70 Wn. App. 626 (1993)
855 P.2d 294
THE STATE OF WASHINGTON, Respondent,
v.
WILLIAM C. ROGERS, Appellant.
No. 14348-8-II.
The Court of Appeals of Washington, Division Two.
July 19, 1993.
John A. Hayes, for appellant.
*628 C.C. Bridgewater, Prosecuting Attorney, and Douglas S. Boole, Deputy, for respondent.
ALEXANDER, C.J.
William C. Rogers appeals his conviction on a charge of vehicular homicide. Rogers assigns error to the trial court's admission into evidence of: (1) testimony regarding his invocation of his right to remain silent; (2) statements he made to a deputy sheriff after his arrest; (3) tests of his blood; and (4) a videotape showing a driver's view, at various speeds, of the road where the accident occurred. Rogers also asserts that the trial court erred in refusing to instruct the jury that reckless driving and negligent driving were lesser included offenses of vehicular homicide, as charged. We affirm.
William C. Rogers was charged in Cowlitz County Superior Court with vehicular homicide and vehicular assault. The charges arose out of an accident that occurred in Longview at approximately 6:25 p.m. on November 14, 1989, when Rogers's truck smashed into a smaller truck driven by Michelle Slatum. Slatum died minutes after the crash. Slatum's passenger sustained only minor injuries.[1]
Cowlitz County Deputy Sheriff Charles Rosenzweig arrived at the scene of the accident shortly after it occurred and found two men holding Rogers by the wrists in an apparent effort to prevent him from departing from the scene. As Rosenzweig took hold of Rogers's wrist, he smelled alcohol on Rogers's breath. Rosenzweig asked Rogers for his name; whether he owned the larger truck; if he had been driving it; if he was hurt; and if he had been drinking. Rogers gave Rosenzweig his name and stated that he was not injured. He also told the deputy that he was the driver and the owner of the larger truck, and that he had been drinking. When Rogers was asked whether he had attempted to leave the scene, he stated, "I got to go get my wife, I have got to go call my wife." Rosenzweig arrested Rogers and placed him in handcuffs. Paramedics *629 then arrived and transported Rogers to the emergency room of a Longview hospital.
Rosenzweig proceeded to the hospital where he advised Rogers of his constitutional rights. He then questioned Rogers. Rogers answered all of Rosenzweig's questions, until Rosenzweig asked him how much he had had to drink that evening. To that question Rogers replied, "I would just as soon leave that."
Before trial Rogers moved, pursuant to CrR 3.5, to suppress the statements he made to Rosenzweig at the scene of the accident and at the hospital. The hearing judge ruled that all of the statements Rogers made to Rosenzweig were admissible.
At trial, the State called Deputy Rosenzweig and Officer Michael Giles of the Washington State Patrol. Giles, who was trained in accident investigation, testified that he took measurements at the scene. He said, also, that he participated in filming a videotape from inside a patrol vehicle which was driven at speeds of 30, 40 and 50 miles per hour, over the path that Rogers's truck had traveled before the accident. In each "run", the driver of the patrol car applied the brakes as soon as he saw a patrol car that was parked in the approximate position Slatum's truck had occupied before Slatum pulled it out onto the roadway and was struck. The videotaping was done during daylight hours and in good weather. Rogers objected to the admission of the videotape. The trial court admitted it, but gave the jury a limiting instruction relating to this evidence.[2] It allowed Giles to narrate to the jury what the videotape purported to show.
Rogers's counsel took exception to the trial court's failure to give his proposed instructions on the lesser included offenses of reckless driving and negligent driving. The jury found Rogers guilty of vehicular homicide. Following sentencing he appealed.

*630 MENTION OF INVOCATION OF RIGHT TO REMAIN SILENT
Rogers argues, for the first time on appeal, that his motion to suppress should have been granted to the extent of precluding Rosenzweig from testifying about Rogers's refusal to disclose how much he had had to drink before the crash. He asserts that the testimony drew inappropriate attention to Rogers's invocation of his right to remain silent.
The State contends that Rogers cannot raise this issue on appeal because it was not raised below. Although Rogers concedes that he failed to raise this issue or make mention of his right to remain silent at the CrR 3.5 hearing or at trial, he avers that the issue is, nonetheless, reviewable. Rogers correctly observes that a party may raise for the first time in an appellate court a manifest error affecting a constitutional right. RAP 2.5(a)(3). Rogers, citing Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), suggests that Rosenzweig's testimony violated his due process rights. In Doyle, the United States Supreme Court stated:
Silence in the wake of [Miranda] warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.
(Footnotes and citations omitted.) 426 U.S. at 617-18; see also State v. Belgarde, 110 Wn.2d 504, 511-12, 755 P.2d 174 (1988); State v. Fricks, 91 Wn.2d 391, 395, 588 P.2d 1328 (1979).
[1] Even assuming that Rogers is correct in his contention that the admission of Rosenzweig's testimony was error, we do not believe that it occurred in such a manner as to rise to constitutional *631 proportion.[3] In State v. Johnson, 42 Wn. App. 425, 712 P.2d 301 (1985), review denied, 105 Wn.2d 1016 (1986), we held that it is only when the prosecutor unfairly uses evidence of postarrest silence against a defendant that there is a due process violation. We said that in making a determination as to whether the evidence is prejudicial, courts should examine the context in which the evidence is revealed to determine:
the extent to which it was called to the jury's attention, and the possibility that from that evidence the jury may have drawn an inference unfavorable to the defendant.
Johnson, 42 Wn. App. at 431. Here, there was no real prejudice to Rogers. The record shows that Rosenzweig's testimony regarding Rogers's refusal to say how much he had had to drink was not highlighted. Indeed, it was quickly elicited and then passed over. Furthermore, the answer that Rogers gave, "I would just as soon leave that", did not reflect unfavorably on Rogers. The fact that defense counsel did not object to the question posed to Rosenzweig or ask for a curative instruction suggests that it was of little moment in the trial. Because Rosenzweig's testimony was not unfairly used against Rogers so as to deprive him of his due process right to a fair trial, the error in admitting the evidence was harmless and does not require reversal. We are satisfied, as we must be, that the outcome of the trial would not have been different if the alleged error had not occurred. State v. Jackson, 102 Wn.2d 689, 689 P.2d 76 (1984).

