Mr. Roberto Fonseca-Martinez
Division Administrator
Federal Highway Administration -Virginia Division
400 N. Eighth Street
Richmond, VA 23240

Re: Route 250 Bypass Interchange and McIntire Road Extended

Dear Mr. Fonseca-Martinez:

    These comments are submitted on behalf of the Coalition to Preserve McIntire Park concerning the Draft Environmental Assessment (“EA”)/Section 4(f) Evaluation circulated by the Federal Highway Administration (“FHWA”) and the Virginia Department of Transportation (VDOT) for the Route 250 Bypass Interchange at McIntire Road. In my opinion, the FHWA has unlawfully constrained the scope of the EA and Section 4(f) Evaluation by failing to evaluate McIntire Road Extended and the Interchange as part of a single, federalized project, in violation of both the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. and Section 4(f) of the Department of Transportation Act (“Section 4(f)).” 23 U.S.C. § 138; 49 U.S.C. § 303.

    As you know, from its inception in the 1970s, the Meadow Creek Parkway has historically been developed as a single facility running from Rio Road, through the McIntire Park and golf course to the Route 250 Bypass, for which an Environmental Impact Statement (“EIS”) was contemplated. However, in 1997, VDOT decided to subdivide the Meadow Creek Parkway into separate “projects.” Funding for a new interchange at the Route 250 bypass was later earmarked by Congress as part of the 2005 transportation re-authorization funding act. As a result, the Meadow Creek Parkway is now characterized [a]s consisting of the following segments: (1) the federally-funded Route 250 Bypass Interchange at McIntire Road, including a 775-foot segment of a new highway --- McIntire Road Extended -- north of Route 250 Bypass; (2) McIntire Road Extended, a two-lane highway extending 2100 feet north from the end of the 775-foot segment of McIntire Road Extended to Melbourne Road; and the (3) Meadow Creek Parkway, from Melbourne Road to Rio Road. As segmented, only the Route 250 [Bypass] interchange, plus the 775-foot segment of McIntire Road Extended, is characterized as a major federal action, to which NEPA applies.

    The scope of the Draft EA/Section 4(f) Evaluation for the Route 250 bypass interchange is confined to the impacts of the interchange itself. This document does not evaluate the impacts of or alternatives to the full McIntire Road Extended under either NEPA or Section 4(f). This is particularly troubling, since McIntire Road Extended will use 13 acres of land from McIntire Park and the golf course, both of which are resources protected by Section 4(f). As the EA for the Route 250 [Bypass] interchange itself acknowledges, “McIntire Road Extended will introduce features into the park that are incompatible with the qualities that make the resource historic, including one of McIntire Park’s contributing historic elements, the McIntire Park Golf Course, which will be altered by both projects. These two projects will result in a larger incremental impact on the historic resource than what has occurred from past development, and is thus considered a cumulative effect.” Route 250 Bypass Interchange at McIntire Road, EA, § 3.11.3, at 42. While the EA further acknowledges that cumulative impacts include “conversion of park recreational land to transportation uses, increased traffic and noise through the park, and impacts to habitat and wildlife in the park,” (id. § 3.11.3, at 45), the EA fails to evaluate whether or not there are any prudent and feasible alternatives to the construction of McIntire Road Extended under Section 4(f)’s stringent standard. [Note 1: Section 4(f) states that the Secretary of Transportation “shall not approve any program or project” which requires the “use” of land from a park, wildlife or waterfowl refuge, recreation area, or historic site, unless (1) there is no feasible and prudent alternative to the use of the site, and (2) the project incorporates all possible planning to minimize harm to the protected site. 23 U.S.C. § 138; 49 U.S.C. § 303.] Instead, the EA considers only a series of alternative design options for the interchange itself.

