0001 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA 2 MACON DIVISION 3 4 CAUTION MACON, INC., ET AL, ) ) 5 Plaintiffs, ) 5:99-CV-383-2 (DF) ) JANUARY 5, 2000 6 vs. ) MACON, GEORGIA ) BEFORE THE HONORABLE 7 CITY OF MACON, GEORGIA, ET AL,) DUROSS FITZPATRICK ) 8 Defendants. ) ______________________________) 9 10 11 PRELIMINARY INJUNCTION HEARING VOLUME I 12 13 APPEARANCES: 14 FOR THE PLAINTIFF: 15 RICHARD N. HUBERT, ESQUIRE 16 CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN NINTH FLOOR 17 191 PEACHTREE STREET, N.E. ATLANTA, GEORGIA 30303 18 19 FOR THE DEFENDANT FEDERAL HIGHWAY ADMINISTRATION: 20 JAMES C. THOMASON, ESQUIRE 61 FORSYTH STREET, S.W. 21 SUITE 17T26 ATLANTA, GEORGIA 30303 22 H. RANDOLPH ADERHOLD, ESQUIRE 23 U.S. ATTORNEY'S OFFICE MIDDLE JUDICIAL DISTRICT. 24 P. O. BOX U MACON, GEORGIA 31202 25 0002 1 2 3 4 FOR THE DEFENDANT GEORGIA DEPARTMENT OF TRANSPORTATION: 5 CATHY COX-BRAKEFIELD, ESQUIRE STATE OF GEORGIA DEPARTMENT OF LAW 6 40 CAPITOL SQUARE, S.W. ATLANTA, GEORGIA 30334-1300 7 JOHN DRAUGHON, ESQUIRE 8 SELL & MELTON. P. O. BOX 229 9 MACON, GEORGIA 31202-0229 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: Good morning, ladies and gentlemen. 3 Everybody ready to proceed? 4 MR. HUBERT: For the plaintiff, your Honor, I am 5 Richard Hubert. We are ready to proceed. 6 THE COURT: All right, Mr. Hubert, would you like to 7 make an opening statement? 8 MR. HUBERT: I would, your Honor. 9 If the court please, I am Richard Hubert, and I 10 represent the plaintiff CAUTION Macon, Inc., and certain 11 individual plaintiffs in this case. Which is, your Honor, a 12 case brought under the National Environmental Protection Act, 13 and the related Administrative Procedure Act, and other acts set 14 forth in the complaint that would authorize this court to 15 inquire into and decide the questions of whether or not the 16 funding for these projects is appropriately authorized under 17 those particular protective and environmental protective acts. 18 Your Honor, the case will be presented in large part 19 by persons who have examined what has gone into forming the 20 environmental assessment in this case. And based on the 21 environmental assessment, the finding by the governmental 22 defendants in this case that a FONSI, or a Finding of No 23 Significant Impact is justified for the Houston Road Development 24 and Improvement Plan. 25 THE COURT: That is what we are here to decide. I 0004 1 mean, the issue here is whether or not this Finding of No 2 Significant Impact, I believe it was signed in August of 1998. 3 MR. HUBERT: Correct. 4 THE COURT: Whether that was proper. And the court's 5 role, as I understand it, is to review the decision, but not to 6 substitute the judgment of the court for that of the agency. I 7 mean, I'm looking for capriciousness and arbitrariness and such 8 as that. Am I correct? 9 MR. HUBERT: You are, your Honor. Except the 10 important thing from the plaintiffs' standpoint in this case, 11 and I think for the court to understand is, that this act 12 provides certain procedures have to be followed, if the court 13 please, in order to accumulate and formulate an appropriate 14 environmental statement, and make a decision as to whether the 15 finding of no significant impact is justified. 16 Our focus in this case will be to show the court that 17 there have not been procedures employed -- 18 THE COURT: Okay. Let me interrupt you again. The 19 first thing in matters such as this, the first thing that is 20 done is an environmental assessment. Am I correct? 21 MR. HUBERT: That is correct. 22 THE COURT: All right. And then, if that 23 environmental assessment indicates that there could be 24 significant environmental impact, then you go on and make and 25 prepare an environmental impact statement. 0005 1 MR. HUBERT: That is correct, your Honor. 2 THE COURT: And no -- that is, no environmental impact 3 statement was performed, was produced. 4 MR. HUBERT: The environmental impact statement was 5 not performed in this case, your Honor. We think erroneously 6 and improperly. And substituted for that environmental impact 7 statement was the FONSI, Finding of No significant Impact. 8 THE COURT: After the environmental assessment, you 9 can go either one of two ways. Either you can go towards an 10 environmental impact statement. 11 MR. HUBERT: Correct. 12 THE COURT: Or a Finding of No Significant Impact. 13 MR. HUBERT: That is correct. Call it FONSI. 14 THE COURT: You come to a fork in the road. In this 15 case, it was decided to go the FONSI route rather than the 16 environmental impact statement. 17 MR. HUBERT: Your Honor, it was. And it is at that 18 particular point we say it was in fact arbitrary, capricious and 19 without any justification for it. 20 In particular, the evidence in this case will show 21 that there were alternatives, including a no-build alternative 22 that had to be considered in this case. And our evidence will 23 be introduced from numerous sources, three expert witnesses and 24 some lay witnesses who have examined and in fact prepared our 25 own sort of environmental impact statement. 0006 1 We expect to introduce in this case what will be 2 Plaintiffs' Exhibit 1, which is CAUTION Macon's own statement of 3 environmental impact, or environmental impact statement, that 4 indicates that even though this particular neighborhood 5 association, not made up of professionals and not made up of 6 persons who are authorized and required to do such a thing, put 7 together such a statement that did consider alternatives, did 8 consider, in depth, what kind of modeling should be done to 9 determine whether or not the alternative should be considered or 10 a no-build alternative should be considered. And it is our 11 contention -- 12 THE COURT: Was this information presented to the 13 Federal Highway Administration? Was this considered -- as you 14 know, we have got a Motion in Limine here, filed by the 15 defendant, indicating that they want a ruling limiting the 16 court's review of the matter to the administrative record, and 17 ask that no evidence, including but not limited to testimony, be 18 considered that is not a part of the record, as it existed 19 before the various administrative agencies involved in making 20 the determination for Macon, Bibb County Road Improvement 21 Program. 22 MR. HUBERT: Your Honor, the restricted application of 23 that rule would deny us a fair hearing and due process of law 24 and constitute a prejudgment of the evidence in this case, 25 before it was supplied. And I would ask that you overrule or 0007 1 limit the Motion in Limine. But it is the case that we will be 2 talking about, what is in the administrative remedy, and whether 3 it is adequate or not adequate. 4 And, your Honor, the emphasis on the plaintiffs' case 5 will not be on the substantive issue, what you referred to as 6 substituting your judgment for that as the policy makers. Our 7 emphasis in this case, will be, as the acts requires us to do, 8 and that is to look to see if they followed the proper process 9 and procedures to be able to arrive at a valid environmental 10 assessment and, thereafter, environmental impact statement, and 11 the decision to go with either the FONSI or nonFONSI. And it is 12 at that point, your Honor, we expect the evidence to show in 13 this case that that simply was not done. The environmental 14 assessment is a conclusory document. Does not consider 15 alternatives. Did not consider the no-build alternative. And 16 when it did, it used a model that was far different from that 17 which had the same dignity and integrity that the models you 18 have to do in considering the alternatives. 19 There was historic property, the evidence will show, 20 that was supposed to be considered that simply was not 21 considered. And, frankly, in this case we will show that there 22 was a kind of effort to deal with the historic property in such 23 a way that there can be no decision except, by this court, 24 except that there was an effort to suppress any information that 25 would cause this road to have to be changed, and the information 0008 1 was actively sought to be suppressed. It was also ignored, and 2 various efforts were made to obviate the necessity of dealing 3 with an environmental impact statement. 4 We will submit evidence that the air quality issues 5 did not consider the three issues that are affecting Macon. 6 They considered one of the issues of air quality, but absolutely 7 omitted considering the sulfur and particulate matter, and other 8 issues that had to be considered for an environmental assessment 9 to be a meaningful document. And in this case they simply did 10 not do that. 11 Judge, at the end of the day, it is the plaintiffs' 12 contention that what we'll be asking is that this court require 13 the federal defendant and the state defendants, both, to cease 14 funding this project until an adequate and appropriate 15 environmental impact statement has been formulated in final form 16 throughout the system. Which requires that it be an 17 interdisciplinary statement; that it proceed on an ongoing basis 18 and, as a matter of fact, continue up through and beyond the 19 period that the construction goes on; that it go through the 20 comment period and have various agencies comment on it; that 21 those comments be considered by the administrative agency, and 22 that there be a public hearing on those issues, as is prescribed 23 by the act. 24 One of the problems with the Motion in Limine is that 25 public hearing, you asked if we had, if we had actively sought 0009 1 to participate in the administrative process. And the answer to 2 that, your Honor, the evidence in this case which show there was 3 every effort to make to participate in the administrative 4 process. Frequently, without any real consideration of our 5 views, without any contention that we should, our objections 6 would be considered, without any acknowledgment that there were 7 alternatives that could be considered. And we end up with, and 8 the document will be before you, an environmental assessment 9 that is largely a conclusory document which deals on a very 10 superficial basis with all the important issues in this case. 11 And it is that point, your Honor, that we think indicates that 12 there has been an abuse of the authority and power by the 13 governmental defendants in this case to try to accomplish 14 something which obviates the legal responsibility that the law 15 imposes. 16 THE COURT: Let me interrupt one more time. In 17 addition to the four factors that you must establish to get a 18 preliminary injunction here, the defendants have raised the 19 issue of latches; that this project was approved in August of 20 '98 but suit was not filed until -- was it August -- when was 21 suit filed here? 22 MR. HUBERT: Your Honor, that is consummately wrong 23 and incorrect, and that represents a determination on their part 24 as to when they thought the thing was concluded. 25 It is very clear that it is not concluded today. It 0010 1 wasn't concluded in 1999, and in fact it was changed in 2 substantial fashion and significantly in terms of how the 3 project was going forward as late as a couple of three months 4 ago. 5 And when we think, when we think that you can closest 6 say that it was at a point where we knew what was going to be 7 built out there, and the last changes and amendments were made 8 to the project, that should have been but were not included in 9 the environmental analysis, was in September and November of 10 this year. 11 But beyond that, your Honor, the difficulty is one of 12 rightness. If you come in too early, then the governmental 13 defendants are justified in saying, we have not completed our 14 process yet. We have not done our planning that we have to do, 15 and we have not accomplished that which we have to accomplish 16 under the act to be able to show that it was a hard look at both 17 the project and the alternatives that were to be considered. 18 If you wait, as we did here, until at least there was 19 an ostensible termination of all further refinement and 20 development of the project, the governmental defendants always 21 contend that this is latches. And you are guilty of latches. 22 As relates to that, the evidence in this case will 23 show that we put them, we participated and we are pointing out 24 where we thought they had failed to meet the requirements all 25 throughout the process. We wrote letters. We asked for 0011 1 procedures by which we were allowed to be mediating certain 2 issues. We went through mediation, or tried to go through 3 mediation, with certain people who are, Mr. Kulash and others, 4 for example. There were certain changes made as a result of 5 that. And even as late as the time we filed this lawsuit, we 6 had some idea. And the preferable way would have been to have 7 tried to get together and have these alternatives considered in 8 the mediation context. 9 It seems to me to construe the matter very strangely 10 to say that we are guilty of latches. The process was ongoing. 11 It was undertaken in good faith, and our participation has been 12 since the inception right up to the time when they threatened to 13 let the contract. This lawsuit was filed before the contract 14 was actually signed and let, and acknowledged officially. 15 So it is our contention that while the court will 16 inquire into that, there is no merit to the latches argument. 17 There is a second part of the case which deals with 18 the state claim, if the court please, and that is, it is the 19 contention of the plaintiffs in this case, we'll be supported in 20 the evidence, that the referendum that authorized the optional 21 one percent sales tax for the building of this road, was based 22 on a notice and election ballot that simply misdescribed what 23 this project is. And what was voted on in terms of that 24 project, was a two-lane road. What is being built out there is 25 a five-lane road. 0012 1 And it is our contention that even as part of a, an 2 appendant state claim, even as relates to the local financing, 3 if the court please, that was done under procedures which cannot 4 be countenanced in terms of a statement of the electorate as to 5 how and what they were going to be taxed. Because it simply 6 misdescribed exactly what was to be built and how this road was 7 to be affected. 8 There is one further matter which I think the court 9 would be interested in. And that is, it deals with the concept 10 of whether our assault on this project and the environmental 11 work that was done, is of an appropriate scope. 12 It is our contention that this particular project must 13 be considered globally. That is, the Macon, Bibb County Road 14 Improvement Plan is of a piece, it is integrated and related in 15 every way, and it has to be considered in its totality rather 16 than just on a piecemeal basis. 17 And it is our contention, and the evidence in this 18 case will show sufficient facts for the court to find, we 19 believe, that there has been and used in this case, an attempt 20 to segment or engage in segmentation of this project. 21 And all that means, judge, is that if you take the 22 whole project, and you don't want to do an EIS, and you don't 23 want to go through the laborious task of having to consider 24 alternatives and build models and use a means of determination 25 as to how that would affect the project, then you are restricted 0013 1 to a, talking about a 3.2 mile road. This case should not deal 2 with a 3.2 mile road called Houston Road. The case should be 3 considered as a part of the whole. Because each of these 4 particular streets relates to another street. The traffic 5 bearing ability of these thoroughfares and connector streets are 6 all interrelated. Certainly, the water problems, the air 7 problems, the noise problems and the kind of things that we are 8 dealing with, environmentally. Our neighborhoods are affected 9 and the socioeconomic condition of the area as connected cannot 10 be restrictioned to just one 3.2 mile stretch of road going from 11 Allen Drive up to Sardis Church Road. 12 So it is our contention that what has been done in 13 this case, and the evidence I think will support, is that the 14 defendants, in order to obviate the necessity of dealing with a 15 full-blown EIS, simply truncated this entire process by 16 segmenting the consideration, saying, we will consider only the 17 Houston Road segment of it and not anything else. 18 And I think the case is clear that the Fall Line Road 19 and numerous other roads, all these are being considered as a 20 whole, as a package. And in this particular case there is the 21 exception to the rule, and that is based on the notion that the 22 federal defendants and state defendants would prefer not to deal 23 with the whole issue because of the environmental consequences 24 and therefore engaged in what we call illegal acts of 25 segmentation. 0014 1 It is the contention of these plaintiffs here that 2 this project should be restricted in terms of its further 3 development. The funding should cease absolutely, both on the 4 federal and state level until there has been a full and complete 5 and total compliance with NEPA, in a way and matter that NEPA is 6 designed to do. And that is, it should be an independent, hard 7 look at alternatives. It should be an interdisciplinary 8 approach to the entire environmental questions that are being 9 presented. It shall assess environmental impact. It should go 10 through the public hearing process in a meaningful way. It 11 should be commented on by other agencies and sent back. And 12 when it is sent back it should be considered by the federal 13 administrative, highway administration in its totality, before 14 they adopt a final environmental impact statement. That process 15 has to be complied with. 16 What they have done in this case is illegally and 17 improperly simply obviate the necessity of dealing with that 18 whole matter by assuming that a FONSI would eliminate the 19 responsibility to prevent doing so. And that is what they have 20 pursued in the case. That is what the evidence will be in this 21 particular matter. 22 THE COURT: All right. Thank you. 23 MR. ADERHOLD: Good morning, your Honor. My name is 24 Randy Aderhold. For the record, I am an Assistant United States 25 Attorney for the Middle District of Georgia. We are here today 0015 1 to represent the federal defendants. 2 My cocounsel, your Honor please, is sitting here to my 3 left. His name is James C. Thomason. He is Assistant Chief 4 Counsel, Federal Highway Administration in the Atlanta, Georgia 5 office. Mr. Thomason will offer brief opening for us, if your 6 Honor please, at this time. 7 THE COURT: All right. 8 MR. THOMASON: Good morning, your Honor. I am the 9 principal lawyer for Federal Highway Administration, as the 10 federal defendant in this case, and represent the Georgia 11 division office of FHWA whose division administrator is the 12 federal official whose decision is challenged. 13 As I listened to Mr. Hubert's opening address, and 14 noticing the court's questions; you have correctly identified 15 the focus of what is a matter, a limited matter before this 16 court. 17 The federal decision that is challenged is the 18 environmental assessment and the Finding of No Significant 19 Impact for a construction project of 3.2 miles on Houston Road 20 in South Bibb County. It is not before, you would reach that 21 because the only statutory basis, or violations alleged in the 22 complaint, is a violation of NEPA. NEPA has no private right of 23 action. It is reviewable in the district courts of this country 24 under the Administrative Procedures Act, which allows district 25 courts to review final agency actions other than those committed 0016 1 to the discretion of the agency, under a standard of arbitrary 2 and capricious, and not otherwise according to law. 3 Correctly stated -- I don't think Mr. Hubert would 4 agree -- but the only thing before you is the division, federal 5 highway division's decision to finalize NEPA with a Finding of 6 No Significant Impact after a public hiring. There was no, what 7 it meant was, there was no significant environmental impacts to 8 the project. Therefore, the NEPA scrutiny had come to an end. 9 I think, to go back, the Motion in Limine is well 10 taken, although raised by the county. 11 The court's inquiry, as we have noted in our brief in 12 opposition in our bench brief, the clear decisional authority 13 under NEPA and the APA, is that the court pays deference, 14 substantial deference or considerable deference -- it is 15 expressed both ways -- to the agency's decision. And it is 16 clear that in, particularly the Eleventh Circuit, that the court 17 is not clear, is not permitted to substitute its judgment to 18 that of the secretary. 19 So we will, the document on its face shows that it was 20 procedurally correct. His arguments, primarily, as I take it, 21 go to the substance. And throughout the complaint it is very 22 conclusory and very vague, as you can tell from reading it. It 23 simply says, for noise and air and runoff and wetlands, that 24 sort of thing, that the document is inadequate on its face 25 without giving any adequate notice under the federal rules to 0017 1 any of the defendants. The document on its face shows the 2 adequacy of the review. And even a simple reading, quick 3 reading of it, based on the decisional authorities, would show a 4 review in court that it is hardly arbitrary, capricious or 5 otherwise violative of law. 6 What is inexorably linked to his argument is that 7 Houston Road, it doesn't stand alone. Does not have logical 8 termani, does not have independent utility; does not stand alone 9 as a project to be considered by the Federal Highway 10 Administration. The document on its face shows that it does. 11 The traffic, the accidents, the need and purpose for which the 12 project was proposed in the first place was to deal with current 13 and existing anticipated traffic, and the consequential rise in 14 accidents on that stretch of highway. 15 As we, for the federal highway, this is a relatively 16 simple highway project. It takes on an importance to the 17 plaintiffs, and to Mr. Hubert in particular, that it seems to 18 have an unwarranted but important role in a greater universe to 19 them, which is the local transportation planning for the City of 20 Macon and the Bibb County, Georgia. 21 Federal Aid Highway System is a federally aided state 22 highway program. When the Congress established the Federal Aid 23 Highway System in 1966, when it established the Department of 24 Transportation, specifically reserved to each state its 25 sovereignty over the origin, the selection, the prioritization 0018 1 of its highway and transit projects. 2 Congress, in its appropriations to enabling acts for 3 the highway industry in the states, over the years, has provided 4 funding categories on a fiscal, annual basis, and categories of 5 eligibility of tips of facilities. Houston Road would be one of 6 those that Congress has provided. 7 But within that system, Federal Highway 8 Administration, or even the secretary of transportation, his 9 boss, does not have the authority or control to initiate, to 10 change, to alter, to persuade, accept or reject on his own, or 11 her own, any local city, highway project or transit project, any 12 county highway or transit project, or any project of the State 13 of Georgia Department of Transportation. 14 How it works, and which I think they should have 15 acknowledged and then argued something to the contrary; is that 16 when the Federal Highway Administration is asked about the 17 eligibility of a particular project, it is that proposal, it is 18 that federal action or that federal approval that is within its 19 control and jurisdiction. And Save Barton Creek, the civic 20 association case in '93 Fifty Circuit case, it has an excellent 21 explanation of the Federal Highway Aid System, highway program 22 and the roles of the federal highway, federal government and of 23 the state, highway departments who propose projects on their own 24 behalf and for cities and counties in their cooperative state 25 programs. 0019 1 The transportation, the local transportation program 2 of the City of Macon is not something over which we have any 3 authority or control. Neither do we have any authority or 4 control over the road program or the transit program or the 5 bridge program of Bibb County. 6 If they come through the state DOT to preserve 7 eligibility for federal aide funding, then we see that the 8 procedural and substantive processes that we have in 23 CFR are 9 complied with to preserve its eligibility; often states and 10 propose many highway projects which ultimately are built with 11 state dollars and not with federal aide funds. But they have 12 prudently preserved their eligible for the federal funding by 13 observing the other environmental statutes and regulations, by 14 having public involvement and other agency comment, and having 15 an approved environmental document and a completion of our NEPA 16 process prior to their moving ahead with the decision to do 17 design by right-of-way and go to construction. 18 Simply, the cases are clear, simply applying for and 19 preserving your eligibility through NEPA does not make, if the 20 state then wishes to build it on its own with its own funds, 21 with the county, for that matter, doesn't make it thereafter 22 subject to federal regulations. The state, as a sovereign, is 23 free then to look into its own purse and pay for it, to move 24 ahead by its own desires. Congress, the limitation on our 25 agency is that clear. And that is the day-to-day understanding 0020 1 that these engineers all work under. 2 To suggest that Houston Road has a place within some 3 global EIS, also, is completely contrary to the, to our 4 regulations under NEPA, and to every decisional authority by 5 every circuit that has dealt with, particularly, highway cases. 6 I dare say there is no case that can be cited to you for the 7 proposition that he has just argued. 8 Quite the contrary. For example, Congress, in the 9 most recent highway act a year ago, has specifically excluded 10 from judicial review the metropolitan planning process and the 11 state-wide planning process by which the state and the 12 metropolitan planning agencies prepare their long range 13 transportation plans. There are a number of factors and things 14 to be considered. The preservation of the economic system in 15 the area. The preservation and the use and maintenance of 16 existing facilities, that sort of thing. 17 They have said, Congress has said quite clearly, we 18 don't want plaintiffs, however sincere and well intentioned, 19 suing the Federal Highway Administration and federal courts, 20 because they challenge the application of some of those 21 factors. 22 Likewise, it has been long-standing in our regulations 23 that the preparation of a designation of a network of highways 24 in a local, or state-wide, is exempt from NEPA. Planning has no 25 environmental consequences. Construction of a highway does but 0021 1 planning does not. They would have you believe, and to accept, 2 that the city, the city's long range transportation plan, or the 3 regional transportation plan for this county, that would include 4 the city and county, which would include the highway, transit, 5 pedestrian, ride sharing programs, land pools, those kinds of 6 things, bridges; every highway and transportation activity that 7 is acceptable to being, capable of being federally funded, must, 8 we must, the Federal Highway Administration, must perform an 9 environmental impact statement on the planning document that 10 identifies types of projects that might go forward. That is 11 totally contrary to the accepted decisional law. It is totally 12 contrary to the APA, the NEPA cases and to our regulations. 13 The Houston Road, in that document, you will see it is 14 clear on its face that for the need and purpose; one thing stood 15 out to me in 1966, on a relatively short stretch of road, there 16 were 79 accidents, I believe I have it correct, numerous 17 personal injuries and one fatality. The traffic and the growth 18 in the area that is both anticipated, not only anticipated, 19 forecast, was such that they considered the no-build, and they 20 considered other build alternatives within the document. And it 21 was the judgment that was accepted by the Secretary of 22 Transportation and Federal Highway Administration, that that 23 document complied with NEPA, and that a prudent engineering 24 judgment was that this type of facility that is under 25 construction now be constructed. We approved the document and 0022 1 that, thereby, finished NEPA and allowed that highway project to 2 go on to construction. 