ADMISSION OF STATEMENTS AND BLOOD TEST
[2] Rogers argues that Deputy Rosenzweig lacked probable cause to arrest him at the scene, and that that illegal arrest tainted the blood alcohol test and interrogation which occurred at the hospital. Probable cause for a warrantless arrest *632 exists when facts and circumstances within the arresting officer's knowledge are sufficient to cause a person of reasonable caution to believe that a crime has been committed. State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979) (citing State v. Gluck, 83 Wn.2d 424, 426-27, 518 P.2d 703 (1974)). The officer need not have evidence sufficient to prove every element of the crime beyond a reasonable doubt. State v. Knighten, 109 Wn.2d 896, 903, 748 P.2d 1118 (1988).
Here, Deputy Rosenzweig had probable cause to arrest Rogers at the scene. The extent of the injuries to Slatum's passenger and the damage to the two trucks evidenced a highspeed collision. Furthermore, Rogers told Rosenzweig that he was the owner and driver of the larger truck and he admitted, at the scene, that he had been drinking alcohol prior to the accident. In addition, Rosenzweig noticed a strong, "obvious" smell of alcohol on Rogers's breath and observed that Rogers was being restrained at the scene by two persons, who told Rosenzweig that Rogers had attempted to flee. When questioned about his alleged attempt to leave the scene, Rogers told Rosenzweig that he needed to leave in order to call his wife. Finally, when Rosenzweig took hold of Rogers's wrist to prevent him from fleeing, Rogers resisted the officer's grip.
We conclude from these facts that, at the very least, Rosenzweig had sufficient cause to believe that Rogers had committed the offenses of driving while under the influence of alcohol and vehicular assault. Because Rosenzweig had probable cause to arrest Rogers, the arrest was not illegal. Accordingly, the trial court did not err in admitting the results of the blood alcohol test and the testimony regarding the interrogation which took place after the arrest.

VIDEOTAPE
Rogers argues that the trial court erred in admitting the videotape made by Trooper Giles. The videotape was in the nature of demonstrative evidence. In Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 815 P.2d 798 (1991), Division One held:
Demonstrative evidence is admissible if the experiment was conducted under conditions reasonably similar to the conditions *633 existing at the time of the event at issue. 5 K. Tegland, Wash. Prac., Evidence § 93, at 294 (3d ed. 1989). Whether the similarity is sufficient is a matter for the trial court's discretion. If the similarity is sufficient to justify admissibility, any lack of similarity goes to the weight of the evidence. Jenkins v. Snohomish Cy. PUD 1, 105 Wn.2d 99, 107, 713 P.2d 79 (1986).
Kramer, 62 Wn. App. at 555; see also Jones v. Halvorson-Berg, 69 Wn. App. 117, 847 P.2d 945 (1993). Furthermore, in State v. Strandy, 49 Wn. App. 537, 745 P.2d 43 (1987), review denied, 109 Wn.2d 1027 (1988), we said:
In determining whether photographs should be admitted, the trial court must determine whether the probative value of the evidence outweighs its prejudicial effect. State v. Crenshaw, 98 Wn.2d 789, 806, 659 P.2d 488 (1983). The test is identical for videotapes. State v. Brooks, 30 Wn. App. 280, [286,] 633 P.2d 1345, review denied, 96 Wn.2d 1021 (1981).
Strandy, 49 Wn. App. at 541.
Rogers objected to the admission of the videotape, contending there were substantial differences between conditions shown on the videotape and the conditions existing at the time of the accident, to wit: (1) the braking of the patrol car started after the point on the road where Rogers's skid marks began; (2) the camera's narrow range of vision increased the viewer's perception of speed; (3) the patrol cars used for the videotaping were not of the same height, size, and color as Rogers's and Slatum's vehicles; (4) the stationary patrol car was parked by the side of the road rather than in the middle of the road where Slatum's car had been located at the time of the accident; and (5) the videotape was taken early on a clear day, whereas the accident occurred on a misty day in November at approximately 6:25 p.m.
[3] The trial court admitted the videotape, concluding that the differing conditions were not significant because the videotape was not admitted for the purpose of showing what Rogers actually observed on the day of the incident, but rather to demonstrate what one would see at various speeds while driving the route that Rogers's truck drove prior to the accident. Furthermore, in admitting the videotape, the trial court instructed the jury to disregard any differing conditions *634 and to consider the evidence for demonstrative purposes only. It also excised the less probative sections and cut out the somewhat distracting audio portion. These efforts by the trial court mitigated any unfair prejudice that might have flowed to Rogers. In our judgment, the jury was fully capable of determining what weight to accord this evidence. The trial court did not abuse its discretion in admitting the videotape.

