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November 24, 1976

WILLIAM T. COLEMAN, JR., Secretary of Transportation of the United States, ET AL., Defendants.

The opinion of the court was delivered by: OLIVER GASCH


 This action arises under the Federal-Aid Highway Act of 1956 ("Highway Act"), as amended, 23 U.S.C. §§ 101 et seq., the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. §§ 1601 et seq., and certain regulations *fn1" issued by the defendant Secretary of Transportation ("the Secretary") pursuant to these Acts. Plaintiff is a political subdivision of the State of California ("State") and the potential beneficiary of monies distributed by the Secretary in accordance with the above-mentioned legislation. It claims that the Secretary has unlawfully exceeded his rulemaking power through the promulgation of recent regulations governing the distribution of these funds, the result of which is that plaintiff has allegedly suffered and continues to suffer irreparable injury in connection with the delayed funding or the non-funding of its transportation improvement projects. Plaintiff seeks both declaratory and injunctive relief and properly invokes the jurisdiction of this Court pursuant to 28 U.S.C. § 1331, 5 U.S.C. §§ 701 et seq., and 28 U.S.C. § 1361. *fn1"

 Presently before the Court is plaintiff's motion for a preliminary injunction ordering the Secretary to "immediately consider and approve all projects included on the annual element of Plaintiff County's Fiscal Year 1976-77 Transportation Improvement Program . . . subject only to the conditions of 23 U.S.C. §§ 101(c) and 109." *fn2" Subsequent to oral argument, the parties agreed to submit this matter to the Court for final adjudication of the merits and to treat plaintiff's motion as one for permanent injunctive relief. For the reasons briefly set forth below, the Court finds that plaintiff's motion for a permanent injunction should be denied and that the case should be dismissed.


 The Federal-Aid Highway Act of 1956, as amended by the Highway Acts of 1960, 1962, 1965, 1966, 1968, 1970, 1973, 1975, and 1976 (codified in Title 23), establishes procedures by which the Federal Government cooperates with the states and their political subdivisions to fund each state's program of highway improvement projects. Under its "trust fund" concept, a specified percentage of certain highway use taxes are received into the United States Treasury and then apportioned to the states by the Secretary as specified by law. 23 U.S.C. § 104(b). Certain portions of these funds are specifically earmarked by statute for the urban areas within each state, in amounts determined by the ratio which the population of each state's urban areas bears to the urban population of all other states. 23 U.S.C. §§ 104(b)(3), 104(f)(2). Accordingly, plaintiff Los Angeles County was apportioned ten and one-half million dollars for the fiscal years 1974, 1975, and 1976 under the Highway Act of 1973. Pursuant to statute, these apportioned funds remain available for expenditure for a period of three years after the close of the fiscal year for which they were authorized. 23 U.S.C. § 118(b).

 The Highway Act of 1962 originated what has become known as the "3-C planning process" ("continuing, comprehensive and cooperative process") by the enactment of section 134 of Title 23. As amended by the Highway Act of 1970, section 134(a) provides as follows:

It is declared to be in the national interest to encourage and promote the development of transportation systems, embracing various modes of transport in a manner that will serve the States, and local communities efficiently and effectively. To accomplish this objective the Secretary shall cooperate with the States, as authorized in this title, in the development of long-range highway plans and programs which are probably coordinated with plans for improvements in other affected forms of transportation and which are formulated with due consideration to their probable effect on the future development of urban areas of more than fifty thousand population. After July 1, 1965, the Secretary shall not approve under section 105 of this title any program for projects in any urban area of more than fifty thousand population unless he finds that such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by States and local communities in conformance with the objectives stated in this section. No highway project may be constructed in any urban area of fifty thousand population or more unless the responsible public officials of such urban area in which the project is located have been consulted and their views considered with respect to the corridor, the location and the design of the project.

 23 U.S.C. § 134(a) (emphasis added). Similar language is to be found in the Uniform Mass Transit Act, 49 U.S.C. § 1604(1), which also governs the funding of urban transportation projects.