3 They don't say this, but they would really have you 4 substitute your judgment for that of the secretary's; that it is 5 imprudent or unwise or too great a priority now, it can wait, or 6 it should be considered otherwise. 7 Safety is the most important factor in highway 8 planning, and it was a prudent judgment then, and it was taken 9 only after there was a public hearing in which I take it both 10 CAUTION Macon, Inc., its members and supporters, and the two 11 individual plaintiffs participated. If they have participated. 12 That is what the regulations provide for. But no one can come 13 into this court and say, I participated but I want you to set 14 aside the secretary's judgment and substitute mine, because I 15 didn't get my way or I'm unconvinced. 16 It is the secretary's judgment, and absent it being 17 arbitrary or capricious, or not according to law, it must 18 stand. We all take part in things in public, public lives, that 19 we have different views, but there comes a time when a decision 20 must be made, and those whose, who have participated, but whose 21 choice is not taken, unfortunately must be satisfied with that 22 and not feel that they can come here and get relief without 23 acknowledging the existing law and asking you to set it aside 24 for some good reason. 25 The same argument as to why they waited to bring this 0023 1 litigation. Mr. Hubert made that in the Northern District of 2 Georgia in a case where he sued us and the state DOT for a 3 similar wideing project, Chambly/Tucker Road, in DeKalb County. 4 He argued then the same sort of thing, that if I sue you when 5 you finish the document, you would say that it is not right, and 6 if I waited for construction to start he would say you are too 7 late. Therefore, he never wins. There is never a time when we 8 would not say that, yes, this is an appropriate time. 9 We told him then, and the decisional law is out there, 10 the Finding of No Significant Impact is a final agency action. 11 It is a public document. It was done after a public hearing. 12 The regulations are clear. The decisional law is clear, 13 particularly in the Eleventh circuit. He was on notice then 14 that he should take such action as they deemed appropriate. 15 But, yet, they waited almost the entire year until the state had 16 begun construction to begin to initiate this litigation. 17 His argument that some mediation or good faith efforts 18 to resolve our differences, their differences -- we have no 19 differences with the locals on this. We simply approve the 20 document as it complies with our regulations. We have no role 21 in their disagreement. But the argument to you that some good 22 faith efforts from the lawyers and their clients to resolve it 23 doesn't toll any sort of equitable statute. 24 THE COURT: When was the FONSI filed? 25 MR. THOMASON: It was finalized in August of 1999. I 0024 1 beg your pardon, '98, I'm sorry. I'm having Y2K problems this 2 morning or something. It was an entire year. It has been that 3 long. 4 THE COURT: It is your position they should have come 5 forward soon thereafter or before that? Was any obligation on 6 them, on the plaintiffs, to do anything before this FONSI was 7 filed? 8 MR. THOMASON: To be quite candid with you, if they 9 found, we approved the EA and then it has public hearing and 10 comment period, then we take our final action, if in fact they 11 had sued us the time, the moment after the ink was dried 12 approving the EA, then I would say that is premature. We have 13 yet to see the public hearing or the comments. We have not made 14 our final agency action. But our regulations are rather clear 15 and the decisional authorities are clear. The FONSI, which 16 completes NEPA, -- 17 THE COURT: When the FONSI was filed all the public 18 hearings are over. 19 MR. THOMASON: Yes, sir, that is our final action. We 20 are prepared to go, or the state, we would tell the state, you 21 are authorized to proceed with the next phase of the development 22 of this project. Now, it may go on into right-of-way and design 23 and construction with using its own resources, or it may 24 continue to preserve its eligibility for federal aide funding. 25 But it is a pretty clear program that they would, they would 0025 1 argue that somehow we had become, contrary to all the decisions 2 of the circuits, a land use planning or a zoning agency for 3 local matters. And we don't. We would never see, particularly, 4 we don't have any authority over a local initiative, as I think 5 you had in 1994, to raise local tax revenues to fund city and 6 county roads. That is not an entity over which the secretary of 7 transportation would ever have any authority or control. 8 So it would be appropriate to limit your view to the 9 four corners of the document, and any testimony to the 10 inadequacies or the proof of what is within the, that document 11 alone. Some -- any testimony offered as to where this fits into 12 yet a greater system of roads that they would prefer, is wholly 13 inappropriate and unwarranted and it is objectionable. Thank 14 you. 15 THE COURT: Very well. 16 MS. BRAKEFIELD: Your Honor, my name is Cathy 17 Cox-Brakefield. I'm a Senior Assistant Attorney General for the 18 State of Georgia, and along with Mr. John Draughon of Sell & 19 Melton here, I represent the Georgia Department of 20 Transportation, a named defendant in this case. 21 I will not attempt to reiterate any of the 22 environmental positions or legal authorities cited by 23 Mr. Thomason. He and I have handled several of these cases 24 together, and he is the federal attorney on that issue, and it 25 is his document, his client's decision and the federal action 0026 1 that is before this court today. 2 However, I would like to briefly address the Georgia 3 Department of Transportation's role in this project and provide 4 an overview of what the evidence will be as to the issue of 5 latches, and the harm that we would contend that would flow to 6 the entire state and the taxpayers of the State of Georgia 7 throughout the state if the plaintiffs' request for preliminary 8 injunction, which is the only issue I understand we are here 9 about today, were to be granted. 10 First of all, let me conclude what Mr. Thomason said 11 about the prior case, which is an unpublished decision but was 12 decided by Judge Vines (sic) in the Northern District of Georgia 13 in a case where Mr. Hubert represented a neighborhood 14 association similar to CAUTION Macon. 15 The judge did conclude that day, only on the issue of 16 a preliminary injunction that latches would prevent causing the 17 irreparable harm of enjoining an ongoing, already executed and 18 under construction public project of the State of Georgia, to 19 the detriment of the taxpayers of the entire State of Georgia. 20 We can provide the court with a copy of that order at 21 a later time. It is not a published decision. But it was one 22 that was decided within the last few years by a similar district 23 court here in the State of Georgia. 24 In that case, the court was concerned with, I think 25 the very facts that we have here today. Is that there had been 0027 1 an environmental decision by a federal agency which gave rise to 2 the federal court's jurisdiction over the case, some lengthy 3 period of time before the date that we appeared in court. At 4 which time there was already a contract under way that the State 5 of Georgia had let. 6 In this case, the facts are that in August of 1998 Mr. 7 Dreihaup, the federal highway administrator for the secretary, 8 in the Georgia Division, signed the Finding of No Significant 9 Impact. 10 The project continued to proceed through the normal 11 processes to be able to be let for construction. It was let for 12 construction in the public opening of bids on September 17, 13 1999. It had been announced publicly by advertisement for bids. 14 THE COURT: You are talking about this -- 15 MS. BRAKEFIELD: This particular project. 16 THE COURT: No -- 17 MS. BRAKEFIELD: I'm reciting to you the facts of this 18 case. In August of 1998 the FONSI was signed by Mr. Dreihaup. 19 On September 17th, following a public advertisement for bids, 20 the bids were opened at the public letting on September 17, 21 1999, as the testimony will come from the department's witness 22 later on today, if we reach that point. 23 The contract was awarded by public notice of award on 24 September 24, 1999. We would contend, the State Department of 25 Transportation would contend that that is the pivotal date for 0028 1 this court to look at. Because at that point the state has 2 announced its award of a contract to a contractor under its 3 state bidding procedures. 4 Following that, five days later on September 29, 1999, 5 this case was filed. The contract is underway, the project is 6 under construction. It is a significant project, seven million 7 dollars in magnitude. To enjoin that project, however 8 temporarily, you will hear testimony from the department's 9 witness as to what the implications are under the contract, with 10 regard to financial costs to the people of the State of 11 Georgia. Not just in this community but throughout the state. 12 Very briefly, just to tell you a little bit about the 13 department's role in this process; the Georgia Department of 14 Transportation is, by federal law, the funding agent for the 15 Federal Highway Aid Program. All of that money does not go into 16 the state highway system, as this project evidences. However, 17 all of those projects and all the funds for them are funneled 18 through, by law, federal and state, the Georgia Department of 19 Transportation. 20 This project had been a project that was in the State 21 Transportation Improvement Program several years before the 22 local referendum that caused it to become a part of the Macon, 23 Bibb County Program. 24 The department, at the request of local officials, 25 allowed this project to be transferred into the Macon, Bibb Road 0029 1 Program, and it therein became the obligation under a local 2 project agreement of the county to prepare the preliminary 3 engineering, which included the field work for the environmental 4 document that is before the court. 5 The Georgia Department of Transportation received that 6 work, reviewed it, prepared it and transmitted it to the Federal 7 Highway Administration for its review. Included in that review 8 was just a basic review for the procedural and substantive, on 9 its face, adequacy that Mr. Thomason discussed in his argument. 10 And we would contend, along with Mr. Thomason and Mr. 11 Almand in his Motion in Limine for the county, that the court's 12 review is as the court suggested in its questions, limited to 13 the review for arbitrary or capricious action, only of the 14 document and the work that was submitted in the environmental 15 assessment for this particular project. Which the Department of 16 Transportation and the Federal Highway Administration considered 17 independent of any other project -- 18 THE COURT: You talking about, is it 3.2 miles? 19 MS. BRAKEFIELD: Yes, sir. 20 THE COURT: You talking about that. That is what is 21 at issue. 22 MS. BRAKEFIELD: That is what is at issue. It was 23 what was at issue for us; it was what was at issue for the 24 Federal Highway Administration, and I would respectfully suggest 25 it is what is at issue before this court here today. Thank you 0030 1 very much. 2 MR. ALMAND: May it please the court. For the record, 3 my name is Hale Almand. I'm here on behalf of the City of Macon 4 and Bibb County. 5 I will try to avoid much of what has been said by my 6 cocounsel. But of necessity I think I must cover a few points 7 that they have already covered. I think, first, I would like to 8 address the issue of the Motion in Limine that I filed. And I 9 will not repeat the law to the court. It is contained in our 10 brief. 11 But, judge, if you read those cases we cite, I think 12 it is very clear, and I have not found a case to the contrary in 13 all the research that we did, that would authorize the court to 14 accept or receive evidence of the nature that is sought to be 15 introduced here today by Mr. Hubert. That there is a very 16 specific limited area in which additional evidence may be 17 received. And under the case law we cited, that additional area 18 is only to explain the FONSI or, excuse me, the EA itself, or to 19 clear up any misunderstanding that the court might have as 20 regards the EA. It is not authorized for other evidence to be 21 received. 22 Now, judge, you have done a lot of research already, I 23 can tell by your questions in this. And the point I wanted to 24 make is that when you look at the question of the Motion in 25 Limine, you have to take that into context of NEPA, the National 0031 1 Environmental Protection Act, and the role that it assigns to 2 the various parties. You know, judge, that statute is merely a 3 procedural statute. It has no substantive effect whatsoever. 4 It gives no substantive rights. Under NEPA, all that is 5 mandated is that the federal agency consider certain things. 6 And it spells out what must be considered. And that once these 7 matters are considered, then NEPA falls away. It is of no 8 longer any effect in the process of building roads. 9 And mainly what it deals with is environmental 10 issues. And when you look at that, the court's role is to 11 determine, did the federal agency consider those things that the 12 statute mandates? And then once it made its decision, as you 13 have pointed out, you must determine whether their determination 14 was arbitrary and capricious. That ends it. And you must do it 15 solely on the record that is presented to you from the 16 administrative proceedings. 17 Now, I disagree with my brother, Mr. Hubert 18 substantially on the question of his ability to introduce other 19 evidence. As Judge Vines (sic) case pointed out, and it was 20 argued in that case as already been cited by Ms. Brakefield. 21 The arguments of due process do not apply on this kind of 22 particular situation. When you look at the role of a court and 23 reviewing. 24 If NEPA gave substantive rights, and you had a 25 protected right of some type, and you are well aware of the 0032 1 civil rights kind of cases where you talk about, where due 2 process is applicable. Well, if this were a civil rights case 3 under Section 1983 or Title VII, then that argument would hold 4 merit. But it does not hold merit that due process does not 5 apply to the limited scope of a NEPA type statute, because it 6 gives no substantive rights whatsoever. It is only a procedural 7 matter. And your role is to determine has that procedure been 8 employed. 9 So to argue as Mr. Hubert has, that that is a denial 10 of due process, or they have not had their day in court, goes 11 beyond that. This is not a question of substantive rights. 12 THE COURT: You are saying, you seem to be saying 13 there are no constitution issues here. 14 MR. ALMAND: That is correct. 15 THE COURT: You are saying that the court is only 16 concerned about whether a National Environmental Policy Act was 17 fairly considered that the environmental assessment was done. 18 MR. ALMAND: That is correct, your Honor. That is 19 the, in a nutshell, that is what we are here about today. 20 Strictly that. And the cases, and there was one case I cited 21 that, Ninth Circuit case, I can't remember, but I cited it in my 22 brief. In that particular case the plaintiff sought to 23 introduce the testimony of 14 witnesses. A number of them were 24 expert witnesses to comment on various aspects of what had been 25 done. And the Ninth Circuit, or the district court said it may 0033 1 not be heard; the Ninth Circuit upheld it saying, and allowed 2 only one witness to testify in the hearing. That was one of the 3 agency's own witnesses. To explain some procedural point 4 involved in the EA. 5 So when you read that case, it is very clear that it 6 describes the kind of evidence that Mr. Hubert wants to offer 7 today. The Ninth Circuit said all that is irrelevant, you 8 cannot go into it. The district court case, Save Our Parks 9 case, is very similar in that respect. That case was 10 specifically a preliminary injunction situation in which all of 11 that type evidence was excluded. 12 So that is -- the first point I want to make, your 13 Honor, is what our view of what the scope of this hearing should 14 be here today. 15 As I understand what Mr. Hubert seeks to do, he 16 basically wants to try the case today. And that is what we will 17 be involved in if we go forward under that scenario. 18 Now, judge, I realize that under the rules for 19 granting a preliminary injunction there are four elements, and 20 you referred to them. That one of the most important is the 21 likelihood of the success on the merits. And when you take the 22 law, as I view it and has been explained to you by the other, my 23 cocounsel, the object or the likelihood of success on the merits 24 by Mr. Hubert we think is extremely remote, under the 25 circumstances of this case. Not to mention the other elements 0034 1 that are required for a preliminary injunction, including the 2 damage to the public, the balancing contest and all of those 3 elements. Ms. Brakefield addressed those in some detail. And I 4 guess we can do that further later if it becomes necessary. 5 THE COURT: Well, I mean, I think I know there is a 6 lot of people here who are not lawyers and who have an interest 7 in the case. I'm just going to make this statement, so people 8 will understand what this court is concerned with today. And 9 that is the preliminary injunction is to halt everything that is 10 going forward. And to do that, the court, the plaintiff must 11 satisfy a four-prong test. The first is a substantial 12 likelihood of success on the merits. The second is a 13 substantial threat of irreparable injury if the injunction is 14 not granted. Third, that the threatened injury to the plaintiff 15 outweighs the harm an injunction may cause the defendant. And, 16 last, the granting of the injunction would not be a disservice 17 to the public interest. 18 The plaintiff must satisfy all four of those prongs. 19 And the plaintiff may very well do that. I'm just stating, and, 20 then, again, it may not. I'm just stating that so those who are 21 interested here will know what this court is considering today. 22 And that is what I am considering. 23 Now, this Motion in Limine was filed about five 24 minutes before I came in here. I haven't had a chance to read 25 any of those cases. I think this is an important issue. It is 0035 1 kind of a threshold issue in the case, is what we can consider. 2 And when we finish these opening statements I'm going to declare 3 a short recess so that I can do a little research on that, so we 4 can deal with it. And I will be glad to hear a limited amount 5 of argument on the point before I make a ruling. 6 But -- and let me say this: That I know this, I read 7 the paper, I know this is a matter of much concern in this area, 8 in the City of Macon and Bibb County. We'll stay here long 9 enough to hear both sides fully. If it is all day today, fine, 10 if it is tomorrow, too, fine there. Whatever it takes to get 11 all, a full hearing on it. Okay. 12 MR. ALMAND: Thank you, your Honor. Judge, I call 13 your attention to a statement, a case. I think this would guide 14 your thinking as you listen to whatever evidence you may 15 decide. And it is the Piedmont Heights Civic Club case. An old 16 Fifth Circuit case, really, that is under the rules applicable 17 in the Eleventh Circuit. And it says that although the 18 procedural requirements of NEPA must be satisfied, the courts 19 will require only the statutory minimum, refusing to substitute 20 their judgment for the judgment of the administrative aides 21 charged with satisfying the requirements of NEPA. 22 So that, I think, would guide your consideration of 23 the evidence you would hear. 24 Now, as Mr. Hubert mentioned, going beyond their 25 federal claim, he mentions that they have in the complaint, put 0036 1 state claims. Now, the state claim, we would contend, that 2 under the supplemental jurisdiction rules, if you determine in 3 yourself that there is no federal jurisdiction here, the federal 4 act was inappropriate, although you are not mandated to dismiss 5 those claims or not use them as a basis for preliminary 6 injunction; I think there is a long-standing practice in the 7 Middle District of Georgia the courts avoid supplemental state 8 claims where there is no federal jurisdiction involved. And I 9 would remind the courts of that. 10 But even as to the state claim itself, judge, Mr. 11 Hubert misses the point. What he is contending is that at the 12 time the state or the county adopted the sales tax referendum, 13 it described this particular project as a two-lane road with 14 turn lanes, as what was planned to be done. At the time, there 15 was numerous descriptions of various projects that would be 16 undertaken if the road improvement were approved. 17 What he fails, what he overlooks and fails to say is, 18 that at the time that this was presented, these were concepts 19 that were based on knowledge as it existed in 1994, as to the 20 conditions of in that particular area and other areas in Macon. 21 This is not the only project that has gone beyond what was 22 described. Because obviously the government expending 23 taxpayers' money and improving roads, is not locked into a 24 finite description just because you say this is the concept. 25 The law is clear that you must look at the project at the time 0037 1 that it is undertaken to be built. And I think there is 2 substantial evidence to show that there has been a major change 3 in conditions in that area of the community, south Macon, that 4 justifies the type road that we plan to do, or plan to build. 5 And to say that we have got to build an inadequate facility with 6 taxpayer money, or do nothing, or go back to the taxpayers and 7 readvertise and get another tax referendum, is ridiculous. The 8 law does not say that. We are not locked into that. 9 And the question, the only question before you today 10 is, have we, and on the basis of your jurisdiction, have we 11 complied with NEPA. If we have, that ends it, and these other 12 issues that Mr. Hubert is raising I think fall apart. 13 Now, Mr. Hubert also raises the question that we 14 should have prepared an environmental impact statement for the 15 entire project, for the entire $300 million road plan. Beyond 16 the mere absurdity of trying to prepare an environmental impact 17 statement for the entire Bibb County, the law does not require 18 that. 19 He raises the question of segmenting. And there is 20 plenty of law on the subject as to what that means. And we do 21 not believe that when you review, even the four corners of the 22 documents, that you are going to find any evidence of 23 segmenting. 24 One of the major considerations the court has to look 25 at is, regardless of all the hype and all of the hyperboly that 0038 1 we have heard, and the only real strong issue is that does this 2 road itself have independent utility? Does it serve some 3 purpose that is unrelated to whatever else we might be 4 building? And if it does, that ends the inquiry right there. 5 Unless they can, perhaps, show some type of bad faith. 6 And you can look at the four corners of the document. 7 You know, it must have a beginning and must have an end and it 8 must have its own utility. We think in the four corners of the 9 document you are going to see that Houston Road serves a 10 legitimate purpose, has an independent purpose. Houston Road is 11 totally unrelated to what you might do on Ingleside Avenue or 12 Wesleyan Drive or Tucker Road. Those projects have nothing to 13 do with Houston road. 14 We think the issue of segmenting is an issue that has 15 been brought into this case because Mr. Hubert is looking for 16 any issue that he can find. If you read enough federal cases, 17 judge, you will find a number of things that the courts have 18 considered as being a basis to overturn NEPA or overturn a 19 decision under NEPA. Segmenting is one of them. But when you 20 read the cases and you read what they say, I think you will find 21 right quick that although you can make that claim, that it is 22 extremely difficult to prove a case of segment. So I think, 23 your Honor, I realize that you are going to have to make that 24 decision on what evidence will be considered. 25 There is -- well, I will stop there and we'll go from 0039 1 there. 2 THE COURT: All right. Thank you. I believe I have 3 heard from everybody in opening statement. We are going to take 4 a short recess, no more than 15 minutes, and we'll resume and 5 we'll deal with the matter of the scope of this inquiry as to 6 whether we will stay within the parameters of the, what was done 7 in the environmental assessment and the FONSI that came after 8 that. So be in recess for 15 minutes. 9 (Recess) 10 THE COURT: I have been trying to ascertain what the 11 circuit requires in the questions that are before the court. 12 And it seems -- let me read from the case of Preserve Endangered 13 Areas versus U.S. Army Corps. That is 87 F.3d 1242, 1996, 14 Eleventh Circuit case. It says, thus while certain circumstance 15 may justify going beyond the administrative record, a court 16 conducting a judicial review is not generally empowered to do 17 so. And one of the footnotes they refer to the Ninth Circuit. 18 States that it is spelled out that a court may go beyond the 19 administrative record only where, one, an agency's failure to 20 explain its action effectively frustrates judicial review. Two, 21 it appears that the agency relied on materials not included in 22 the record and, three, technical terms or complex subjects need 23 to be explained. Or fourth, there is a strong showing of 24 agency, bad faith or improper behavior. I'm going to take that 25 as the guidelines for this case. 0040 1 So it seems to me that what is admissible in evidence 2 would be any testimony to, that deals with one or more of those 3 four matters that are discussed. And the, and someone else's, 4 some witness' -- being expert or not -- opinion, as to what 5 should have been in the environmental assessment, is really not 6 relevant. 7 Mr. Hubert, you want to comment on that, since I -- I 8 may have limited somewhat what you can introduce. 9 MR. HUBERT: Yes, your Honor, let me address that, if 10 I may. 11 Judge, the determination of the hard look intensity 12 that is required; the determination of what alternatives have 13 been considered, should have been considered or were not 14 considered, including the evidence in this case, is going to 15 show; if you were to do a cost benefit graph, judge, and you 16 will find that in the first segment of modification of a 17 highway, you get 90 percent of the benefit that you would get if 18 you were to do the entire program. That is to say, for less 19 cost, the benefit rises up to about 95 percent of what you would 20 achieve by the five-lane road. And it is that kind of thing 21 that we will be addressing in this case. 22 THE COURT: Well, here, I think time is important, and 23 I think maybe the best way to proceed is for you to call your 24 witness, and then if the defense has an objection to the 25 witness' testimony, they can state their objection and I can 0041 1 rule on it. 2 MR. HUBERT: Very well, your Honor. Thank you. 3 THE COURT: This is the cookbook right here. 4 MR. HUBERT: Yes, sir, I understand. 5 THE COURT: All right. So call your first witness. 6 MR. HUBERT: We would invoke the rule, if the court 7 please. 8 THE COURT: All right. Is there anybody in the 9 audience to be a witness in this case? 10 MR. ADERHOLD: Your Honor, we have potential witnesses 11 for the federal government, at least one. 12 THE COURT: Well, you are not including the lawyers in 13 this. 14 MR. HUBERT: No, your Honor, but we do have some 15 witnesses. 16 THE COURT: All right. 17 MS. BRAKEFIELD: Your Honor, I assume each party will 18 be allowed to have one party representative in the courtroom, as 19 the plaintiffs do? 20 THE COURT: Yes, that is customary. 21 MR. HUBERT: We designate Mr. Hayes as the witness for 22 the plaintiff. 23 MR. ADERHOLD: If your Honor please, we will designate 24 on government agent that could also be a witness. You said that 25 was suitable. 