthers system linkage provisions tying points west of Connecticut Avenue to the Rock Creek Park multiuse trail system; deficiencies in the existing infrastructure; and specific legislation, identified as the Districts Klingle Road Sustainable Development Act of 2008. That Act called for a ten foot trail. It did not authorize a 12 to 14 foot lane.

33.

Federal Highway Administration regulation 23 CFR Section 1.23(a) states

that the State shall acquire rights-of-way of such nature and extent as are adequate for the construction, operation and maintenance of a project.

34.

The District does not even have property rights sufficient to allow the road
15

to be closed to most vehicular traffic, as proposed. Klingle Road (then Klingle Ford) was conveyed to the Commissioners of the District of Columbia on June 3, 1885. The relevant plat on file in the Office of the Surveyor contains the following language of conveyance: We hereby transfer and convey to the Commissioners of the District of Columbia and their successor in office forever, for the purpose of a public highway from Woodley Road to a point on Rock Creek known as Klingles Ford, a tract of land fifty (50) feet wide, to be known as Klingles Road with course and distances as shown in the above plat. (County Book 6, folio 21).

35.

The United States Code, 23 USC 116(a) states that it is the duty of the

District of Columbia Department of Transportation to preserve its inventory of roads. Similarly, 23 USC 135(c)(1(g) emphasizes the federal policy and importance of the preservation of existing transportation systems. This tract of land received the Districts dedication as a public highway as noted in the DC Code and reflected on the functional classification map. Any public restriction on the use of the right of way is inconsistent with federal policy as well as the 1885 dedication and the conveyance intent.

16

36.

Federal Highway Administration regulation 23 CFR Section 1.23(b) requires

that rights of way shall be devoted exclusively to public highway purposes.

37.

Defendants concede that they did not consider the road alternative and that

this alternative was eliminated from detailed study in the EA process. FEA, Response to Comment 035-01, page D-68. However, in 2005, the Defendants identified the road restoration as the preferred option.

38.

Section 470.105(b)(2) of Chapter 23, CFR, says that the functional

classification shall be mapped and submitted to the FHWA and shall serve as the official record for designation on the National Highway System. 23 CFR 470.105(b)(2). Klingle Road is still officially classified as a public transportation right-of-way. The DC Comprehensive Plan map shows the right of way as a public street. FHWA regulation (23 CFR 470.109(c)) states that the designation of routes on the Federal-aid highway systems shall be in accordance with the planning process at 23 USC 135 and 134(a). 23 CFR 470.109 gives the responsibility to DDOT for proposing all official actions regarding the . . . revision of the Federal-aid highway systems. DDOT has not proposed revising the function. The Council lacks authority to act officially until it first declares that the current function is no longer necessary and goes formally through the DC
17

Street and Alley Closing and Acquisition Procedures Act. The city has not closed the road in accordance with this Act.

39.

FHWA is aware that Klingle Road has never been officially closed. In

August 1991, the US Department of Transportation, FHWA, issued a Final Programmatic Section 4(f) Evaluation and Approval for the reconstruction of Klingle Road, NW from Woodley Road to Porter Street, NW. Reconstruction plans for Klingle Road were completed. See Klingle Road Draft Environmental Impact Statement, June 28, 2005, Page 1-11.

40.

In August 1999, DC Department of Public Works (now DDOT) performed a

traffic assessment and in 2001, published a feasibility study for the barricaded portion of Klingle Road. Id. The 1999 traffic analysis showed that the road carried 3,300 vehicles on the route, which has a steep grade, and now restricted access.

41.

The Klingle Road Restoration Act of 2003 (2003 Act) (DC Law 15-39; DC

Official Code 9- 115.11) directed the repair and reconstruction of the barricaded segment of Klingle Road and required reopening of the road to motor vehicle traffic.

18

42.

On March 17, 2004, a Notice of Intent (NOI) was published in the Federal

Register declaring FHWA and DDOTs intent to prepare an Environmental Impact Statement (EIS) for the reconstruction of the 0.7 mile portion of Klingle Road between Porter Street, NW and Cortland Place. Prior to the completion of the Final EIS in support of the 2003 Act, that project was put on hold. FEA Section 1.3 Project Overview, page 5.

43.

In 2004 - 2005, the FHWA planned to restore the road. (See 2005 Draft

DEIS. On June 28, 2005, the Klingle Road Draft EIS was released to the public by the District Department of Transportation, the US Federal Highway Administration, and the National Park Service, as a cooperating agency, which prepared an environmental impact statement (EIS) to assess the potential effects of reconstructing Klingle Road for vehicular use. That action was based on DC Law 15-39 (DC Official Code Section 9-115.11) that was passed by the DC City Council and became effective on November 13, 2003. The stated purpose was to relink the roadway network. The city ordered the road restored. The expectancy of the public was that the federal-aid road would soon be available. The DC Council also passed legislation that promised a new road to the Tregaron Conservancy and recognized that a road would be required if the storm remediation was to be done. Specifically, on May 30, 2006, an application for subdivision of the Tregaron
19

Estate into eight residential lots and initial rehabilitation plan of the Tregaron Conservancy was approved by the DC Council. This law approved the subdivision which would necessitate the development and construction of a new road to access the home sites and storm-water management conveyance system. Furthermore, this law approved a landscape rehabilitation plan for Tregaron, which outlined rehabilitation, stewardship, interpretation and ensuring public access to the site. See EA, June 2010, page 137.