    While NEPA and Section 4(f) are triggered only by major federal actions, such as funding, “[t]he absence of federal funding is not necessarily dispositive in determining whether a [transportation] project is imbued with a federal character.” Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 1989). Rather, “[i]n order to determine when a group of segments should be classified as a single project for purposes of federal law, a court must look to a multitude of factors, including the manner in which the roads were planned, their geographic locations, and the utility of each in the absence of the other.” Id. at 991 (citing River v. Richmond Metropolitan Authority, 359 F. Supp. 611, 635 (E.D. Va. 1973)). The FHWA’s regulations codify this standard by requiring that the action evaluated in any NEPA document “shall: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope; (2) Have independent utility or independent significance, i.e. be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f) (emphasis added)

    In general, “courts should look to the nature and purpose of the project in determining which termini are logical.” Indian Lookout Alliance v. Volpe, 484 F.2d 11, 18-19 (8th Cir. 1973)). In the highway context, the courts have looked at whether the segments terminated at “crossroads, population centers, major traffic generators, or similar highway control elements.” Id. at 18. At a minimum, in order for a segment to possess logical termini, the terminus must be at a point where there is an opportunity for traffic to enter or exit. See, e.g., Patterson v. Exon, 415 F. Supp. 1276, 1283 (D. Neb. 1976) [see Note below].

    Here, the preferred alternative for the proposed Route 250 Bypass interchange clearly does not have logical termini. The northern ramp of the interchange extends 775 feet north of the Route 250 bypass, and terminates in the middle of McIntire Park, without connecting to any existing roadway, crossroad, or traffic generators. Absent the planned construction of McIntire Road Extended in its entirety, there would be no need for the 775-foot piece of McIntire Road Extended, since this highway stub would end “literally in the middle of the woods.” Patterson v. Exon, 415 F. Supp. at 1283; [see Note below] see also Swain v. Brinegar, 542 F.2d 364, 270 (7th Cir. 1976) (Court held that a highway had been improperly segmented where “[t]he northern terminus ends in the country at no logical or major terminus.”).

    Moreover, it is clear that the interchange as a whole, and most particularly the 775-foot stub of McIntire Road Extended, would not “be a reasonable expenditure even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). To the contrary, as the EA concedes, the current signalized, at-grade intersection at McIntire Road and the Route 250 Bypass currently operates at a satisfactory level of service for most traffic movements. EA, at 2. The EA makes no attempt to determine whether or not a grade-separated interchange would be needed at McIntire Road and the Route 250 Bypass purpose “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). Instead, the need for the massively over-designed interchange depends almost entirely on the traffic volumes generated under “Future Conditions,” which are based on 2030 traffic projection for “the future intersection of the Route 250 Bypass, McIntire Road, and McIntire Road Extended.” EA, at 2. Clearly, there would be no need for the interchange --- and certainly no need for the massive interchange proposed here – but for the construction of McIntire Road Extended.

    In determining whether a highway has been unlawfully segmented, the courts have looked at whether the segments were planned as a single project or whether the segments were "planned to be constructed if at all at different times in the future over a period of years." Save Barton Creek Ass'n, 950 F.2d at 1141; see Village of Los Ranchos de Albuquerque v. Barnhard (finding no segmentation where "the [federal and statefunded] projects are, at best, only peripherally related"); Historic Preservation Guild of Bay View v. Burnley, 896 F.2d at 990 (finding no unlawful segmentation where federally funded segment was built 25 years before state-funded segment). In determining whether such segmentation is unlawful, courts have also looked at whether the state and federal segments served different or similar purposes. See River v. Richmond Metropolitan Auth., 359 F. Supp. at 992 (federally funded road provided commuter access between residential areas west of Richmond, while the state-funded segment connected two highways and provided access to residential area north of the city); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d at 441 ("projects were separately proposed to accomplish independent purposes").

    Here, as noted above, the Route 250 Bypass interchange and McIntire Road Extended were and continue to be planned as a single facility. The EA’s insistence that “[t]he purpose and need of the proposed interchange project is independent of the purpose and need for the McIntire Road Extended” (EA, at 4) is completely belied by the EA itself, which demonstrates that the need for the interchange is predicated on the future traffic volumes that will be generated by construction of McIntire Road Extended. Indeed, the two projects are so wholly intertwined that, as the FHWA acknowledges, “VDOT and the City [of Charlottesville] intended to issue construction contracts for the McIntire Road Extension project and the Route 250 Bypass interchange project as closely together as project development activities.” Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Sept. 4, 2008).

