Full opinion text
MEMORANDUM MERHIGE, District Judge. This is an action challenging the proposed construction of a limited access expressway into the downtown area of the City of Richmond, Virginia. The plaintiffs are the James River and Kanawha Canal Parks, Inc. (hereinafter referred to as “Canal Corporation”), a non-profit Virginia corporation, the objectives of which are the preservation and restoration of the James River and Kanawha Canal, and Douglas C. Deaton, a contributing member of the corporation who has used the James River and Kanawha Canal for recreational purposes. There are four groups of defendants : 1. The Richmond Metropolitan Authority (hereinafter, RMA), a corporate, political subdivision of the Commonwealth of Virginia, empowered to plan, construct and maintain public highways within the Richmond metropolitan area, and its general manager, George W. Cheadle; '2. Thomas J. Bliley, Jr., and William J. Leidinger, Mayor and City Manager, respectively, of the City of Richmond (hereinafter, “Richmond defendants”); 3. Douglas B. Fugate, Commissioner of the Virginia Highway Commission (hereinafter, “Virginia defendant”); 4. Claude S. Brinegar, Acting Secretary of the United States Department of Transportation, and Harold C. King, Division Engineer for Richmond of the Federal Highway Administration (hereinafter, “United States defendants”). In addition to these four sets of defendants, the Carillon Civic Association, representing the homeowners of an area through which the Expressway is scheduled to pass, has been allowed to intervene as a party defendant. The action is one for a declaratory judgment and injunctive relief. The legal claims on which it is based are summarized as follows: 1. Due to alleged federal involvement in the planning and construction of the Downtown Expressway, the defendants must adhere to certain federal statutory requirements in the construction of the road. The following provisions are cited by the plaintiffs: Sections 101(b) and 102(2) of the National Environmental Policy Act, 42 U.S.C. §§ 4331(b) and 4332(2); sections 128, 134 and 138, Federal-Aid Highways Act, 23 U.S.C. §§ 128, 134 and 138, and Policy and Procedure Memorandum 20-8, 23 C.F.R. App. A, promulgated to implement section 128; Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f); Section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. § 470f, and a regulation promoted thereunder, 36 Fed.Reg. 3312 (February 20, 1971). 2. Because the proposed expressway allegedly requires an encroachment upon navigable waters of the United States, the defendants must apply, pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 and 403, to the Corps of Engineers and the Secretary of the Army for a construction permit. 3. The Ninth Amendment to the United. States Constitution establishes the right to a non-degraded environment and to the preservation of parklands and historic structures, which right would be violated by the defendants’ construction of the Downtown Expressway. 4. By their acts, the defendants have deprived the plaintiffs of life, liberty and property without due process of law in contravention of the Fifth and Fourteenth Amendments. These claims are levelled against RMA, Richmond and the Virginia defendants pursuant to 42 U.S. C. § 1983. 5. The construction of the Downtown Expressway would be violative of Article XI, § 1 of the Virginia Constitution. The complaint was filed on January 9, 1973, one day before RMA intended to offer for sale revenue bonds to finance the Expressway. The uncertainty of the litigation required RMA to postpone the sale. Because of the unstable condition of the bond market and because RMA had secured a very favorable interest rate on the sale, the defendants sought to expedite this matter in any way possible, in order that the sale of the bonds might be rescheduled as soon as possible. The plaintiffs agreed to such an expeditious proceeding and further agreed with the defendants that an evidentiary hearing might well be avoided. Accordingly, both sides have submitted motions for summary judgment, accompanied by a considerable number of exhibits, depositions and lengthy memoranda. It is these motions with which the Court is primarily concerned. Two other groups of motions, both contested, -are also ready for determination, however. One is a motion by the plaintiffs to amend their complaint. The second is a group of motions by the several defendants to require the plaintiffs to furnish security to cover the costs and damages that may be incurred by the defendants because of litigation. Since the aggregate requests exceed Thirty Million Dollars, the Court assumes that the various defendants seek protection from a drastic increase in interest rates on the bonds which might occur during the delay caused by this litigation. Before turning to the specific legal claims and defenses made by the parties in their various motions, the Court deems it appropriate to examine the background of the Downtown Expressway and of the James River and Kanawha Canal. BACKGROUND Downtown Expressway The genesis of the Downtown Expressway was a report presented to the Richmond City Council on June 30, 1965, by the Committee on Trafficways, created by . the Council. The essence of the report was that there was a major demand for traffic arteries along a north-south corridor from Bryan Park on the north side of Richmond to the Chippenham Parkway on the south side of the James River and along an east-west corridor from the Richmond-Petersburg Turnpike in downtown Richmond to Par-ham Road on the west side of Richmond. Because of the projected heavy use of these corridors, the committee recommended that they be serviced by limited access expressways. Inquiries having been made, to no avail, into the possibilities of federal or state funding of such an expressway system, the Committee recommended the creation of an independent authority to construct the system on a toll road basis. These recommendations were subsequently ratified by the five volume Richmond Regional Area Transportation Study (RRATS), formally published in 1968. The Richmond Metropolitan Authority came into existence by act of the Virginia legislature on July 1, 1966. Empowered to acquire real estate by eminent domain or otherwise, to enter into contracts, and to issue bonds, RMA was directed to promote highway safety and to expand the construction and maintenance of bridges, tunnels and roads within the Richmond metropolitan area. Its primary function, however, was the final planning and the construction of an expressway system within that metropolitan area. By 1966, the final plans had taken shape for the construction of four expressways: (See Appendix A) 1. The Beltline Expressway, running south from the juncture of Interstates 95 and 64 north of Richmond to the Douglasdale Road area; 2. The Powhite Parkway, running northeast from the Chippenham Parkway on the south side of the James River, across the James River Bridge to connect with the Beltline Expressway in the Douglasdale Road area; 3. The Riverside Parkway, running along the southern banks of the James River from Huguenot Road east to the James River Bridge and the Powhite Parkway; 4. The Downtown Expressway, running east from the juncture of the Po-white and Beltline Expressways at Douglasdale Road through downtown Richmond, connecting with the Richmond-Petersburg Turnpike