44.

The Klingle Road Draft Environmental Impact Statement (DEIS), June 28,

2005 draft, listed the plans and studies, traffic analyses and actions that contributed to the 2005 proposal to restore the road for public use. Reconstruction of Klingle Road was also listed on the District of Columbias Six Year Capital Improvement Plan for 2005. The purpose was to restore connectivity and a link to existing roads.

45.

There are underlying utilities, which require access via a paved road which

can accommodate trucks. Those utilities include PEPCO, WMATA, Washington Gas and DC Water. Similarly, a paved road would benefit DC emergency services including police, fire trucks and ambulances.

20

46.

In June 2008, the DC Council approved a measure through the Budget

Support Act (the 2008 Act.) The measure was called the Klingle Road Sustainable Development Amendment Act of 2008, which was codified into law as part of the Fiscal Year 2009 Budget Support Act of 2008 (DC Law 17-219; DC Official Code Section 9-115.11. The 2008 Act called for only a ten-foot recreational trail. Section 6017 of the 2008 Act reads as follows: Notwithstanding any other law, the portion of Klingle Road, NW, between Porter Street, NW on the east to Cortland Place, NW on the west, which portion is currently closed to motor vehicle traffic, shall not be reopened to the public for motor vehicle traffic. No funding, District, Federal, or otherwise, shall be expended or accepted for the planning, design, construction, or reconstruction of this portion of Klingle Road for motor vehicle traffic.

47.

No public hearing was held prior to passage of the 2008 Act. Under DC law

(the Street and Alley Closing and Acquisition Procedures Act of 1982, DC Law 4201; DC Official Code Sec. 9-201 et seq.) only the Mayor can close a road, by recommending legislation requiring DC Council approval. Also, the State (DDOT) did not submit a request to revise the highway plan.

21

48.

The 2008 Council Act amended the 2003 Act that had directed the repair and

reconstruction of the barricaded segment of Klingle Road and required reopening of the road to motor vehicle traffic. Additionally, the 2003 Act and the draft EIS had required an establishment of a DDOT storm-water management plan for Klingle Road. The 2008 Act does not address storm-water management in the environs of Klingle Road. Erosion and poor storm water management were causes of the 1991 road collapse.

49.

The 2008 Act, proposing a trail and passed by the DC Council, did not deem

Klingle Road unnecessary when it authorized the construction of a trail on Klingle Road. (Exhibit 1, FEA, Executive Summary, page S-3).

50.

An Environmental Assessment (EA) was issued in June of 2010. A Final

Environmental Assessment (FEA) was circulated for public review in December 2010 and signed on January 7, 2011. A Finding of No Significant Impact (FONSI) was issued on March 4, 2011.

51.

On May 6, 2011 notice was published in the Federal Register (76 FR

26336) advising the public that the FHWA's approval of the Klingle Project was final for purposes of 23 U.S.C. 139(1)(1), and that any claim seeking judicial
22

review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before November 2, 2011.

52.

The FEA did not note the design year or implementation date for the

project. It did not include all of the costs associated with the project, including the cost of litigation. The FEA stated that the purpose of the proposed action is to construct a multi-use trail facility within the 0.7 mile barricaded portion of Klingle Road between Porter Street, NW, and Cortland Place, NW to provide safe nonmotorized transportation and recreational opportunities to the residents and visitors of the District of Columbia. The project needs were stated as being due to the deteriorated roadway and structures inclusive of culverts, DC Water appurtenances and deficiencies in the existing infrastructure resulting in degraded habitat within Klingle Valley; and legislation: the Districts Klingle Road Sustainable Development Act of 2008.

53.

In describing some of the details of the planned construction of the multi-

use trail facility on Klingle Road, the FEA reaches the following conclusions (FEA, S-2-3): Klingle Road is currently listed on the Federal-aid highway system functional classification of streets and roadways in the District of
23

Columbia as a collector street and is eligible for Surface Transportation Program (STP) funds. Because the District is proposing to construct a multiuse trail on Klingle Road (i.e., the Klingle Valley Trail), Klingle Road will no longer be eligible for funding under the STP funding program. At the conclusion of the NEPA process regarding this EA for the Klingle Valley Trail, DDOT will propose to FHWA that the segment of Klingle Road between Porter Street, N.W. and Cortland Place, N.W. be removed from the Federal-aid highway system. However, the proposed multi-use trail is eligible for federal-aid funding under the Recreational Trails Program in accordance with SAFETEA-LU Sections 1101(a)(8) and 1109, 23 USC 104(h) & 206, and 23 CFR Part 652.