    The FHWA’s claim that the Route 250 interchange is “independent” of McIntire Road Extended, and that the two projects are being simply constructed jointly “in order to minimize disruption to the environment, adjacent communities and the traveling public” (id.) cannot be squared with the record here. Rather, the opposite is true: the City of Charlottesville has made it clear that it will not move forward with construction of McIntire Road Extended unless the grade-separated Route 250 Bypass interchange is funded and advanced by the FHWA and VDOT.

    Specifically, as early as 1999, the City made the construction of a grade-separated interchange at U.S. 250 Bypass an express condition of its support for McIntire Road Extended. See, e.g., Letter to Charles Rasnick, VDOT, from J. Blake Caravati, Mayor of Charlottesville (Dec. 11, 2000) (attached). Ultimately, the City approved the design for McIntire Road Extended only after the City determined that “it now appears that adequate funding will be available to fulfill the condition stated in paragraph 4 of Exhibit A, regarding the design and construction of a separate project at the intersection of U.S. Route 250, McIntire Road, and the Meadow Creek Parkway.” Design Public Hearing Approval Resolution (Jan. 17, 2006). Paragraph 4 of that document expressly stated that: “any final design [for McIntire Road Extended] has to include a grade-separated interchange,” to which VDOT responded “We remain committed to this project [i.e. the Route 250 interchange] as a necessary improvement to both the U.S. 250 Bypass and the Meadow Creek Parkway.” Letter from David E. Brown, Mayor of Charlottesville, to Mr. Greg Whirley, VDOT, at 2 (Jan. 18, 2006) (attached).

    For that reason, there is no support for the FHWA’s bald assertion that McIntire Road Extended will be constructed regardless of whether the Route 250 interchange is constructed, and therefore the “no build” scenario should assume construction of McIntire Road Extended as a “predictable consequence” of no action alternative. Letter to Peter Kleeman from Mr. Fonseca-Martinez, FHWA (Nov. 4, 2008) (citing CEQ’s “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,” Question 3a, 46 Fed. Reg. 188026 (1981). There is absolutely no evidence that McIntire Road Extended will be constructed as a result of a decision by the FHWA not to fund the Route 250 bypass interchange. Rather, as noted above, the record shows that the two projects are so interdependent that neither can proceed without the other.

    The FHWA cannot have it both ways: the purpose and need for the Route 250 bypass interchange project cannot be predicated on the planned construction of McIntire Road Extended-- a design that as a result encroaches substantially within McIntire Park – and at the same time have independent utility and logical termini “even if no additional transportation improvements in the area are made.” 23 C.F.R. § 771.111(f). The reality is that the massive interchange footprints for each of the alternatives evaluated in the EA– and significantly greater impacts on Section 4(f)-protected resources -- are designed in order to accommodate McIntire Road Extended. As a result, the only way for the FHWA and VDOT to take advantage of the “efficiencies” of jointly constructing these plainly interrelated projects is to consider the Route 250 interchange and McIntire Road Extended as part of a single, inter-related federal project, which must be evaluated in a single NEPA and Section 4(f) document.

    Finally, there is strong evidence that the project was deliberately segmented in order to evade federal environmental laws. Despite the fact that Meadow Creek Parkway was originally (and continues to be) planned as a single facility, the FHWA deliberately “scaled back” the scope of the project considered to be the “federal action” so that “the potential significant adverse environmental impacts identified in the EIS and associated with the proposed project were eliminated.” Letter from Mr. Fonseca-Martinez, FHWA to the Mayor of Charlottesville (Dec. 22, 1997). Evidence that a project was deliberately segmented for the express purpose of evading federal environmental laws "will weigh very heavily in support of the project splitting theory." River v. Richmond Metropolitan Authority, 350 F. Supp. 611, 635 (E.D. Va. 1973). See also, Sierra Club v. Volpe, 351 F. Supp. 1002, 1007 (N.D. Ala. 1972) ("Waiver of federal aid . . . . at the last minute . . . should not be made a ground for disclaiming the federal nature of the project where it appears that the purpose is to avoid compliance with federal statutory environmental requirements); Save Barton Creek Ass’n, 950 F.2d at 1143-44 (“We recognize that if a state has segmented for the purpose of evading federal environmental requirements and without other valid justification, a holding of evasive violation would be justified”).