in the east central section of Richmond. A feeder road was also planned to run from the Cary Street Road area of the Beltline Expressway southeast to the Downtown Expressway just west of the Boulevard. In September, 1966, RMA entered into an agreement with Richmond by which the City guaranteed $20,000,000 in temporary bond anticipation notes to the Authority. On October 23, 1966, RMA announced its proposed plans to the public by the publication of a newspaper supplement. Pursuant to its agreement with the City, RMA held a public hearing to receive comments on the proposed routes on November 8, 1966. It also opened an office in downtown Richmond where the proposed routes were displayed and where comments could be received and questions answered. According to the defendant Cheadle, General Manager of the RMA, the public response “was substantial and overwhelmingly in favor of the construction along the proposed routes.” In early 1967, having received the $20,000,000 loan, RMA began to finalize construction plans and to acquire property along the rights-of-way. Nearly all of the $20,000,000 was expended in this process, with the result that RMA has already cleared nearly ninety per cent of the proposed right-of-way. By the spring of 1968, however, after having solicited and received construction bids on several segments of the system, the Authority concluded that inflation and rising interest rates would cause actual construction costs to rise considerably above the original estimates. All bids were rejected, and RMA entered into discussions with several large contractors explaining the possibility of one contractor constructing the entire system and thereby lowering costs through economy of scale. These negotiations never resulted in a sufficient cost reduction, however, and they were abandoned. Prior to the final decision not to construct the full system with private funds in mid-1967, the first contacts were made by RMA, through the Virginia Highway Commission, with the Federal Highway Administration (FHA), concerning the possibility of federal financing for part of the expressway system. The details of these contacts are critical to the issue of federal involvement in the Downtown Expressway and thus whether federal statutory requirements must be met, and a discussion of them will be deferred until the Court considers that issue. Suffice it to say, however, that the FHA eventually agreed to build part of the Beltline Expressway as an interstate spur. At the time of this litigation, the spur has been designated 1-195 and is under construction. It extends from the juncture of interstate routes 64 and 95 at Bryan Park on the north side of Richmond, to the Cary Street Road area, with a feeder extending to McCloy Street, west of the Boulevard. Once the FHA agreed to finance the Beltline Expressway, RMA was relieved of a considerable financial burden. It then instructed its consulting engineers to analyze the remaining elements of the project, approximately 9.7 miles, to determine how much could be undertaken with revenue bond financing. The engineers recommended to RMA that it proceed forthwith with the James River Bridge, with the Powhite Parkway, and with that part of the Beltline Expressway running south from the end of I-195 in the Cary Street Road area to the intersection with the Powhite Parkway in the Douglasdale Road area. This total distance of 3.3 miles was financed with a bond issue of $51,300,000 and has been completed. RMA continued to seek ways to finance the construction of the Downtown Expressway. In July, 1972, the means became available when the Virginia Highway Department, together with the City of Richmond, agreed to construct a segment of the road running from the feeder front 1-195 to McCloy Street east to Meadow Street (McCloy to Meadow Connection). With this agreement finalized, RMA had only to finance the segment of road from the juncture of the Powhite and Beltline Expressways in the Douglasdale Road area to its intersection with the McCloy to Meadow Connection just west of the Boulevard and the remainder of the Downtown Expressway east. The Authority was then able to arrange for a $124,295,000 bond issue, including the refunding of its original seven per cent bonds. The sale of this issue was scheduled for January 10, 1973, at an interest rate of 5.50 percent, but, as noted previously, was can-celled by virtue of this litigation. James River and Kanawha Canal Shifting from highways to history, the Court turns briefly to the James River and Kanawha Canal. The story of the canal begins as early as 1785, when the James River Company, with George Washington as its president, was incorporated for the purpose of building a navigational road west. In 1795 a short canal, beginning at the present location of the Byrd Park pumphouse, was opened. This canal was extended eastward for a short distance to connect with the Richmond Basin, a large terminus for the canal constructed around the turn of the nineteenth century and located between what are now Eighth and Twelfth Streets, south of Main Street. While the canal company extended its system westward during the first half of the nineteenth century, the Richmond Dock Company was established and began construction of deep water dock facilities on the tidewater side of the James River fall line at Richmond. In 1841, the James River and Kanawha Canal Company purchased the dock company and began work on a system of locks to connect the lower James with the canal. By 1854 the Tidewater connection was complete and consisted of five great stone locks which formed a flight of water stairs from the terminus basin to the dock area on the James. Within the next twenty years, however, the canal suffered from the ravages of the Civil War and, significantly, from railroad competition. By 1880, it was no longer a profitable operation and was sold to the Alleghany Railroad Company. With the laying of tracks along its towpath, the James River and Kanawha Canal became no more than an instrument of historical interest. The Tidewater Connection itself, which is the primary focus of this suit, no longer exists in its original state. Upon the purchase of the canal by the railroad around 1880, most of the locks were filled with dirt and were used as a right-of-way for a railroad spur line. The Great Boat Basin, which ran roughly from what is now Eighth Street to Twelfth Street, was filled and used as a turning yard for the railroad. Most of it is now covered by a parking lot. Indeed, about the only part of the old Tidewater Connection which is not now covered by some sort of structure is the lower two locks, located on the property of Reynolds Metals Company. The record reveals that Reynolds has taken steps to preserve and restore these locks. From the best historical evidence available concerning the underground location of the remaining three locks, it appears that the Downtown Expressway will require their destruction or relocation, as well as that of the Great Basin. The complaint describes the damage thusly: The Downtown Expressway, depressed below the surrounding ground level, will bisect the Canal in the vicinity of 6th ánd 7th Streets between Canal and Byrd Streets. An exit ramp to the east will require both a cut and a fill, .thus rupturing the walls of the Canal. The Downtown Expressway will also cut through the walls of the Canal in this same