Nevertheless, removal of Klingle Road from the Federal-aid highway system, does not affect the Districts ownership and jurisdiction of the Klingle Road right-of-way. Under the proposed action, DDOT will not and does not plan to officially close the barricaded segment of Klingle Road between Porter Street, N.W. and Cortland Place, N.W. pursuant to the procedure outlined in The Street & Alley Closing & Acquisition Procedures Act of 1982 (D.C. Code sections 9-201.01 et.
24

seq.) (see Appendix E). DC Code section 9-202.01 states that the Mayor may close all or part of any street or alley which is determined by the DC Council to be unnecessary for street or alley purposes. The 2008 Act, passed by DC Council, did not deem Klingle Road unnecessary when it authorized the construction of a pedestrian and bicycle trail on Klingle Road between Porter Street, N.W. and Cortland Place, N.W.; therefore, Klingle Road continues to be necessary for street (i.e., public right-of-way) purposes, as defined in DC Code section 9-201.01. Additionally, DDOT will continue to operate, maintain and manage the public rightof-way for both non-motorized transportation and authorized motorized use (i.e. access for emergency, utility, and maintenance vehicles).

54.

As stated in the preceding paragraphs, DDOT will not, and does not plan to,

close the road, pursuant to the procedure outlined in The Street & Alley Closing & Acquisition Procedures Act of 1982. DDOT has also not formally, officially proposed to the FHWA Administrator a plan to revise the functional classification. However, the road will not be available to any vehicular traffic other than safety and maintenance vehicles, notwithstanding the Citys earlier conclusion that
25

Klingle Road still necessary for street purposes (as stated in an earlier Draft Environmental Impact Statement (DEIS) issued in 2005.)

55.

FHWA regulations (23 CFR 460.2(c)) define open for public travel to

mean open to four-wheeled passenger vehicles: Open to public travel means that the road section is available and passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulations. See 23 CFR 460.2(c)

56.

The FEA identified the need for the project as non-motorized

opportunities. There was no reference to the citys transportation needs or any reference to improving transportation facilities for the movement of goods or people among communities in and surrounding the District of Columbia.

57.

The FEA identified the major purpose of the project as recreational,

with restricted public controlled access, which plaintiffs perceive would limit the study area's ability to transport goods and people efficiently. The second purpose of the Project was identified as providing safe non-motorized transportation opportunities, but without a road.

26

58.

A fifth purpose was identified as to address the legislative intent that the

portion of the road be removed from, and as part of, the interstate system.

59.

As a result, this federal-aid road and the tax-paying public would no longer

be entitled to benefit from federal surface transportation funds previously made available to this federal-aid road and to others which connect to it, including the recently-completed, adjacent cloverleaf intersection at Porter Street and Rock Creek Parkway.

60.

The FEA failed to fully consider the transportation impact and the fiscal

impact of revising or converting the dedicated function of the public street.

61.

The FEA and EA failed to consider the dedicated, official, legally mandated

land use of the property conveyed to the District in 1885.

62.

The designation of routes on the Federal-aid highway systems shall be in

accordance with the planning process requirements, pursuant to 23 U.S.C. 135 and at 23 USC 134(a). The city transportation agency must first propose to the Federal Highway all official actions regarding the designation, or revision, of the Federal-aid highway systems. 23 CFR 470.109(a).
27

63.

The FEA failed to consider the historic nature of the road that serves as the

southern boundary of Rock Creek Park. Klingle Road connected the Joshua Pierce Estate with Pierce Mill Road via the ford at the mouth of Rock Creek. By the time Rock Creek Park was established in 1890, Klingle Road (then called Klingle Ford Road) was one of only three roads that provided cross-park connections. Klingle Road forms the southern boundary of Reservation 339, which is the Rock Creek Park Historic District.

64.

The FEA acknowledges that the proposal does not comply with the

standards outlined in the ADA Standards for Accessible Design as published in the Title III regulations (28 CFR Part 36). The FEA states that due to the topography, current road grades and the width of the existing DDOT right-of-way, designing the proposed multi-use trail to federal standards is not feasible. As a result, DDOT will seek a design exception. FEA, Page S-4.

65.

Throughout the NEPA process, commentors, including the Plaintiffs, urged

the FHWA to evaluate, as a reasonable alternative, making improvements while preserving connectivity and access management.

28

66.

The March 2011 FONSI acknowledged that the project would result in

some adverse effects to the natural, cultural, and transportation environment. (FONSI at 6.) It also acknowledged that there would be a long-term local impact on the roadway network and traffic because of the reduced lane width and construction of a trail or bike lane with barriers on the roadway.

67.

The FONSI, page 6, inexplicably concluded that the project would not result

in any changes to land use or zoning, even though it proposes to convert a bypass to Connecticut Avenue that links to Porter Street, NW , to a porous trail.

68.

The FONSI concluded that the project will not result in right-of-way

acquisition or residential displacements, although it leaves many residents landlocked in the east- side neighborhoods and risks the reversion of the right-ofway because the land was granted for the purpose of a public vehicular highway.

69.

The FONSI concluded that the proposed action would result in no adverse

effect to historic properties, despite the impact to the Tregaron estate.

70.