LESSER INCLUDED OFFENSE INSTRUCTIONS
Finally, Rogers argues that the trial court erred in failing to give his two proposed jury instructions on what he contends were the lesser included offenses of reckless driving and negligent driving. A defendant is entitled to an instruction on a lesser included offense if: (1) each of the elements of the lesser offense is a necessary element of the crime charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). We need not address the first, "legal" prong of Workman because it is clear that the "factual" prong is not met.
[4] With regard to the "factual" prong of the Workman test, our Supreme Court has held:
It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.
State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990), disapproved on other grounds in State v. Blair, 117 Wn.2d 479, 487, 816 P.2d 718 (1991). The test is, thus:
whether there is evidence supporting an inference that the defendant is guilty of the lesser offense instead of the greater one.
State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992); see also State v. Peters, 47 Wn. App. 854, 860, 737 P.2d 693, review denied, 108 Wn.2d 1032 (1987).
[5] Here, there was no evidence that Rogers committed reckless driving or negligent driving, instead of vehicular *635 homicide.[4] Rogers does not point to any evidence that suggests that Slatum died from any cause other than Rogers's negligent or reckless driving. Indeed, all of the evidence pointed to the fact that Slatum's death came about as a result of Rogers's reckless or negligent driving. That being the case, Rogers could not have committed reckless or negligent driving instead of vehicular homicide. The trial court did not commit error in instructing the jury.
Affirm.
MORGAN, J., and PETRICH, J. Pro Tem., concur.
Review denied at 123 Wn.2d 1004 (1994).
NOTES
[1]  The vehicular assault charge was based on the injury to the passenger. That charge was dismissed before trial.
[2]  The instruction was as follows: "[T]his videotape is what we call demonstrative evidence only. It does not purport to be a recreation of the circumstances or conditions that existed at the time of the event here involved."
[3]  Arguably, Rogers did not invoke his right to remain silent. The record shows that he answered all of the questions Rosenzweig asked, with the exception of how much he had to drink. This could be viewed as a selective answering of questions rather than an invocation of the right to remain silent.
[4]  Vehicular homicide is defined in RCW 46.61.520(1) as follows:

"When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:
"(a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502; or
"(b) In a reckless manner; or
"(c) With disregard for the safety of others."


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622 F.Supp. 299 (1983)
Glenn B. COUNTS
v.
LAFAYETTE CREWBOATS, INC., et al.
Civ. A. No. 80-1869.
United States District Court, W.D. Louisiana, Lake Charles Division.
November 8, 1983.
Chris Smith, III, Smith, Ford & Clark, Leesville, La., for plaintiff.
David R. Frohn, Camp, Carmouche, Barsh & Hunter, Lake Charles, La., for defendants Lafayette Crewboats.
Edmund E. Woodley, Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, La., for Gen. Amer. Oil Co. of Texas.
Mouton, Roy, Carmouche, Bivins, Judice & Henke, Lafayette, La., for Continental Catering and Marine Office of Am. Corp. and Cont. Ins. Co.
V. Farley Sonnier Davidson, Meaux, Sonnier & McElligott, Lafayette, La., for Lafayette Crewboats.

*300 OPINION
VERON, District Judge.
Plaintiff Glenn B. Counts was injured on October 6, 1978, while attempting to move from General American Oil Company of Texas, Inc.'s (General American Oil) Platform # 4 to a small crewboat, the M/V BRETT. The accident occurred in the Gulf of Mexico off Cameron, Louisiana in West Cameron Block # 45. Plaintiff filed suit under the General Maritime Law on December 5, 1980 against various defendants including Lafayette Crewboats, Inc. and General American Oil. The Continental Insurance Company, as insurer of plaintiff's employer Continental Catering Service, Ltd., filed an intervention seeking reimbursement of Longshoreman and Harbor-workers Compensation benefits already paid to the plaintiff, if plaintiff should recover in tort.
General American Oil filed a cross-claim against Lafayette Crewboats under its contract. It is conceded that General American Oil is covered by Lafayette Crewboats' insurance for any liability resulting from vessel negligence. Other parties were dismissed from the case under various motions. Trial was had as to these two defendants on July 7, 1983.

FINDINGS OF FACT
On October 6, 1978 at about 10:30 A.M., Jerry Poole, a switcher; Randy Cotton, a roustabout; and the plaintiff, a cook were preparing to leave General American Oil's Platform # 4 since their tour of duty was completed. Using the crewboat M/V BRETT was the customary means of departure under normal conditions. The seas that day were "choppy" and the waves were running six to eight feet. However, no particular hazard existed.
A deck existed near the water level below and on the lee side of the platform. The M/V BRETT's customary practice was to back up to the platform, stern foremost. The crewboat would not push against the structure since this might have caused it to go under the deck and sustain damage.
Swing ropes were located at the edge of the platform. These were set up at different intervals, some further out than others for use depending on whether the person using them was leaving the platform or coming aboard. Additionally, two pipes were welded near one corner of the deck, referred to as "help me ups" as hand rails or bars for stepping on or off the deck. A personnel basket also existed on the platform but no one, including the plaintiff, felt it was necessary on this occasion (particularly since it offered its own hazards) to use it.
Harry Reineke, a naval architect and maritime engineer, testifying for the plaintiff stated that the swing rope method of transferral is widely used and was as reasonably safe as it could be. In fact, as one swings out if the crewboat is descending on a wave, the person can always swing back and make another attempt at boarding when the boat is on the rise of a wave.
Plaintiff testified that he intended to step from the platform's deck to the deck of the crewboat. According to his own testimony, plaintiff did not use a swing rope because he didn't consider the seas rough enough to justify it. As he made his step, the boat went down four to five feet (in concert with wave action) and he fell, striking his foot on a raised lip or covering around the edge of the deck. Rather than being an unsafe construction as plaintiff argued, the ledge prevents cargo from sliding off the crewboat's deck. No witnesses at trial verified any unsafe condition. All witnesses agreed that the lip was something to be aware of and to avoid landing on it.
At trial Mr. Counts admitted he stepped onto the M/V BRETT after it had commenced its downward plunge. Roustabout Randy Cotton testified that boarding a crewboat requires a judgment call. He stated that one steps to the deck as the vessel rises on a wave, not as the deck descends below the platform loading dock. Mr. Cotton voiced surprise at seeing Mr. Counts attempt to board the M/V BRETT first and stated that plaintiff just "bailed off" of the loading dock. He admitted to *301 not paying close attention to his attempted transfer to the crewboat, to not using the swing rope and to not having asked for the personnel basket or any other assistance. The crewboat's captain and plaintiff's two other co-workers boarded without mishap on the day in question. Captain LeBlanc testified that plaintiff boarded the crewboat too soon, before it was in position to receive passengers and thereby caused his own fall. And, more importantly, plaintiff had worked offshore for more than a year and had left the instant platform on at least 26 other occasions without mishap.
Plaintiff's counsel argued that Mr. Counts was not properly instructed in methods of platform egress. But, Henry Nortman (a General American Oil Safety Man) testified that General American Oil posted safety instructions on the bulletin boards both on shore and on the platform. Mr. Counts admitted to having read those bulletin boards. Plaintiff does not recall the exact printed instructions but does recall that boarding the boats was a subject at various company safety meetings.