 The Secretary has delegated jointly to the Administrators of the Urban Mass Transit Administration ("UMTA") and the Federal Highway Administration ("FHWA") his authority to administer the Highway Act legislation in accordance with Title 23, 29 C.F.R. §§ 1.48, 1.51. After Congress enacted section 134(a) as part of the Highway Act of 1973, the Administrators of these agencies sought to promulgate regulations which they believed necessary to implement the "3-C Process" mandated by that statute. Accordingly, UMTA and FHWA published a notice of proposed rulemaking on November 3, 1974. *fn3" After careful review of, and accommodation to, the comments received from over 120 interested groups and individuals, final regulations, along with an extensive preamble statement, were published on September 11, 1975, and took effect on October 17, 1975. *fn4"

 These regulations, found in 23 C.F.R. Part 450 and 49 C.F.R. Part 613, are generally referred to by the parties as the Secretary's Transportation Improvement Program ("TIP") regulations. They provide, in short, for all urban transportation projects funded by the Secretary to be selected and proposed by regional planning authorities, referred to by Congress as "metropolitan planning organizations" ("MPOs"), to be designated by the states. *fn5" These MPOs are designed to be the focus of the "3-C" planning process for each urban area; their responsibilities include the development of a multiyear program of transportation improvements (a "TIP Plan"), as well as an "annual element" of proposed transportation projects for each fiscal year. 23 C.F.R. §§ 450.112, 450.114, 450.116, 450.118, 450.120. What this means is that each State-designated MPO now holds the sole responsibility for developing (soliciting from its member municipalities), endorsing, and submitting to the Secretary (through the State) all project requests for the use of those Highway Trust Funds apportioned to the urban subdivisions within its regional jurisdiction. 23 C.F.R. §§ 450.312, 450.316. This function is generally referred to by the parties as "programming."

 As determined by statute, *fn6" the Secretary provides federal assistance for only those projects which are forwarded to him by the State. The Secretary's TIP regulations require that these projects be submitted to the State by the appropriate MPO as part of its "annual element." 23 C.F.R. §§ 450.310, 450.316. To satisfy the "planning mandate" of Congress as expressed in section 134(a) (and in the corresponding sections of the Urban Mass Transportation Act *fn7" ), UMTA and FHWA annually certify the existence of a "3-C Process" (i.e., a properly developed TIP Plan) in each urban area. 23 C.F.R. § 450.320.

 The State of California has designated the Southern California Association of Governments ("SCAG") as the MPO for the Los Angeles-Long Beach urbanized area. *fn8" As such, it has the responsibility for formulating the multiyear TIP Plan for that region as well as the annual element of project requests which it forwards to the State for submission to the Secretary. To put together this annual program package, SCAG reviews the project proposals of its member municipalities for consistency with its TIP Plan, assembles appropriate projects, and forwards the package to the State with its endorsement.

 As mentioned above, no transportation project may be funded by the Secretary unless it is part of the statewide "program of elements" (a cumulation of MPO elements) approved by the State and forwarded to the Secretary. 23 U.S.C. §§ 105(a), 106(a), 145. It is thus the State's ultimate responsibility to select those urban projects submitted to the Secretary for funding (23 U.S.C. § 145; 23 C.F.R. § 450.318(b)), just as it is the State's responsibility to select - or, if necessary, to replace - each MPO. 23 C.F.R. §§ 450.106, 450.108. Once the State submits its endorsed annual program of projects to Washington, the Secretary may approve it in whole or in part, 23 U.S.C. § 105(a), but he may not approve any project for an urban area which is not part of the annual element developed by that urban area's duly-designated MPO. 23 U.S.C. § 105(a); 23 C.F.R. § 450.318(a).

 SCAG's first annual element (75-76) covered the six-month period from January 1, 1976 to June 30, 1976; the Secretary asserts that it was amended in April, 1976 "to include the specific projects belatedly requested by plaintiff County." (Defendants' Memorandum at 11). SCAG's second annual element, covering the 1976-77 fiscal year, was not part of the program of projects which was forwarded to the Secretary by the State on October 1 of this year; this was apparently due to the fact that SCAG (as well as one other California MPO) had not submitted its second annual element to the State by that date, despite the fact that plaintiff county submitted its project requests to SCAG in May. (Defendants' Memorandum at 11; Complaint, P 20). The Secretary has since approved the State's program of projects "subject to acceptance of the ...

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