In the FONSI, FHWA acknowledged that it based its determination on the

findings of the proposed projects Final EA, and comments submitted during
29

preparation of the EA in concluding that an environmental impact statement is not required (FONSI at 11.) It did not identify the census tracks and the socio / economic impact of this proposal for those in Crestwood or Shepherd Park or Mount Pleasant. In doing so, it failed to conduct a proper review of Environmental Justice Concerns.

71.

The FEA considered only trail options. It did not consider the road

restoration, as a reasonable alternative. See FEA, D-75, response to plaintiff Lewis R. Baskerville, where the response was that "a road alternative is not consistent with the District's Klingle Road Sustainable Development Act of 2008, and was eliminated from detailed study in the EA. FEA, D-75. Defendants also seemed to be suggesting that the Resolution of ANC 4A was not received. [Yet the Appendix includes the Resolution of ANC 4A, D-69.]

72.

The city has stated that it will not officially close the section of Klingle Road

at issue (FEA, S-3.)

73.

The District Elements of the DC Comprehensive Plan policy (T-4.1.2)

require balancing security measures with the requirements for daily mobility, efficiency and quality of life concerns of District residents and visitors.
30

74.

City Policy T-4.1.2 requires coordination with the Federal Government and

for the Government to work closely with federal agencies to avoid street closings to the greatest possible extent.

75.

The City Comprehensive Plan requires a complete road closure impact

analysis. See Action T-4.1-A: Road Closure Impacts Analysis. This requires that the government assess the trade-offs associated with any potential street closure or changes in transportation access. The FEA does not even mention that this right of way is still officially a bypass to an evacuation route.

76.

The FEA failed to review whether the proposed action was sufficient to

adequately resolve the storm-water management and pollution issues that remain unabated. The necessary infrastructure and future cost of the project are not adequately defined. Storm-water remediation is required. The proposed plan received comments from the DC Department of the Environment that the stormwater plans were inadequate. See EA Comments.

77.

In its present state, the project area remains an environmental hazard due to

erosion and severe pollution at the southern end of Rock Creek Park. See 2005
31

Draft EIS. Rock Creek does not typically meet water quality standards for fecal coliform bacteria, according to the US Environmental Protection Agency. There are more than 14 Combined Storm Sewer Overflows in or near the area, according to information provided to the ANCs. Elimination of the CSO discharges and removal of pollutants and toxins should enhance the personal health and safety of residents, such as the plaintiffs in this action. ANC 4A has questioned the Governments management of discharges into the local creeks, especially as it pertains to the Rock Creek Combines Sewer Separation of Combined Sewer Overflow Outfalls. The full impact of the neglect of the environmental issues is not stated in the FEA. Clearly, a service road would be required to fix the crumbling infrastructure and mitigate the public health issue, impacting areas east of the project area. In fact, a road will be re-constructed to address some of the storm water management issues and for access by other utilities, but [o]nly official motorized vehicles (i.e utility vehicles and emergency response vehicles) would be granted access to the trail. All Action Alternatives would be designed to accommodate widths and weights of utility maintenance vehicles and emergency response vehicles. (FEA, S-4.) This result ignores the reality that the road functions as a bypass to Connecticut Avenue (which is an evacuation route) and serves as a link to nine census tracts.

32

78.

The barricading has caused fragmentation of the federal highway plan

network because there is no link from Porter and no through access for neighborhoods on the east side, like Crestwood in Census Tract 26 or Mount Pleasant.

79.

The 2008 Act provided that the trail would include emergency vehicles and

service trucks. Yet, the FEA, dated December 2010, under Environmental Consequences, at page 133, states For the purposes of this EA, the closure of Klingle Road is an existing condition common to the No Action Alternative because the road has been barricaded, and there are no current plans to reopen the road to motorized traffic. The EA misleads by not admitting that the road will be rebuilt, maintained by DDOT, and used for street purposes by some motorized vehicles, just not the public.

80.

DDOT has acknowledged that the proposed ten-foot trail would not be

sufficient to accommodate trucks. See Environmental Assessment, June 2010, Design Concept Report, Table 3, page 34, which states Large utility vehicle access width and weight requirements may not be accommodated. It also states that there would be an additional cost of permeable surface materials and permeable materials require more maintenance than a non-permeable trail. The
33

FEA did not include projected costs for police enforcement to keep the public from driving along the trail.

81.

The proposal calls for a trailhead to be constructed at the site of the

current barricade at the east end of the project area. A trailhead would not provide the road connection and linkage enjoyed by residents on the east.

82.

The Design Concept Report at page 41 states that for all alternatives, the

existing roadway section would need to be removed.

83.

The Design Concept Report, page 42 acknowledges that the proposal cost

would include any necessary repair or relocation to the sewer, gas and electric lines. That cost is not stated.

84.

The Advisory Neighborhood Commission (ANC) 4A filed comments

objecting to the proposed conversion of the road to a multiuse trail in 2010 and in 2011. The ANC called upon FHWA and DDOT to preserve and maintain public access to the right-of-way for its official, dedicated public use. The ANC opinion is entitled to be given great weight.

34

85.

The FEA did not adequately identify the need for the trail project within this

public right of way.

86.