CONCLUSIONS OF LAW
A passenger may only recover personal injury damages if he proves the fault or negligence of the carrier. See Moore-McCormack Lines, Inc. v. Russak, 266 F.2d 573 (9th Cir.1959) and Norris, The Law of Maritime Personal Injuries (3rd Ed.) § 33. Included in the carrier's duty of care are its obligations to provide safe ingress and egress from the vessel, Callahan v. Cheramie Boats, Inc., 383 F.Supp. 1217 (E.D.La.1974) and the duty to warn passengers of reasonably anticipated dangersthough not openly obvious ones, The S.S. Serpa Pinto, 45 F.Supp. 255 (E.D.N.Y. 1942). See also Superior Oil Co. v. Trahan, 322 F.2d 234 (5th Cir.1963) and Massey v. Williams-McWilliams, Inc., 414 F.2d 675 (5th Cir.1969).
No case exists which clearly determines the fixed platform's owner's duty concerning safe ingress and egress from the platform. However, a vessel owner must provide a passenger a reasonably safe means of boarding a vessel, including the provision of proper gangways, landing places and personnel assistance. See Tittle v. Aldacosta, 544 F.2d 752 (5th Cir.1977) and Arthur v. Flota Mercante Gran Centro Americana, S.A., 487 F.2d 561 (5th Cir.1974).
The passenger, in any event, must also exercise reasonable care and prudence. Since the vessel owner is not an absolute insurer of the passenger's safety, if the passenger is injured absent vessel owner negligence, no recovery is mandated. The passenger also cannot recover if the carrier's negligence was not foreseeable or the proximate cause of the injury. Norris, The Law of Maritime Personal Injuries, (3rd Ed.) § 33.
In a very analogous case, Marshall v. Westfal-Larsen and Company, 259 F.2d 575 (9th Cir.1958), the court affirmed a judgment for defendant where plaintiff was injured jumping from a ship to an adjacent barge. Marshall held that the passenger failed to wait for assistance in disembarking the ship and did not heed a crewman's warnings not to jump from the platform's gangway to the bargejust as it was rising on the swell and before it reached the crest.
After examining the facts of this case we now find no negligence by either General American Oil or Lafayette Crew Boats. Rather Mr. Counts' was injured through his own negligence in: (1) attempting to board the M/V BRETT before it was sufficiently close to the platform (2) not timing his step to coincide with the boat's movement up (3) not utilizing the swing rope so that he could swing back if the boat's movements were not conducive to boarding and/or (4) not requesting assistance if any was needed. These conclusions are particularly warranted when considering that General American Oil had instructed plaintiff in the applicable procedures. He had boarded crewboats many times in the past and the crewboat captain could have assisted him on the instant occasion if plaintiff had not boarded too soon.
*302 For the foregoing reasons, we deny plaintiff's claim for personal injuries. Since plaintiff receives no recovery here, Continental Insurance Company's intervention concerning plaintiff's employer's compensation benefits must also be dismissed.
THUS DONE AND SIGNED at Lake Charles, Louisiana, this 8th day of November, 1983.


334 F.Supp. 132 (1971)
MORNINGSIDE-LENOX PARK ASSOCIATION, Inc., Plaintiff,
v.
John A. VOLPE, Individually and as Secretary of the Department of Transportation and Bert K. Lance, Individually and as Director of the Georgia State Highway Department, Defendants.
Civ. A. No. 15237.
United States District Court, N. D. Georgia, Atlanta Division.
November 12, 1971.
*133 *134 Crosland & Padnos, Michael D. Padnos, Atlanta, Ga., for plaintiff.
Arthur K. Bolton, Atty. Gen., State of Georgia, John W. Stokes, Jr., U. S. Atty., N. D. Georgia, Beverly B. Bates, Asst. U. S. Atty., James D. Billett, Regional Counsel, Federal Highway Administration, Atlanta, Ga., for defendants.