    Accordingly, unless the FHWA takes immediate steps to ensure that the impacts of and alternatives to the Meadow Creek Parkway, including both the Route 250 Bypass interchange and McIntire Road Extended, are evaluated in a single NEPA document of an appropriate scope, the Coalition to Preserve McIntire Park intends to pursue all available legal remedies, including but not limited to litigation to enforce NEPA and Section 4(f).

Sincerely,

Andrea C. Ferster,
Counsel for Coalition to Preserve McIntire Park

Enc.

[This is a version of the original letter formatted as an .html file including links to referenced documents, explanatory notes, and other supplemental material.]

Notes:

Note 1: Patterson v. Exon, 415 F.Supp. 1276 (at 1283)

CONCLUSIONS OF LAW [6]
"The Courts have considered three criteria in deciding whether the environmental impact statement considers a proper length of highway: (1) whether the segment connects logical termini; (2) whether the segment has an independent utility; (3) whether the length of the section assures an adequate opportunity for consideration of the alternatives to the proposed action (both whether and where to build). Daly v. Volpe, [376 F.Supp. 987 (W.D.Wash.1974), aff'd, 514 F.2d 1106 (9th Cir. 1975); River v. Richmond Metropolitan Authority, 359 F.Supp. 611, 635 (E.D.Va.), aff'd, 481 F.2d 1280 (4th Cir. 1973). See also Sierra Club v. Froehlke, [534 F.2d 1289 at 1294 n. 17 (8th Cir., 1976)], which focused on the independence of the project in question. The Eighth Circuit has stated:

"[T]he minimum length of state highway projects that are supported in part by federal funds must be extended to embrace projects of a nature and length that are supportable by logical termini at each end. * * * Segments that fit into an overall highway plan should be as large as is feasible under present construction and financing practices and at least be independently supportable by meaningful terminal points. However, and impact statement can be more extensive than the proposed project.

"Indian Lookout Alliance v. Volpe, 484 F.2d at 19."

CONCLUSIONS OF LAW [7]
"The proposed project does not connect logical termini nor does it have an independent utility. The northern terminus, which is the intersection with Interstate 80, is a logical terminus. Indian Lookout Alliance v. Volpe,, 484 F.2d at 19. The southern terminus is literally in the middle of the woods - there are no access roads, population areas or other traffic generators at that point. It is not a logical place for beginning or ending a road. Upon reaching the southern terminus for the project, southbound traffic will have no place to go except to continue along the unimproved portion of the road. The project in question is completely dependent upon the balance of Highway 31. The fact that the state plans to improve the balance of that road further convinces this Court that the project does not have a utility independent of the remainder of Highway 31. Indian Lookout Alliance v. Volpe, supra, 484 F.2d at 19-20. Nor was this division at the southern terminus required by geographical differences in the terrain or varying traffic needs of the two areas. Compare River v. Richmond Metropolitan Authority, supra 359 F.Supp at 635; Citizens for Mass Transit against Freeways v. Brinegar, 357 F.Supp. 1269, 1283-84 (D.Ariz.1973).

"This 4.1 mile segment does not provide officials with a proper opportunity to adequately consider alternatives to the project. In order to identify alternatives and bring them into proper prospective it is necessary to look at the overall objectives to be achieved by the project. If a project is intended to connect two roads, the length of the highway considered in that statement should be large enough to give the planners an opportunity to consider all the alternative routes that would connect those two roads, or the alternative of not building at all. At the same time, the segment does not have to be so long that it overlooks one of the major objectives of the proposal. Committee to Stop Route 7 v. Volpe, supra, 346 F.Supp. at 740. The evidence persuades this Court that the state's objective was to improve all of Highway 31 between I-80 and Highway 50, and that this project, having a southern terminus which is not meaningful, was only the first step toward that goal. This 4.1 mile section is obviously too small to permit the defendants to meaningfully consider alternatives which would achieve the same objective. For example, there might be alternative routes between I-80 and Highway 50 which would avoid the Fish Hatchery/Schram Tract area altogether, or at least minimize the intrusion in that area. The defendants, however, could not consider that possibility by looking at only a 4.1 mile section of the road.