The FEA described the purpose of the proposed action as construction of a

multi-use trail facility within the 0.7 mile barricaded portion of Klingle Road between Porter Street, NW, and Cortland Place, NW to provide safe nonmotorized transportation and recreational opportunities to the residents and visitors of the District of Columbia. The project needs were stated as being due to the deteriorated roadway and structures inclusive of culverts, DC Water appurtenances and deficiencies in the existing infrastructure resulting in degraded habitat within Klingle Valley; and legislation: the Districts Klingle Road Sustainable Development Act of 2008.

87.

The FHWA failed to consider that in 2006, the historic Tregaron Property

(the Causeway) received approval for a subdivision of one acre by DC HPO in exchange for the landowners donation of approximately 13 acres. That agreement also provided for street access. This was also after the Council had ordered restoration of the road.

88.

The DEIS and FEA failed to address the environmental justice issues and the
35

public health impact for residents who reside or travel in the adjacent census tracts, such as census tract 26. The increase in road congestion caused by the unavailability of Klingle Road will result in pedestrian, biker and driver exposure to unnecessary pollutants.

89.

The FHWA and the FEA failed to consider that the project proposes to use a

portion of a public right of way and that right of way was granted to DC for one purpose, as a public highway, forever. The proposal, if effected, could trigger reversionary rights which could result in FHWA approval of public expenditures which could benefit land owned by private interests.

90.

The FHWA Administrator has not signed any Record of Decision

approving any change to the Klingle Roads inclusion on the federal highway plan or approval of conversion of the current official land use from a public street to a limited access, limited benefit recreational trail. The FHWA did not sign a ROD that pertains to Klingle Road. Instead, it uses the misleading identifier of Klingle Trail. There is no such legal entity. The plan is to construct Klingle Trail in the middle of Klingle Road.

91. Approval authority for any revision to the Federal-aid highway system rests
36

with the Federal Highway Administrator. 23 CFR 470.115(b). On January 7, 2011, Joseph C. Lawson, the Division Administrator for FHWA signed an approval of a Final Environmental Assessment for Klingle Valley Trail. Mary Peters is the Administrator. The record does not contain a document that shows the signature of the Federal Highway Administrator Peters approving the destruction or revision of function for Klingle Road. The FWHA has conditional authority to approve Federal-aid highway system actions involving routes on the highway plan. 23 CFR 470.115. The Appendix A to Subpart A states that the FHWA Administrator may approve such a request if the route is a logical addition or connection . . . and will be constructed to meet Interstate Standards. This proposal does not meet those standards and a trail it will permanently interfere with flow of traffic and diminish the highway plan connectivity.

92.

According to the FEA, the estimated construction commencement and

completion dates are not stated. The updated cost estimate provided in the FEA for the selected alternative is between $4 million and $7 million, with additional yearly maintenance costs. The EA does not identify any designated source of funding for the implementation of the trail. Instead, it appears to anticipate that the project will be constructed in operationally independent phases as funding becomes available.

37

93.

Access management is the systematic control of the location, spacing,

design, and operation of entrances, median openings, traffic signals, and interchanges for the purpose of providing vehicular access to land development in a manner that preserves the safety and efficiency of the transportation system. Access management is a recognized approach for increasing existing roadway capacity and safety and reducing travel delays, thereby reducing the need for wider highways. Commentors in the EA process pointed out the insufficiency of information relating to the impacts on the federal road network and the natural environment.

94.

The FEA fails to adequately address the traffic forecasts to determine

significant impacts or the negative impacts to public impact on the neighboring streets.

95.

The Defendants and the FEA failed to provide great weight to the resolution

and concerns of the Advisory Neighborhood Commission 4A. The FONSI and FEA did not acknowledge that the ANC had provided official comment.

96.

FHWA lacks authority to grant approval for the construction of a trail within

the public transportation right of way and to restrict public motorized use. Such an
38

approval is inconsistent with the existing authority of the city that requires any change in use or closing to go through the Street and Alley Closing and Acquisition Procedures Act to re-designate highways as limited access and eliminate existing access points. It is also inconsistent with FHWA regulations that require that the city first carry out its responsibility to propose, as an official legal act, a revision to the federal-aid highway plan. See 23 CFR 1.9 (which authorizes the Administrator to approve the participation of Federal-aid funds in a previously incurred cost if the approval will not adversely affect the public and where the State department has acted in good faith and there has been no willful violation of Federal requirements).

97.

The Administrator has made no determination and has not approved a

change in use or made a finding that such a change is in the public interest. In this case, DDOT is arguing that the road remained open and necessary and there is no impact because it has managed to unlawfully restrict use through its years of neglect. The regulation at 23 CFR 1.23 requires that the Administrator determine that the proposed action is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon. 23 CFR 1.23(c). Those requirements have not been met in this case.

39

98.

The Defendants should not be rewarded for the barricading of this federal-

aid road by permanently penalizing the public. This would also set a dangerous precedent. Rather than quickly restoring and maintaining roads, local jurisdictions would be incentivized to just barricade them and argue against reconstruction on the basis that restricting the road to non-motorized uses produces no impact because the public has not lost anything.

99.