ORDER
MOYE, District Judge.
The institution of this suit is further testimony to the growing propensity of urban residents to battle with the planners and builders of urban highways.[1] At issue is the proposed location of an interstate highway in the Atlanta area, which highway has been in the planning and development stage for several years. The highway project has been opposed from its inception by the Morningside-Lenox Park Association, Inc., and this suit represents another effort by this local civic organization to halt further development or construction of that portion of the Interstate System designated as Interstate 485.
The complaint alleges that the planning, development, and construction of Interstate 485 have been and are being carried out in violation of several federal statutes, namely, (1) Section 102(2) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2) (C); (2) Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) and Section 138 of the Federal Aid to Highways Act of 1968, 23 U.S.C. § 138; (3) 23 U.S.C. § 128; (4) Section 134 of the Federal Highway Act of 1962, 23 U.S.C. § 134; (5) 23 U.S.C. § 313; and (6) the Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. The Court held a hearing on plaintiff's motion for a preliminary injunction and, upon defendants' representations that no further demolition or construction would take place before the Court ruled on the issues, the Court denied preliminary injunctive relief. Defendant Volpe was allowed 60 days to file the administrative record, and all parties were allowed the opportunity to file briefs on the legal issues involved. The State defendant filed an answer in which are raised various defenses. Both plaintiff and defendant Volpe have filed cross motions for summary judgment. Before discussing the contentions of the parties, it is necessary briefly to state the factual history of the proposed highway segment involved in this litigation.[2]

FACTUAL BACKGROUND
The portion of the Georgia Interstate Highway System designated as Interstate 485 extends from the joint through-town sector of Interstate 75 and Interstate 85 near the Atlanta central business district easterly and northerly to the interchange of Interstate 85 and the proposed North Fulton Expressway (F-056), just south of Lenox Road. A section of highway 0.3 miles in length from the through-town sector of I-85 and I-75 east to Boulevard was constructed as project U-061-1(10)[3] and has been open *135 to traffic since 1964. On the remaining section of I-485, approximately $23,300,000 has been authorized for expenditure for preliminary engineering and acquisition of right-of-way, and an additional amount of $6,300,000 is estimated for completion of preliminary engineering and right-of-way acquisition. Construction cost for the completion of I-485 is estimated at approximately $65,700,000, resulting in a total estimated cost of $95,300,000.
The location of I-485 is generally along the lines of two previously planned federal-aid highways, F-056 (North-South) and U-061 (East-West). In the latter part of 1964, the state submitted to the Washington Office of the Bureau of Public Roads a request for the addition of I-485 to the Interstate Highway System along the general corridor of F-056 from I-85 near Lenox Road southerly to I-75 near Stockbridge, with a 1.0 mile downtown connector from the through-town sector of I-75 and I-85 westerly along the general corridor of F-061. This request received initial approval of the Federal Highway Administrator on October 15, 1964 (Exhibit 37). Authorization was given by the Division Engineer (Georgia) of the Federal Highway Administration to the State Highway Department on November 20, 1964, to proceed with preliminary engineering to fix the location and prepare preliminary plans suitable for a public hearing (Exhibit 44). Right-of-way acquisition and demolition of improvements along the line from Boulevard to the junction of F-056 near Inman Park was already underway in 1964 as that line had been apparently approved by the FHWA in 1960 as a part of U-061.[4] The state recommended that 1-485 be superimposed on this existing, approved line. From the junction of F-056 northerly to Saint Charles Avenue, the proposed location generally followed the location of the North Avenue Connector, a spur connection proposed as part of U-061. Between Saint Charles Avenue and I-85, the longest and, apparently, most controversial section of the highway, four alternative routes were studied and analyzed by state and federal highway officials. On July 15, 1965, a public hearing was held at the Atlanta Municipal Auditorium, at which hearing information was presented with regard to previous studies, and interested persons and groups were given the opportunity to express their views (Exhibit 74). After the hearing, two of the alternative routes from Saint Charles Avenue to I-85 (Lines C & D) were discarded, and the choices were narrowed to Lines B and E. In October, 1965, the location of I-485 between Boulevard and Saint Charles Avenue (a distance of about two miles) was approved by the Regional (Georgia) Office of the FHWA (Exhibit 83), and authorization was given for preliminary engineering for survey and plan preparation for this section (Exhibit 84). Authorization for right-of-way acquisition on this section was subsequently given on December 6, 1965, from Howell Street to Alaska Avenue and on May 3, 1966, from Alaska Avenue to Ponce de Leon Avenue (Exhibits 89 and 112).
With regard to the section between Saint Charles Avenue and I-85, the State Highway Department made additional studies of the two alternate routes (Lines B and E) and, on February 6, 1966, submitted to the Georgia Division of the FHWA a supplemental report on this section in which the state recommended that Line B be the final location. The state subsequently requested that no action be taken on its recommendation of Line B until further evaluation (requested by Governor *136 Sanders) was made. On May 24, 1966, this further study was completed and the state submitted an "Amenities Evaluation Report" to the FHWA and reaffirmed its choice of Line B as the final location (Exhibit 116). The Washington Office of the FHWA, by telegram dated July 6, 1966, concurred in the state's recommendation of Line B as the location of I-485 from Saint Charles Avenue to I-85 (Exhibit 130). Preliminary engineering for survey and plan preparation for the entire length of I-485 was authorized on July 12, 1966 (Exhibit 133). It appears from the above facts, that, as of July 1966, the final location of the entire length of I-485 from the interchange of I-75 and I-85 to I-85 near Lenox Road was fixed and had been approved by the FHWA. The subsequent studies, planning, hearings and the like were concerned with the actual design of the highway.[5]
Studies and planning with regard to the design of the highway were continued by the State Highway Department on various sections of the highway. The Georgia Office of the FHWA apparently approved the major design features of the section between Boulevard and Ponce de Leon Avenue (just south of Saint Charles Avenue) on October 5, 1967 (Exhibit 171). Final right-of-way plans and acquisitions for this section were authorized on October 27, 1967 (Exhibits 172, 173, 174). Design plans for the section from Ponce de Leon Avenue to Cheshire Bridge Road (just south of I-85) were submitted by the state on April 8, 1968, and received initial approval by the Georgia FHWA on May 1, 1968 (Exhibits 189 and 190). It was agreed that additional right-of-ways would be acquired whenever feasible and possible for the development of green belts and mini-parks adjacent to the highway. Special consideration was also given to lessening the adverse effects on Orme Park.
Pursuant to a revision in FHWA policy, which required a corridor public hearing and a design public hearing, and because of the controversial nature of the proposed highway, a design public hearing was held, on June 10, 1969, on the section of highway from Ponce de Leon Avenue to I-85, though the major design features and preliminary design plans had been previously approved. Subsequent to the design hearing, the Georgia Office of the FHWA gave "design approval" to this section on August 25, 1969 (Exhibits 269, 271).
On January 30, 1970, the Georgia Office of the FHWA advised the state that approval authority for federal-aid highway projects involving Section 4(f) matters (49 U.S.C. § 1653(f)) was vested in the Secretary of Transportation, and, for each project, a special report should be submitted for transmittal to the Office of the Secretary (Exhibit 306A). On April 29, 1970, the state submitted a Section 4(f) Study Report with regard to the crossing of Orme Park. Approval of the crossing of Orme Park was given by the Secretary of Transportation on February 9, 1971. (See Exhibits 354.) With regard to the area known as Madeira Park, the state informed the Georgia Office of the FHWA that this area had been acquired by the state on May 17, 1967, and no longer functioned as part of the Atlanta Parks System. Since the state acquired the park area prior to the effective date of Section 4(f), 49 U.S.C. § 1653(f), the area was no longer a part of the Atlanta Parks System, and the houses surrounding the park had been demolished, the Georgia Office of the FHWA concurred in the state's determination that a Section 4(f) *137 Study Report would not be required as to Madeira Park.
On December 9, 1970, the Georgia Office of the FHWA furnished the state with a copy of a "Draft Instructional Memorandum" relative to the implementation of the National Environmental Policy Act [hereinafter NEPA]. (This memorandum has since been superseded by PPM 90-1, dated August 24, 1971.) Pursuant to this memorandum, the state determined and the FHWA concurred that design approval was given on October 10, 1967, on the section from Boulevard to Ponce de Leon Avenue and on August 25, 1959, on the section from Ponce de Leon Avenue to the north limits of the I-85 interchange. Accordingly, the Georgia Office of the FHWA concurred in the state's assessment that the project was being developed so as to minimize adverse environmental consequences and that no environmental statement (pursuant to Section 102(2) of the NEPA) need be prepared. (See Exhibits 343 and 345.)[6]