0042 1 THE COURT: You can have one representative. 2 MR. ADERHOLD: That is fine. 3 THE COURT: I'm going to let each party have one 4 representative. No more. 5 MR. ALMAND: Your Honor, I represent two defendants, 6 so I will have a representative from the City of Macon and Bibb 7 County, since I have two clients. 8 THE COURT: All right. Who are they? 9 MR. ALMAND: That would be Vernon Riles for the City 10 of Macon and Sherry Williamson from Bibb County. 11 MR. HUBERT: I would ask that all witnesses that are 12 expecting to testify in my case, please leave the courtroom at 13 this time, with the exception of the named individual -- 14 THE COURT: There is, let me say this to any 15 witnesses. Down the hall and around the corner there is a room 16 that is open, that has some chairs and table. You can sit in 17 there, and I think it is called the attorney conference room, so 18 you don't have to sit outdoors. There is another witness room 19 down to the right, too. Kind of give you a place to get more 20 comfortable. 21 All right. I'm going to depend on each lawyer to make 22 sure that his or her witnesses are not in the courtroom when 23 they are not supposed to be. And, also, not to be discussing 24 their testimony with other witnesses. 25 MR. ADERHOLD: Thank you, judge. 0043 1 THE COURT: All right. 2 MR. HUBERT: Your Honor, at this time we would call 3 Mr. Walter Kulash to the stand. 4 5 WALTER KULASH, 6 having been first duly sworn, was examined and testified as 7 follows: 8 DIRECT EXAMINATION 9 BY MR. HUBERT: 10 Q. I will ask you to introduce yourself to the court and state 11 your full name. I believe you spelled it for him already. And 12 where you live and what you do for a living, please, sir? 13 A. It is Walter Kulash, 33 East Pine Street, Orlando, Florida 14 32801. I'm a transportation planner, registered professional 15 engineer and principal with the community planning and 16 transportation planning firm of Glatting Jackson. Eighty-five 17 employees in Orlando. 18 Q. And how long have you been with your present firm, 19 Mr. Kulash? 20 A. With Glatting Jackson for ten years. With the engineering 21 firm of Post, Buckley, Schuh & Jernigan for five years before 22 that, and with the national transportation consulting firm of 23 Alan Voorhees & Associates for 12 years before that. 24 Q. All right. Was your time spent, all that time in the State 25 of Florida, was your practice restricted in any way? 0044 1 A. My time was spent about half in Florida and then half 2 throughout the U.S. and Caribbean. 3 Q. All right. And your present day practice; what is the 4 scope and reach of it in terms of your request for consulting or 5 your preparing reports and rendering opinions, sir? 6 A. It is, the majority of my work now involves formulating 7 transportation alternatives for state transportation agencies, 8 state DOTs, county and local transportation agencies, nonprofit, 9 nongovernmental organization advocacy groups, local governments 10 and then a considerable amount of work for the private 11 development industry. 12 Q. Does your work involve the assessment analysis of preparing 13 alternatives of EISs for clients or for environmental 14 assessments for clients? 15 A. A large portion of our work involves either directly 16 preparing environmental documentation, preparing parts of it, 17 specifically natural environment and transportation impacts. Or 18 in some cases, furnishing and formulating alternatives that are 19 then part of team effort done by others. 20 Q. Can you tell me what if any relationship you have had to 21 the Macon, Bibb County Road Improvement Plan? 22 A. We were invited to assist the program by then Mayor Jim 23 Marshall of Macon, with a very limited scope of helping reach a 24 consensus on some projects within the city on which there was 25 unresolved alternatives still at issue. We did so for six or 0045 1 seven projects within the city, and have continued to work. 2 Our contract was then taken over by the roads program. We 3 never, we never really worked for the city. We immediately 4 began working for the roads program in that capacity. 5 Q. Has your work for those governmental entities concluded at 6 this time? 7 A. No, it is still ongoing. 8 Q. It is still ongoing now. Can you tell me when and what was 9 the first time you had any contact with the group called CAUTION 10 Macon, or its counsel? 11 A. CAUTION Macon and various of the membership were stake 12 holders in all of the projects in which we have been involved. 13 They were either residents or property owners or interested 14 citizens. And they, their role has generally been advocating 15 for alternatives other than what the roads program was offering 16 at the time. 17 Q. All right, sir. Let me ask you, in terms of your having 18 been given any assignment at all, were you or not, sir, asked to 19 review the environmental assessment and some documentation in 20 connection with the Houston Road Project in recent weeks by 21 CAUTION Macon, sir? 22 A. Yes, sir. 23 Q. Okay. Now, Mr. Kulash, would you explain to the court, 24 just briefly, what your educational background is, what your 25 training is and those items that qualify you to render an 0046 1 opinion of any sort? 2 A. Okay. I am a graduate engineer, industrial engineering 3 from North Caroline State University. Master of Business 4 Administration from the University of North Carolina. Completed 5 graduate work in civil engineering toward a doctoral degree at 6 Northwestern University, and am holder of a professional 7 engineering license in the State of Florida. 8 Q. May I show you a document previously identified as 9 Plaintiffs' Exhibit 5, and ask you if you recognize that 10 document and can tell us what it is, please, sir? 11 A. Yes. That is a short version of my resume. 12 Q. All right, sir. May I just ask you, generally; you have 13 published articles in your field of expertise? 14 A. Yes, sir. 15 Q. Is that right? 16 A. Yes, sir. 17 Q. And you are registered and belong to other professional 18 associations? 19 A. Correct. 20 Q. And you have made speeches, conducted seminars and engaged 21 in training programs? 22 A. That is a growing part of our business. Particularly with 23 state departments of transportation. 24 Q. And can you state whether you have ever served as an expert 25 witness in a case dealing with transportation issues? 0047 1 A. Yes, I have. 2 Q. Okay. 3 MR. HUBERT: Your Honor, in the interest of time, I 4 would, giving the copies of Plaintiffs' Exhibit 5, I would move 5 admission of the document entitled Walter Kulash Principal 6 Senior Traffic Engineer, Curriculum Vitae, Plaintiffs' Exhibit 7 5, sir. 8 MR. ADERHOLD: If your Honor please, we have a list of 9 documents, but we don't have his CV itself. 10 MR. HUBERT: No objections, your Honor? 11 MR. ALMAND: I haven't had a look at it yet. 12 MR. HUBERT: I'm sorry. 13 THE COURT: You are offering him as an expert in 14 exactly what? 15 MR. HUBERT: I'm offering him, your Honor, as an 16 expert in traffic and transportation engineering. And in 17 particular, someone who has expertise in the area of alternative 18 traffic modes and programs that can be considered in an 19 environmental impact context. 20 THE COURT: Seems to be fairly highly specialized. I 21 think the first part of it is broad enough you can -- I think 22 you have already got an objection that is waiting to be heard 23 here. I think the word, alternative, is kind of buzz word 24 here. Why don't we just qualify him as an expert in traffic 25 engineering, and seems to me that is broad enough. 0048 1 MR. HUBERT: I'm content with his -- your Honor, I 2 just was trying to save a little time, but I'm content with the 3 vitae here when admitted and his statements so far does qualify 4 him as answer expert. 5 MR. ADERHOLD: If your Honor please, for the federal 6 defendants, we believe that Mr. Kulash is an engineer and so 7 forth and is an expert to that extent. The brief direct of him 8 so far hasn't satisfied us that he is qualified as quiet as 9 broadly as Mr. Hubert has said. The court obviously recognizes 10 that. And with that caveat and our right to object, both to any 11 later questions and to his competency on the Houston Road 12 question, we would let him go ahead. 13 THE COURT: All right, in the interest of time, why 14 don't we treat him as an expert. And if you feel, in your 15 cross-examination, that he, you sense in the direct examination 16 that he is getting far afield, then you may pose an objection. 17 MR. ADERHOLD: That is fine with the government, your 18 Honor. 19 THE COURT: That suit all the defendants? All right. 20 He is qualified as a traffic engineer. 21 Q. (BY MR. HUBERT) Mr. Kulash let me ask you, sir, to tell me 22 what you were asked to do for the City of Macon and Bibb County 23 in terms of the road program, your assignment in that regard. 24 What was it, sir? 25 A. I was asked to help resolve controversies and issues 0049 1 related to specific projects within the roads program that were 2 being opposed or otherwise receiving attention from stake holder 3 groups and citizens. And it involved working with the engineers 4 for the roads program on minor sorts of alternatives that 5 reached this kind of resolution with the neighborhood groups. 6 Q. Did you perceive your role as semi or totally mediator in 7 such a situation as that? 8 MR. ALMAND: May it please the court, I object to how 9 he perceives his role. I think he can testify what his role 10 was, but not what he perceives it to be. 11 MR. HUBERT: I will accept the objection in terms of 12 phrase. 13 Q. (BY MR. HUBERT) You may consider the question, Mr. Kulash, 14 was your role as mediator in that particular situation? 15 A. No. We interpreted our role as just narrow, the narrow 16 role of reasonable technical alternatives that could be done. 17 Q. Very well. And in terms of your, the request made by 18 CAUTION Macon. Would you explain to the court what you 19 perceived your assignment to be in that instance, please? 20 A. We are referring now -- 21 MR. ALMAND: Your Honor, his assignments were what his 22 assignments were. I object to the continued use of the word of 23 what he perceived them to have. If he received assignments, 24 then he can testify as to what assignments he was given. 25 MR. HUBERT: Holds me pretty close, judge. But I -- 0050 1 THE COURT: I think this is kind of nit-picking, and 2 I'm trying to think of a better term, but I guess I will have to 3 fall on that. But try to use more straightforward language. 4 Q. (BY MR. HUBERT) Tell us what your assignment was. 5 A. Are we referring now to the assignment in general with the 6 roads program or Houston Road in particular. 7 Q. The Houston Road Program that CAUTION Macon asked you to 8 look at. 9 A. The assignment, as I understand it on that, specifically, 10 is to search through the available materials which were 11 furnished to me, establish if there were a reasonable and 12 complete range of alternatives that had been developed, and then 13 further advise as to whether the alternatives were in fact 14 present, and whether they were objectively and fully analyzed. 15 Q. All right. And did you undertake that assignment for the 16 CAUTION Macon group, Mr. Kulash? 17 A. Yes, I did. 18 Q. And were you, at any time, asked, previously, to look into 19 the Houston Road Project, by any of the governmental defendants 20 in this case, City of Macon or Bibb County? 21 A. No. I was introduced to this project as part of a regular 22 procedure that the, that the roads program engineers had of 23 touring the projects with them, showing us advance materials and 24 that kind of thing. So we looked at Houston, along with a 25 number of other ones on which we have had no further 0051 1 involvement. This was one of them. 2 Q. And were you employed to do that, sir? 3 A. We took that as part of our job, yes. 4 Q. Did you determine that you could in any way undertake to 5 find a solution, alternatively for the Houston Road Project 6 within the parameters that City of Macon and Bibb County asked 7 you to do? 8 A. No. Initially we declined to do that. We were, several 9 individuals asked us could we -- we proposed, as part of the 10 regular procedure, we, first of all we thought that would be 11 quite an expansion of our work, above our understood scope with 12 the roads program. 13 We proposed it to the executive committee with a budget 14 attached. The executive committee declined to authorize it, and 15 until we heard directly from CAUTION, that was the end of our 16 involvement with Houston Road. 17 Q. All right. Can you tell me if you, at any time, 18 Mr. Kulash, wrote to the City of Macon or Bibb County, a letter 19 saying that if the scope of your work was restricted and 20 narrowed down further, that you could undertake to do something 21 in aide of their effort and analysis in this case? 22 A. Yes. That was the same, that was the same proposal to the 23 executive committee that I referred to earlier. 24 Q. All right, sir. Now, let me ask you, sir, to describe to 25 the court what materials you had available to you when you were 0052 1 asked to do your assignment. You said you looked at certain 2 materials. What materials were you given, sir? 3 A. A series of several hundred Bates numbered pages that 4 included the environmental assessment, the finding of the most 5 significant impact, voluminous materials on the roads program in 6 general, various kinds of project development reports and 7 engineering reports for Houston Road, citizen comment forms from 8 some of the public development process that went on, and then a 9 citizen's alternative, a citizen generated alternative for 10 Houston Road that had not been part of any previous roads 11 program material. 12 Q. Let me show you a document previously identified as 13 Plaintiffs' Exhibit 1, sir, and ask you to look through that and 14 tell me if that, there is any resemblance to the documents that 15 you were furnished at that time? 16 A. I believe this is the document. 17 MR. HUBERT: I have supplied, let the record show, a 18 copy of that document, Plaintiffs' Exhibit 1, to counsel for the 19 defendants. 20 THE COURT: Any objection? 21 MR. ADERHOLD: If your Honor, please, we have just 22 gotten it. I don't know if I object or not. I don't know what 23 it is. I haven't heard him describe it. 24 MR. HUBERT: I am content just to identify it at this 25 time, your Honor. 0053 1 THE COURT: All right. Apparently we are not going to 2 get into it right now. 3 MR. ALMAND: Well, your Honor, at some point, whenever 4 he tenders this I will object to him either testifying from it 5 it or the tender of it now. If he is identifying it for the 6 record, I don't think there is any objection to the 7 identification, solely. But if he goes beyond that I will have 8 substantial objections. 9 MR. HUBERT: I will try to lay the proper foundation. 10 Q. (BY MR. HUBERT) Mr. Kulash, is that the document which you 11 were given by CAUTION Macon? 12 A. Yes, sir. 13 Q. For you to undertake your work. Was that, was that part of 14 the materials or all of the materials which you used in 15 formulating your analysis and your conclusions in this case? 16 A. All the materials. 17 Q. Okay. Now, the information that you got earlier from the 18 roads program, when you were asked to do certain things by the 19 city and county; did you use that material in any way? The 20 information derived from that assignment. 21 A. Some of that was repeated. Some of the material in the 22 exhibit were duplicates of things I previously received from the 23 roads program, such as the overall, the overall listing of 24 projects. But I used only the materials that were in Exhibit 1. 25 Q. Do you know of your own knowledge whether those materials 0054 1 were in effect offered to the county and state and federal 2 defendants in this case, at any time, as part of the 3 administrative record in this case? Do you know that? 4 A. No, I know neither way on that. 5 THE COURT: Let me ask you again: What is Plaintiffs' 6 Exhibit 1? What does it consist of? 7 MR. HUBERT: Yes, sir. Your Honor, the Plaintiffs' 1 8 contains the FONSI, the environmental impact statement and 9 overview, the correspondence, newspaper articles, public 10 comments from the citizens that we have accumulated, and what we 11 vain to call it, CAUTION EIS. 12 We sought on our own to prepare a document that we 13 said represents what should be in EIS within our limited scope 14 to do it. And frequently, when you attack an EIS, what you do 15 is prepare one yourself. And this is as close as we could do 16 given our associates of preparing the EIS. 17 THE COURT: Well, that gives me some concern. What 18 you are saying is that you think that an EIS, which was not 19 prepared by the defendants, should have been prepared, and had 20 one been prepared properly, this is what it would look like. 21 MR. HUBERT: It would resemble it, judge. 22 THE COURT: Yeah. 23 MR. HUBERT: It couldn't possibly -- I think the 24 assignment of the governmental entity to get the professional to 25 do it would have been substantially better. But this document 0055 1 was to contrast the FONSI information that was used and the EA, 2 and it is in effect part of the administrative record, or should 3 be, in terms of this case. Large portions of this, I submit, 4 are part of the administrative record. 5 It was in this case, and has been identified for this 6 witness, only as materials which he had available to him to 7 operate on, to base his opinion, conclusion, and to draw his 8 methodology into play in making his analysis. That is that the 9 document is now and the reason it has been identified for that 10 limited purpose. 11 THE COURT: Well, it, as I stated earlier, I decided, 12 after reading the law, that this court should not go beyond the 13 administrative record except in certain circumstances. I am 14 concerned that you are asking the court to consider an 15 environmental impact statement prepared by somebody not 16 authorized under the law to prepare it. I'm not saying there is 17 anything wrong with it; I'm just saying that that seems to me to 18 be a big step outside the record right there. 19 MR. HUBERT: Well, judge, there were four areas which 20 you said we could illuminate on under the footnote case. Part 21 of this record will have, for example, what we contend is the 22 predatory practices that the court said you would let us reveal 23 to you. 24 THE COURT: Well, wouldn't it be simpler if the EA 25 were one exhibit and the -- there were two that were prepared by 0056 1 the defendants. And what is that acronym? 2 MR. HUBERT: FONSI. 3 THE COURT: FONSI, yes. 4 MR. HUBERT: FONSI is a one-page document. 5 THE COURT: Okay. It looks to me like the EA and the 6 FONSI should be one document, because there is no objection to 7 them. But then you are also wanting to get into matters that I 8 know we are going to get objections to. And they should have a 9 different -- can they be separated? 10 MR. HUBERT: Yes, sir. No problem at all, judge, in 11 terms of that. But the question before the court now is, simply 12 to have the court understand what materials he used in 13 formulating his opinion about -- 14 THE COURT: I understand that. And I'm not trying to 15 head you off. Except that I can see if we don't separate these 16 documents, it is going to be very cumbersome to deal with. 17 MR. HUBERT: I think the testimony elicited from the 18 witness will deal with the FONSI and the EA -- 19 THE COURT: All right. Well let's do this, then: 20 Let's make sure that when we are dealing with the FONSI and the 21 EA, and then maybe after lunch you can separate them into 22 separate documents so I can deal with it equally. 23 MR. ALMAND: Judge, if I might, before we go further; 24 it might be an appropriate point to raise an objection, because 25 I anticipate he is now fixing to elicit this witness' opinions 0057 1 on what he would have done, or what he thinks should have been 2 done, or alternatives that he thinks are available. And under 3 the court's ruling and under this Eleventh Circuit case, that is 4 entirely improper. 5 THE COURT: All right. It seems to me that he is 6 certainly authorized to, as an expert, to testify as to where he 7 found the decisions in the EA and FONSI to be arbitrary and 8 capricious. And, I mean, that is very directly involved here. 9 MR. ALMAND: But I don't anticipate that is what I'm 10 fixing to hear, your Honor. Because what Mr. Hubert is asking 11 him, when you start speaking of alternatives that this witness 12 thinks would have been more appropriate to have been considered, 13 then that goes beyond it. Because the court has to look at the 14 EA. And you have to make a determination on that EA. Is it 15 adequate? Not, are there other -- I mean, you could have 15 16 witnesses that have 20 different alternatives that they think 17 might be appropriate. But that is not what the issue is. 18 THE COURT: I understand, and I agree with that. I 19 think it would be far better if plaintiff would, since I'm the 20 one that has got to be convinced, I would much rather hear the 21 witness testify as to what is wrong with the EA than, that was 22 relied upon for the FONSI, than to start off by testimony 23 involving alternatives. Because I think I need, I think I need 24 to know what the plaintiff considers to be wrong with the EA and 25 why it is so wrong that this court has the authority under the 0058 1 law. And I have considered the United States District Court of 2 Limited Jurisdiction, as set out by the appellate courts and the 3 Constitution, Congress. But it seems to me maybe now as time to 4 break for lunch. It is a little bit after 12:00. And when we 5 resume, I would like to resume at 1:15. When we resume I would 6 like for you to separate the testimony so we can -- because I 7 have a feeling if we do otherwise we are going to have objection 8 after objection, and we are all going to get bogged down. 9 MR. ADERHOLD: Before we break, may I make one 10 clarification? The witness may or may not have said this. When 11 was this put together, Plaintiffs' 1. Is it dated? 12 MR. HUBERT: Your Honor, the, at the risk of it being 13 stated to testifying in this case, I can simply represent to the 14 court, in response to the question of Mr. Aderhold, that this 15 document was prepared as an ongoing document during the time of 16 the community's concern for what was being planned and what was 17 being proposed out there. And it culminated in the analysis 18 that was offered with the FONSI and the EA attached to it. 19 Therefore, it purports to be a compendium of all those 20 documents, and relevant letters, articles, statements and so 21 forth by public officials, that deals with the issue of whether 22 the EA is adequate or whether an EIS is the appropriate thing to 23 be undertaken. 24 THE COURT: Well, I have a feeling -- let me say this 25 and then we are going to lunch -- that I'm going to probably end 0059 1 up hearing a certain amount of testimony that the defendants 2 object to. It is just the nature of the proceeding. We don't 3 have a jury here, so it is not, I don't consider it to be a big 4 problem. But I am, what I'm interested in is whether or not the 5 EA was arbitrarily and capriciously prepared -- in other words, 6 almost whether it was not done in good faith, I mean, to some 7 extent. Maybe that is not a requirement. But I do believe that 8 I'm obligated to follow that. 9 We will be recess until 1:15. 10 (Lunch Recess) 11 THE COURT: Good afternoon. 12 MR. HUBERT: May it please the court. 13 MR. ADERHOLD: Just before Mr. Hubert gets started, 14 would the court hear from me as an opening item? 15 THE COURT: Yes. 16 MR. ADERHOLD: If your Honor please, the court wants 17 to simplify this, and we do as well, but we also understand that 18 your Honor needs to hear enough testimony to make a ruling. 19 That is part of what the court has to do. With the court's 20 permission, and if it please the court, we would like simply to 21 make a continuing objection to Mr. Kulash, just for the record, 22 and in connection with Plaintiffs' No. 1, which we have had a 23 chance to look through at lunch. 24 We would object to any evidence that Mr. Kulash puts 25 in the record except as it may relate to the evidence on one of 0060 1 the four exceptions that the court read to us under the APA case 2 law. Namely, any evidence that would relate to failure to 3 explain actions so that the, so as to frustrate judicial 4 review. Any evidence which shows that the agency considered 5 items not in the record; any evidence that would assist in 6 technical explanation, and any evidence that would relate to a 7 strong showing of bad faith or improper action on the part of 8 the agency. 9 We respectfully suggest that any evidence other than 10 that would be incompetent for the purposes of this hearing, and 11 with the court's permission, we will let that be a traveling 12 objection, and it will save us from having to jump up and down. 13 THE COURT: All right. Let me make a preliminary 14 ruling here. In the case of Friends of the Payette versus Horse 15 Shoe Bend Hydroelectric, 988 F.2d 989, a Ninth Circuit case, 16 1993. The court said that an expert should not be able to talk 17 about the specific impacts that the project would have on the 18 environment. The court upheld the district court's exclusion of 19 such evidence because it was not part of the administrative 20 record. 21 So I would think that Mr. Kulash would not be allowed 22 to discuss or introduce evidence of a project's impact on the 23 environment unless that material was part of the administrative 24 record. 25 Might, however, have relevant testimony in assessing 0061 1 the adequacy of the environmental assessment, EA done by the 2 FHWA. Did the government take a hard look at all the relevant 3 factors, and if not, what other factors should they have looked 4 at. 5 And I think, I want to give the witness some leeway to 6 testify, but I'm not going to get beyond the parameter set by 7 the appellate court. 8 MR. ADERHOLD: Thank you, your Honor. 9 MR. HUBERT: Your Honor, we have no objections to the 10 continuing objection, and would undertake to satisfy the court 11 as relates to that. 12 THE COURT: All right. 13 Q. (BY MR. HUBERT) Mr. Kulash, I show you Plaintiffs' Exhibit 14 6 and ask you if you recognize what that is, please? 15 MR. ALMAND: What number was that? 16 MR. HUBERT: Sixty-eight. 17 A. I recognize this as the Finding of No Significant Impact. 18 Q. (BY MR. HUBERT) All right. It has a date number on it. 19 Would you give that to us? 20 A. Sir, I recognize this as the Finding of No Significant 21 Impact. 22 Q. It has a Bates number on there. Would you give us that? 23 A. Two one four. 24 Q. All right. I show you 69 and ask you, what is that 25 document, please? 0062 1 A. In 69 with Bates number 215 is the environmental 2 assessment. 3 Q. All right. And you have reviewed both of those preparatory 4 to your testimony today; is that correct? 5 A. Yes, I have. 6 Q. All right, sir. Now, Mr. Kulash, do you understand what 7 the CEQ is? 8 A. Yes. 9 Q. What is the CEQ? 10 A. Council on Environmental Quality, and they are the 11 promulgator of guidelines for preparation of environmental 12 impact statements, environmental analysis FONSIs and so forth. 13 Q. Now, when you read the, particularly, document number 69, 14 which is environmental assessment; did you apply the CEQ 15 standards and guidelines, to the best of your knowledge and 16 belief, particularly as reflected in 40 CFR 1502.14? 17 A. Yes. 18 Q. All right. So now would you just explain to the court, 19 what is the content of those guidelines that you applied in this 20 particular case? 21 A. The wording that we take the most direction from, when 22 either preparing the statements or analyzing them, are that they 23 contain all reasonable and prudent alternatives. That they 24 ridgedly explore the field of alternatives -- ridgedly explore, 25 are words contained in the language -- and then they objectively 0063 1 analyze the alternatives that are developed. 2 Q. All right. Do you think the term, evaluate, and term, 3 analyze, are synonymous? If you were to objectively evaluate; 4 is that the criteria? 5 A. To me, they are synonymous. 6 Q. Yes, sir. Now, as you looked at -- were there alternatives 7 discussed in document 69 called environmental assessment, sir? 8 A. Yes, there were. 9 Q. All right. Can you tell us, based on your reading of that 10 document, did they meet the requirements, in your opinion, of 11 the CEQ in Section 40 CFR 1502.14, as relates, Mr. Kulash, to a 12 rigorous exploration and objectively evaluating these 13 alternatives, and were all reasonable alternatives considered in 14 terms of this project? 