area. A west entrance ramp at 7th Street will similarly cut through the walls of the Canal. Foundations for the overpass servicing the Manchester Bridge, which presently crosses the James River and feeds into Canal Street between 8th and 9th Streets, will rupture the former Great Basin and cause permanent structures to be implaced in the South Basin between Byrd and Canal Streets. The Downtown Expressway will cut through the Canal and the Great Basin and destroy existing facilities from 8th Street to 12th Street. From the vicinity of 12th Street east, the footings required for the portions of the Downtown Expressway raised above surrounding ground level are not defined, but in the vicinity of 16th and Dock Streets, major concrete structures will be necessary to effectuate a connection with the Riehmond-Petersburg ■ Turnpike (1-95), and substantial pilings will probably have to be routed into the Canal’s stonework. Since the description of the damage is not presently contested by the defendants, the Court assumes for purposes of these motions that it is accurate. It should be noted, however, that RMA has tentatively agreed to expend approximately $500,000 in additional construction costs to help relocate existing locks to form a connection between the James River and Kanawha Canal and the even older Haxall Canal in the vicinity of Fifth Street. With this background of the highway and of the canal in mind, the Court turns to the legal claims and defenses raised by this action. JURISDICTION Plaintiffs assert that jurisdiction is conferred on this Court by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 and by 28 U.S.C. §§ 1331(a), 1343, 1361, 2201 and 2202. Both the Richmond and federal defendants, however, contest several of these bases of jurisdiction. Jurisdiction over the United States defendants for the federal statutory claims other than that under the Rivers and Harbors Act is conferred by the Administrative Procedure Act, 5 U. S.C. § 702. Citizens to Preserve Over-ton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This jurisdiction extends to the nonfederal defendants as well, since it is alleged that they have taken advantage of the benefits conferred by federal law and because their activities could otherwise make a “sham” of federal statutory requirements if these requirements must be met in this case. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972). Jurisdiction over the federal constitutional claims, which may properly be asserted by the plaintiff Deaton, is attained by virtue of 28 U.S.C. § 1343, since it is alleged that the acts of the nonfederal defendants were carried out under color of state law. The jurisdictional basis for the plaintiff’s Rivers and Harbors Act claim is the federal question provision, 28 U. S.C. § 1331. While there is no question that this claim arises under the laws of the United States, the Richmond and federal defendants assert that because the plaintiffs do not own property in or near the site of the proposed highway and because they would suffer no financial loss or injury from its construction, they do not meet the $10,-000 jurisdictional requirement. The defendants base their argument upon the holding in McGaw v. Farrow, 472 F.2d 952 (4th Cir., 1973) that “a claim not measurable in ‘dollars and cents’ fails to meet the jurisdictional test of amount in controversy.” The Court has serious doubt as to whether the potential injury that the plaintiffs allege in this case amounts to no more than “symbolic damages,” such as were involved in McGaw. The Court need not consider this possible distinction, however, since the pecuniary result to the defendants of this litigation, or of the Rivers and Harbors Act claim by itself, might well exceed the $10,000 requirement. It is true, as agreed, that some courts hold that where the benefit to the plaintiff of a proposed injunction has a different value than the loss to the defendant, only the benefit to the plaintiff should be considered. The better approach, however, and one which has been adopted in appropriate circumstances in this circuit and to which this Court is bound is that a court may find jurisdiction from the viewpoint of either party. Government Employees Insurance Co. v. Lally, 327 F.2d 568 (4th Cir. 1964). This approach fulfills the purpose of the jurisdictional amount requirement of avoiding litigation of trivial eases. See C. Wright, Law of Federal Courts, 118-19 (2d ed. 1970). Moreover, even if the plaintiffs did not meet the jurisdictional amount requirement on its Rivers and Harbors Act claim, that claim arises out of the same factual situation as do the other federal claims. This Court may properly elect to exercise its pendent jurisdiction over the claim in order that the entire case might be disposed of in this proceeding. See 1 Barron & Holtzoff, Federal Practice and Procedure, § 23 (1960). As to the plaintiffs’ state constitutional claim, however, different considerations apply. While the Court undoubtedly has pendent jurisdiction to hear this claim under U. M. W. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), that decision further provides that a district court has discretion to decide whether to hear such a claim. As it did in Ely v. Velde, C.A. No. 459-70-R (E.D.Va., Dec. 21, 1972), the Court elects not to hear this claim. Whether the conservation amendment to the Virginia Constitution creates substantive rights enforceable by private individuals is a difficult question of constitutional law and one on which the Virginia courts have not ruled. Although the Court could attempt to anticipate what answer the Virginia Supreme Court is likely to give to this question, it is disinclined to do so in this case, the reason being that the evidence required for the plaintiffs to prevail on their federal claims concerns only the question of federal involvement in the Downtown Expressway and whether federal statutory requirements have been met. To prevail on the state claim, however, if one does exist, the plaintiffs would have to adduce massive evidence directed to environmental concerns. Such a claim could thus be as easily litigated in a separate action in state court as it could in the pending case. This fact, combined with the uncertain state of Virginia law on the claim, persuades the Court not to exercise its pendent jurisdiction over the claim, but instead to dismiss it. SOVEREIGN IMMUNITY RMA asserts as one of its grounds of defense that it is a “political subdivision and public body corporate and politic of the Commonwealth of Virginia,” and accordingly is immune from suit in federal court under the Eleventh Amendment. The Court concludes, however, that this claim is without merit. As a “political subdivision,” the RMA enjoys the same status as a municipality and is not, therefore, within the purview of the Eleventh Amendment. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). Even if it were, however, or even if its common law immunity would normally protect it from suit, the allegations are that RMA purposefully availed itself of the benefits of federal laws. This would constitute a waiver of sovereign immunity as to the requirements of the federal statutes involved. Finally, even if RMA were immune from suit in this Court, the defendant Cheadle is not, and the plaintiffs could secure their relief by seeking the Court to order his adherence to federal law. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. Ed. 714 (1908); see Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972); La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.l971). STANDING All of the defendants challenge the standing of the Canal Corporation to bring this action, on the theory that the organization and its members have not shown that they themselves will suffer actual injury by the acts of the defendants. While this argument has not been renewed since the addition of the plaintiff Deaton, the Court does not conclude that it has been made moot by the added party. The requirement of standing is rooted in the case or controversy provision of Article III of the Constitution and seeks to ensure'that'part jes involving'‘themselves in litigation have such a personal stake in the action as to make it a true adversary one. The principal cases governing the sort of standing problem that is present here are Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), its tandem case, Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). In Data Processing, the Supreme Court held that a party has standing to obtain judicial review under § 10 of the APA where he has alleged that the action under attack caused him actual injury in fact and where the alleged injury was to an interest “arguably within the zone of interests to be protected or regulated” by the statutory requirements to which the plaintiff seeks to compel adherence. 397 U.S. at 153, 90 S.Ct. at 830. In Sierra Club, the Court considered the meaning of the injury in fact requirement and reaffirmed its vitality. It concluded that while injuries other than economic ones can confer standing, an organization must allege that it or its members will be affected in their activities or pastimes by the allegedly illegal acts. A mere interest in a problem, regardless of how sincerely it might be held, is not sufficient to give standing to an organization or an individual. Such an organization may, however, have standing to represent its injured members. Sierra Club v. Morton, supra, 405 U.S. at 739, 92 S. Ct. 1361. The allegations in the complaint do not establish standing for the Canal Corporation on its own. All that is alleged is that the Canal Corporation’s objectives are “the preservation of the environmental, historical, recreational and community value of the James River and Kanawha Canal” through such steps as the restoration of the canal, the creation of adjacent walkways, etc. There is no suggestion that the organization owns property near to or over which the Downtown Expressway will be located or that it intends to make use of the canal area, once restored, by sponsoring events in the area. Although its contact with the restoration of the canal is certainly more particularized than was that of the Sierra Club in Sierra Club v. Morton, it amounts to no more than a public interest in the development of the area. This interest is not sufficient to support standing. See Ward v. Ackroyd, 344 F. Supp. 1202 (D.Md.1972). This conclusion does not result however, in the rejection of the Canal Corporation as a party plaintiff, for the Court holds that the individual plaintiff Deaton does have standing to bring this action and, under the rationale of Sierra Club, his interests may be represented by the Canal Corporation of which he is a member. Deaton alleges that he is a resident of the City of Richmond and that he has used and enjoyed the James River and Kanawha Canal for recreational activities and for its aesthetics and that he intends to do so to an even greater extent in the future if the acts of the defendants do not make this impossible. As unspecific as this allegation may be, it shows a personal involvement with the area affected by the Downtown Expressway and thus states an injury in fact sufficient to support standing. See Sierra Club v. Leslie Salt Co., 354 F.Supp. 1099 (N.D.Cal.1972); contra, Coalition for the Environment v. Volpe, 347 F.Supp. 634 (E.D.Mo.1972). Having established that the plaintiffs’ allegations show injury in fact to their interests resulting from the defendants’ acts, it remains to be determined whether these interests are arguably within the zone of interests to be protected by the statutes in question. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The defendants have not argued that the plaintiffs’ interests are not so protected by the National Environmental Policy Act (NEPA), the relevant provisions of the Federal-Aid Highways Act (FAHA), the Department of Transportation Act (DOTA), and the National Historic Preservation Act (NHPA). The Court has no doubt that a user and enjoyer of resources allegedly protected by these acts is within their zone of protection. As to the Rivers and Harbors Act claim, however, the Court has considerably more doubt. It will defer discussion on this issue until it considers this claim in toto. LACHES All defendants contend that the plaintiffs should be barred from prosecuting this suit by the equitable doctrine of laches. They contend that since the plaintiffs knew or should reasonably have known as early as 1966 that the proposed highway would cross the canal site they are estopped to bring the suit the day before the bond sale in 1973. The record reveals that the proposed location of the Downtown Expressway was indeed made known to the public by a newspaper supplement in the fall of 1966. Eugene B. Sydnor, president of the Canal Corporation and admittedly the prime mover behind this litigation, testified that he was generally aware of the plans at that time. Whether the plaintiff Deaton had similar knowledge is not apparent from the record. Since the Canal Corporation, as representative of Deaton’s interest, is the party actually prosecuting this litigation, however, the Court will look to its acts and those of its members in general in deciding the laches question. RMA further publicized the proposed location by a public meeting in November, 1966, at which time many members of the public appeared. Although there was severe criticism of the highway’s location from Davis Avenue to Linden Street, no mention was made of its effect on the canal in the downtown area. Sydnor did not attend this meeting nor, to his knowledge, did any of the other members of the plaintiff corporation. The events that transpired from early 1968 until 1972 have been outlined previously. Suffice it to say, that the Canal Corporation did not come into existence until March 1972, and that neither Sydnor, Deaton nor any others who were to become members of the group took any steps to secure a location change until well after the proposed location had been made public. During this period, RMA expended approximately $15,000,-000 in acquiring right-of-way for the Downtown Expressway, ninety per cent of which was cleared. It also sponsored a bond sale of $51,300,000 to finance the Powhite Parkway, James River Bridge, and a portion of the Belt-line Parkway, which sale seems to have been premised on the expectation that the downtown segment of the expressway system would eventually be constructed. This expectation was not an enforceable guarantee, however. The evidence in the record indicates that it was not until 1969 that members of the Canal Corporation first began to express their concern over the threat to the canal posed by the Downtown Expressway. Margaret W. Rucker, a member of the corporation, states