PROCEDURAL DEFENSES
Both defendants have raised several procedural defenses which must be determined before the merits of the complaint are considered. Defendant Volpe first seems to argue that, as a nonprofit civic organization having as one of its purposes the preservation of the Morningside-Lenox Park residential neighborhood, the plaintiff has no standing to object to alleged defects in the highway outside the neighborhood. In light of Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970); and Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728 (ED Ark.1971), the Court believes it can hardly be gainsaid that the plaintiff corporation has standing, under the Administrative Procedure Act, to assert the various challenges here, and the Court holds that it does have such standing.
Defendant Volpe next argues that the plaintiff is collaterally estopped from asserting its claims here because of prior action against the state defendant in state court.[7] The doctrine of collateral estoppel operates to bar litigation of issues previously raised, litigated, and determined in a prior litigation. Moore v. United States, 120 U.S.App. D.C. 173, 344 F.2d 558 (1965); United States v. Glidden Co., 119 F.2d 235 (6th Cir. 1941); Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877); 1B J. Moore, Federal Practice, ¶ 0.441 [1], et seq. The Court does not believe the doctrine of collateral estoppel operates in favor of defendants in the instant case. In the prior state court suit, the Georgia Supreme Court specifically declined to consider whether or not the federal statute pleaded there had been complied with: "Federal regulations with respect to interstate highways must be complied with in order for the State to receive Federal funds, but such requirements do *138 not limit or affect the authority of the State Highway Department to select location, construct and maintain highways in the State. Thus, once the appropriation has been approved, it is not a matter for determination by this court as to whether or not such appropriation was made in conformity with the Federal regulations. Plaintiff's allegations as to the failure to comply with a portion of the Federal Highway Act of 1962 and the guidelines promulgated thereunder are without substance."[8] As the issue of compliance with federal statutes and regulations was specifically not decided in the state court litigation, the doctrine of collateral estoppel does not preclude consideration of that issue in this case.[9] The recent decision in Township of Hopewell v. Volpe, 446 F.2d 167 (3d Cir. July 13, 1971), does not require a different result, for the state court in that case had clearly assumed jurisdiction of and ruled upon the issue of compliance with federal requirements.
In his answer, defendant Lance raises the defense of res judicata and argues that plaintiff is barred from raising the claims against the state defendant. The doctrine of res judicata precludes litigation in a second suit of all issues that were raised or could have been raised in the first suit.[10] Whatever might be said about other claims, it is clear that the plaintiff is not barred by res judicata from litigating its claim with regard to the National Environmental Policy Act of 1969. That claim was not raised in the prior state court action nor could it have been, since the law did not exist at the time of the state court proceedings. Plaintiff is not barred from litigating its claim, against the federal and state defendants, of noncompliance with the National Environmental Policy Act of 1969.[11] An analysis of that claim follows.