The FEA does not address the inconsistency between the stated purpose

(non-motorized use) with the intention to have trucks and emergency motorized vehicles on the road. It also does not reconcile the statement that the right of way remains open as a street, but not allow private cars.

100. There is no basis to find that the project is in the best overall interest of the public for transportation purposes or that it will not interfere with the efficient flow of traffic. For one thing, surface transportation dollars would not be available as a source of funding for maintenance if the right of way is not functioning as a transportation corridor with through connectivity.

101. Federal regulation 40 CFR 1502.4(a) requires agencies to make sure the proposal is properly defined. Here, the proposal is improperly identified as an
40

existing trail. The trail is a proposal.

102. There are significant new circumstances and information bearing on the proposed action. The Advisory Neighborhood Commission 4A submitted comments and the record does not reflect any response to the ANC comments (FEA D-69 to D-71). The DDOT has acknowledged in the FEA that the road remains necessary as a street and that DDOT intends to have motorized vehicles on the street. Since the barricading of this right of way, all of the roads leading to the right of way (Porter Street and Beach Drive and Piney Branch Parkway) have been reconstructed with federal money. Consequently, the effectiveness of those routes would be reduced by the loss of this link which is a necessary bypass under Connecticut Avenue for those who live on the east. For national security purposes, it is imperative to maintain security near evacuation routes. This was not as much of an imperative before ten years ago. The EA also failed to recognize that the road has been used in the past two years to fix the damaged sewer lines. The road remains in use by DC WASA and the public, albeit unsafely.

CLAIMS FOR RELIEF COUNT I Violation of the National Environmental Policy Act, Failure to Evaluate
41

All Reasonable Alternatives 103. Plaintiffs repeat and incorporate herein by reference the foregoing allegations.

104. The National Environmental Policy Act of 1969 (NEPA), as amended, establishes that it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources. 42 U.S.C. 4332(2)(C).

105. Among other things, NEPA requires that federal agencies prepare a detailed statement on every proposal for a major federal action that may significantly affect the quality of the human environment. Id.

106. NEPA further requires that every environmental document must be prepared with objective good faith and must fully and fairly discuss, among other things, the adverse environmental effects of the proposed action and the alternatives to the proposed action which may avoid or minimize these adverse effects. Id. 4332(2)(c) and (E).

42

107. The environmental document must include the specific information required by the NEPA regulations of the Council on Environmental Quality (CEQ). 40 C.F.R. Part 1500, et seq. These regulations are binding on all federal agencies. Id 1500.1(a).

108. The CEQ regulation at 40 CFR 1502.14(a) requires that there be a rigorous exploration and objective evaluation of all reasonable alternatives. In this case, the FHWA failed to include the reasonable alternative of maintaining and preserving the street, while at the same time DDOT has acknowledged that it intends to maintain it and use it for street purposes, notwithstanding the fact that the preferred alternative in 2005 was restoration of the road.

109. The CEQ regulation at 40 CFR 1505.2(c ) requires that the FHWA state whether all practicable means to avoid or minimize environmental harm from the alternative selected were adopted, and if not why they were not. In this case, the proposed project does not mitigate the harm that is done from a transportation efficiency purpose or for purposes of mitigating the serious level of water pollution that exists. There is no explanation as to why a trail head would be preferable to having a road that is accessible to residents on the east side. There is no explanation as to how the FHWA will remedy or mitigate the erosion without the
43

use of a service road wide enough and strong enough to carry heavy trucks.

110. The detailed written statement required by NEPA is known as an Environmental Impact Statement (EIS). Id. 1508.11. One EIS was previously prepared, but not issued, for the restoration of this public right of way.

111.

The EIS must rigorously explore and objectively evaluate all reasonable

alternatives to the proposed action. Id. 1502.14. That earlier DEIS did meet the standards. It should be reinstated.

112. The EIS must consider reasonable alternatives even if they are not within the jurisdiction of the lead agency. Id. The Defendants admit that they did not consider keeping and preserving the road, even though DDOT has made clear that it intends to use the right of way for trucks.

113. The FHWA regulations require compliance with the Title VI policy. 23 CFR 200.7. This requires an analysis of the impact of the proposal by examination of the statistical data (including race and national origin) for the beneficiaries of the highway program. Noncompliance is defined as a recipient that failed to meet the requirements and has shown an apparent lack of good faith effort in
44

implementing all of the Title VI requirements. The FHWA violated NEPA and its implementing regulations by refusing to evaluate the restoration alternative, including access management techniques, which would satisfy all or most of the transportation needs to be served, and which was the alternative that had been identified by cooperating and resource agencies in 2005, as the preferred alternative.

114. Construction of a trail will not further the publics needs for transportation linkages or the even the actual stated objective of the 2008 legislation. A ten foot trail will not accommodate emergency vehicles or service vehicles. Those vehicles are motorized; and the legislation provided for only non-motorized vehicles. The proposed action will also not address the environmental justice issue caused by the failure to abate the storm-water overflow issues.

115. Defendants' failure to thoroughly evaluate the maintaining and preserving the dedicated use and alignment as a viable alternative 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 the Klingle Trail Project that may adversely affect DCs unique natural, scenic transportation and historic resources until such time as Defendants have fully
45

complied with NEPA. Unless Defendants are so enjoined, Plaintiffs and their members and the individual Plaintiffs will be irreparably harmed.