by affidavit that during 1969 she began meeting with local officials and members of RMA. She testified that the results of these meetings were encouraging and that she and her compatriots felt that some way of saving the canal might be found through the administrative and political process. The catalyst to the actual litigation came with the formation of the Main-to-the-James Committee in February, 1971. This group was formed at the behest of Mayor Thomas J. Bliley and was charged with creating a long range plan for the development of the area south of Main Street, bounded by Belvidere Street on the west, the Richmond-Peters-burg Turnpike on the east, and the south bank of the James River. The Committee raised $100,000 from its members, by which it financed a study by a Philadelphia consulting firm. It also formed a Citizens’ Advisory Committee to provide it input from the community, with Mrs. Rucker and Mrs. Eugene B. Sydnor, Jr., as its co-chairwomen. In late 1971, the consulting firm presented its preliminary proposals, consisting of four scenarios for the development of the Main-to-the-James area. The major distinguishing factor of each of these scenarios was the location of the Downtown Expressway, with Scenario I postulating the construction of the highway as originally planned and with Scenario IV postulating the halting of the Expressway at Belvidere Street and its continuation through the Main-to-the-James area as a boulevard. A special meeting was held with the full committee on February 16, 1972, at which time the consulting firm, with the later support of the Citizens’ Advisory Committee, recommended the adoption of Scenario IV. An estimate of the expense that would be involved in this and the other scenarios was made known on February 18, 1972, when a consulting firm hired by RMA submitted a report on estimated costs for the various alternatives to the Expressway and for the reconstruction of the James River and Kanawha Canal. After some months of deliberation, the Main-to-the-James Committee rejected Scenario IV and concluded that the Expressway would have to be built as planned. This same conclusion was reached by RMA in the summer of 1972, after negotiations with the Canal Corporation. RMA did agree, however, in accordance with the recommendation of the Main-to-the-James Committee, to salvage stone blocks from the canal locks to be used in reconstructing a connection between the Haxall and the James River and Kanawha Canals that would preserve the navigable Tidewater Connection. In order to sustain their defense of laches, the defendants must prove an unconscionable delay by the plaintiffs in bringing the action which has resulted in prejudice to them. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). The defendants’ burden is especially difficult to bear in this case, since the claims are based upon statutory provisions which seek to preserve the environment. The Court of Appeals for the Fourth Circuit has recognized the special public importance of these ecology laws and has declined to invoke laches in a suit the facts of which resemble those here. Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir., 1972). The standard that it'has applied is whether “the costs of altering or abandoning the proposed route would certainly outweigh the benefits that might accrue therefrom to the general public.” 458 F.2d at 1329-1330 (emphasis included in original). Although the record indicates that the plaintiffs could have been aware of possible damage to the canal as early as 1966, the Court concludes that they could not reasonably have been expected to have commenced this litigation until after the decision by RMA in the summer of 1972 not to shift the location of the highway in order to allow for full restoration of the canal. Since the litigation turns primarily upon federal involvement in the project, the plaintiffs certainly could not have begun the suit until April 24, 1970, the date on which the Federal Highway Administration gave its final approval to financing part of the Beltline Expressway as I-195. Even after that date, however, the Court is convinced that the location of the highway was not so permanently established that it could not have been modified. The record reveals that RMA actively considered alternatives and that it engaged in serious discussions with the Canal Corporation until the summer of 1972. Had the Main-to-the-James Committee adopted the recommendation of the consulting firm that the Downtown Expressway be halted at Belvidere Street or that its route be shifted to preserve more of the canal, the Court is reasonably satisfied that RMA might well have relocated or otherwise modified the route of the Expressway. It follows therefore that until the summer of 1972, there was a very real possibility that the plaintiffs might well have secured their relief without the necessity of court action. Thus, although they could have brought this action as early as 1970, the plaintiffs were justified in delaying the litigation at least until mid-1972. The Court has serious doubts as to whether the delay from mid-1972 until January 9, 1973, can be classified as unconscionable. Even if it could be so classified, however, the resulting prejudice to the defendants has not been so substantial as to justify barring the suit. The principal injuries resulting from the delay that the defendants assert in their memoranda are the expenditure of approximately $20,000,000 for right-of-way and the $51,300,000 bond issue for phase I of the expressway system. Both of these alleged injuries, while substantial, were incurred prior to mid-1972. The only prejudice that could have resulted to the defendants from the delay found by the Court was the expense incurred in setting up the bond sale for January 10, 1973. Rising interest rates and inflationary costs could also result, but both of .these elements, while perhaps to be reasonably anticipated, are somewhat speculative in nature. Balancing all of the equities, together with the standard enunciated in Arlington Coalition, the Court must conclude that the plaintiffs should be allowed to prosecute their action. FEDERAL INVOLVEMENT In order to sustain their claims under NEPA, FAHA, NHPA and DOTA, the plaintiffs must first prove that these statutes apply to the construction of the Downtown Expressway. A NEPA statement is needed only when there is present “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Federal action is typically present only when a project is wholly or partly federally funded. Similarly, the requirements of the highway statutes and the NHPA normally need not be met unless federal funding is approved to aid in construction of a highway. It is admitted that the Downtown Expressway will not directly receive any federal funds. This fact alone is not dispositive however of the question of whether federal laws must be followed. Courts have recognized situations in which no federal funds have been authorized for a particular highway, yet the highway has, through various circumstances, taken on such a federal character that the purposes behind the federal laws would be defeated unless their requirements were met. It is this sort of federal involvement that the plaintiffs allege is present in regard to the Downtown Expressway. The first federal contact with the Downtown Expressway, albeit tangential, came through partial