15 MR. THOMASON: May it please the court, I object. 16 Calls for a conclusion of law, not one of facts, and it actually 17 is based on a misunderstanding, perhaps, the CQ regs for the 18 cancelled environment quality, for the highway administration 19 has had, since the passage of its environmental regs at 23 CFR 20 771. Those, only those, are applicable. CEQ approved them. 21 Each agency then uses its own environmental regulations to do 22 its federal projects and federal approval. It don't go back and 23 apply, per se, the CEQ regs. 24 THE COURT: All right, you are saying the CE2 regs do 25 not apply in this case. 0064 1 MR. THOMASON: The Council on Environmental Quality 2 sets general regulations on how federal agencies are to write 3 their own regulations to give some meaning on a day-to-day basis 4 in their business, to meet when it was passed. Consequently, 5 every federal agency thereafter wrote its own regs approved by 6 CEQ, and each agency that has environmental, and is covered by 7 NEPA, all it is, all of them, have their own regs, discrete set 8 of regs to which we refer. This document in all actions were 9 prepared under 23 CFR, not under the CEQ regs. So unless he has 10 measured it by these, the testimony is irrelevant and 11 immaterial. 12 THE COURT: Is it required that the Federal Highway 13 Administration's regs be approved by the CE2? 14 MR. THOMASON: They have been, sir. 15 Let's see if I can give you the date, quickly. At 16 least the first came up August 28, 1987, published in the 17 federal registry. 18 THE COURT: So the regulations that we are dealing 19 with here are regulations of FH -- there are so many initials -- 20 FHWA or FWHA. 21 MR. THOMASON: FHWA, may it please the court, Federal 22 Highway Administration. 23 THE COURT: All right. They have their own regs. 24 MR. THOMASON: Yes, sir. 23 CFR, part 771. 25 THE COURT: And CE-2 -- 0065 1 MR. HUBERT: Q, sir. 2 MR. THOMASON: Q. 3 THE COURT: CE-2. 4 MR. THOMASON: Q. 5 THE COURT: CEQ approved those FHWA regs. 6 MR. THOMASON: And we have been using them since that 7 time. 8 THE COURT: Okay. 9 MR. THOMASON: CEQ regs are to implement NEPA on a 10 government wide basis. They are guidelines to federal 11 agencies. The agencies then gave voice and meaning and flesh 12 and bone to our own implementation in our own regs. 13 THE COURT: Well, Mr. Hubert, it seems to me, then, 14 that if this is true, that the testimony of a witness as to 15 whether or not he agrees with the regs, and whether they 16 actually were in compliance with the CEQ standards, is 17 irrelevant. 18 MR. HUBERT: Judge, I submit to you that those regs 19 are applicable to all federal projects, in that you must 20 consider alternatives. That is the very heart of this thing. 21 And what the witness testified to was that he took the 22 guidelines that were set forth in the Code of Federal 23 Regulations called the CEQ, and understood the content of, like 24 a review, how he was to review this document. It had to be 25 rigorously applied. Had to be objectively looked at, and had to 0066 1 consider all reasonable alternatives. That is, that is what the 2 environmental impact statement has to do, that is what an EA has 3 to do. 4 THE COURT: Did the -- is it CEQ; is that a board 5 or -- 6 MR. HUBERT: Council on Environmental Quality. 7 THE COURT: So these are people. 8 MR. THOMASON: If it may please the court, I don't 9 mean to interrupt, but I think I can help you. The Council on 10 Environmental Quality is within the executive department within, 11 under the president, and has its own membership and its own 12 general counsel. 13 THE COURT: And it, its sole function is to see that 14 all the different government agencies, that their regs are in 15 compliance with the NEPA. 16 MR. THOMASON: Yes, sir. And that work is largely 17 done, and now they resolve conflicts between agencies whose -- 18 if two agencies, federal highway and the navy want to build a 19 Golden Gate Bridge, and there is some conflict as to the 20 application of each of those departments on discrete 21 environmental regs, they can't resolve it themselves, CEQ would 22 do so. 23 THE COURT: Well, okay. If in fact the FHWA adopted a 24 set of regulations that were to be in compliance with the FEPA; 25 and if in fact those regulations were approved by the CEQ, then 0067 1 I don't see any basis for a witness testifying as to whether or 2 not they were properly approved by the CEQ. Just, so the 3 objection is sustained. 4 Q. (BY MR. HUBERT) Did you find that there was a rigorous 5 review of the alternatives, Mr. Kulash? 6 THE COURT: Before you make your -- let me ask 7 Mr. Kulash -- are you -- excuse me, Mr. Hubert. 8 MR. HUBERT: Yes. 9 THE COURT: Are you asking him whether or not the FHWA 10 or the CEQ did a rigorous review of alternatives? 11 MR. HUBERT: No, sir, your Honor. I'm asking if -- 12 what we were doing, judge, is defining what the law says that 13 you will do in judging whether an EIS or environmental 14 assessment is adequate and is appropriately reviewed and 15 formulated. In that process, the law is clear that you have to 16 be objective. You have to rigorously look at it. It is the 17 hard look that the court described before. You have to make a 18 hard look at it. And I have asked this witness, who is an 19 expert, what kind of look was done in the EA as relates to those 20 issues. 21 THE COURT: Well -- 22 MR. THOMASON: If I can be heard? I would object 23 unless it is measured by my agency's environmental regulations 24 that are the guidelines by which we implement our obligations 25 under NEPA, is the only focus that has any relevance to my 0068 1 agency or to this court. 2 THE COURT: Well, what you, if he, if the witness 3 would testify that the EA was not done in compliance with the 4 FHWA regulations, then that would be right. 5 MR. THOMASON: Yes, sir, but that is not the question 6 that has been asked of him. 7 THE COURT: I know, but that, that is a relevant 8 question. Because we are bound by the FHWA regulation, since 9 this is a highway. 10 MR. THOMASON: If he would ask him if he made that 11 inquiry under these regulations, that is -- 12 THE COURT: You know, I tell you what. We are, we are 13 going to spend a lot of time just discussing objections. I know 14 what the regs, I know the rules of the guidelines that I have to 15 live by. I may end up hearing some evidence that you consider 16 to be irrelevant. I will let you address that. But I think it 17 is probably better to give the witness a little leeway and let 18 him testify, and then we'll separate, if there is something that 19 is irrelevant, then we can separate that from what is relevant. 20 But I'm not getting any information now. 21 Q. (BY MR. HUBERT) Can you answer the question, Mr. Kulash? 22 That is, was there a rigorous look, in your opinion, at the 23 alternatives as set forth in the EA? 24 A. No. In my opinion, there was only a partial fragmentary 25 family of alternatives examined. 0069 1 Q. Could you state to the court what you consider, or give an 2 example of what you consider a rigorous look, an objective look 3 at the alternatives would be? 4 A. It would be a large help if I could do a sketch of this. 5 Is this permitted? 6 MR. HUBERT: If the court please, I would like the 7 witness to be permitted to go to the board? 8 THE COURT: One question. 9 THE WITNESS: Yes, sir. 10 THE COURT: This EA was prepared by the FHWA. 11 MR. HUBERT: No, your Honor, that is not correct, 12 sir. The EA was approved by the Federal Highway 13 Administration. It was prepared by an agency connected with the 14 roads program called Moreland Altobelli. They are the 15 contractor that prepared, they submit a review and it got 16 reviewed, in our position, outside the strict requirements of 17 the law. 18 THE COURT: It was adopted by the FHWA. 19 MR. HUBERT: It was adopted by way of approval and 20 FONSI issued on it. 21 THE COURT: All right. Go ahead. 22 A. Okay. Analytically, this is a plot of projects' cost and 23 projects' benefit. And we frequently use this kind of 24 analytical procedure in exploring the family of alternatives. 25 The EA done for the Houston Road Project outlined the two 0070 1 extreme points of this alternative. They considered a no-build 2 alternative, which is a, which is a requirement of both the 3 parent CEQ requirements and all, as far as we know, all the 4 derivative individual agency requirements, typically by that 5 name, no-build. 6 Q. Now, is the Federal Highway Administration required to do a 7 no-build analysis? 8 THE COURT: What do you mean by no-build? Is that no 9 build a road or what? 10 THE WITNESS: It, the interpretation, your Honor, 11 ranges between do nothing at all and, in some people's eyes, do 12 the reasonable housekeeping things to at least maintain it at a, 13 at a status quo level. There is some discussion as to exactly 14 what does no-build mean. 15 THE COURT: All right. 16 THE WITNESS: But this, a good faith no-build, I would 17 call it a rigorous no-build alternative was considered. 18 The, the other basic alternative that was considered 19 was out here at a high cost and high benefit level. There was a 20 tight grouping of alternatives around this point. Two of the 21 alternatives mentioned in the EI, the alternatives that falls to 22 either side of the selected alternative, were actually tinny 23 little variations of this one. On this plot, they would look 24 just about like that. 25 There is considerable middle ground that we feel did not 0071 1 get a rigorous examination. Somewhere in the middle here there 2 was the alternative of a three-lane road, which as the EA, we 3 agree with the EA in saying that it addressed the safety problem 4 of the left turn. But did not, that was not coupled with simple 5 measures to solve the right turn problem. And then there was 6 another fragmentary alternative that dealt with that right turn, 7 that dealt with dealing -- excuse me, that dealt with fixing 8 interactions but not continuous treatment of the left turns into 9 drive ways. 10 But we have found in countless applications of 11 structuring alternatives, is that the alternatives usually fall 12 in, in, in terms of this graph, in a convex kind of plotting 13 where there are always some, there are always some thoughtful 14 intermediate alternatives that capture most of the benefit of 15 the project, not all of it, at a fraction of the cost. And as 16 you proceed through these alternatives, you encounter the 17 diminishing returns. And that the largest, most elaborate 18 alternative, it is true, delivers the highest level of benefits, 19 typically, that would be the five-lane. But it is by know means 20 the only way of solving the project's purpose and need, and it 21 is very likely not the most cost effective alternative. 22 Most of the value engineering activity now, which 23 looks at projects at a stage in their development for 24 efficiency, gravitates back towards thoughtful projects that are 25 somewhere on this intermediate level. 0072 1 These are the alternatives that we don't find in the 2 EA. We find the makings of what would have been a good 3 alternative. For example, a three-lane alternative combined 4 with some judiciously selected right-turn lanes combined with 5 the interaction improvements -- all of these things are still a 6 small footprint on the landscape -- would deliver somewhere in 7 this intermediate range, a large amount of benefits, and at a 8 fraction of the cost, and a fraction of the impact. 9 So we are not finding, in answer to the question, are 10 we finding a rigorously developed set of alternatives, the 11 answer is no. We are finding good end points and we appear to 12 be missing thoughtful intermediate. 13 Q. (BY MR. HUBERT) All right, now, can you tell me, on the 14 no-build alternative, was there the same rigor and the same 15 integrity in analyzing the no-build alternative as there was 16 analyzing the single-build alternative that the roads program 17 considered? 18 A. Okay. Now, you are now getting into the rigor of, of the, 19 the rigor of analysis as opposed to the rigor of setting up the 20 alternatives. 21 Q. I see. But does that deal with the provision of 22 objectivity? 23 A. No, I would, I did not find, I did not find a full and 24 reasonable analytical examination of even the no-build. And the 25 specific analytical measure I would have liked to have seen 0073 1 would have been the, a full run of the, of the travel demand 2 forecast model that was made for this alternative also applied 3 to this alternative. 4 Q. And did you find it to be there? 5 A. No, I did not find it to be there. Not in the materials I 6 had. 7 Q. Now, can you tell me, specifically, what was the 8 alternative, what was the Houston Road traffic problem that 9 required it to be built? Was it, was it accidents on the road? 10 A. The purpose and need for the project in the EA clearly says 11 that it was the efficiency of the road, its ability to move 12 traffic and its safety. 13 Q. All right, sir. Can you tell me, could you achieve those 14 two objectives by alternatives that fall short of the build 15 alternatives that are shown at the right? 16 A. Yes, sir. 17 Q. Do you consider, therefore, that the standards for an EA 18 were met in terms of what the law requires, Mr. Kulash? 19 A. Well, I feel that they weren't. Because we have no basis 20 for guaging reasonable intermediate alternatives. We have a 21 basis for guaging the full-build alternative, and that 22 assessment is causing considerable, considerable concern. We 23 have a partial but reasonable basis for judging the do nothing, 24 no-build alternative. And then we are lacking both the well 25 structured alternatives and the rigorous objective analysis of 0074 1 the intermediate ones. 2 We have no feeling how good are these, how much of the 3 mission do they accomplish, how much of the purpose and need do 4 they accomplish and at what cost. We are lacking that ability 5 to make that decision. 6 Q. Well, while you are at the board, may I ask you to tell us 7 what is the effect on the, in the environmental consequences of 8 a symmetrically widened Houston Road of the design 9 characteristics that are planned for this particular project? 10 A. Okay. That, that question gets at the issue of the 11 rigorous analysis. We maintain that there is a deceivingly 12 large impact, particularly in the kind of terrain, the terrain 13 and landscape that Macon has. It is a fall line city with an 14 abrupt beginning of rolling terrain. We maintain that there is, 15 that there is a greatly underestimated and under-reported 16 impact. And if I may show that grammatically. 17 Typically in the rolling terrain, our typical road building 18 situation that presents itself, we have a road in the slope and 19 we are proposing that that road be widened. At first glance the 20 impact appears to be small, say a 22 to 24-foot road now being, 21 with two or three lanes being added, does not sound large. The 22 homes that are here are only marginally closer to the road, and 23 in a narrative sense, with just simply statistics and numbers, 24 it does not appear to be a big impact. 25 The problem is, is in Macon's, with Macon's inherited older 0075 1 road system and the hilly terrain, we have inherited steeper 2 than currently permissible slopes. So these are containing the 3 roadway more than they would now, and these are heavily 4 vegetated. True, it is public right-of-way, but the homeowners 5 and stake holders have all come to believe that this is theirs. 6 Now, this rather innocuous road widening, which at first 7 appears to be rather innocuous, sets off a cascade of impacts. 8 We find that now we have to cut the new slopes, because we are 9 widening the road. So the new slopes are at the current 10 guidelines, much more shallow. So the cut of the road, or the 11 fill on the other side, extends far closer to people's homes 12 than merely the impact of the road. The vegetation, of 13 necessity, must be removed from all of these. So a large swath 14 of vegetation is gone. 15 Macon has a singularly problematical situation with the 16 placement of its power poles and power lines. Those get, in 17 this process, those get ended up being moved from their original 18 location back to what is considered a proper location at the 19 edge of the right-of-way, resulting in more trees being cut. 20 And what looked like a 20 or 30-foot intrusion on paper, ends up 21 being this, this tremendously significant intrusion into the 22 adjacent property owners. 23 This impact, in the judging of this impact, which really 24 requires graphical and imaging kinds of materials, we did not 25 see in the development of this project. 0076 1 Q. Can you tell me, and describe to the court, what kind of 2 state of the art job are we talking about in terms of modeling 3 and making an alternative model that you could electronically 4 come up with for any of these projects? 5 A. The state of the art in travel demand forecast model, the 6 so-called traffic model, which was run for the full-build 7 alternative; that has progressed very rapidly. And in defense 8 of programs such as the roads program which have run already for 9 five or six years, this state of the art has progressed very 10 rapidly, even during their tenure. 11 What used to be a laborious procedure, possibly done by a 12 central DOT office or a central metropolitan planning 13 organization office, has now become a desk top technique 14 operated by numerous local practitioners. So our ability to do 15 what used to be considered elaborate traffic demand modeling, 16 reserved only by necessity, reserved only for a few 17 alternatives, that ability has now spread to, cut sort of 18 generous use of it. And we find that happening everywhere. 19 The same thing is happening with the graphical 20 representation things. What used to be a truly expensive, 21 laborious procedure, not within the capabilities of the typical 22 engineering firm, that capability is exploding to where we now 23 see imaging of the three dimensional imaging of these things 24 performed as a regular part of the analysis. 25 Q. All right, sir. Can you tell me what role do the surface 0077 1 streets and other streets that are contiguous to and adjoining 2 the Houston Mill Project, what role do they play in being 3 analyzed as to whether they could take over the traffic burden 4 on, and were those factors considered in the analysis of whether 5 to build or not build Houston Road? 6 A. Well, the, whether or not there was additional road 7 network, was not part of the alternatives for Houston. This 8 might have been interpreted, at the time by, by the designers of 9 the Houston Project, as outside the box. Something that is not, 10 something that is not theirs to look at. 11 We don't accept that any longer. We now review the entire 12 road system as a single network, and we view alternatives as 13 consisting of things that you do to the subject road as well as 14 other roads. 15 One more diagram to illustrate this. Typically, the 16 situation in Macon, particularly in Bibb County, is that we have 17 inherited a single arterial road and we have a development 18 pattern that connects only to that road, and is not creating any 19 new collecter network of roads. Therefore, all traffic is 20 hostage to that road, for whatever purpose. Even for utterly 21 daily routine trips such as going to the grocery store. 22 While we used to think this was an okay traffic pattern, we 23 now know that it is one of the worst patterns we can have for 24 traffic. We are focusing all of our traffic on to the limited 25 mileage of arterial highways. 0078 1 We are now actively including, as part of the rigorous 2 development of alternatives in other locations in which we are 3 working, we are now including alternatives that include not only 4 the subject arterial highway under consideration, but new links, 5 new links of local or state network, whatever, sometimes exacted 6 out of our developer clients, that create alternate paths so 7 that all trips are not hostage to the one and only arterial 8 street. 9 The reduction in traffic is quite large. The documented 10 evidence of some communities that are building themselves this 11 way is that there is somewhere between a 30 and 40 percent 12 reduction in traffic for a given number of households for this 13 pattern of development, in which numerous alternate routes are 14 available as opposed to this one. 15 This alternative was not included in the EA. It was not an 16 alternative that looks at the creation of alternate networking. 17 Q. Do you, do you conclude from that, Mr. Kulash, that all 18 reasonable alternatives are considered or not considered? 19 A. I conclude that they weren't. We would consider this kind 20 of alternative reasonable, and then we would consider reworking, 21 revising some of the fragments of alternatives that are already 22 in the EA. We would consider reworking those into a coherent 23 whole for these intermediate points. That would constitute a 24 reasonable setting, in our opinion. 25 Q. I show you a part of the EA at page 218. And ask you, 0079 1 looking at that paragraph and the corresponding paragraph at 2 222, is the explanation that is given there an adequate 3 explanation as to whether or not they would consider even the 4 cost benefit analysis alternative or the feeder street 5 alternatives? 6 A. Well, I clearly interpret this statement in the EA as 7 concluding that this is our only alternative to be considered. 8 This maximum, this maximum alternative is the only one that 9 addresses the issues. Without any further explanation as to, as 10 to what happened to these intermediate ones and how did they 11 rank. 12 Q. All right, sir. I show you at page 222, the paragraph 13 there, the explanation given. Does that satisfy a, a standard 14 that is set forth in the Federal Highway Administration for road 15 analysis environmental assessment? 16 A. No. The statement about providing conactivity (sic). 17 Q. Yes, sir. 18 A. No. We have seen that. In fact, we have seen the purpose 19 and need statements such as conactivity (sic), or in the case of 20 the celebrated 710 completion in California, completion of a 21 network of a certain type of highway as a self-defining criteria 22 that, for which only one alternative fulfills and therefore not 23 a valid criteria. 24 Q. All right, sir. And were you involved in the 710 highway 25 case in California? 0080 1 A. We have been involved in that since 1989. That case has 2 gone on since the 1970s. 3 Q. All right. Just a few more questions, Mr. Kulash. I will 4 ask you, unless you need the board further, to resume the 5 stand. 6 Mr. Kulash, could you, by way of explanation, state to the 7 court what your experience has been in Richland County, South 8 Carolina. I believe that is Columbia, South Carolina, in the 9 terms of the problems of this nature? 10 A. Well, Richland County is, is seeking to develop an 11 alternative transportation and land use. 12 MR. ALMAND: If it please the court, I know we agreed 13 to hold back but on most objections, but what they are doing in 14 Richland County or South Carolina has nothing whatsoever to do 15 with what is happening in Bibb County today. I object to going 16 into that. 17 THE COURT: Okay. 18 MR. HUBERT: Judge, if I can be heard? 19 THE COURT: Yeah. 20 MR. HUBERT: Obviously, judge, if you compare what an 21 alternative is in various places where state of the art 22 alternatives are being developed, that becomes relevant in terms 23 of what we are doing here. It is no answer to the testimony of 24 this witness to say what they are doing in Nome, Alaska or in 25 Asia has no relevance here. Everything has relevance when we 0081 1 consider alternatives to a transportation plan. 2 This witness is an expert -- 3 THE COURT: Objection overruled. Go ahead. 4 MR. HUBERT: Thank you. 5 Q. (BY MR. HUBERT) Would you tell us how and in what way, if 6 it is, what is the relevancy of what they are doing in Columbia, 7 South Carolina and how you use that, if you did, in your 8 analysis here? 9 A. Well, Richland County, the county surrounding and 10 containing Columbia, is developing a combined land use and 11 transportation plan that develops alternative collecter road 12 network through public actions and private exactions. And is 13 substituting that new piece of road network for much of the 14 widening of county arterials that was previously planned. 15 Q. Can you explain to the court what exaction is in terms of 16 your particular -- 17 A. We use the term exaction with our project development 18 clients in a transportation sense to indicate things, 19 particularly road right-of-way that is required as a condition 20 of land development. Usually at the subdivision stage. 21 Q. Does it take the place of eminent domain? 22 A. No, it is a negotiated, it is a negotiated, essentially a 23 negotiated settlement to gain development approval. 24 Q. Can you tell us if any other examples come to mind as 25 places that dealt with the same sort of problem that you have 0082 1 been involved with and what their solution to it was? 2 A. We have been involved with exactly this kind of issue for 3 the still undeveloped parts of Hillsboro County, Florida. That 4 is the county that contains Tampa. For all the nonurban parts 5 of the county, Hillsboro County is seeking to create a road 6 network that serves as alternates for arterial systems. 7 We have just initiated a project for Johnson City, 8 Tennessee and its surrounding county for exactly the same kind 9 of thesis. Because we are under contract to begin exactly this 10 kind of effort in Collier County, Florida. 11 Q. Can you tell me, what does the widening of a major 12 thoroughfare from two lanes to five lanes, as it is planned for 13 Houston Road; what does it do in terms of pushing the problem or 14 simply changing the area where the problem will exist in a few 15 years. That is to say, what happens to the traffic? 16 A. Well, this is, this is a question that we would really like 17 to see answered with more travel demand forecast models. The 18 traffic model that was designed to answer this kind of 19 question. 20 We are quite convinced that major arterial improvements 21 induce large amounts of traffic. They cause traffic to grow 22 beyond the limits projected by the very tools that led to the 23 planning of the road. This is an area of extensive research in 24 our field now with some rapid developments happening. 25 Q. Does it promote urban sprawl, sir? 0083 1 A. Yes. Hence, the interest in the subject. 2 Q. Does it change the character of the property adjacent to 3 the improved thoroughfare from residential to commercial? 4 A. Unless extraordinary land development regulations are in 5 place, it will have a tendency to change the character. 6 Q. Are you aware of any special consideration that was given 7 to any historical property along this corridor, sir? 8 A. Yes. From, well, the material, again, included in Exhibit 9 1. 10 Q. All right. Were you called upon to do anything in regard 11 to that? 12 A. No, sir. 13 Q. What was the solution at that particular time for those 14 particular pieces of property? 15 A. I was not following that closely enough to even answer 16 that. 17 Q. I understand. Mr. Kulash, if the Houston Road Project goes 18 to a point at an overpass which creates a bottleneck, will it 19 perform the function that it is designed to perform as set forth 20 in the needs and projections section of the EA? 21 A. It, we need to be careful about the project definition. It 22 may well perform that function for that segment of road, and 23 export the problem to another segment of road not included in 24 this EA. 25 Q. All right. Are you familiar with where it terminates and 0084 1 the underpass where it terminates, sir? 2 A. Yes. 3 Q. And can you tell us, is that an exploration of the problem 4 there, and a solution to the problem was to simply transfer the 5 problem to some other place? 6 A. It appears to me, again, based on the understanding from 7 the documents in Exhibit 1, it appears to me likely that that is 8 what could happen at this location. 9 Q. All right, sir. Did you make any analysis of whether or 10 not this was a rural area or suburban area or -- it is typified 11 in the EA as an urban area. In your opinion, is Houston Road an 12 urban area? 13 A. Well, I would categorize it in a way that is becoming 14 increasingly common in rapidly growing suburban areas. That is 15 areas that have an urban traffic characteristic, but that are 16 striving to maintain a rural appearance. We see this all the 17 time now. In traffic terms, in traffic solution, it is 18 thoroughly urban. 