"The Court, therefore, concludes that this 4.1 mile section was not an appropriate segment to be the subject of an environmental impact statement. The division of Highway 31 at the proposed southern terminus for purposes of environmental planning was artificial and arbitrary. A number of courts have held that an environmental impact statement should be broader than the constsruction limits of the project in question. Indian Lookout Alliance, supra; Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra; Appalachian Mountain Club v. Brinegar, supra; Committee to Stop Route 7 v. Volpe, supra. With further construction planned for the balance of the road, including land which might be covered by Section 4(f), the defendants should have considered the environmental consequences of that construction before beginning any work on the 4.1 mile segment. This holding, of course, does not purport to tell the state and federal highway authorities how large the actual construction project must be. It merely requires them to follow the applicable federal statutes by making a long-range environmental assessment before beginning any constsruction."

Note 1: Sierra Club v. Volpe, 351 F. Supp. 1002, 1007 (N.D. Ala. 1972)

THE "FEDERAL PROJECT" ISSUE [1]

"A threshold question is whether the Devil's Slide By Pass project is 'federal action' within the meaning of the federal statutes involved. If it is not, then, of course, absent some other federal issue, plaintiff's case against the federal defendants would fail for lack of jurisdiction over plaintiff's cause of action against the state defendants arising out of alleged violation of the State Environmental Statute - CEQA.

"Both federal and state defendants move for summary judgement upon the ground that there is no 'federal' project upon which this Court can act, pointing out that by advertising for bids on September 5, 1972, the state defendants have now put it beyond their power to apply for, and beyond the power of FHA to grant, federal aid funds to the Devil's Slide project.

"Defendants cite 23 U.S.C. §§ 105 and 106; § 105 provides, in effect, that before a project may receive federal aid it must first receive FHA program approval; § 106 provides for submission of plans, specifications and estimates by the state and approval thereof by FHA before federal funds can be bound for a state project.

"FHA Regulations, inplementing the above statutes, provide that no federal funds may participate in state projects if applicable federal regulations are not followed (23 CFR-1.9); FHA Regulation 23 CFR 1.10(b) progibits the state from advertising for bids on actual construction prior to the submission of plans, specifications and estimates to FHA and its approval thereof; FHA Regulation 23 CFR 1.12 provides that no work shall be undertaken on any federal aid project, nor shall any project be advertised for contract, prior to authorization by FHA.

"Defendants contend that no such program approval, nor any approval of plans, specifications and estimates, had been obtained by the state from FHA prior to the state's advertisement for bids on September 5, 1972, and that, therefore, the state cannot now receive, nor can FHA grand, federal aid for the Devil's Slide project, citing cases to the general effect that, absent a federal-state contract for federal funding, federal law requirements are inapplicable to state projects. See Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972); County Highway v. Smith, 454 S.W.2d 124 (Tenn.App.1969); Hoffman v. Stevens, 177 F.Supp. 898 (M.D.Pa.1959); Town of New Windsor v. Ronan, 329 F.Supp. 1286 (S.D.N.Y.1971).

"Plaintiffs contend, however, that, even assuming the state's option to receive federal aid cannot at this point be restored, the Devil's Slide project is, nevertheless, a federal project, within the meaning of both the Federal Aid Highway Act and NEPA, regardless of whether federal funds are ultimately used on or obtainable for use on it. Plaintiffs' position is that the project is an integral part of the larger federal-aid primary aid Highway # 1 route, for which, as already noted above, federal aid has been used for constsruction to the north of the project and for which federal aid will be, or can be used on an already planned thirteen mile continuation of the highway from the project to the City of Half Moon Bay. Plaintiffs, relying on the authorities discussed below, contend to the general effect, that under these circumstances neigher the state nor the federal defendants should be permitted to segment the Devil's Slide By Pass as a separate project and to thereby eliminate it from federal participation at this late date for the obvious purpose of avoiding compliance with federal environmental laws.

"In La Raza Unida v. Volpe, 337 F.Supp. 221 (NDCal., 1971) this court, considering the application of federal environmental and similar statutes to state highway projects, held that there was no merit to defendants' contention that federal statutes do not become applicable until the state actively seeks federal funds for a project; that for purposes of applying the various federal environmental statutes and regulations, a highway project becomes a federal aid highway when the state has obtained location approval and, that any project for which federal aid thereafter remains an open option falls within the federal statutes and regulations.