federal funding of the Richmond Regional Area Transportation Study begun in 1964 and completed in 1968. These Highway Planning and Research Funds are apparently granted to help states fulfill the requirements of 23 U.S.C. § 134 that any proposed highway within an urban area must be encompassed within a comprehensive transportation plan before federal funds can be allotted toward it. It by no means follows, however, that every urban highway encompassed within a given plan will receive federal funds. As the Court has noted, original plans called for RMA itself to construct and finance through revenue bonds the entire expressway system. By 1967, however, RMA concluded that this was not feasible and began exploring alternative means of financing the project and, in late 1967 and 1968, entered into discussions with the Virginia Department of Highways, and subsequently the Federal Highway Administration (FHWA), concerning the possibility of federal aid for a portion of the project. On September 15, 1967, a meeting was held in Washington, D. C., to discuss the problem, with representatives of the Virginia Highway Department and the FHWA in attendance. A similar meeting was held on June 24, 1968, this time with members of RMA present. At the conclusion of the meeting, F. C. Turner, Director of the FHWA, suggested that the Highway Department forward a formal request for federal funds to the FHWA. As a result of this suggestion, J. E. Harwood, Deputy Commissioner of the Highway Department, by letter dated July 2, 1968 to J. F. Sullivan, Division Engineer of FHWA, .formally requested that interstate mileage which previously had been allotted to 1-295, a beltway around Richmond, be transferred to a portion of the expressway system. Harwood’s request was for federal funding for the highway which had previously been designated as the major part of the Beltline Expressway, running from Bryan Park at the juncture of Interstates 64 and 95 north of Richmond to approximately the intersection of Me-Cloy Street and Idlewood Avenue. It was requested that this road be constructed as a spur of Interstate 95 and be designated as 1-195. On September 17, 1968, Douglas B. Fugate, Commissioner of the Virginia Highway Department, wrote to F. C. Turner requesting a response to the July 2d letter. This response came on October 17, 1968, in the form of a letter from Sullivan to Harwood. In it, Sullivan denied the request for the transfer of interstate mileage from 1-295. He did not, however, respond to an alternative request made by Harwood on Octo- • ber 10, 1968, that the highway in question be built as an interstate spur with additional mileage allotments that Congress had granted the FHWA in 1968. Subsequently, the Virginia Highway Department and RMA began consideration of a proposal that would have involved the FHWA directly in the Downtown Expressway. On October 28, 1968, Harwood wrote Sullivan that the Highway Department had under active consideration a proposed request of federal funding for the entire Downtown Expressway. The formal request for this additional funding was made by letter dated November 13, 1968, in which Harwood requested that Interstate Route 95, a major north-south artery, be rerouted over the Beltline and Downtown Expressways. The primary reason given for this request was to relieve congestion on the Richmond-Petersburg Turnpike, and the letter’s emphasis suggests that the Virginia Highway Department considered the principal function of the Downtown Expressway to be as a link with the Beltline Expressway for the purpose of providing another limited access route through, rather than into, Richmond. RMA’s resolution which formally requested the State to seek federal funds for the Downtown Expressway was forwarded to the FHWA on December 2,1968. Strangely enough, the Court can find no further reference to this request for federal funding for the Downtown Expressway in the voluminous documentary record. In a deposition, however, F. C. Turner, the Director of the Federal Highway Administration at the time, stated that the FHWA did not have sufficient undesignated interstate mileage to fund the “entire loop,” as he phrased it. He further testified that the State “made a request to us to divide the loop into two parts,” with federal funding for the Beltline Expressway and local funding for the Downtown Expressway. The Court cannot determine when that request was made, but on April 29, 1969, Fugate wrote a lengthy letter to Turner renewing his request for federal funds, solely for the Beltline Expressway. This request for Beltline funding was finally approved on July 18, 1969. The apparent success of the Highway Department’s request for federal funding was tempered by virtue of a communication dated July 31, 1969. On that date, J. F. Sullivan of FHWA wrote to Fugate expressing his understanding that the grant of federal funds was made upon the condition that the Downtown Expressway would be constructed “to Interstate standards and is to be operative concurrently with or prior to completion of the 1-195 spur.” On the same day that he received this letter, Fugate wrote to Turner expressing his concern over the condition which Sullivan had placed on federal funding. Fugate stated that the current condition of the bond market might require a delay in the issuance of bonds by RMA and thus might make it impossible for the expressway to be constructed concurrently with the 1-195 spur. He further expressed his fear of the public embarrassment which the announcement of this condition might well cause. Turner did not respond to Fugate’s letter until November 6th, 1969. In his letter of that date, Turner expressed his belief that the Downtown Expressway and 1-195 “complemented” one another and that their concurrent availability was necessary to assure an efficient use of each of them. He welcomed Fugate’s further thoughts on the matter. Fugate readily accepted this invitation. On November 10, 1969, he wrote Turner again requesting that the condition imposed by the July 31, letter be dropped. He stated that “even without the construction of the southeasterly extension [Downtown Expressway], this spur of 1-95 would connect to major streets in the city and would be of immense value in the relief of traffic congestion.” No immediate response to this letter was forthcoming. Subsequent to the November 10 letter, RMA developed an alternative proposal which it hoped would satisfy the federal officials. This proposal called for the construction of the Powhite Parkway and the James River Bridge to connect with the Chippenham Parkway concurrent with 1-195. A meeting was arranged on March 27, 1970, to discuss this proposal as an alternative to the Downtown Expressway condition on federal funding, and on April 3, 1970, Fugate formally requested such an alternative. On April 24, 1970, Turner approved this request. In his letter, he stated the following: We concur that the construction of I-195 and the toll-highway segment south to S.R. 150 will complete a useable highway facility. We, therefore, withdraw Mr. Sullivan’s July 31, 1969, condition of approval and substitute the following: The approval of the addition of Interstate Route 195 is given with the understanding that the freeway route extending the highway facility south to S.R. 150 will be scheduled for construction and completed concurrently with 1-195. Additional communications