19 Q. Can you tell me if it is densely settled, or densely 20 settled area; in your opinion? 21 A. I would have to have, I could answer that simply, if we 22 just had a density measurement. Density has to relate to units 23 per square mile or per acre or something like that. So -- 24 Q. Did you find in this EA, an adequate explanation as to 25 whether those categories, it being urban, rural, farm land or 0085 1 densely settled, were any of those things defined in such a way 2 that you could make a determination as to what kind of road 3 would be proper for that area? 4 A. No. There were, there was very little characterization of 5 the area. 6 Q. Can you tell us, in terms of this road, and meeting the 7 traffic needs and societal needs for transportation in this 8 area, what kind of job was accomplished and what kind of effort 9 was made, in your opinion, sir? 10 A. We, we have a recommended or a preferred alternative for 11 this road that undoubtedly would do a good job of moving as much 12 traffic as fast as possible. I believe it will accomplish those 13 goals nice, very nicely. 14 We have very little inkling as to the cost, the cost in 15 terms of what it will do to the appearance or what it will do to 16 other measures of quality of life, once the improvement is in 17 place. We have very little measures of that. And we have no 18 ability to judge whether lesser improvements would have captured 19 completely adequate amounts of the benefits, but at some, much 20 more attractive fraction of the cost, monetary cost and 21 environmental and social cost. We just don't know. 22 Q. Let me ask you, sir, to make reference, if you will, to 23 Title 23 Highways and part 771.105, particularly that area, that 24 section there, and tell me, using the Federal Highway 25 Administration's statement of what the goals and benchmarks and 0086 1 guidelines are for the building of the road; is it your opinion 2 that this EA addresses those and satisfies those requirements? 3 Let me borrow it back. It is 771.105 under, policy, and 4 Section A, B, C through F. 5 A. Just the marked section? 6 Q. Just the Section 105. 7 A. Could you repeat the question, please? 8 Q. Yes, sir. Assessing the environmental assessment, in terms 9 of that statement of what the policy is and the goals and 10 guidelines to be achieved are, as set forth in 23 CFR 771.105, 11 would you state whether or not those particular goals and 12 guidelines have been complied with? 13 A. I do not feel they are being complied with or have been 14 complied with. Specifically, I find that the alternative 15 courses of action to be fragmentary and incomplete and not 16 illustrative of some of the real trade-offs that can be made. 17 And then with regards to the evaluation, we don't find 18 enough evaluation to make any decision about intermediate 19 alternatives. 20 And then the requirement for a balanced consideration, 21 subject, of course, to considerable subjective interpretation of 22 what balanced means. But we are seeing a very large emphasis on 23 moving as much traffic as fast as possible, and in our opinion, 24 a notable lack of attention to other factors. 25 Q. Such as outlined on the three monitors you gave us up here? 0087 1 A. Yes, sir. 2 Q. All right, sir. 3 MR. HUBERT: He is with you. 4 MR. THOMASON: If your Honor please, I would like to, 5 the court to entertain a motion to strike the entirety of 6 Mr. Kulash's evidence. 7 It is, in it is entirety, with his illustrations and 8 testimony, violative of the standard you previously announced; 9 that you found in 87 F.3d 1242, the Eleventh Circuit, Court of 10 Appeals, 1996, in Preserved Cobb History v Corps of Engineers. 11 He has clearly testified as to what he thinks should have been 12 done. Both on this one road project and in the City and County 13 of Macon and Bibb County. 14 It also is violative of what -- it is incompetent and 15 immaterial because it wasn't measured against 23 CFR 771. He 16 apparent wasn't aware that the agency had regulations that 17 measured our compliance with NEPA. 18 In his methodology that he suggested is violative of 19 the Ninth Circuit case that you gave us that you said you deemed 20 to be controlling, at 988 F.2d 989, Ninth Circuit, 1983 Friends 21 of the Payette. He has offered specific testimony only specific 22 impacts that, based on his methodology. 23 His testimony in its entirety is beyond the APA 24 standard of review for the EA FONSI for Houston Road. And 25 indeed he substitutes, or is attempting to substitute his 0088 1 judgment, his methodology and his means of arriving at a 2 decision on a federal highway project, contrary to what the 3 Secretary has in his regs and what the congressional mandate of 4 the will of Congress says. 5 And he would know, had he looked at our regulations, 6 that looking at projects that are subject to environmental 7 assessments, that the alternative analysis need include only the 8 build and no-build. Only under an environmental impact 9 statement would a reasonable range of alternatives be required. 10 And the EA, that you have in front of you, has build and 11 no-build and an eastern and western alternative deemed 12 reasonable by the Secretary. Whether his judgment is the same 13 or not is irrelevant. 14 THE COURT: What is no-build, what is the definition 15 of no-build? Just don't do it? 16 MR. THOMASON: To us, as a lawyer practitioner, it is 17 do nothing. It is a take no action. And the courts have 18 phrased it in various ways, or maintain the facility as it is. 19 THE COURT: What you seem to be saying is that the 20 Federal Highway Authority can do things like traffic counts and 21 whatever else they do, and decide that a five-lane road is what 22 is necessary, what is required. And then they go there and try 23 to plan a five-lane road that meets environmental standards, or 24 they don't build a five-lane road because it can't meet the 25 standards. And there is no -- seem to be indicating, maybe I'm 0089 1 wrong, but they are not required to step it down to three lanes 2 or four lanes or two lanes or anything. You follow me? 3 What Mr. Hubert has brought out with the witness is 4 that there were other alternatives that the DOT could have 5 chosen; that they could have said, well, you know, really, we 6 don't need five lanes. We can get by with three lanes. It 7 would be even less bothersome to the neighborhood. But is it, 8 is the federal highway required to consider that or not. A 9 smaller scale roadway? 10 MR. THOMASON: Let me answer it in this way: There 11 are readily accepted engineering principles set out by the 12 American Association of State Highway and Transportation 13 Officials, AASHTO is an acronym. There are universally accepted 14 state DOT engineering principles, both for local roads and 15 interstate highways. And we have adopted them as our own design 16 standards. 17 We look at each case on a case by case basis. The 18 Federal Highway Administration does, as proposed to us by an 19 applicant. Here, given the traffic, the projected growth, the 20 physical and operational limitations of what physically exists 21 out there. And the accident rate of 79 accidents and a fatality 22 of 1996 alone with a lot of personal injuries, it is within 23 their judgment as engineers to consider how I can provide, 24 first, for safety and then for an efficient operation. Among 25 those may be three lanes, five lanes, and that sort of thing. 0090 1 But given the origin of the accidents, and the 2 fatality, and the type of traffic movements, it was their 3 judgment that this size facility was prudent, if not commanded, 4 in order to make the facility safe. And safety is the very 5 first thing and the most important thing to any highway 6 engineer. 7 THE COURT: Well, let me ask you this: Does safety 8 trump environmental concern? 9 MR. THOMASON: We would certainly never build an 10 unsafe facility. If it was their judgment that a five-lane 11 facility was required, then our environmental regs would not 12 require us, it is my judgment, to negate the necessity for some 13 lesser facility. If in our judgment the operational function of 14 a five-lane facility, for the traffic that is predicted now and 15 in 2020, would call for a five-lane, we would study that and do 16 an environmental assessment and see if it had significant 17 environmental impact. There were none. You don't prove a 18 positive by negating everything else. 19 THE COURT: This road is designed for this area, I 20 assume that it is designed to handle the traffic up through a 21 specific time. You mentioned 2020. Is that -- 22 MR. THOMASON: The design year of 2020. They do their 23 forecasting and build both for now and the future. And it may 24 be that it is prudent to build -- I'm speculating, but it is 25 prudent to build a greater facility now than to come back and 0091 1 rebuild it in five or ten years. 2 THE COURT: Well, let me -- as to your motion to 3 strike, we don't have a jury here. I, I think I'm beginning to 4 learn more about this case as we go along. I know a lot more 5 about it than I did three or four hours ago. I'm not going to 6 strike his testimony. I am going to allow him to testify, 7 within reason, I think it will be within reason, but, and then I 8 will consider the matter when we finish. I think that is, under 9 the circumstances, I would rather hear too much than too little. 10 MR. THOMASON: I understand that, and I am sympathetic 11 with that, but I feel an obligation to my client to hold 12 Mr. Hubert as to what we know is established law. 13 THE COURT: I understand your position, and I have 14 stated what I think the guidelines are here. And I'm willing to 15 hear more. There may can a way that this testimony comes within 16 the ambients of these cases. I don't know now. But -- so, 17 okay, who wants to cross-examine? 18 MR. ALMAND: I think I will be nominated, your Honor. 19 CROSS-EXAMINATION 20 BY MR. ALMAND: 21 Q. Mr. Kulash, when did you first become involved in any way 22 with the road improvement program in Bibb County? 23 A. 1999, I believe. 24 Q. All right. You know what month in 1999? 25 A. I don't recall. 0092 1 Q. All right. Do you know how long this road planning or road 2 improvement program has been in existence? 3 A. Since the mid '90s, is my understanding. 4 Q. 1994 to be more exact, wasn't it? 5 A. If you say so. 6 Q. All right, sir. And during that time of between 1990, or 7 let's say January 1 of 1995 and the time you became involved, 8 did you review and go over all of the studies and assessments 9 and things that were done by those involved? 10 A. No. 11 Q. All right. And so you have no knowledge AT all of the work 12 that went into the decision making that led to the selection of 13 this alternative, do you? 14 A. No. 15 Q. All right. Now, as part of developing alternatives to 16 particular projects, of course, you have got to have knowledge 17 of all of the underlying data of the area, don't you? 18 A. Yes. 19 Q. You have got to know what the traffic is today and what it 20 will be 20 years from now, don't you? 21 A. Yes. 22 Q. You have got to know what the accident rate is, don't you? 23 A. Yes. 24 Q. You have got to know what causes the accident, what 25 particular feature of the road causes the accidents, don't you? 0093 1 A. Correct. 2 Q. You have got to know what the zoning is in that area? 3 A. Yes. 4 Q. All right. You have also got to know and apply what the 5 number of commercial uses are, don't you? 6 A. Yes. 7 Q. You have also got to know what is planned and what 8 development is taking place, don't you? 9 A. Yes. 10 Q. All right. And that, all of these things require study, 11 don't they? 12 A. Yes. 13 Q. And they require study of existing data and information? 14 A. Yes, sir. 15 Q. Now, when you do all of this study and look through all of 16 this, isn't it normal and human that as you do so, many 17 theoretical alternatives that might be out there are rejected as 18 being impracticable. Isn't that part of the normal reason and 19 lodgical process? 20 A. Yes, certainly. 21 Q. Okay. Now, isn't it true that you have no knowledge of 22 what, before you got involved in this, what the accident rate 23 was, did you? 24 A. No. 25 Q. Do you know how many accidents occurred on this road in 0094 1 1996? 2 A. Not before I started on this project. 3 Q. Do you know today? 4 A. Yes. 5 Q. How many were there? 6 A. I believe it is 70 some-odd. 7 Q. All right. Do you know how many accidents were on that 8 road in 1995? 9 A. No, I don't. 10 Q. Do you know how many were in 1994? 11 A. No, I don't. 12 Q. Do you know how many in 1997? 13 A. No, I don't. 14 Q. 1998? 15 A. I think I can save you some time by saying I may know how 16 many are in 1996. 17 Q. All right. So you don't even know if the rate of accidents 18 is increasing since 1996, do you? 19 A. No. I think that would be critical for someone making 20 decisions on this road to know, and to reflect. 21 Q. And that is a very critical decision, isn't it, as you say? 22 A. Yes, sir. 23 Q. Now, also, do you know what, what are causing this number 24 of accidents? Why are there so many accidents on Houston Road? 25 A. I don't find rigorous analysis that let's us answer that 0095 1 question. 2 Q. Well, have you taken a look at it yourself? 3 A. No. 4 Q. All right. Wouldn't you assume that the individuals that 5 perform all of the work and all of the studies that have been 6 done would have taken that into consideration? 7 A. I have not seen that -- 8 Q. You haven't seen it, but wouldn't you assume that has been 9 part of the process? 10 A. I cannot assume that has been part of the process because I 11 don't see a rigorous analysis of what getting those left-turn 12 vehicles out of the stream would have done, for example, to the 13 rearend collisions. I don't see the increment of getting the 14 right-turn vehicles out, what that would have done. I see just 15 a blanket statement that we must have five lanes to solve this 16 problem. 17 Q. All right. Now, let me ask you this, then, Mr. Kulash: In 18 terms of solving the problems of this kind of road when you look 19 at it -- describe the road to the judge. Have you ridden down 20 the road? 21 A. Yes. 22 Q. All right. Now, this road used to be U.S. Highway 41, 23 wasn't it? 24 A. I will take your word for it. 25 Q. You don't know at one time it was Federal, U.S. Highway 41? 0096 1 A. Not in the materials I had. 2 Q. All right. Now, in terms of the road itself, did you 3 observe the number of curb cuts that were in the road? 4 A. Yes. 5 Q. How many are there? 6 A. Numerous. 7 Q. Numerous. 8 A. Yes. 9 Q. All right, what is the speed limit on the road? 10 A. About 45 in parts, 55 in parts. 11 Q. All right. Now, are you aware of what the traffic is 12 today, the traffic volume and traffic count is today? 13 A. Eight to 16,000, roughly speaking. 14 Q. All right. Are you aware of what is projected to be by 15 2020? 16 A. I am aware of one scenario of projection. I'm aware of a 17 projection that assumes we will have continued suburban sprawl. 18 I am aware of that projection. If there are others made, I 19 don't know. 20 Q. What is that? 21 A. Roughly 18 to 24,000. 22 Q. All right. Now, that is a tremendous volume of traffic for 23 a road as Houston Road is configured today, isn't it? 24 A. Tremendous is not one of our term of arts. 25 Q. Well, it is a large volume, isn't it? 0097 1 A. Not a term of art. 2 Q. Well, how would you describe 20,000 on a road as it is 3 configured today? 4 A. We see two-lane roads carrying 20,000 all across the U.S. 5 Q. Two-lane road with the type of curb cuts we have here? 6 A. Two-lane roads with a high degree of engineering. 7 Left-turn lanes, right-turn deceleration lanes, sophisticated 8 signal systems and access management to control the number -- 9 Q. That would be your preference for an alternative, wouldn't 10 it? 11 A. I haven't given a preference. 12 Q. Okay. 13 A. That would be an alternative that deserves serious study. 14 Q. All right. Now, Mr. Kulash, you testified that you first 15 came to Macon at the invitation of Mayor Jim Marshall? 16 A. Not quite accurate. I was here for a small project for the 17 city, and at that time, then Mayor Jim Marshall asked could I 18 become involved, at that time I thought at the city's, as a 19 contract with the city, with some small inputs on road design 20 geometrics to the roads program. 21 Q. Did the City of Macon retain you for that purpose? 22 A. Never did. We expected they would, and before we even 23 completed the paperwork, which was a letter of agreement kind 24 of, very small, very small contract, the mayor, who was a member 25 of the executive committee for the roads program, got that 0098 1 effort lodged in the roads program. That the, the role that we 2 were going to play for the mayor became part of being the roads 3 program subcontractor for that. 4 Q. Did you become an employee of Moreland -- 5 A. No. A contractor, subcontractor -- 6 Q. You are a subcontractor to Moreland Altobelli? 7 A. Correct. 8 Q. And they are the manager to the road improvement program? 9 A. Yes. 10 Q. And you are being paid for your services to Moreland 11 Altobelli? 12 A. Right. Through Moreland Altobelli from the roads program. 13 Q. So in essence, you are being paid by the road improvement 14 program to do certain work? 15 A. Yes. 16 Q. You were not retained as or requested in any way to perform 17 services on Houston Road, were you? 18 A. No. Other than, other than this sort of cursory drive 19 through, which was a part of our general activity with Moreland 20 Altobelli for projects not yet, for projects in which we have 21 not, did not have any involvement yet, but simply to see them 22 and become acquainted with what they looked like. 23 Q. Now, when did you first become employed by CAUTION Macon, 24 the plaintiffs in this case? 25 A. December 27th. 0099 1 Q. What year, 1999? 2 A. 1999. 3 Q. Who employed you? 4 A. Through Richard Hubert, the attorney. 5 Q. All right. And what were you employed to do by Mr. Richard 6 Hubert, attorney? 7 A. To focus on the area of alternatives generation and to 8 report and make a conclusion as to whether a full range of 9 alternatives was fairly looked at. 10 Q. All right. You were retained to be an expert witness by 11 Richard Hubert, who represents the plaintiffs in this case? 12 A. Yes. 13 Q. Has he paid you a fee for doing so? 14 A. Yes. 15 Q. Okay. As part of that you understood that the plaintiffs 16 are suing the road improvement program, your employer, didn't 17 he? 18 A. Yes. 19 Q. Who are also paying you for your services as an expert. 20 A. Correct. 21 Q. Okay. And you expect to be compensated for your testimony 22 here today? 23 A. Yes, sir. 24 Q. Okay. Now, Mr. Kulash, in listening to your testimony, I 25 notice certain things were missing from items that you 0100 1 considered. Let me ask you, what, in determining volume or 2 determining what type of road to construct; what role does 3 projected growth of a community play in making that decision? 4 A. It is an important factor in either arriving at a size of 5 the road or in concluding that you need to do something 6 different with the way you arranged that growth. 7 Q. Now, are you aware of the recent development that has 8 occurred in that general south Macon area that would be serviced 9 by Houston Road? Let's say beginning in 1994 through today. 10 A. I am aware of an average less than 2 percent growth in land 11 use activity. 12 Q. Are you aware of the fact that water and sewer has now been 13 introduced into that area? 14 A. Yes. 15 Q. Are you aware of what occurs in a rural area when water and 16 sewer is introduced? 17 A. Yes. 18 Q. What happens? 19 A. Development. 20 Q. Right. Are you aware of recent commercial development that 21 has occurred and is occurring now in that area? 22 A. I'm not aware, but I know of no residential development 23 anywhere in the United States that is not followed closely by 24 commercial development. So I would agree that, I would agree it 25 is on it is way. 0101 1 Q. Right. And are you aware of the fact that a new school is 2 being planned for that area? 3 A. I certainly hope so. 4 Q. And when a new school comes, new residences come, don't 5 they? 6 A. I think it is the other way around. 7 Q. You think so? Okay. And what effect will a new school 8 have? 9 A. You know, I believe both ways are correct. Let me correct 10 that. We have developer clients who attract people with their 11 schools. It is entirely possible. 12 Q. Okay. Now, have you made a study of the zoning that is in 13 effect in this area, of the land use that -- 14 A. Well, again, in the interest of time, which is getting 15 precious here, my whole testimony has to do with the generic 16 principles of structuring alternatives, not the specifics of 17 this particular area. I do not have the background or 18 information to develop alternatives for this area. I have the 19 large background in how you go about, anywhere, developing a 20 series of alternatives. 21 Q. Your testimony today is all theoretical. Isn't that a term 22 you just used recently in conversation with someone? 23 A. No. It is all, it is all procedural. It is processed, not 24 theoretical. This is not theory. 25 Q. Didn't you tell Tom Moreland on a phone conversation 0102 1 yesterday, all the testimony you would give would be 2 theoretical? 3 A. Well, no. I said it would all be in the area of developing 4 alternatives. 5 Q. You did not use the term, theoretical, rather than based on 6 fact? 7 A. If I did use the term, theoretical, I would certainly 8 further define it to mean exactly what we are talking about 9 here. Which is principles, process and absolutely not getting 10 into the merits of whether this or that alternative is right for 11 Houston Road. 12 Q. All right. And so you cannot testify that the alternative 13 selected is not an appropriate alternative? 14 A. I absolutely can't. I just have no reason to say that it 15 is. I could do extensive analysis and come to exactly the same 16 conclusion. What I'm saying is, the materials are not at hand, 17 in Exhibit 1, to reach that conclusion. 18 Q. Now, just to follow along just a little more, Mr. Kulash, 19 on your knowledge of the local area. 20 Well, let me rephrase this question. You testified earlier 21 that safety is a primary concern in any road design; is that 22 right? 23 A. Yes, sir. 24 Q. In fact, safety of the traveling public is the primary 25 concern, isn't it? 0103 1 A. It is by no means absolute. Safety is a freely traded 2 commodity. 3 Q. A what? 4 A. The State of Georgia deliberately, the State of Georgia 5 deliberately incurred huge loss in safety when they went to the 6 higher speed limit, for example. This was a conscious decision 7 to accept lower levels of safety for other values. Getting 8 places quicker. So safety is not absolute. 9 We don't, if we design a car for ultimate safety, it would 10 be a four-ton ugly thing that would get three miles to the 11 gallon of gas. 12 Q. Rather than quibble with you, Mr. Kulash, you would agree 13 that safety is a primary concern? 14 A. It is an important one. 15 Q. Okay. And in designing a road, you would keep that in 16 mind, to design a road that would limit as much as possible the 17 number of accidents and the number of injuries? 18 A. No. As much as reasonable. As much as possible, it would 19 be, it would be eight lanes with a 20-mile-per-hour speed limit 20 or something like that. Again it is reasonable. 21 Q. Okay, as reasonable. 22 A. As reasonable. 23 Q. All right. And have you analyzed this particular road, 24 Houston Road, in terms of what is causing that number of 25 accidents? 0104 1 A. Again, we are not talking of the specifics of Houston 2 Road. In general, I can analyze the trade-off between safety 3 and monetary and environmental cost. In general, I would do 4 that and come up with alternatives that portrayed that 5 trade-off. I do not have the wherewithal to do that on Houston 6 Road at the present time. 7 Q. It is true, also, that you have not developed any 8 alternatives that you would put forth as a preferred alternative 9 to that one that has been selected. 10 A. No, no. 11 Q. Now, Mr. Kulash, you were handed Plaintiffs' Exhibit 1 as 12 an exhibit? 13 A. Yes, sir. 14 Q. I believe it has been somewhat redacted since then, some 15 documents taken out. But is your testimony here today based 16 solely on what was given to you as Plaintiffs' Exhibit 1? 17 A. Yes, sir. 18 Q. And I heard that document referred to as CAUTION Macon's 19 EIS. Do you adopt that terminology? 20 A. No. 21 Q. It is not an EIS, is it? 22 A. No. I think that was a, not intended to be a serious 23 description. But it is not my term, by the way, I think that 24 was intended to show the spirit of it rather than the contents. 25 Q. So any relationship between that and an EIS is purely 0105 1 coincidental to you, to coin a phrase, isn't it? 2 A. Although that has, it has elements in it that would be 3 worthy of inclusion in an EIS. It has an alternative that is 4 truly a thoughtful, that occupies a useful place in the spectrum 5 of alternatives. 6 Q. Well, what alternative, then, did you look at it to 7 determine is the alternative one that would accomplish the aims 8 and goals that are sought to be achieved? 9 A. It is worthy of further consideration. I believe there is 10 a good chance -- again, we are subject to my very limited 11 involvement in the corridor. But the principle behind the 12 alternative I saw, which is create additional road network to 13 carry some of the load, is highly applicable to Bibb County. It 14 would be a worthwhile thing to pursue. 15 Q. Create an additional road network? 16 A. Some additional road network. 17 Q. Are you referring to what I might call the Hayes Proposal? 18 A. That is, that is the source, as I understand it, too. I 19 don't have a name for this proposal. 20 Q. And when you say, create an additional road network; now, 21 when you look at that, did you do any cost benefit analysis on 22 that? 23 A. No, again, I am not, we are talking principles and 24 theoretical approach here. Our work experience with counties 25 and cities and fragments of counties that are pursuing this 0106 1 approach now, this is what is typically called smart growth. 2 Our experience with them is that it is, it is a reasonable and 3 attractive alternative, and very cost effective, and it is 4 worthy of consideration. And it yields, it yields very well to 5 our current analytical tools. It can be modeled with our 6 traffic demand models. 7 Q. Are you saying that the Hayes Proposal, what you define as 8 that, is cost effective? 9 A. I'm saying that that principle, we are finding in other 10 places. 11 Q. Principle. I see. 12 A. The principle of gaining additional street network through, 13 connector street network, through public action, exaction from 14 private developers, other sources. 15 Q. What is exaction? You used that term earlier, and I heard 16 it, it kind of went past me. I want to make sure I understand 17 what you mean by exaction? 18 A. I did not realize this was such an alien term. Our 19 developer clients use it as a standard term of art. It is, 20 typically, in a transportation sense -- there is exactions of 21 all kinds -- but the term as we hear it all the time throughout 22 the U.S. and develop community, means concessions negotiated in 23 exchange for development approval. 24 In roads, these are typically a section of collecter roads 25 dedicated to the public as right-of-way, sometimes sold or 0107 1 sometimes sold under various favorable terms. But, essentially, 2 a requisite of development approval. And these things are very 3 effective because they are happening, number one, at a time when 4 developing is happening. And, number two, at a time in which 5 the developer is extremely eager to negotiate and get going. 6 Q. In other words, it is -- I think I understand what you are 7 saying. 8 Are you aware of whether or not a government in Georgia 9 could used that technique in either zoning or road building? 10 A. No, I'm not. 11 Q. Would it surprise you to learn that that has been 12 specifically prohibited by the courts of Georgia as a technique? 