116. Defendants should be required to conduct additional analysis to address the issues identified in this complaint, and to refrain from committing federal funds for the Klingle Project, or permitting previously committed or previously obligated funds from being used on the project, until such analysis has been completed.

COUNT II Premature or Inadequate Basis to Approve a Change in Land Use

117. Plaintiffs repeat and incorporate herein by reference the foregoing allegations.

118. An EIS must describe, among other things, the environmental impacts of the proposed action, including direct, indirect, and cumulative impacts, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, and mitigation measures to avoid or minimize adverse impacts. 42 U.S.C. 4332(2)(C); 40 C.F.R. Parts 1500-08. In considering impacts of a proposed action, the EIS must evaluate the intensity of
46

impacts, including [w]hether the action threatens a violation of Federal, State or local law or requirements imposed for the protection of the environment, and must state how decisions based on the EIS will or will not achieve the requirements of the Act and other environmental laws. 40 C.F.R. 1502.2(d); 1508.2(b)(10).

119. The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU), identifies four statutory objectives in the national interest that must be considered and accomplished by and through the adoption and implementation of metropolitan transportation plans and programs, including meeting mobility needs of people and freight, fostering economic growth and development, minimizing fuel consumption, and minimizing air pollution. 23 U.S.C. 134(a); 23 C.F.R. 450.316, 450.322. This proposal does not meet the mobility needs of seniors, individuals with disabilities, families with children or those who simply want to be able to regain full access to the area by vehicle.

120. In this case, the DDOT has acknowledged that the project is proposed to be built within the boundaries of a public street that it still intends to use and maintain for service vehicles and that it considers open for public travel and necessary. As
47

stated above, open for public travel means open for four-wheel passenger vehicles. Since DDOT has not submitted any proposal to the FHWA to revise the citys highway plan to remove or reclassify the road, any final approval is premature, illogical and contrary to the needs of the public.

121.

As a result, the FHWA's approval of the selected trail alternative was

arbitrary and capricious or otherwise not in accordance with law. 5 U.S.C. 706.

COUNT III

Violation of the National Environmental Policy Act, Lack of Consideration of Effects 122. Plaintiffs repeat and incorporate herein by reference the foregoing allegations.

123. The CEQ regulations provide that where there are gaps in relevant information in an environmental impact statement, and the information relevant to adverse impacts is essential to a reasoned choice among alternatives and is not known and the overall costs of obtaining it are not exorbitant, the agency shall
48

include the information in the environmental impact statement. 40 C.F.R. Part 1502.22.

124. The FHWA's approval of the project was premature in light of its acknowledgement that the proposed trail will not meet the needs of the public. This is also in a non-attainment area for water quality. The waters are impaired; and a road would be required to shore up the crumbling infrastructure. In addition, the proposed storm-water management plan appears inadequate. The West Nile virus has been found in the project area.

125. Plaintiffs will be immediately, actually and irreparably harmed unless this Court immediately enjoins Defendants from proceeding with all activities in connection with the proposed Klingle Trail Project until such time as Defendants comply with NEPA and its implementing rules and regulations.

COUNT IV Violation of the Federal Aid Highway Act, 23 U.S.C. 109(h) and FHWA Regulations 126. Plaintiffs repeat and incorporate herein by reference the foregoing allegations.
49

127. FHWA regulation 23 CFR Section 1.23(a) states that the State shall acquire rights-of-way of such nature and extent as are adequate for the construction, operation and maintenance of a project. DCs property right in Klingle Road only extends to use as a public highway. Since DC does not have a right-of-way that will survive termination of use of Klingle Road as a public highway, FHWAs work on the Klingle Project would violate FHWAs own regulations.

128. FHWA regulations state that all real property within the right-of-way shall be devoted exclusively to public highway purposes. No project shall be accepted as complete until this requirement has been satisfied. 23 CFR 1.23(b). Use of right-of-way for non-highway purposes within the boundaries of the rights-of-way of Federal aid highways, may be approved by the Administrator, if she determines that such occupancy, use or reservation is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon. (23 CFR 1.23(c).) There has been no such determination.

129. 23 C.F.R. 1.9(a) states that [f]ederal-aid funds shall not participate in any cost which is not incurred in conformity with applicable Federal and State law, the regulations in this title, and policies and procedures prescribed by the
50

Administrator. As discussed above, State law does not permit the District to ignore the terms of the 1885 conveyance of Klingle Road to the District, or to ignore the provisions of the DC Street and Alley Closing and Acquisition Procedures Act. Therefore expenditure of federal funds for the Klingle Trail project is not consistent with 23 C.F.R. 1.9(a).