between the federal and state defendants were made subsequent to the final approval of federal funding for the Beltline Expressway embodied in the April 24th let-ter. One set of letters concerned the possibility of bringing the Downtown Expressway within the Federal-Aid Highway System and numbering it as 1-195, the same as the spur to be financed by federal funds. The initial proposal to this effect was made by J. E. Harwood in a letter dated January 19, 1972. In that letter, Harwood requested that the FHWA add the Downtown Expressway to the interstate system pursuant to 23 U.S.C. §§ 129(b) and 139. Under this provision, no federal funds are provided for construction or maintenance, but the roads are designated as a part of the interstate system and numbered accordingly. Harwood cited seven reasons to support his request, but they may be summed up by his statement that “[w]e believe the continuation of the numbering of Interstate Route 195 over the Richmond Metropolitan Expressway to be essential to a unified and connected Interstate System in the Richmond Metropolitan area.” H. C. King responded to Harwood’s request on March 16i 1972, outlining the steps that would have to be taken to make the Downtown Expressway a part of the interstate system. After receipt of this letter, the Highway Department and RMA apparently decided that the request should be deferred until after the construction of the Expressway. One fear expressed by Harwood was that “the inclusion of this entire route in the Federal Aid System would mean the possibility of the imposition of Federal regulations, and we might get involved in the environmental considerations, etc.” In addition to the federal funding of the Beltline Expressway, the plaintiffs argue that there is federal involvement in the Downtown Expressway by virtue of the decision by the state and city defendants to fund the construction of the MeCloy to Meadow Connector. The record reveals that the Virginia Highway Department agreed in 1972 to fund this segment of the highway if the City of Richmond would contribute fifteen per cent. By letter of December 19, 1972, the City agreed to advance the funds necessary for the construction in accordance with the proposed plan. According to the testimony and affidavit of Douglas Fugate, no federal funds will be used in the construction of this section of highway. Non-interstate federal aid highway funds, which can be used to finance fifty per cent of a highway project, could have beefi used to pay for the MeCloy to Meadow Connector. Apparently, the decision as to which roads within a state will be financed with federal funds, and thus must meet the requirements of federal law, is a decision entirely within the discretion of state highway officials. Commissioner Fugate was candid in admitting that, wherever possible in Virginia, federal funds are used on rural rather than urban projects because there is likely to be more environmental controversy over urban projects and the federal law requirements may thus be more difficult to meet than they would be in a rural area. In the ease of the MeCloy to Meadow Connector, this policy was followed, and the Highway Department has elected to use only state and local funds. Upon a thorough examination of the entire record, the Court must conclude that there is an unresolved question of fact as to whether federal funds would have been approved for 1-195 had the FHWA not anticipated that the Downtown Expressway would eventually be built. It is true that in his deposition, Francis C. Turner, Director of the FHWA, suggests that there was sufficient justification for the construction of the spur even in the absence of the Downtown Expressway. He does not, however, state flatly that 1-195 would have been approved for federal funding if there had been no plans for a southeasterly extension of it to connect with 1-95. The record strongly suggests that this extension was a major factor underlying federal funding. Indeed, it was originally felt to be so important that the FHWA demanded that it be constructed concurrently with the federal road. Even though this condition was subsequently removed, the record reflects assurances that the Expressway would eventually be built. For example, in his letter of July 31, 1969, urging the removal of the condition of concurrent construction, Douglas Fugate stated to F. C. Turner that “we know beyond any doubt that the Authority will build the expressway.” In light of such assurances, the Court cannot say that the ultimate construction of the Downtown Expressway did not remain an important and perhaps crucial factor in the funding decision. Accordingly, for purposes of this motion, the Court will assume that federal funds would not have been forthcoming for 1-195 had the FHWA not anticipated that the Downtown Expressway would be constructed to link 1-195 to 1-95. The plaintiffs advance a two-pronged argument in support of their contention that there is sufficient federal involvement in the Downtown Expressway to require adherence to federal law. First, they argue that RMA and the Virginia Highway Department each have maintained the option of securing federal funds in the future for the Downtown Expressway and the McCloy to Meadow Connector, respectively, and that the preservation of this possibility for federal funding is sufficient to require that federal statutory requirements be met. La Raza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971); Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal.1972). Second, the plaintiffs argue that the entire Richmond Expressway system is an integrated, interdependent system and that the federal involvement in the original planning of the whole system and in one major highway is sufficient to make the entire system federal in nature. The cases cited for this proposition are Named Individual Members of the San Antonio Conservation Soc. v. Texas Highway Department, 466 F.2d 1013 (5th Cir. 1971) and Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972). The Court will consider these arguments separately. In La Raza v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), the district court was called upon to decide at what stage in the lengthy process of highway planning and construction a given project becomes federal in nature. The court concluded that the requirements of federal law must be met once the FHWA gives location approval to a highway pursuant to FAHA. This is so even though local authorities have not yet requested federal funds at the time of this approval and, indeed, may never actually request federal funds for the project. Finding the congressional concern for the environment as reflected in the relevant statutes to be very strong, and the possibility of avoiding the requirements of federal law to be very real, the Court concluded that “[t]he state should not have the considerable benefits that accompany an option to obtain federal funds without also assuming the attendant obligations.” 337 F.Supp. at 227. In Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal.1972), the same district court had the opportunity to consider how the rationale of La Raza Unida applied in a case in which local highway authorities had by their acts already given up the option of securing federal funds. The record in Sierra Club revealed that both state and federal highway officials had complied with federal law requirements for more than ten years in order that the state might, if it so desired, secure federal funds. At the last moment (indeed, after litigation had begun), federal aid was waived. Notwithstanding the fact that no federal funds would be available for the highway project, the court held that this last minute waiver “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.” 