13 A. Well, even if it is prohibited, and we have encountered 14 this in jurisdictions where it is, just simply the ordinary 15 planning mechanisms of assuring that instead of building 16 unconnected and therefore useless from a network point of view 17 new roadway, that the, that the new project simply build pieces 18 of what will eventually be an integrated collecter system. And 19 that can usually be obtained simply through negotiation. A 20 developer, by code or subdivision regulation, has to generally 21 build a certain mileage of collector streets anyhow. It is 22 impossible to plat your grounds without doing that. 23 Q. So I can put your testimony in perspective; do I understand 24 that you are saying that a reasonable alternative here in this 25 case, would be the construction of a new road network in this 0108 1 area? 2 A. A worthy alternative for further study. If we were going 3 to flesh out the field of alternatives to be looked at here, 4 this would be a worthy one to add to the field. 5 And construct, a new system is not quite accurate. Large 6 parts of the collector system are in place. They are not 7 connected. They need short pieces of connection to make them 8 useful alternates. 9 This also needs to be complimented with various kinds of 10 site plan controls. Again this is a county prerogative in Bibb 11 County. Site plan controls that do not regulate what the 12 destinations do on the ground. You can still have the same 13 service station or fast food or whatever, there. But that make, 14 but that independence from the transportation point of view of 15 those entities one hundred percent on the fronting of arterial 16 streets. That makes a huge difference in traffic. 17 To put it in simple terms, if I can get to the grocery 18 store on a connected network of collector streets and not have 19 to go out on Houston, that is probably four vehicle trips a week 20 that I'm not on Houston. But that is how it works. 21 Q. So what you advocate, then, in a nutshell is part of the 22 road improvements, to do land use improvements, land use 23 planning, community planning, this type of thing; is that what 24 you are saying? 25 A. You're doing a wonderful job of encapsulating exactly what 0109 1 we have all discovered. It is all hooked together. And that as 2 soon as you try to do a thoughtful job with something that we 3 thought was as limited as roads, it drags in the land use and 4 drags in all these other things. 5 We think that would be a very productive alternative, that 6 a roads program in combination with a, with a different way of 7 looking at the land use and therefore a different product, a 8 different road product, would be an utterly worthwhile thing for 9 the county and roads program to embark on. 10 Q. What you are saying is, we have gotten away from 3.2 11 miles. We are, should get into the community planning? 12 A. It leads us down that path. I don't have a good answer for 13 that. 14 MR. ALMAND: I have no further questions, your Honor. 15 THE COURT: Any redirect Mr. Hubert? 16 MR. HUBERT: No redirect, your Honor. 17 THE COURT: Let's see, I may have a question. 18 Mr. Kulash, what I have got to decide here is, was the 19 decision that lay at the heart of this environmental assessment 20 of which said that no environmental impact statement should be 21 made, that this road, and then the road that was designed as 22 five lanes of traffic for 3.2 miles, with all of the various 23 turn lanes and things that it had, that this roadway, it being 24 the product of that environmental assessment, was -- the 25 decision to do this -- I understand in your position, that it 0110 1 was certainly not the best plan. I think I am correct in, you 2 will agree with that, that this was certainly not the best 3 plan. 4 The question, the problem I have got to solve, though, 5 is was it such a bad plan, not even a good plan or a fair plan, 6 but such a bad plan as to be arbitrary as the decision to ignore 7 the environmental impact statements, arbitrary or capricious. 8 That is what this court has to, that is the guidelines. That is 9 my, that is my road map there. And -- 10 THE WITNESS: I understand that clearly. 11 THE COURT: And based on your study of the 12 environmental assessment, is it, is it, do you really feel that 13 it was, that the people who drew up this environmental 14 assessment were acting in an arbitrary or capricious manner? 15 And you know the definition of those terms. 16 THE WITNESS: Yes, uh-huh. I can certainly say that 17 the development of the alternatives, and then their treatment, 18 is really quite far from what we, what we consider state of the 19 art for projects of this size now. I realize that is probably 20 not sheding much light. 21 Another thing that we find quite problematical is that 22 this particular segment of Houston is part of a large roads 23 program, that if it weren't comprised of little segments of 24 roadway here and there, it would be the source of a very large 25 environmental impact statement effort. And I'm quite, I'm quite 0111 1 perplexed and bothered that we are proceeding with little two 2 and three-mile pieces. All, none of which are getting a big 3 systems overview. And, yet, we are going to end up with 20 or 4 30 center line miles of roadway widened to multi-lane. That 5 would be a huge project by anybody's standard. The net, the net 6 total, sum total of all the roads projects. 7 THE COURT: Let me ask you this question: What 8 problem would be presented if this roadway was designed in the 9 way that you suggested, I think three lanes, and then it, in say 10 five years or so, it is determined that it was inadequate and 11 that something more had to be done, and then you would have to 12 go in there again and design more roads. Would that be 13 preferable to going ahead and designing the roadway to five 14 lanes now, assuming that that may last for 20 years or so? 15 THE WITNESS: Well, that is one of those questions, 16 your Honor, that I really don't feel was answered well enough. 17 And that is exactly the kind of question that I don't believe we 18 have enough information to answer. 19 We are on such a borderline with regards to traffic 20 problems, we are on such a borderline here between a sort of 21 stretch two-lane and clearly needing a multi-lane, that it 22 really dose warrant a further look, for that reason alone. It 23 could be that the intermediate alternative carries us for way 24 more than just half the proposed period. 25 The way, the way trends are going now with, with the 0112 1 public, with the public acceptance of roads and what the public 2 wants to see out of their growth now, it is very likely that the 3 terrain is, public acceptance to terrain will be so changed in 4 ten years that the issue you pose will be a nonissue at that 5 point. It will be like the streets that are planting beautiful 6 trees on them and then when the time came to widen them it 7 becomes unthinkable that you would destroy these trees and the 8 issue goes away then. So that kind of thing could well happen 9 by then. 10 We see enough counties in regions changing their 11 policies now with this smart growth movement, that the continued 12 widening of roads doesn't occupy the place it used to. 13 So what you are suggesting, I believe, would be a 14 reasonable thing to do, but supported by, again, supported by a 15 hard look, as the term goes, a hard look at the intermediate 16 alternatives. 17 THE COURT: I am not suggest anything. I am merely 18 inquiring. 19 I don't have any further questions. Anybody else have 20 anything based on what I said? 21 MR. HUBERT: No, your Honor. I would ask Mr. Kulash 22 be excused. He is here from Florida at my special request. 23 THE COURT: Mr. Kulash, you may go down. He is 24 excused. Thank you. 25 MR. ADERHOLD: No objection from the government, your 0113 1 Honor. 2 THE COURT: We'll take about a ten-minute break. 3 (Recess) 4 MR. HUBERT: We call to the stand Mr. Daniel Peter 5 Fischer 6 7 DANIEL P. FISCHER, 8 having been first duly sworn, was examined and testified as 9 follows: 10 DIRECT EXAMINATION 11 BY MR. HUBERT: 12 Q. Mr. Fischer, would you state for the court and those 13 assembled, your full name, spell your name and state where you 14 live, please? 15 A. Daniel P. Fischer F-I-S-C-H-E-R. I live at 489 Ashville 16 Drive, Macon, Georgia. 17 Q. And how are you employed, sir? 18 A. I'm currently employed by Mercer University. 19 Q. May I ask you to bring your microphone a little closer. 20 And tell me what you do at Mercer University at this time? 21 A. I am the Associate VP for Planning, Budgeting and 22 Institutional Research. 23 Q. Can you tell me something about your educational 24 background? 25 A. My undergraduate degree is in philosophy with a minor in 0114 1 social sciences. My masters is in public administration from 2 the University of Minnesota with a concentration on urban 3 affairs, planning local government administration. 4 Q. In connection with your education, have you performed and 5 been engaged in various internships? 6 A. I had an internship with the Minneapolis Planning 7 Department and one with the village in Brighton (sic), both in 8 Minnesota. 9 Q. All right. In connection with your professional 10 activities, have you contributed, by publishing papers or 11 monographs or other written materials on various subjects 12 dealing with public administration? 13 A. I wrote a utopian novel in '92 that espoused what I called 14 humane planning ethic. It was the product of my city management 15 days. And I basically was trying to demonstrate that cities and 16 human institutions should be more conscious of human needs. I 17 gave several speeches to various organizations, the Utica County 18 Professional Engineers, I gave a series of talks. I gave other 19 talks through North Caroline State, local government affairs 20 council. I can't remember the exact name but they have annual 21 conferences for local government officials. 22 Q. Is a substantial amount of your work dealing with the issue 23 of planning urban affairs and the problems related thereto, sir? 24 A. From both ends, my career in the public sector was as a 25 city manager, and as an urban planner. I was city manager at 0115 1 Manitou Springs, town administrator at Federal Heights, 2 Colorado, assistant manager in Broomfield, and I was community 3 development coordinator in Westminister, Colorado in charge of 4 the planning department and administration of a rather involved 5 growth management plan. 6 I have also done private consulting for Chevron, Shell Oil 7 Company. I did some of their, full-time contract with them to 8 coordinate new town design for their Shell Oil project in 9 western Colorado. 10 I was a contract planner for Austin Associates, Austin, 11 Texas, to do a comprehensive master plan for the City of 12 Mercedes, Texas in '92. I have done consulting projects for 13 other cities. I have designed residential subdivisions. 14 Q. Does part of your duties at Mercer University include the 15 teaching of any courses? 16 A. I teach every fall a course in urban ecology. It is 17 sociology in environmental studies. Very heavy on the history, 18 government planning aspects of cities. I do comparative U.S., 19 third world and industrialized nations. So it has given me a 20 golden opportunity to keep quite up to date on the profession. 21 MR. HUBERT: Mr. Fischer, we would submit, your Honor, 22 is qualified as an expert to offer an opinion in this case. We 23 would submit him for voir dire examination at this time. 24 THE COURT: All right. What, tell me what, an expert 25 in what field? 0116 1 MR. HUBERT: Urban affairs planning and local 2 government administration, your Honor. 3 THE COURT: All right. 4 MR. ADERHOLD: Judge, he may very well be an expert in 5 that area. I don't know that that is appropriate for this 6 hearing. I suppose we will have to hear some of it, but we 7 would like to reserve our right to object. 8 MR. ALMAND: May it please the court, I beg to 9 disagree just a little bit. In terms of his expertise on the 10 issues before this court, he has none. 11 THE COURT: Well, why don't we just find out what he 12 has to say and then we'll determine whether or not it is 13 acceptable. 14 MR. ALMAND: Your Honor, would the court want us to 15 object as he does so? Because I think I know what he is going 16 to say. I think I can anticipate what is coming, and I have a 17 lot of objections to what he is going to say. 18 THE COURT: Well, Mr. Hubert, is he going to testify 19 about whether or not the environmental assessment was done 20 either properly or capriciously and arbitrarily? 21 MR. HUBERT: Yes, sir, your Honor, he will testify 22 about that. 23 THE COURT: Well, tell me, why don't you kind of tell 24 me a little bit. 25 MR. HUBERT: Your Honor, should the witness be allowed 0117 1 to testify, he will offer an opinion as to whether or not the 2 environmental impact statement is an adequate statement, both as 3 to, not the impact statement, the environmental assessment, is 4 an adequate statement as relates to the factual information that 5 is contained therein. Whether it is adequate in terms of his 6 assessment as to the -- 7 THE COURT: He is going to testify in regards to the 8 environmental assessment. 9 MR. HUBERT: Yes, sir. And we are going to try to 10 restrict that. 11 THE COURT: All right. I will hear him and I will 12 entertain any objections you have, but I'm not going to just not 13 let him testify. 14 MR. ALMAND: Your Honor, if I might make a continuing 15 objection that might save a lot of time? 16 THE COURT: Okay. You do have a continuing objection. 17 MR. ALMAND: Okay. 18 THE COURT: Let's move on. 19 Q. (BY MR. HUBERT) Mr. Fischer, can you tell the court how 20 you became involved in investigating the environmental 21 assessment and the procedures that were employed in the 22 construction or proposed construction for Houston Road, please? 23 A. I became concerned about the roads program in general back 24 in the summer of 1998. And my concern, I had actually gone door 25 to door supporting the roads program, because of sidewalks. I 0118 1 thought that was a great lack in Macon and Bibb County. 2 When I read in the paper the proposal to expand Forest 3 Hills Drive or Forest Hills Road to five lanes, I couldn't 4 believe that any process would produce those results. So I 5 started investigating what was the back-drop that was producing 6 this kind of result. 7 I first went to the offices of Moreland Altobelli, and I 8 asked the see plans on that. I was told by a young engineer 9 they didn't have such a thing, that the planning department 10 would. So I went to the planning department and picked up a 11 copy of the 2015 transportation plan. The 2015 comprehensive 12 plan. Proceeded to read those cover to cover, and realized that 13 they were extremely flawed documents, and really did not 14 constitute effective planning for a project of the scale that 15 was being proposed for Bibb County. 16 I had the opportunity to have some very friendly 17 conversations with Mr. Vernon Riles, Mr. Don Tussic, in trying 18 to, you know, see the root of the problem. And it basically was 19 not a planning driven process. 20 It became apparent to me very early on -- 21 MR. ALMAND: May it please the court, I know I said I 22 want a continuing objection, but this is getting even outside of 23 what Mr. Hubert said we were going into, and the purpose of this 24 witness' testimony. He is seeking now to critique the entire 25 planning program of Bibb County. I think that is way outside 0119 1 any issue even Mr. Hubert said he was going to address. 2 MR. HUBERT: Your Honor, the question to him was how 3 he got involved in this. This is a citizen participation 4 endeavored program. It invites that sort of process. The 5 answer was a background answer as to how he got involved in the 6 program, and, I mean -- 7 THE COURT: I will let him testify. 8 THE WITNESS: And I am trying to get to that point. 9 Q. (BY MR. HUBERT) Just let me -- were you involved in the 10 process as an interested citizen to begin with? 11 A. That is correct. 12 Q. All right. And where has it led you in terms of your 13 analysis of the environmental assessment, if anywhere, Mr. 14 Fischer? 15 A. I was asked by residents in the Houston Road area to review 16 their project and look at the environmental assessment, and did 17 so. I actually wrote an independent analysis of a plan that 18 Mr. Doug Hayes had formulated, because I felt it had revealed 19 some very logical and viable alternatives that had not come out 20 at the public process. 21 I realize, again, the environmental assessments reflected 22 that there was a problem with the federal and state officials 23 responsible for protecting the local interest and taking these 24 documents seriously. They obviously had been rubber stamped. 25 They were very broad and flawed. They treated an area where the 0120 1 road system obviously was quite interrelated, as is actually 2 acknowledged in the environmental statement. 3 They say part of the reason for the scale of the project is 4 adjacent improvements that are anticipated. So it was obvious 5 from the document itself that it begged the question that there 6 was a need to look at south Bibb as an integral system. In 7 fact, Mr. Hayes had done that. And in my opinion, had done some 8 of the more sophisticated planning, transportation planning that 9 has been done any where in Bibb County, as part of road 10 improvement, of the road improvement project 11 The contention that I have is that without looking at the 12 south Bibb area as a system, you absolutely cannot identify 13 whether no need is an option. You cannot identify the 14 alternatives that are most cost effective and feasible and that 15 mitigate some of the damages to local neighborhoods, and this 16 project was through an area that was devolved with residential 17 and nonresidential frontage. And there was a severe need for 18 mitigation. 19 There was obvious problems in the area with local 20 flooding. And these did not appear to be addressed. 21 There is a section in the environmental assessment that 22 says there is no flood problems. Whereas the 2015 plan 23 particularly pointed out that the south Bibb County was one of 24 the areas that had the worst problems in Bibb County. I was 25 appalled to find out that it was the only area in the county for 0121 1 which a FEMA flood plan revision was requested. One was not 2 requested for sub, south Bibb. It was for the rest of the 3 county, since the 1994 flood, which seems to be a rather big 4 omission. 5 A map that was provided in the EA was an insurance rate map 6 other than a flood plain map. The flood plain map that has been 7 in some of the other documents published by the road improvement 8 program, that does include the hundred-year-flood plain; does 9 show that Houston Road does infringe on that in places. So it 10 was actually a factual error in the environmental assessment. 11 Q. What action, if any, did you take to draw that to the 12 attention of the governmental authorities involved in this case? 13 A. In December, actually on December 10, 1998, members of the 14 state and federal DOTs were concerned enough about some of our 15 verbal presentations that they came down to Macon and met with 16 us for better than four hours. Laurie Schrader was there from 17 the federal, Cora Cook from the state, and other people with 18 them whose names I don't remember. 19 The Houston Road contingent went into great depth about 20 problems with the environmental assessment at that point. Got 21 into the flooding, et cetera, et cetera, alternatives that were 22 cost effective feasible that were not examined. 23 We were told at the end of that meeting that we should 24 submit questions in writing, and they would be answered, 25 hopefully, in a month. But certainly in a timely fashion. The 0122 1 Houston Road people submitted a letter with a packet of 2 documents that they had addressed on December 10th. I wrote a 3 more general letter -- 4 Q. Let me ask you. Did you, yourself, write a letter 5 outlining some of these problems that you saw with the 6 environmental assessment? 7 A. I did not outline the specific ones with that environmental 8 assessment because the Houston Road people did that. What I 9 tried to point out was catagoric problems that put citizens at 10 risk. 11 Q. All right. Before you look at any document, let me ask you 12 to -- I am showing you a document previously identified as 13 Plaintiffs' Exhibit 70. Tell me what Plaintiffs' Exhibit 70 is, 14 please, sir. 15 A. This is a letter -- 16 MR. ALMAND: May I see it, please, Mr. Hubert? 17 MR. HUBERT: I show you Plaintiffs' Exhibit 70. It 18 should have been in your records. 19 That document, I would offer this explanation, came to 20 my attention today. And I'm sorry, it wasn't reproduced. But I 21 will try to move along. 22 THE COURT: All right. 23 Q. (BY MR. HUBERT) In regard to Plaintiffs' Exhibit 70, 24 without going into the exact language that was employed in that 25 document, what did you attempt to do with the document? 0123 1 A. In this document I tried to show that the problems that 2 were pointed out by, for Houston Road and by groups of other 3 cities, were rather catagoric and generic with the road 4 improvement program. And I asked two specific questions. We 5 realized that under the requirement of ISTEA and T-21, where it 6 states very comprehensive factors that are designed to protect 7 the local area and the citizens, there was no recourse except 8 through enforcement by federal and state officials. 9 And we asked them, you know, given the fact that we had 10 presented great lapse in accurately doing that, not looking at 11 alternatives, not having systematic planning, which is a 12 specific requirement of both ISTEA and T-21, of not having 13 effective methods for citizen participation, that, for 14 mitigating social and environmental; that we were at risk. And 15 we asked at what point, how severe does this have to get before 16 the federal and state authorities would feel any responsibility 17 to protect our interest, since we could not do it, and the roads 18 program was not. 19 I have never received a response from that letter. It was 20 sent to Wayne Shakelford of the Georgia DOT and to Mr. Larry 21 Dreihaup of the federal regional office of the DOT. I 22 understand -- but I had no response. I don't know what their 23 answers to these questions are to this date. 24 But we pointed out that there was drastic consequences to 25 citizens in Bibb County when they neglected to enforce the terms 0124 1 of very specific federal requirements. And -- 2 Q. Do you understand what the term, segmentation, means? 3 A. Yes, I do. 4 Q. Is this project a segmented project, in your opinion, sir? 5 A. It absolutely is segmented, because it is not looking at 6 Sardis Church, Hartley Bridge, Industrial Highway, Walden Road 7 and the other projects that are under consideration, and other 8 elements of this system that work as a system. It is definitely 9 segmented. And that is why I earlier said that by only looking 10 at one little piece you cannot possibly see the most feasible 11 and desirable alternatives, because they may not lie on that 12 piece. It may lie in what to do with the system. 13 Q. Is it your opinion or not, Mr. Fischer, that it would 14 require a global analysis of the roads program to be an adequate 15 environmental statement? 16 A. At some level and with some issues, absolutely. Air 17 quality, for instance is one that is global in nature. There 18 are subplanning areas such as Bibb South, where traffic flows 19 ability to handle both internal and external traffic, flooding 20 problems, are probably more pertinent. And at the very least 21 the south Bibb area could be treated as a planning area and 22 addressed in a single environmental area assessment statement. 23 Q. I would like to ask you, sir, if based on your opinion on 24 review of that document and your analysis, as far as you have 25 gone since you had a chance to review it, is the effort to put 0125 1 forward the environmental assessment that is the basis of the 2 FONSI, a document which, in your opinion, sir, is capricious, 3 arbitrary and totally failing and lacking in any substantive 4 merit in terms of assessing this program from a public 5 standpoint? 6 MR. ALMAND: May it please the court, I realize the 7 court has asked that question himself. But I think to ask a 8 witness that question, is, goes way beyond the realm of an 9 opinion that could be offered by this expert, whether it is 10 arbitrary and capricious. That is a question that the court 11 must determine based on the evidence that the court hears. And 12 I object to that use of him answering that question on that 13 basis. 14 MR. HUBERT: Your Honor, I could conclude that this 15 witness, as an expert, could offer an opinion as to the ultimate 16 fact. And that it was indeed, as Mr. Almand says, a matter that 17 concerned the court somewhat at the end of the last witness' 18 testimony, and, therefore, I concluded that it might be 19 appropriate for me to address it rather than have the court to 20 address it. 21 THE COURT: Well, the witness in federal court can 22 testify on the ultimate fact. I will allow the question. 23 Q. (BY MR. HUBERT) Could you tell us what your opinion is? 24 And then, Mr. Fischer, if you haven't done so, I would like for 25 you to state the reasons for your opinion, to the court. 0126 1 A. Okay. I do not know the legal definitions of all the 2 terms, so I will do my best in my own words, and hoping I hit 3 the right definition. 4 To me it is extremely arbitrary to limit the review to a 5 single road when federal requirements, common sense and the most 6 basic planning principles require that you look at it as a 7 system. I don't think you can get much more arbitrary. I'm not 8 quite sure that the definition of capricious -- 9 Q. Well, capricious is almost, capricious would be whimsical 10 and without any justification for, in terms of logic or a 11 progression of reasoning, is the way I give you the definition 12 of capricious in that sense. Is it capricious? 13 A. Since it violates the most basic tenet of both planning and 14 transportation planning, I would say, yes, it is. 15 Q. Is it of any value, as offered to a member of the public 16 who tries to determine what the environmental consequences will 17 be of this road? Is it, in your opinion, sir, of any value to 18 such a person to read the environmental assessment? 19 A. The gaps are really greater than the substantive matters. 20 I can give you a couple of examples if you would like. 21 Q. Well, I would like for you to give them by way of reasons, 22 Mr. Fischer. 23 A. I stated a little earlier that the 2015 transportation plan 24 singles out the Bibb's south area as one of the areas of Bibb 25 County that has the most severe flood hazard. 0127 1 Q. I believe you alluded to that already. 2 A. That is covered by one short sentence, one short paragraph 3 in the document. 4 The other is the alternatives that are addressed, assume 5 the big premise is that safety requires going to a five-lane 6 road to completely segregate right and left-turning movements, 7 because there is residential frontage on that road. And if one 8 looked at that road as a system, the first thing one would do is 9 to question its classification. It is classified from Walden 10 Road north as a major urban arterial. 11 The performance of the road in its current layout, despite 12 the fact that it was at one point in time a highway, is now a 13 residential, major residential collector. I think that it 14 speaks to this point that south of Walden it is classified as a 15 collector. Usually arterials have some connectivity, and this 16 road does not. That seems rather flawed in thinking. 17 Q. Is it urban, is it an urban road or a rural road, in your 18 opinion, sir? 19 A. Well, I think you could say either. It currently is more 20 rural because of the densety. You know, the fact that there is 21 growth in that area, you could develop it as either a rural or 22 an urban configuration. Given the flood problems and documents 23 I have read from the University of Georgia Environmental Design 24 Center that specifically looks at roads, they favor going to a 25 rural configuration any time you can, to avoid aggravation of 0128 1 flood conditions. 2 So in that area, I would lean toward a rural with open 3 swells that would allow slower runoff, more percolation of water 4 rather than aggragated accelerated flows, and then further cause 5 flooding damage in the area. 6 Again, I have never attempted to get to that level of 7 critique. But my opinion would be based on the literature that 8 whenever you can do it is better, especially in an area that is 9 flood prone. 