130. The Federal Aid Highway Act (FAHA) requires the FHWA to consider alternative courses of action and determine whether a project is in the best overall public interest. 23 U.S.C. 109(h); 23 C.F.R. 771.105(b). The evaluation must be based upon a balanced consideration of the need for safe and efficient transportation; of the social, economic, and environmental impacts of the proposed transportation improve; and of national, State, and local environmental protection goals. 23 CFR. 771.105(b)

131. FAHA requires the federal defendants to weigh possible adverse economic, social, and environmental effects relating to any proposed project and the costs of eliminating or minimizing such adverse effects against any travel benefits of the proposed project prior to determining whether the project is in the best overall public interest. 23 U.S.C. 109(a), (h); 23 C.F.R. 771.105(b); 23 C.F.R. 771.101, 107(b); 40 C.F.R. 1505.2(b). A project may not be approved for federal
51

funding unless FHWA first makes the findings required by 23 U.S.C. 109(a), (h); 23 C.F.R. 771.105(b); 23 C.F.R. 771.101, 107(b).

132. Adverse effects to be assessed include: the adverse effects of air, noise, and water pollution; destruction or disruption of man-made natural resources, aesthetic values, community cohesion, and the availability of public facilities and services; adverse employment effects and tax and property value losses; injurious displacement of people, businesses, or farms; and disruption of desirable community and regional growth. 23 U.S.C. 109(h)(1)-(5).

133. The FHWA violated 23 U.S.C. 109(h) and 23 C.F.R. 771.105(b) by failing to make the required determination that the Project is in the best overall public interest which addressed all of the statutory factors listed under 109(h).

134.

As a result, the federal defendants' approval of the selected alternative was

arbitrary and capricious or otherwise not in accordance with law. 5 U.S.C. 706

COUNT V (Environmental Justice) 135. Plaintiffs repeat and incorporate herein by reference the foregoing
52

allegations.

136. Presidential Executive Order (EO) 12898, General Actions to Address Environmental Justice In Minority Populations and Low-Income Populations, directs Federal agencies to identify and address as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and lowincome populations.

137. FHWA did not identify the census tracks and the socio / economic impact of the Klingle Trail proposal for those in Crestwood or Shepherd Park or Mount Pleasant. In doing so, it failed to conduct a proper review of Environmental Justice Concerns. The FEA failed to address the environmental justice issues and the public health impact for residents who reside or travel in the adjacent census tracts, such as census tract 26. The increase in road congestion caused by the unavailability of Klingle Road will result in pedestrian, biker and driver exposure to unnecessary pollutants. The proposed project will make it more difficult for residents East of Rock Creek Park to access destinations West of the Park. The proposed action will also not address the environmental justice issue caused by the proposed projects failure to properly abate the storm-water overflow issues.
53

138. As a result, the FHWA's approval of the selected trail alternative was arbitrary and capricious or otherwise not in accordance with law. 5 U.S.C. 706.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request this Court to grant the following relief:

1.

Declare the obligations and duties of Defendants and their employees,

grantees, agents, and contractors, to comply fully with the requirements of NEPA and FAHA prior to any further planning, financing, contracting, or construction of the Klingle Trail Project.

2.

Issue temporary, preliminary and permanent injunctive relief directing all

Defendants and their grantees, employees, agents, and contractors, to refrain from any further planning, acquisition of right-of-way, financing, contracting, or construction of the Klingle Trail Project until Defendants have fully complied with the requirements of NEPA and FAHA and the federal-aid highway plan;

54

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,

________________________
55

Gale B. Black (Lead Plaintiff) Advisory Neighborhood Commissioner 4A08 1761 Crestwood Drive, NW. Washington, DC 20011-5333 (202) 291-4679

_________________________ Stephen A. Whatley Advisory Neighborhood Commissioner 4A03 1315 Fern Street, NW Washington, DC 20012-2331 (202) 297-2380

________________________________ Eleanor Oliver Ordway Street, NW Washington, DC 20016-3135 (202) 362-2765

____________________ Lewis Baskerville 1812 Allison Street, NW Washington, DC 20011-3735 (202) 726-5547

_________________________ Patricia Hahn 3516 30th Street NW Washington, DC 20008-3250 (202) 364-1043

Dated: November 1, 2011

CERTIFICATE OF SERVICE I hereby affirm, under penalty of perjury, that this Complaint was served this 1st day of November, 2011 by first class mail to the following: Ray Lahood Secretary United States Department of Transportation,
57

US DEPARTMENT OF TRANSPORTATION 200 New Jersey Ave, SE Washington, DC 20590 Irving Nathan Acting Attorney General for the District of Columbia The John A. Wilson Building 441 4th Street, NW, Suite 1145 Washington, DC 20004 Eric C. Holder United States Attorney General US Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Ronald C. Machen, Jr. US Attorney for the District of Columbia US Department of Justice 555 4th Street, NW Washington, DC 20530 Mary Peters, Administrator Federal Highway Administration US DEPARTMENT OF TRANSPORTATION 200 New Jersey Ave, SE Washington, DC 20590

Roberto Fonseco-Martinez Division Administrator for Federal Highway Administration FHWA Virginia 400 North 8th Street, Suite 750 Richmond, Virginia 23219-4825 Terry Bellamy
58

Director District of Columbia Department of Transportation 55 M Street, SE, Suite 400 Washington, DC 20003

________________________________ Gale B. Black 1761 Crestwood Drive, NW Washington, DC 20011-5333

59