351 F.Supp. at 1007. This Court is in full accord with the results in La Raza Unida and Sierra Club. The administration of federal highway trust funds greatly resembles the block grants of the Law Enforcement Assistance Administration with which the Court was concerned in Ely v. Velde, C.A. 459-70-R (E.D.Va., Dec. 21, 1972.) Virginia, for example, will receive approximately $30,000,000 of federal money in 1973 for primary road construction, which money will go into a general pot along with state funds. If a given project is denominated as federal, half of its costs-will be paid for from the $30,000,000 in federal money and the relevant statutory requirements will have to be met. The decision as to which highways will or will not be federally aided is entirely within the discretion of state highway authorities. Even after a given project is classified as federal, however, the nature of the operation of the funds allows simple bookkeeping shifts to avoid the requirements, of federal law. As occurred in Velde, for example, a state might secure final federal approval and then, realizing- that statutory requirements might be too difficult to meet, repudiate the funds for that project. Such funds would not be lost, however, but could be used on another project where the federal requirements could be met more easily. This procedure would in effect allow highway authorities to avoid taking environmental considerations into account for those projects in which the environment may be most seriously harmed. Such a result unquestionably is counter to, and, indeed, defeats, the strong environmental policies expressed by Congress in NEPA and in the highway statutes. Named Individual Members of San Antonio Conservation Soc. v. Texas Highway Department, 446 F.2d 1013, 1027 (5th Cir. 1971); Ely v. Velde, C.A. No. 459-70-R (E.D.Va., Dec. 21, 1972); see Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972). In addition to the problems .which block grants may pose, the court in La Raza Unida doubtless was also concerned with the possibility that state highway officials might not declare a project to be federal until so late in the planning process that the ability to meet federal requirements would be impaired. An environmental impact statement under NEPA, for example, must be made early in the highway planning process to have an optimal effect. Although the FHWA would not approve a project where the federal law requirements are not met, there is no set time at which, for example, a NEPA statement must be made. The FHWA might well approve a project for which one is drawn up, but done so later than would normally be desirable. The Court in La Raza Unida no doubt sought to avert this problem by declaring a project to be federal early in the planning process. For one or both reasons, therefore, courts have concluded that highway projects must become irrevocably federal at some point prior to actual construction in order that the requirements of federal law not be diluted. La Raza Unida held that the federal imprimatur attaches early in the planning process, when federal approval is given to the location of a highway. As long as location approval is requested and granted and as long as all other conditions to federal funding have been met, then under La Raza Unide the project is federal. This Court, however, need not decide whether the federal imprimatur attaches as early as was held in La Raza Unida. The reoord in this case is overwhelming to the effect that the Downtown Expressway and the McCloy to Meadow Connector were never considered to be federal. Notwithstanding the fact that La Raza Unida declared a highway project to be federal early in the planning process, it most assuredly did not hold that a project could be federal where no federal participation had ever taken place. This is so even if the possibility existed for securing federal funds in the future. The record reveals no federal participation in the planning of either the Downtown Expressway or the McCloy to Meadow Connector, other than the regional planning funds granted for the 1964 study, to which little significance should attach, that would suggest that federal funds may be available in the future. Quite to the contrary, the FHWA disapproved the possibility of federal financing for these roads. Although it would appear that the public hearing held on November 8, 1966, would satisfy the requirements of federal law, no use was ever made of this hearing that resulted in federal approval for the roads. No possibility exists for federal funds for the Downtown Expressway, since RMA is committed to building that highway as a toll road which precludes it from being given federal funds in the future. Similarly, though the record does not indicate whether the McCloy to Meadow Connector is to be operated as a toll facility, there is no suggestion that the Highway Department or the City of Richmond in any way sought federal approval of the preliminary plans in order to preserve the possibility for future use of federal aid funds. The fact that the Highway Department may not have taken affirmative steps which would prevent the future use of federal funds certainly does not make the Connector federal. The Highway Department has the discretion to use only state funds if it desires, and, as long as it does not take steps to preserve future federal funding, the highway is not subject to federal law. Douglas Fugate’s stated reasons for not using federal funds in this case, to avoid environmental controversy is irrelevant, at least until some federal participation in the planning process takes place. None has been shown here. The plaintiffs seek also to establish federal involvement in the Downtown Expressway by means of the “project splitting” theory. This terminology stems from the use of the word “project” in the highway acts’ requirements that the Secretary of Transportation not approve for the allocation of funds any federal project which has not met all of the relevant statutory requirements. The project concept has been found useful by the courts considering highway cases and has been extended to define “federal action” under NEPA in these cases. Simply stated, the theory holds that state and federal highway authorities may not avoid the requirements of federal law by splitting what is in essence a single, federal project into several segments and funding certain of those segments with state funds only. See Named Individual Members of San Antonio Conservation Soc. v. Texas Highway Dept., 446 F.2d 1013 (5th Cir. 1971); Thompson v. Fugate, 347 F. Supp. 120 (E.D.Va.1972); Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal. 1972) . The Court agrees with the first premise which the plaintiffs must establish in order to prove that the defendants have segmented a federal project: the highways comprising the Richmond expressway system are perceived by their planners as unified and interdependent, each relying upon the others for its most efficient use. This conclusion does not mean, however,