"The rationale of La Raza Unida is that Congressional policy statements in federal environmental and similar statutes, together with the legislative history of these enactments, indicate a great concern of Congress with problems of environmental protection, particularly in the area of highway construction; that common sense suggests that all the protections which the Congress has sought to provide would be futile gestures were the states and federal agencies allowed to ignore federal statutes and regulations until deleterious effects upon the environment have actually occurred while the option for receiving fu=ederal funds still remains open.

"In the present case, as appears from the record herein, both state and federal highway officials had regularly complied with the various federal requirements ever since August, 1960, and up to September 5, 1972, with a view that the state would exercise, and the federal agency would recognize the state's option to receive federal funding for the Devil's Slide project.

"Actual authorization of federal funds for a highway project is mer3ely a final formalization of the federal government's commitment on a section of a federal-aid route in the course of various federal agency approvals. The importance of making federal environmental statutes applicable at these earlier approval stages is emphasized in La Raza Unida. Waiver of federal aid by the state, acquiesced in by the federal agency, at the last minute for a project, which has otherwise been long treated as a federal aid project, should not be made a ground for disclaiming the federal nature of the project where it appears that the purpose is to [avoid] compliance with federal statutory environmental requirements.

"This is especially true in this case, where, at the time of filing suit and issuance of the temporary restraining order herein, the project was clearly a 'federal project' in that the state defendants still retained their option to apply for federal funding.

"The state's advertisement for bids on September 5, 1972, was undertaken, not only after commencement of this action, but while plaintiffs' application for a preliminary injunction was pending - an application which, if granted, would have halted such advertising. Further, the decision of the state to thus forego federal aid was made four days after this court had made a temporary restraining order, dated September 1, 1972, restraining defendants 'from opening or considering any bids for the construction of subject project, awarding any contracts concerning construction or work orders with respect to such construction or taking any other action toward constssruction in connection with the project which would alter the present status quo until further order of this court".

"Although that restraining order recited that the state defendants could proceed with 'advertising' for bids, this provision was obviously intended to merely mean that the court did not wish to unnecessarily interfere with, or causeunnecessary expense or delay on, advertising which would not become effective unless the court should deny plaintiff's application for a complete halt on the project. such intent of the court was made clear to defendants at the informal hearing on issuance of the temporary restraining order.

"In Indian Lookout v. Volpe, 345 F. Supp. 1167 (S.D.Iowa, 1972), the court held that, although various considerations may make it advisable to segment a project for financing or construction purposes, those considerations do not necessarily apply to the environmental impact of the project; that for the latter purpose an assessment might be required of all or a larger portion of the project; that the Congress intended NEPA to be broad enough to cover the area over which construction may be 'coerced by construction of another segment in a different area'; that, where the environmental features of the project route have not been considered as a whole and where there is such a coercive effect, NEPA requires an environmental impact statement for the entire project. See, also,Named Individuals v. Texas Highway Department, 446 F.2d 1013 (5th Cir., 1971) to the same effect [footnote 1].

"In Thompson v. Fugate, 347 F.Supp. 120 (E>D>Virginia, 1972), the court, applying both the Federal Aid Highway Act of 1968 (23 U.S.C. § 128(a) as amended) and NEPA, held that meeting federal requirements for one twenty-one mile section of a highway project in order to partake of federal aid allotments for that segment, while, at the same time claiming that a remaining eight mile section is a separate roject, would be an impermissible bureaucratic frustration of the purpose of these laws.

"Lending support to the principles announced in these cases is FHA's own regulation, PPM 90-1, Sec. 6, requiring that the highway section included in an environmental impact statement should be as long as practicable to permit consideration of environmental matters 'on a broad scope' and stating that 'piece-mealing proposed highway improvements in separate environmental statements should be avoided' and, further 'that the section should be of substantial length that would normally be included in a multi-year highway improvement program.' "Upon the record above described and upon the principles laid don in the cases above noted, we conclude that the record does not show as a matter of law that the Devil's Slide By Pass project is not a 'federal project' or for that reason beyond the subject matter jurisdiction of this court.

"We also conclude upon the recore herein, that it does not appear as a matter of law that plaintiffs lack standing, or that the action is barred by laches, or that the state defendants here are immune from suit under the Eleventh Amendment.