10 Q. What would it do to the terrain in that area if you put a 11 five-lane road in it as relates to the adjoining property, 12 historic property or other community values in that area? 13 A. One of the requirements of ISTEA and T-21 is you try to 14 minimize any social and environmental damage. The fact that it 15 is in a developed area, taking a hundred foot right-of-way and 16 then putting in a five-lane road, means you're pushing traffic 17 much closer to residential properties. It definitely has a 18 negative effect on the quality of life in the value, probably, 19 of those properties. 20 From an environmental standpoint, every additional square 21 foot of asphalt creates additional runoff. And especially when 22 you channel it into storm sewers, you both accelerate the speed 23 of runoff and collect more of it. 24 Q. May I direct your attention, sir, to the speed limit on the 25 roadway. What effect, if any, does the speed limit have on it? 0129 1 A. The assumption is made that the speed limit will be 45. 2 There is never an alternative examined that asks the question of 3 whether a lower speed limit could be appropriate. 4 And, again that comes back to the classification of the 5 road. If it is a major urban arterial and you beg that 6 question, you don't look at the system and ask whether that is 7 the proper classification, then you are going to push for a 8 higher speed limit. If indeed it is a residential, major 9 residential collector, you could countenance a slower speed, 10 which would address some of the safety problems that were 11 pointed out in the EA. Legitimate safety concerns. 12 Q. Is it feasible to consider that any roadway will have a one 13 hundred percent effective reduction of accidents and a hundred 14 percent safety -- 15 MR. ALMAND: May it please the court, I would like to 16 be lenient, but I would like to hear the witness testify rather 17 than Mr. Hubert. I understand we have a lot of latitude. 18 THE COURT: Well, yeah, Mr. Hubert, you are asking 19 some very leading questions. 20 MR. HUBERT: I withdraw it, your Honor. 21 THE COURT: Just ask the witness -- 22 Q. (BY MR. HUBERT) Let me ask you to address the question of 23 the speed limit at that particular area. 24 A. Any time you have residential frontage in the conflicts 25 with access and egress, speed is a problem. The higher the 0130 1 speed the more severe and the more often you are going to have 2 accidents. That is the whole nature of the concept called 3 traffic counting were you look at an area, you design a project 4 to bring speeds and volumes within reasonable limits, and you 5 address traffic, you address safety from that angle. 6 That is only an option if the classification of the road 7 allows it. In this case, one alternative from a public safety 8 standpoint that should have been addressed, is whether this road 9 could ever be brought up to major arterial standards. Or if the 10 fact it has so much residential frontage, which in the 2015 11 transportation plan is considered a negative with any arterial 12 level road -- 13 Q. Let me ask you about the left-turn configuration and 14 right-turn configuration to driveways along the street. 15 Did the EA, environmental assessment, adequately address 16 those issues? 17 A. I never saw anything in the environmental assessment that 18 really tried to quantify the interference from the turning 19 movements. The density immediately fronting the Houston Road is 20 not high. A lot of the lots are rather wide. There are some 21 day care, churches. The churches obviously come off-peak most 22 of the time, so they shouldn't be a major problem. But there is 23 more of a concentrated access and egress where you can control 24 it if you have to. 25 I think the one crying need in that area, I don't think 0131 1 anyone can test the fact that some improvement is desirable. 2 The road is currently substandard. But left-turn lanes at 3 existing intersections where you are going to have higher 4 volume, left and right turn, is very desirable. And probably 5 the greatest benefit from the improvements would come from 6 improved intersections to handle the quantities of turning 7 movements and from adequate signalization at those 8 intersections. I think that would be a major benefit safety 9 wise, and it would greatly increase the ability of the road and 10 adjacent roads to handle current and future traffic volumes. 11 Q. Mr. Fischer, did you look at the question of air pollution 12 or air quality, at all? 13 A. I did not. 14 Q. Do you know whether it addresses that issue with any sort 15 of sophistication? 16 A. I didn't pay that much attention to that, with this EA. 17 Q. In terms of an overall evaluation of the environmental 18 assessment, would you state to the court what your conclusion 19 and opinion is of that document in terms of what it is supposed 20 to do, i.e., inform the public of the environmental social 21 economical impacts on the public road improvement on the 22 community; what kind of job does it do as relates to that? 23 A. I think it fails miserably. 24 Q. Thank you. 25 MR. HUBERT: He is with you. 0132 1 THE COURT: You may cross-examine. 2 MR. ADERHOLD: Nothing from the government, if your 3 Honor please. Thank you. 4 MR. ALMAND: May I have just a moment, your Honor? 5 THE COURT: Yes. 6 CROSS-EXAMINATION 7 BY MR. ALMAND: 8 Q. Mr. Fischer, what I would like to do is to go back through, 9 first, your education. Of course, you indicated you have a 10 college degree. And I believe your degree, you said, was in 11 philosophy? 12 A. My undergraduate was philosophy, Master in Public 13 Administration. 14 Q. I am just concentrating now on the undergraduate degree. 15 It was in philosophy; is that correct? 16 A. And a Minor in Social Sciences. 17 Q. Social sciences, all right. And then you obtained a 18 Masters in Public Administration? 19 A. Correct. 20 Q. All right. Where did you obtain that masters? 21 A. The University of Minnesota. 22 Q. How long a course of study was that? 23 A. It was basically a two-year. I had just gotten out of the 24 army and I accelerated it to nine months, much to their dismay. 25 Q. Is public, Masters in Public Administration; is that the 0133 1 type of course you take when you are going to become a city 2 manager or assistant city manager; is that what it prepares you 3 for? 4 A. Public administration is very broad in its application. It 5 can prepare you for local, federal, state, any number of 6 government related occupations. My concentration was on local 7 affairs and local government, because I did want to get into 8 local government. 9 Q. All right. As part of your formal education, did you 10 receive any -- I'm assuming you received no degrees in civil 11 engineering? 12 A. No. 13 Q. Traffic engineering? 14 A. No. 15 Q. Hydrology? 16 A. I -- 17 Q. Let me finish my question, please. Did you receive any 18 degree or training in civil engineering? 19 A. No. 20 Q. Did you receive any degree or training in formal education 21 in hydrology? 22 A. No. 23 Q. Traffic engineering? 24 A. No. 25 Q. Road design? 0134 1 A. I took courses from the school of architecture in urban 2 planning. 3 Q. Urban planning. 4 A. So, road design as an engineer, no. As a planner, yes. 5 Q. Okay. Now, I believe you took courses, or you had 6 experience in urban planning? 7 A. Correct. 8 Q. And I believe you said you wrote a book on urban planning; 9 you called it Utopia? 10 A. It is a novel that was intended to promote concepts that I 11 call human planning ethic. It was a product of my city 12 management days. And basically as a city manager, you inherit 13 all the mistakes that the engineers have made. And I realized a 14 lot of these came from forgetting about people. 15 Q. In any city, whether it be Macon, Georgia or Minneapolis or 16 Atlanta, over the years have developed problems in growth? 17 A. Absolutely. 18 Q. And you have to deal and work with existing problems, don't 19 you? 20 A. Correct. 21 Q. And in doing so you have to consider cost effectiveness. 22 A. Definitely. 23 Q. All right. And you cannot just come in and recreate an 24 entirely new utopia out of an existing situation, can you? 25 A. That is a broad statement. I would want to -- I think that 0135 1 utopias are created in little pieces in existing situations. 2 And it is more of a matter of focus than anything. You get 3 there in little steps, and you get there by doing a lot of small 4 things right. I think that is a phrase in my book. 5 Q. All right. Have you ever engaged in employment as a zoning 6 official? I understand you have been a city administrator, but 7 I'm talking about specifically a zoning administrator or zoning 8 official? 9 A. I was employed by the City of Westminster as a community 10 development coordinator, or director, and I was in charge of the 11 planning department. I was the department head for planning. 12 Q. All right. How long was that employment? 13 A. I was employed with Westminster about two years. 14 Q. Okay. Other than that, have you had any other experience 15 or training in urban planning? 16 A. I was hired by Chevron as a full-time consultant to 17 coordinate new town design, and I completed preliminary design 18 for a city of 30,000 for Chevron. 19 Q. A new town site? 20 A. This was a new town site. I started with the roads, which 21 was basic formative infrastructure. 22 Q. So you had a blank canvas upon which to draw? 23 A. Not completely. There is never a blank canvas. 24 Q. But it was dealing with a new project rather than 25 correcting old existing problems? 0136 1 A. In this case, there was an existing city that had to be 2 accommodated, so we had to mitigate the impacts on the city. 3 Q. Is this Reston, Virginia you are talking about? 4 A. I'm talking about De Beque, Colorado. That is where the 5 project was. 6 Q. Were you employed at Reston, Virginia at one time? 7 A. I was not. I visited Reston and I visited Columbia, 8 Maryland, when I was employed by Chevron, because I was going to 9 utilize some of the village concepts in those cities for the 10 Chevron project. 11 Q. Now, let me ask you this: You mentioned that you had 12 reviewed what work that Mr. Hayes had done. 13 A. Correct. 14 Q. And do I take it that you endorsed, enthusiastically, Mr. 15 Hayes' plan for south Bibb County? 16 A. I think it is far superior to anything I have seen proposed 17 for south Bibb County, and it is excellent planning. 18 Q. Now, you spoke extensively about problems in south Bibb 19 County. Among the problems you addressed was the problem of 20 flooding or -- am I correct? 21 A. Correct. 22 Q. Now, did you do any studies or do you have any information 23 to suggest how much this improvement on Houston Road will 24 increase an already existing problem? 25 A. That was something that I would have hoped I would have 0137 1 seen in the environmental assessment stage. 2 Q. You have no knowledge of that, do you? 3 A. I'm not a hydrologist. 4 Q. Mr. Fischer, in fact, at the present time, in that area of 5 the county, there is now a draining problem, and has been for 6 years. 7 A. That is correct. 8 Q. And in fact, because of that problem there was a lawsuit 9 that was filed that led to the construction of a rather major 10 detention facility, wasn't it? 11 A. That is correct. 12 Q. And that is right on the west side of Houston Road. 13 A. That is correct. 14 Q. And the purpose of that facility was to address some of the 15 flooding, or the flooding problem that existed. 16 A. Hopefully so. 17 Q. And that detention facility was built by the county, wasn't 18 it? 19 A. With federal funding, I believe. 20 Q. And that detention facility is right in the area of where 21 the flooding occurs. 22 A. There are actually subareas, and that handles the tributary 23 from one of them, that is correct. 24 Q. And you have formed no studies or have no information to 25 suggest how much additional flooding would be added, or 0138 1 additional impact would be had because of the improvements on 2 Houston Road. 3 A. As a citizen who has volunteered my time to the point it is 4 almost a second job, no, I did not have time to do that level of 5 investigation. 6 Q. Now -- 7 A. But I would expect to see that environmental assessment, 8 and I would also expect, given the fact that there were past 9 problems, and there have been facilities built, hopefully, to 10 mitigate that, that the FEMA would be asked to update its flood 11 map. Because that might show we have solved all the problems. 12 Why wasn't that done? South Bibb is the only place that 13 there has not been an update of the FEMA flood plain map since 14 the 1994 flood. And I should think as a part of the EA that 15 would have been a vital part of determining whether these 16 problems had been resolved. Do I know that they were or -- no, 17 I don't. But I think the citizens there who are affected 18 deserve to know. And they cannot tell that from the EA. 19 Q. All right, now, Mr. Fischer, in terms of the current 20 situation on Houston Road, did you make a study of the accident 21 data that exists? 22 A. I have seen the accident data. I have, again, not made an 23 extensive study of that. 24 Q. You made any effort to compare the Houston Road to other 25 roads in the state to determine the degree of dangerousness of 0139 1 the road as it presently exists? 2 A. I think there is general consensus that the road currently 3 is substandard and that that leads, it is substandard as a 4 two-lane facility, and that definitely leads to accidents. It 5 is a substandard road. I don't think anyone has ever questioned 6 need for improvements of Houston Road. It is substandard. 7 Q. So you would not consider a no-build alternative as a 8 reasonable alternative, would you? 9 A. I would not consider an absolute no-build. I would think a 10 minimum would be to bring it at least up to two-lane road 11 standards and to solve some of the obvious problems that are 12 causing these accidents. 13 Q. But the question was, Mr. Fischer, you do not consider a 14 no-build alternative a reasonable alternative, do you? 15 A. If that means not improving the existing facility, I mean, 16 whether you call just upgrading the two-lane improvements for a 17 build, I'm not sure of the technicality. 18 I will agree that there is the need to at least bring that 19 road up to standard for safety purposes. So not doing anything 20 is not an option, and I don't know if that is considered, you 21 know, normal maintenance upgrading or whether you consider that 22 a build. I'm not sure of the nuances of the terminology. 23 Q. Now, you refer to this in your direct testimony, the road 24 as a major urban arterial. Is that the way you classify this 25 road? 0140 1 A. No. It is classified as a major urban arterial by the road 2 improvement program. And I questioned whether that was an 3 accurate classification. And my point was, if the roads, if the 4 system in south Bibb County had been looked at as a system, one 5 of the first things one would do is to question that 6 classification. From seeing the fact that there is adjacent 7 arterial level roads immediately to the east, the Industrial 8 Highway, I would really question whether that road functions or 9 should function as an arterial at all. I think it probably, if 10 the area was reviewed as a system, would be reclassified as a 11 collector. 12 Q. What is the present speed limit on the road? 13 A. It is either 40 or 45. 14 Q. What is the, under the EA, what was the planned -- 15 A. Forty-five. And that is one thing that I certainly would 16 question whether that is an appropriate speed limit. 17 Q. Forty-five as a five-lane or forty-five as a two-lane? 18 A. Maybe it shouldn't be forty-five. 19 MR. ALMAND: I have no further questions. 20 THE COURT: Anything further? 21 MS. BRAKEFIELD: If I could see that letter you have. 22 If I may have just a second to see this. This is the first time 23 I have seen it. 24 CROSS-EXAMINATION 25 BY Ms. Brakefield: 0141 1 Q. Mr. Fischer, my name is Cathy Cox-Brakefield. I am a 2 Senior Assistant Attorney General for the State of Georgia. And 3 I represent the Georgia Department of Transportation in this 4 case. 5 Although this letter has not been introduced in evidence, 6 you testified quite a bit about a letter you wrote to two 7 individuals. Wayne Shakelford the commissioner of the Georgia 8 Department of Transportation, my client, and to Mr. Dreihaup of 9 the Federal Highway Administration. I can let you take a look 10 at this letter again, but if I could, I would just ask you that 11 there is only one place in here where Houston Road is 12 mentioned. Is that, and you may look at the letter if you need 13 to. 14 A. No, that is correct. And I mentioned in my earlier 15 testimony that subsequent to the December 10th meeting, the 16 residents in each project area were asked to individually submit 17 their questions. The people from Houston Road submitted 18 theirs. I felt that it was desirable that we hit some of the 19 more global issues that applied to our projects. Because there 20 was a pattern, and the pattern was one in my mind of inadequate 21 planning, and the state and federal DOT's not enforcing the 22 spirit or the letter of the regulations that were designed to 23 protect the local community. 24 Q. Thank you, Mr. Fischer. If you wouldn't mind, let me read 25 to you the paragraph in which you mentioned Houston Road, and 0142 1 ask you if this is what you in fact asked the commissioner. We 2 hereby request that the department, that the Federal and State 3 Departments of Transportation, acting separately or in unison, 4 demands that the following projects be delayed until such time 5 as the county, with effective public input, thoroughly reviews 6 road classifications and develops a comprehensive road system 7 plan compliant with the letter and spirit of federal and state 8 regulations, parenthesis, contracts have not been let to date on 9 these projects. Then you have a list of all the projects, and 10 among them is Houston Road. 11 A. That is correct. 12 Q. It is accurate, is it not, Mr. Fischer, that at no place in 13 this letter you made any direct statements about the 14 environmental assessment that had been repaired on Houston Road; 15 is that correct? 16 A. That is accurate because that was done in a separate letter 17 by the people from Houston Road. 18 Q. And do you have that letter? 19 A. I believe that is going to be introduced. I don't have a 20 copy with me. 21 Q. But you have no personal awareness of that letter -- 22 A. Oh, yes. 23 Q. Let me retract that question. 24 THE COURT: Y'all be careful. 25 Q. You did not participate in the drafting of the letter 0143 1 regarding Houston Road; is that correct? 2 A. They did not need my help. They did an excellent job. 3 Q. Did you see it before it was submitted to Mr. Shakelford? 4 A. I listened to the presentation that was made on December 5 10th. The letter basically tried to summarize that 6 presentation. I saw the letter after it was sent, not before. 7 Q. Let me ask you, maybe the letter I'm thinking about is a 8 different one. The only letter I am aware is a May 1999 letter 9 by Mr. Hubert on behalf of CAUTION Macon. Are you referring to 10 a different letter? 11 A. I'm referring to a letter that would have been sent in 12 January of 1999 or early February, around the same time period 13 as mine. It was a follow-up to the December 10th meeting. 14 Q. That is another letter, then. I probably haven't seen it. 15 I will wait to see it. 16 A. I think it was early February, now that I think of it. 17 Q. But once again, you did not, my question was, and I'm not 18 sure I got an answer; you did not help draft that letter? 19 A. I did not. 20 Q. Thank you, sir. 21 THE COURT: You may go down. 22 MR. HUBERT: You may come down, sir. 23 Your Honor, we would call Susan Hanberry out of turn. 24 She has a scheduling problem with some classes she is teaching 25 tomorrow. 0144 1 SUSAN F. HANBERRY, 2 having been first duly sworn, was examined and testified as 3 follows: 4 DIRECT EXAMINATION 5 BY MR. HUBERT: 6 Q. Would you, for the record, state your full name, where you 7 live and what you do for a living, please, ma'am? 8 A. My name is Susan F. Hanberry. I live at 4831 Gary Drive 9 here in Macon. And I teach biology at Stratford Academy. 10 Q. All right. Can you tell us what your involvement generally 11 has been with the Macon, Bibb County Road Improvement Program as 12 relates to CAUTION Macon? 13 A. I have been watching all of these proceedings for a very 14 long time, and have been concerned when I have seen some of the 15 procedures and some of the little fudging on some of the 16 procedures that I have noticed throughout the roads program. 17 I have also been involved in some other road projects here 18 in Macon. And, so I was a little bit familiar with some of the 19 procedures. 20 Q. Are you in particular involved in the Fall Line Road 21 Project? 22 A. Right. I am the President of Friends of Ocmulgee Oak 23 Fields. 24 Q. Can you tell us a little bit about your educational 25 background? 0145 1 A. I went to school at Emory University and studied biology 2 and chemistry. I have a degree in biology. I have, I was the 3 Director of Natural Sciences of The Museum of Arts and Sciences 4 for almost ten years. I have taught at Mercer University and 5 I'm teaching at Stratford right now. 6 Q. All right, can you tell me about your involvement in any 7 environmental work in connection with roads or any other public 8 projects? 9 A. I have been involved in many projects through my time here 10 in Macon. I, having a background in science, it allows me to 11 understand some of the more technical details. I sat on a 12 board, the Restoration Advisory Board at Robins Air Force Base. 13 I have been a member of that board since its inception, and some 14 of this is just my concern about the health and safety of my 15 children and my community. And because I have the ability to 16 understand these scientific aspects of it, I think it is my 17 responsibility to be involved in that community. 18 Q. Are you a member of Mayor Jack Ellis' transition team? 19 A. I was. 20 Q. And did you participate in the Legislative Study Committee 21 on Gas and Oil Pipelines? 22 A. I did. I was asked to do so by one of the state 23 representatives. 24 THE COURT: On what? What kind of pipeline? 25 MR. HUBERT: The study, Legislative Study Committee on 0146 1 Gas and Oil Pipelines, your Honor. 2 THE COURT: Okay. 3 Q. (BY MR. HUBERT) Now, I would like to direct your 4 attention, please, to the issue of air quality. Have you 5 familiarized yourself with the environmental assessment? 6 A. I have. 7 Q. And have you read that? 8 A. I have. I have read it a number of times. 9 Q. And have you looked at the undertaking in that document to 10 deal with the question of air quality? 11 A. I have, as far as it goes, yes. 12 Q. Can you tell the court, based on your knowledge and 13 experience in the field of biological science and biology, is 14 the assessment and analysis in the environmental assessment as 15 relates to air quality, in your opinion, adequate? 16 MR. ADERHOLD: May it please the court; this lady 17 obviously is well educated, but I do not believe she has been 18 qualified or accepted by the court as an expert. She is about 19 to be giving an expert opinion on air quality, specifically. 20 THE COURT: Okay. Now -- 21 MR. ALMAND: Same objection, your Honor. 22 THE COURT: She has not been qualified as an expert in 23 air quality. So you are going to need to lay a foundation. 24 MR. HUBERT: I will lay a foundation, your Honor. 25 Q. (BY MR. HUBERT) Have you formed an opinion, without giving 0147 1 the court the opinion, as to the adequacy, or inadequacy of the 2 air quality section of the environmental assessment? Don't give 3 us your opinion. Just answer the question strictly construed; 4 have you had an opportunity to form an opinion? 5 MR. ADERHOLD: If your Honor please, I restate my 6 objection. 7 THE COURT: Well, she is going the either say yes or 8 no, but then we'll see what is next. 9 MR. HUBERT: We'll lay a foundation, as I hope the 10 court directed me to do. I'm going to attempt to do so. 11 MR. ADERHOLD: The objection, your Honor, was that 12 this lady has not been qualified as an expert in air quality. 13 Whether she has an opinion or not, I don't think goes to that 14 objection. 15 MR. HUBERT: Your Honor, I submit that a witness, a 16 lay witness with the appropriate foundation can offer an opinion 17 as to the air quality, and I can undertake to do that or I 18 can -- 19 THE COURT: Well, let me ask you, what -- do you 20 intend the qualify her as an expert in matters concerning air 21 quality? 22 MR. HUBERT: I will attempt to do that, your Honor, 23 but I was laying a foundation both ways, if the court please, 24 that she, as a lay witness, has the appropriate background to 25 offer an opinion as to these matters. 0148 1 MR. ADERHOLD: Do I understand that -- 2 THE COURT: Wait a minute. Everybody, let me read the 3 Rule 701. 4 Now, are you still following the plan to have her give 5 opinion as a lay witness or as an expert? Because if it is a 6 lay witness it has got to be rational, based on the perception 7 of the witness and helpful to a clear understanding of the 8 witness' testimony or a determination of a fact in issue. 9 Air quality is a pretty esoteric sort of a field, 10 isn't it? 11 MR. HUBERT: It is, your Honor, and she's, she holds, 12 she holds a BS Degree, not an advanced degree. 13 THE COURT: Why don't you qualify her, if you can, as 14 an expert in air quality and let's see where we go. 15 Q. (BY MR. HUBERT) Ms. Hanberry, would you state, as precise 16 as you can, what your background is in terms of the ability to 17 judge air quality and the questions involving the environmental 18 issues of air quality? 19 A. I can certainly look at the statutes as they relate to air 20 quality in the State of Georgia and evaluate data that has been 21 gathered by the Environmental Protection Division and make a 22 comparison between those two sets of data to tell me whether or 23 not I believe they are within compliance with the law. 24 Q. Can you state whether or not your degree was in biology, as 25 relates to air quality issues? 0149 1 A. As it relates to anything else that breathes and lives, it 2 relates to air quality. 3 Q. And your degree was in 1978 from Emory University in 4 biology; is that correct? 5 A. That is correct. 6 Q. And then while you were a Director of Natural Sciences, 7 what years were you a Director of Natural Sciences? 8 A. Let's see -- let me look at my -- I can't remember all of 9 these years. I was Director of Natural Sciences at the museum 10 from 1986 to 1995. 11 Q. And in terms of your work there, did you deal with issues 12 and explore the general subject of air quality as a part of 13 biology in the, as you say, the study of things that live and 14 breathe? 15 A. I did. And as a museum curator, I also had the opportunity 16 to look at a number of environmental issues, and as they related 17 to human beings and the environment. 18 Q. All right. Now, you have also, have you not, been a 19 Professor of Biology at Mercer University? 20 A. I was an adjunct instructor at Mercer. 21 Q. That was as of what year? 22 A. 1996. 23 Q. All right. And you are, since 1996 to the present, an 24 instructor, teacher at Stratford Academy; is that right? 25 A. That is right. 0150 1 Q. In the same subject? 2 A. In the same subject. 3 Q. And do I have, based on my calculation, have you been 4 continuously studying biology since sometime before 1978 or 5 working in the field of biology since that time? 6 A. Yes. 7 Q. Have you ever deterred or been far away from the subject of 8 biology in terms of your academic interest and your professional 9 activities? 10 A. It is my life's passion. I have always studied. 11 Q. And has your work in biology particularly equipped you to 12 deal with analysis of studies of air quality of any sort? 13 A. I believe so. Because it allows me to look at the data. I 14 understand the chemistry behind the issues involved. And a lot 15 of science is looking at empirical data and making decisions 16 about what that data tells you. And I think all science equips 17 people to look at those kinds of information and make decisions 18 regarding them. 19 Q. All right. 20 MR. HUBERT: Your Honor, based on her testimony at 21 this point, and under Rule 702, we would offer Ms. Hanberry as 22 an expert for voir dire. 23 THE COURT: Would you like to voir dire, 24 Mr. Aderhold? 25 MR. ADERHOLD: Judge, I don't believe she is an expert 0151 1 on air quality. I would be glad to take her on voir dire. 2 THE COURT: Okay. I will let you ask her some 3 questions. 4 VOIR DIRE EXAMINATION 5 BY MR. ADERHOLD: 6 Q. Ms. Hanberry, I'm Randy Aderhold. I represent the 7 government in this proceeding. Please do not mistake my 8 questions, I believe you are well educated. My daughter also 9 has a biology degree from Emory, so I would not assault that. 10 Please tell the court what background you have in air 11 quality, specifically, air quality studies in the way of papers 12 published or any other scholarly endeavor such as that. 13 A. The only paper that I have submitted that directly deals 14 with air quality, is a White Paper that I wrote for Mayor Ellis' 15 transition team as regards air quality in Macon and the 16 information that I gathered from the environmental protection 17 division. 18 Q. Would you, in your own opinion, qualify that as a scholarly 19 publication? 20 A. I would think so. I think it is a compilation of the data 21 that is available to the public, and as such, it is factual. 22 Q. At Mercer, did you ever teach air quality issues, air 23 quality, specifically, air quality issues at Mercer? 24 A. I taught ecology and evolution at Mercer. 25 Q. Ecology and evolution? 0152 1 A. Uh-huh. 2 Q. Have you taken any graduate study courses in air quality? 3 A. No. 4 Q. Have you ever testified as an expert in air quality? 5 A. No. 6 Q. Other than today? 7 A. No. 8 Q. Have you ever given speeches or talks at any scholarly 9 forum on air quality, specifically? 10 A. I have. I addressed the Red Clay Conference -- I can't 11 remember what year it was -- and other environmental conferences 12 around the state on numerous occasions. 13 Q. On, specifically, air quality control? 14 A. Particularly as it regards medical waste incinerators and 15 kiln dust, yes. 16 Q. Were you on those programs as an expert? 17 A. I was on the programs as a scientist presenting 18 information. 19 MR. ADERHOLD: If your Honor please, in spite of the 20 fact that this lady is obviously well educated, I do not believe 21 she meets 702's requirements for an expert; specifically, in air 22 quality. 23 THE COURT: The witness qualified as an expert by 24 knowledge, skill, experience, training or education may testify 25 thereto -- what do you say? 0153 1 MR. HUBERT: Your Honor, it does say that -- 2 THE COURT: Wait just a minute. Last paragraph of the 3 advisory committee notes. The rule is broadly based. The 4 fields of knowledge which may be drawn upon and not limited 5 merely to the scientific and technical but extend to all 6 specialized knowledge. Similarly, the expert is viewed, not in 7 a narrow sense, but as a person qualified by knowledge, skill, 8 experience, training or education. Thus, within the scope of 9 the rule, are not only experts in the strictest sense of the 10 word, e.g., physicians, physicists and architects, but also the 11 large group sometimes called skilled witnesses such as bankers 12 or landowners testifying as to land values. 13 I think the federal rules regarding experts are 14 broader than the state rules. I will hear her and if I feel 15 like that she is getting beyond what her education and training 16 authorizes, I will sustain an objection to it. But go ahead. 17 MR. HUBERT: Thank you. 18 Q. (BY MR. HUBERT) Ms. Hanberry, you have read the 19 environmental assessment, and you have particularly noted the 20 comments there in dealing with air quality; is that correct? 21 A. Yes. 22 Q. Would you assess for the court exactly what kind of detail 23 or examination was evident in the environmental assessment 24 dealing with that subject matter. 25 A. Well, my -- 0154 1 THE COURT: I didn't hear your question. 2 Q. (BY MR. HUBERT) Would you explain to the court, I asked, 3 exactly what kind of assessment was contained in the 4 environmental assessment document of the air quality portion of 5 that document. 6 A. When I looked at the section in the environmental 7 assessment about air quality, I was very surprised, first of 8 all, to see that it was so brief. And second of all, to see the 9 parameters that were addressed in the environmental assessment. 10 Macon is right now assessed and measured for three 11 parameters for air quality by the environmental protection 12 division. Those are ground level ozone, sulfur dioxide and 13 particulate matter. None of those were addressed in the 14 environmental assessment. The environmental assessment looked 15 only at carbon monoxide in the air. 16 Macon has never been out of compliance with carbon 17 monoxide. We are well below the levels that the federal 18 government requires under the Clean Air Act. 19 We do, however, have a big problem with ground level 20 ozone. And this has been an ongoing problem. It has continued 21 to get worse. The officials in Bibb County have known about it 22 for a long time and have been very concerned. And that was not 23 addressed in the environmental assessment. I was surprised to 24 see it was not there. 25 Q. When did the White Paper for the Fall Line -- was that the 0155 1 Fall Line Road that you -- 2 A. No. I did a White Paper for Mayor Ellis' transition team. 3 Q. All right. Did you discuss the air quality issues in that 4 White Paper? 5 A. That was my particular assignment. 6 Q. And was that paper accepted, so far as you know, and its 7 conclusions accepted? 8 A. Yes. It was a factual presentation of our situation as it 9 exists today in Bibb County. 10 Q. Based on your analysis that the four elements that have to 11 be considered in an air quality analysis, and they are, please, 12 ma'am, the sulfide content? 13 MR. ALMAND: Your Honor, I would object to the 14 leading. 15 MR. HUBERT: It is leading. It is summarization. I 16 acknowledge the objection. 17 Q. (BY MR. HUBERT) State what your conclusion is based on the 18 criteria that you understand must be included in an adequate 19 study of air quality. 20 A. I would think that an environmental assessment that was 21 looking at Macon and the parameters for which the environmental 22 protection division has already decided are those parameters 23 which Macon should be measured for, that certainly an 24 environmental assessment would address those three. And they 25 are ground level ozone, sulfur dioxide and particulate matter. 0156 1 And of most concern is ground level ozone. It is one of 2 those funny things. Like they say in real estate, location is 3 everything. With ozone, location is everything as well. Ozone 4 and stratosphere is where that protects us from ultraviolet 5 radiation, whereas ground level ozone is a very undesirable 6 thing. And it is a reflection of industrial pollution as well 7 as pollution from cars and traffic. 8 Q. Ms. Hansberry, you have not done a study to determine the 9 effects of those three elements on the air quality, have you? 10 A. I have not. I have just looked at EPD's data. 11 Q. Your opinion, then, is based on the fact that the study 12 that is there, is or is not adequate in terms of air quality 13 analysis? 14 A. I do not believe the environmental assessment is adequate 15 at all. In 1997, 1998 and 1999, Bibb County is out of 16 compliance with the Clean Air Act. For a while those standards 17 were not in place because there was a federal lawsuit 18 challenging a new regulation. But at this current time we are 19 out of compliance with the federal Clean Air Act for ground 20 level ozone, and we have been over those three years. 21 Q. Could you account in any way for the fact that the 22 environmental assessment does not deal with those issues? Is 23 there any plausible reason why it would not deal with them, in 24 your mind? 25 A. I cannot understand it, particularly since we were out of 0157 1 compliance in 1997 and 1998, which were the two years prior to 2 the writing of this environmental assessment. 3 MR. HUBERT: She is with you. 4 CROSS-EXAMINATION 5 BY MR. ALMAND: 6 Q. Ms. Hanberry, just one or two questions. 7 A. I am sorry, I couldn't hear you. 8 Q. One or two brief questions. Do you have any data to 9 suggest that this Houston Road Project would add any vehicles to 10 Macon that are not already there? 11 A. In the environmental assessment it talks about increasing 12 traffic in that area, and accommodating an increase in traffic 13 in that area. 14 Q. Now, you have testified, of course, that you looked at the 15 EPD data for Macon; is that correct? 16 A. Yes. 17 Q. Not the Houston Road area particularly? 18 A. They don't record data on particular roads. 19 Q. So the question was, then, do you have any data to suggest 20 that the construction of Houston Road, as is proposed, would 21 increase the problems for the City of Macon itself? 22 A. When one understands that -- 23 THE COURT: Let me -- answer yes or no and then give 24 your explanation. 25 THE WITNESS: Okay. 0158 1 Q. (BY MR. ALMAND) Do you have any data to suggest that the 2 construction of Houston Road, as published, would add any 3 greater vehicles as to Macon than already exists? 4 A. Yes. 5 Q. All right. Now, what data is that? 6 A. That is a part of the statement in the environmental 7 assessment which says that this road will cause increased 8 traffic in the area. Will bring increased traffic in the area. 9 Q. In this area but not the City of Macon. 10 A. Not the City of Macon, that is correct. 11 Q. Okay. Now, you mentioned that you wrote a White Paper for 12 Mayor Ellis' transition team? 13 A. Yes. 14 Q. So the record will be clear; Mayor Ellis is a newly elected 15 mayor for the City of Macon. In fact he just took office last 16 month; is that correct? 17 A. That is correct. 18 Q. And as part of his taking office he has a transition team 19 to brief him on certain issues that might arise in Macon? 20 A. That is correct. 21 Q. You were just part of that team that was used to brief the 22 mayor on problems that the team perceived to exist. 23 A. He had asked us to look at certain issues. The team that I 24 was on is called quality of life, and one of those was 25 environmental quality in the City of Macon. 0159 1 Q. All right. 2 MR. ALMAND: No further questions, your Honor. 3 CROSS-EXAMINATION 4 BY MR. DRAUGHON: 5 Q. I'm John Draughon, and along with Cathy Cox-Brakefield we 6 represent the Georgia Department of Transportation. I want to 7 follow up. 8 You mentioned the three items that were not considered, the 9 ozone, sulfur and the particulate matter. What is your 10 understanding that would require the Federal Highway 11 Administration to consider those, what federal law? Was that 12 the Clean Air Act? 13 A. That would be the Clean Air Act for ground level ozone. 14 Q. All right. Did you tell, didn't you tell us that you 15 relied on data from the EPD; is that correct? 16 A. That is correct. 17 Q. And you understand that environmental protection division 18 is an agency of the State of Georgia? 19 A. That is right. 20 Q. And did you rely upon any data in the federal government to 21 give your opinion in this case? 22 A. I looked at, I have read a number of different publications 23 by the environmental protection agency, which is a federal 24 agency. But in the State of Georgia, in general, the federal 25 laws are overseen by the Georgia Environmental Protection 0160 1 Division, and they administer -- the levels that are set are set 2 by the federal government. But the state agency collects the 3 data and makes sure that enforcement takes place. 4 Q. Let me ask you; do you have an understanding of what 5 guidelines are utilized to interpret the environmental 6 protection, the Clean Air Act? 7 A. I'm not sure I understand your question. 8 Q. What I was asking about; are you familiar with the National 9 Ambient Air Quality Standards? 10 A. Yes. 11 Q. And did you consider those standards -- 12 A. I -- 13 Q. -- in giving your opinion today? 14 A. As far as the levels that the State of Georgia is requiring 15 communities to meet, they do use the federal levels for ground 16 level ozone, sulfur dioxide and particulates, which are the 17 three that I measured. 18 Q. And those three, your understanding is those three items 19 are listed in those guidelines? 20 A. They are listed in the publications from the Georgia 21 Environmental Protection Division, yes. 22 Q. All right. Thank you. 23 THE COURT: All right. You are excused. 24 MR. HUBERT: Thank you, Ms. Hanberry. 25 Your Honor, at this time we call Suzan Rivers 0161 1 SUZAN RIVERS, 2 having been first duly sworn, was examined and testified as 3 follows: 4 DIRECT EXAMINATION 5 BY MR. HUBERT: 6 Q. Ms. Rivers, there is some water there. Please be seated. 7 Draw the microphone close to you so you can, everyone in the 8 courtroom can hear you. 9 Would you state for the record and spell, please, your full 10 name. 11 A. Suzan L. Rivers, R-I-V-E-R-S. 12 Q. All right. And where do you live, Ms. Rivers, please? 13 A. 923 High Street, Macon. 14 Q. And are you employed? 15 A. No. 16 Q. What do you do, other than an employment job, what 17 activities are you involved in, if any, dealing with the Macon 18 historic property? 19 A. I'm the secretary for the Middle Georgia Historical 20 Society. I'm the president of Intown Neighborhood Association, 21 which is the largest historic neighborhood in town. And I'm on 22 Jack Ellis' Quality of Life Committee, the head of his Quality 23 of Life Committee that deals with these issues. And I'm on the 24 Board of Trustees for the Macon Heritage Foundation. 25 Q. And how long have you been engaged in that endeavor, 0162 1 Ms. Rivers, please? 2 A. For several years. Plus, my husband and I have restored 3 three historic homes in the historic district. 4 Q. All right. Have you had occasion to deal with the State 5 Historic Preservation Officer? 6 A. Yes. 7 Q. And have you had occasion, in regards to the Houston Road 8 Project, to deal with Moreland and Altobelli about the 9 environmental assessment? 10 A. Yes. 11 Q. Can you tell me, please, ma'am, what your first involvement 12 was with the historic property that is being, or may be affected 13 in the Houston Road Project? 14 A. Well, my first involvement was, I have heard the people 15 that live out there, Debbie Varnadore and Marilin Meggs came to 16 me and told me they were having trouble with the properties out 17 there not being assessed properly. And -- 18 Q. Assessed in what way, please, ma'am? 19 A. Assessed by SHPO. They couldn't -- that is the State 20 Historic Preservation Office. They couldn't get SHPO to come 21 down and look at the properties. There was a Section 106 study 22 done. But of course it was done by Moreland Altobelli, and it 23 was very inadequate. There were properties that were left out 24 of the study. And they had been writing, and another lady named 25 Kay King had been writing letters to SHPO and to Moreland 0163 1 Altobelli saying that there were properties out in the Houston 2 Road area that were not included in the Section 106 study. 3 Some of those properties were the Heard School, and a 4 church and a cemetery in the Rutland community. 5 Well, I suppose they knew that I had a lot of historic 6 involvement through the historic society and this sort of thing, 7 so they asked if I would, you know, call SHPO and see if I could 8 get the State Historic Preservation Office to come down and look 9 at those properties. 10 Q. Okay. Did you undertake to do that particular job, that 11 is, to introduce the State Historic Preservation Officer to 12 Macon's historic property on Houston Road? 13 A. Yes. What happened was, I called up to SHPO and I talked 14 to the interim State Historic Preservation Officer, whose name 15 is Ray Luce, and told him that we wanted him to come down and 16 look at, not only Houston Road properties, but all the historic 17 properties that were going to be affected by the roads program. 18 And they did not want to come. They said that they had already 19 seen, you know, the paperwork, and that they had checked 20 everything off, and in their opinion everything was all right. 21 Q. Who prepared the, quote, paperwork? Do you know? 22 A. I believe it was Greg Schneider. I believe that to be 23 true, with Moreland Altobelli. He used to work at SHPO, and 24 evidently left SHPO and went to work for Moreland Altobelli. So 25 I assumed that they trusted him that the paperwork was fine. 0164 1 And they told me that they did not want to come. And I said, 2 well, there are a lot of properties in the whole program that 3 are being ruined. And, you know, I pointed out to them Douglas 4 Avenue and, you know, other properties that were really going to 5 be hurt. And I encouraged them to please come and look. And 6 they still said, well, they didn't really want to come. So they 7 refused to come. 8 At that point, I thought, well, you know, this is pretty 9 desperate because I was seeing properties being destroyed in 10 historic districts, at that time, mostly Pleasant Hill. So I 11 called Senator Robert Brown, and I asked him if he would call 12 them and ask them if they would please come down here, convince 13 them that there really were some problems. Even though they had 14 checked off the paperwork, that there was still some problems. 15 And he asked them if they would come. And then they said they 16 would. 17 And so they came down and we got -- 18 Q. Let me just sort of direct your testimony a little bit. 19 A. Okay, okay. 20 Q. In other words, based on your inquiry to Senator Brown, was 21 a meeting arranged between you and the officers of State 22 Historic Society? 23 A. Yes, they came down and we took them around to see, not 24 only Houston Road properties, but all the properties that were 25 being affected. And they were appalled. They said, you know, 0165 1 that -- 2 MR. ALMAND: Your Honor, I will object. There is a 3 certain amount of hearsay I guess is appropriate, but this is 4 getting way out of bounds. 5 THE COURT: I believe, I think that is clearly 6 hearsay. 7 THE WITNESS: Well, they said -- 8 MR. HUBERT: Wait a minute. 9 THE COURT: Wait a minute. 10 Q. (BY MR. HUBERT) Let me just ask you, without typifying how 11 they felt. 12 A. Okay. 13 Q. Could you tell us what they did after you brought them down 14 and showed them -- 15 A. All right. Well, what they did, they went out to the 16 Houston Road area, and we showed them Heard School and we showed 17 them the church and the cemetery and all those properties out 18 there. And they said that they didn't know that those things 19 were out there; that they had not been told -- 20 MR. ALMAND: Your Honor, I object to the hearsay, 21 still. 22 THE WITNESS: Okay. Well -- 23 THE COURT: Wait a minute, wait a minute, wait a 24 minute. 25 THE WITNESS: I'm sorry. 0166 1 THE COURT: Okay. There is nothing more difficult 2 than interpretation of the hearsay rule, unless it is the First 3 Amendment. So -- 4 MR. HUBERT: Statement against interest, your Honor. 5 THE COURT: Anyway. Don't -- let's, ask her a 6 question that will get around this, that will not make her feel 7 like she needs to give hearsay testimony. And don't volunteer 8 anything. 9 THE WITNESS: Okay. I have never done this before, 10 I'm sorry. 11 Q. (BY MR. HUBERT) You remember we went over this particular 12 problem a little bit about your testimony? 13 A. Okay. 14 Q. I would ask you if you would just explain to the court 15 exactly what you did in response to their coming here and 16 looking around. What is the next thing that you did in terms -- 17 A. Well, we just asked them if they would please reconsider 18 putting Heard School on the National Register, the eligibility 19 of Heard School and the Rutland community on the National 20 Register. And they said that they would. 21 Q. Okay. Would you tell me, or tell, explain to the court 22 what eligibility and designation is the difference between the 23 two? 24 A. Well, at this point, it is my understanding that Richard 25 Klous has written a letter to -- I have got the letter here, I 0167 1 can show it to you -- saying that he believes the property is 2 eligible. But I don't know if it actually is on the register 3 yet. 4 Q. Is eligibility sufficient for the property to be protected 5 or not? 6 A. Eligibility, as I understand it, is sufficient, yes, sir. 7 Q. All right. Now, have you been aware of some correspondence 8 between the City of Macon and the person that was a SHPO 9 officer, Mr. Mark R. Edwards? 10 A. Yes. 11 Q. Okay. Let me show you a document previously identified as 12 P-53. Let me ask you the look at that document and tell me, are 13 you familiar with the letter? 14 A. Yes, sir. 15 Q. What is the date of it? 16 A. This -- March 1, 1999. 17 Q. And who is it to and who is it from? 18 A. Okay. It is from, it is to Lonice Barrett, Van Porter, Van 19 Ethridge, John Comer and Pope Langstaff from Jim Marshall. 20 Q. All right. Does this letter -- 21 THE COURT: You got a number on this? 22 MR. HUBERT: P-53, your Honor. I'm sorry if I didn't 23 say that, I certainly intended to. This is P-53 you are looking 24 at. 25 Q. (BY MR. HUBERT) And in P-53, tell us what your knowledge 0168 1 was, well, P-53 has some exhibits attached to it, Ms. Rivers; is 2 that correct? 3 THE COURT: Before she quotes from this exhibit. Any 4 objections to it? 5 MR. ALMAND: Yes, sir, your Honor. 6 THE COURT: All right. 7 MR. ALMAND: Your Honor, what this is, purports to be 8 a letter that is unsigned, the copy I have got. The memorandum 9 to Lonice Barrett to Jim Marshall, and has got attached to it 10 another unsigned letter addressed to Mayor Marshall from Mark R. 11 Edwards. 12 Other than the fact that it is just blatant hearsay, 13 this lady cannot authenticate it under any particular rule of 14 evidence that would allow it to be admissible. 15 Also it is my information that this letter by Mark 16 Edwards was never signed, was not authorized to be written by 17 the people he was employed by. But that is just another 18 matter. But the fact is, it is blatant hearsay. It is not 19 authenticated and cannot be authenticated by this witness. 20 MR. HUBERT: Your Honor, the document is a document 21 from the City of Macon, comes in -- 22 THE COURT: Get back to that lectern where we can hear 23 you. 24 MR. HUBERT: I am sorry. I do apologize. 25 The document comes under, as a public document or a 0169 1 document from the City of Macon as an admission against interest 2 and a public record. In terms of it is, it is a basic document 3 dated March 1 from the City of Macon. Has attached to it a 4 November 13, 1998 -- 5 THE COURT: Well, let me interrupt you. 6 MR. HUBERT: Yes, sir. 7 THE COURT: You concede that it is hearsay? 8 MR. HUBERT: I do, sir. It can be hearsay, but it 9 certainly is an admission against interest. 10 THE COURT: Well, let's talk about hearsay. There are 11 24 exceptions to the hearsay rule. 12 MR. HUBERT: Right. 13 THE COURT: Is it admissible under one of these 14 exceptions. 15 MR. HUBERT: It is. 16 THE COURT: Tell me which one. 17 MR. HUBERT: It is admissible under the exception that 18 says, number one, it is an admission against interest and, 19 number two, it is an exception in that it is part of a public 20 record and public document, and needs no authentication or 21 otherwise. And it emanates, it emanates from the office of the 22 Georgia Department of Natural Resources, and the City of Macon 23 and deals with the subject matter of the historic property on 24 Houston Road. 25 THE COURT: All right. Now, exception number eight, 0170 1 public records and reports; is that the one -- 2 MR. HUBERT: That is one of the ones. 3 THE COURT: Well, let's deal with it. I can't deal 4 with but one at a time. Let's see if it comes in under that. 5 MR. HUBERT: Yes, sir. 6 THE COURT: Now, records, reports, statements or data 7 compilation of any forum, public officers or agencies setting 8 forth, A, the activities of the officer or agency or, B, matters 9 observed pursuant to, opposed by law as to which matters there 10 was a duty to report excluding, however, criminal act cases, et 11 cetera. 12 This -- well, it is a series of documents. First one 13 is a confidential memorandum, on its face from Jim Marshall to 14 the commissioner of the DNR. Copies to various people. 15 Second is a letter to the Mayor Marshall from, 16 allegedly from Mark Edwards, though it doesn't show a 17 signature. 18 Third one from, to Mayor Marshall from Mark Edwards 19 that does show a signature. It would, and the last one is a 20 letter from Mayor Marshall to Mark Edwards. 21 The easiest way to get in matters like this is under 22 number six. But you have got to have somebody who is a 23 custodian of the documents. And I can assume that this witness 24 is not the custodian of the documents. 25 MR. HUBERT: Your Honor, she was, I expect the 0171 1 evidence to show, and I can show that she was sent -- 2 THE COURT: Well, before we get into this, anything 3 within here, you give me a basis for -- it is hearsay and you 4 are going to have to give me a basis for letting it in, or I'm 5 not going to be able to let it in. 6 MR. HUBERT: Well, your Honor, she was sent the 7 document in the ordinary course of business. 8 THE COURT: Why don't you ask her that. 9 MR. HUBERT: All right. 10 Q. (BY MR. HUBERT) Were you sent the document -- 11 THE COURT: Why don't you ask her how did she get the 12 document. 13 MR. HUBERT: I agree, your Honor. 14 Q. (BY MR. HUBERT) How did you come by P-53, please ma'am? 15 A. Is that the -- is that the -- 16 THE COURT: Here. 17 THE WITNESS: Thank you. 18 A. I got this document because it was sent to the historical 19 society to Kitty Oliver, and I'm her secretary. I am the 20 secretary of the historical society, and that is how I got the 21 document. 22 Q. (BY MR. HUBERT) Are you the custodian of the records of 23 the historical society? That is do you keep minutes -- 24 A. Yes, sir. 25 Q. And so you had an official relationship with the documents 0172 1 sent to the historic society as an official communication? 2 A. Right. It was sent to the historical society. 3 MR. HUBERT: Your Honor, we would ask it be admitted 4 under 6, of Rule 803. 5 MR. THOMASON: Perhaps it authenticates she received 6 in it the ordinary course of her business, but certainly doesn't 7 authenticate its authors, lack of any signature beyond that to 8 allow this in. 9 THE WITNESS: Well, this is -- 10 THE COURT: Wait a minute, wait a minute, no, please 11 don't -- 12 MR. HUBERT: Wait. 13 THE WITNESS: I'm sorry. 14 MR. ALMAND: Judge to -- 15 THE COURT: Wait a minute, wait a minute. I said I 16 don't want to hear anybody. I'm reading here. 17 MR. ALMAND: Okay. 18 THE COURT: All right. Now, Mr. Almand. 19 MR. ALMAND: May it please the court; the Business 20 Records Act is not an end all for any type of document somebody 21 may receive, however they may receive them. It has got to be 22 received in the ordinary course of business, and it has got to 23 be authenticated by the person and it has got to relate to some 24 degree of veracity on this. 25 When you receive something in the mail at a 0173 1 business -- I could send you something today, and if it is in 2 your files, it may be in your file but the Business Records Act 3 goes beyond more than just the fact that you keep this in your 4 document. If the court remembers, there is about three or four 5 tests and things you have got to go through -- 6 THE COURT: Like six. 7 MR. ALMAND: -- to make it admissable. 8 THE COURT: I know what you are, I know -- it is 9 getting late, and I agree. I think that the whole purpose of 10 the business records exception to the hearsay rule, is because 11 businessmen and women keep letters and file them away and they 12 just, they have a great deal of trustworthiness, and that is why 13 it just became so much simpler to deal with that. 14 Now, these are letters that are not addressed to the 15 witness and are not addressed to the organization for which she 16 is secretary. And they may have, you know, they may have been 17 sent to her by someone from the mayor's office or somewhere 18 else. And it is not, I'm not saying that there is no way in the 19 world these documents can't come into evidence. But I don't 20 think they can come in under the exception number six. 21 And with that we are going the recess for the day. 22 And I will let you think about it over night, and we'll take it 23 up again tomorrow. But we are going to, we'll resume in the 24 morning at 9:00. And how many more witnesses do you have? 25 MR. HUBERT: Your Honor, we will have one expert 0174 1 witness to conclude the case. And we will have about three 2 shorter lay witness on the question of the water issue. And the 3 historical preservation. 4 THE COURT: Okay. On second thought, we'll begin it 5 8:30. So I will see you all at 8:30 in the morning. 6 (End of day's proceedings) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25