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
Of the several recent federal statutes which demonstrate a commitment by Congress to temper traditional enthusiasm for material progress with environmental considerations,[12] the National Environmental Policy Act of 1969 appears to be the most comprehensive. Characterized as "an environmental full disclosure law,"[13] the Act requires all federal agencies, in performing their respective functions, to be responsive to possible environmental consequences of their actions. The Act makes it the "continuing" responsibility of the federal government to "use all practicable means and measures" to carry out the national policy of restoring and maintaining a quality environment. 42 U.S. C. § 4331(a), (b). To insure that the substantive provisions of the Act receive the attention they deserve, certain procedural measures are prescribed. *139 Section 102[14] of the Act provides in pertinent part:
"The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall
"(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;
"(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
"(C) include in every recommendation on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on
"(i) the environmental impact of the proposed action,
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
"(iii) alternatives to the proposed action,
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
"Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;"
While the substantive provisions allow for the responsible exercise of administrative discretion and require no particular substantive result in any one case, the procedural measures prescribed in Section 102 are not as flexible:
"[T]he Act also contains very important `procedural' provisionsprovisions which are designed to see that all federal agencies do in fact exercise the substantive discretion given them. These provisions are not highly flexible. Indeed, they establish a strict standard of compliance."[15]
The NEPA issue contested here centers around the interpretation of these "procedural" provisions.
It is undisputed here that no "Section 102 statement" was prepared with regard to the project in question. Defendant Volpe argues, however, that the NEPA is not applicable to this project because the basic planning, authorization, approvals and hearings occurred prior to the effective date of the Act *140 January 1, 1970. In light of the recent refusal of several district courts to apply the NEPA to ongoing federal projects,[16] the government's position in this regard is not totally unfounded. Plaintiff, however, points to other cases in which the NEPA was applied to ongoing, even substantially completed, federal projects.[17] Because of the various, and often nebulous, approaches taken by the federal courts to the "applicability" issue, it is necessary to analyze those decisions here.
Section 102, by its terms, requires the "detailed [environmental] statement" to accompany "* * * major federal actions." Accordingly, some courts have focused upon a specific federal action or actions which occurred on a particular date or dates, and, if this action(s) was taken prior to the effective date of the NEPA, the Act was held inapplicable to that project. For example, in Pennsylvania Environmental Council, Inc. v. Bartlett,[18] an injunction was sought against the construction of a federal-aid highway on the grounds, inter alia, that the provisions of the NEPA were not complied with. The Court found that "all of the planning for the improvement of [the highway] occurred prior to [January 1, 1970]" and that construction contracts were awarded on December 29, 1969.[19] All that remained, the Court found, was the actual construction of the highway. The Court held that the NEPA was not designed to be given retroactive application and that, since the contract in question was awarded and finalized [2 days] prior to the effective date of the Act, no violation of the NEPA had occurred. Similarly, the Court in Brooks v. Volpe,[20] another highway location suit, also declined to apply the provisions of the NEPA:
"The administrative determination with respect to the highway location was made in 1967. To give effect to plaintiffs' contention would require a retrospective application of Section 102 [of the NEPA]. A statute will not be construed as restrospective, however, unless the Act clearly, by express language or necessary implication, indicates Congress so intended. It is the Court's view that the section in question operates only prospectively."[21]
Although citing Brooks and Bartlett for the proposition that the NEPA was not meant to be applied retroactively, the Court in Investment Syndicates, Inc. v. Richmond[22] appears to have emphasized the stage of completion of the project as the determining factor in its refusal to apply the NEPA:
"By January 1, 1970, when the President signed the National Environmental Policy Act of 1969, money had been appropriated for almost all phases of the project including most of the construction. The letting of the contract, clearing of the right-of-way and construction of the line itself, although occurring after January 1, 1970, are merely a small portion of the work required to complete the project. I cannot believe that Congress intended that the NEPA apply to `major Federal actions' which had reached this stage of completion as of the date of enactment. It was not the intention of Congress to negate all of the work which had gone into this project, including design and planning *141 costs, but to have it completed in an orderly manner. To hold that the NEPA does apply to this project would be to give the statute retrospective effect. See Brooks v. Volpe, supra. To order a work stoppage while a report is being prepared would cause a large increase in cost to the taxpayers and most likely would have little or no effect on the location or design of the line. I therefore hold that the NEPA is not applicable to the project."
Against this background of case law, some federal courts, in lieu of emphasizing a particular federal action or actions which occurred before January 1, 1970, have focused upon other statutory language [of the NEPA] and have employed another approach to the applicability issue. In Environmental Defense Fund, Inc. v. Corps of Engineers,[23] [hereinafter Defense Fund], the district court held the provisions of the NEPA applicable to part of a federal project which had been authorized in 1958. The plaintiff in Defense Fund sought an injunction against the making of any contract or the doing of any work in furtherance of the plan of the defendants to construct a dam across the Cossatot River in the State of Arkansas. Construction of the dam was a part of a large public works project entitled "Millwood Reservoir and Alternate Reservoirs, Little River, Oklahoma and Arkansas." The total cost of the entire project was estimated at $14,800,000 of which at least $9,496,000 had been expended as of the time suit was brought. The overall "Millwood" project had been authorized by Congress in 1958 although work on the dam itself had not begun until 1963. Insofar as concerned total cost, approximately two-thirds of the project had been completed although no actual construction work on the dam itself had yet been done. The defendants in Defense Fund argued that the NEPA did not apply and that, if it did, they had complied.[24] The Court, citing Investment Syndicates, supra, as an example, noted that defendants' "retroactivity" argument was not totally without judicial support but went on to say: "But here the plaintiffs are not asking the Court to set aside or undo any prior action on the part of the defendants. Rather they are seeking an application of prevailing, existing law related to anticipated future actions of the defendants."[25] Focusing upon the language in the Act which makes it "the continuing policy of the federal government" to protect the environment[26] and "the continuing responsibility of the Federal Government to * * * improve and coordinate federal plans * * * to accomplish that objective,"[27] the Court stated: "[W]hile new plans and programs must be structured from the outset in accordance with the requirements of NEPA, it is also clear that the act requires the defendants to `improve' or upgrade existing plans and programs to meet those requirements."[28] So as not to limit its attention merely to one portion of the Act, the Court noted the mandate that the substantive policies of the Act be implemented "to the fullest extent possible,"[29] and, in concluding that this language "could hardly be considered ambiguous"[30] cited the legislative history of Section 102 of the Act:
"The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in such subparagraphs (A) through (H) unless the existing law applicable to such *142 agency's operations expressly prohibits or makes full compliance with one of the directives impossible. If such is found to be the case, then compliance with the particular directive is not immediately required. However, as to other activities of that agency, compliance is required. Thus, it is the intent of the conferees that the provision `to the fullest extent possible' shall not be used by any Federal agency as a means of avoiding compliance with the directives set out in section 102. Rather, the language in section 102 is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section `to the fullest extent possible' under their statutory authorizations and that no agency shall utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance."[31]
The Court finally cited the "interim guidelines" (for implementation of the NEPA) of the Council on Environmental Quality:

"Application of Section 102(2) Procedure to Existing Projects and Programs. To the fullest extent possible the section 102(2) (C) procedure should be applied to further major federal acts having a significant effect on the environment even though they arise from projects or programs initiated prior to the enactment of [NEPA]. Where it is not practicable to reassess the basic course of action it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in future action that account be taken of environmental consequences not fully evaluated at the outset of the project or program."
and correctly noted that "Such an administrative interpretation can not be ignored except for the strongest reasons, particularly where, as here, such an interpretation involves a construction of a statute by the men charged with the responsibility of putting that statute into effect."[32] In holding that the defendants were required to prepare the environmental impact statement and otherwise comply with the requirements of Section 102 of the Act, the Court stated:
"The Court is not suggesting that the status of work should not be considered in determining whether to proceed with the project. It is suggesting that the degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA. Although the attitude of the defendants is understandable, nevertheless, as the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been spent thereon and regardless of the degree of completion of the work."[33]
The Court in Defense Fund has not been the only Court to require strict compliance with Section 102 of the NEPA. In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission,[34] the Court of Appeals for the District of Columbia had occasion to evaluate the NEPA in conjunction with rules promulgated by the Atomic Energy Commission regarding the issuance of construction permits and operating licenses for proposed federal power plants. The Commission's procedures for authorizing the construction and operation of a power plant involved two steps: (1) issuance of a construction permit and (2) issuance of an operating license. Insofar as concerned NEPA procedures, the Commission's *143 rules provided that various environmental reports and papers were to be prepared prior to the operating license stage regardless of when the construction permit was issued. The crucial defect in the rules and practices, however, was that such environmental reports and studies were not considered until the operating license stage. Postponing consideration of possible environmental damage until after construction, the Court noted, rendered the NEPA procedures little more than a pro forma ritual: "Once a facility has been completely constructed, the economic cost of any alteration may be very great. In the language of NEPA, there is likely to be an `irreversible and irretrievable commitment of resources', which will inevitably restrict the Commission's options. Either the licensee will have to undergo a major expense in making alterations in a completed facility or the environmental harm will have to be tolerated. It is all too probable that the latter result would come to pass."[35]
The decision in Calvert Cliffs is factually distinguishable from the instant case in that the situation in that case involved "two, distinct stages of federal approval, one occurring before the Act's effective date and one after that date."[36] The controversy in Calvert was not whether or not the NEPA procedures should be complied with but rather the time and manner of compliance. The same statutory language, legislative history and administrative interpretation relied upon by the Court in Defense Fund, however, was emphasized in Calvert Cliffs. Though in a context distinguishable from the instant case, it is clear that the degree of completion of construction was not an obstacle to the Court's application of the NEPA procedures. The statutory construction and reasoning of the Court cannot be discarded merely because it was employed in a different factual context.
In its first brief on the issue, plaintiff relied heavily upon the recent Fifth Circuit decision, San Antonio Conservation Society v. Texas Highway Dept. et al.[37] In San Antonio, the plaintiffs sought an injunction against the construction of a federal-aid expressway through the Brackenridge Olmos Parklands in San Antonio, Texas, on the grounds that various federal environmental protection laws were being violated. Insofar as the applicability of the NEPA was concerned, the Court found that, since the Secretary of Transportation's approval of federal funding occurred on August 13, 1970, that date was the operative date for determining what law was to be applied.
Plaintiff originally argued that the authorization of "construction funding" in San Antonio was the crucial event and that, as construction funding has not been authorized in the instant case, San Antonio is ample authority for application of the NEPA. In this regard, plaintiff noted that the completion of various steps of the highway project in San Antonio (e. g., acquisition of part of the right-of-way, Bureau of Public Roads approval of the 1963 public hearing) prior to January 1, 1970 did not preclude the Court's application of the NEPA. Defendant Volpe counters this argument with the fact that all the pre-January 1, 1970, work in that case had been accomplished exclusively with state funds and that the August 23, 1970, federal approval and fund authorization was the first commitment of federal funds. Defendant Volpe notes that federal funds in the I-485 project here have been used from the beginning (1966) and argues that San Antonio is patently distinguishable from the instant case. In its reply brief, plaintiff appears to recognize this distinction but cites various other cases in which NEPA was applied to ongoing projects.[38]
*144 Having in mind the various approaches to the applicability issue in the different factual situations presented above, the Court must now determine the extent to which NEPA is applicable to the facts in the instant case. It is fairly clear that the location of the highway was fixed by the State Highway Department and approved by the FHWA as early as 1966. In this regard, it is not unreasonable to suggest, as does defendant Volpe, that the "authorization of funds [for construction] is a formalization of the federal government's commitment rather than an agency decision of substantive nature, as would be approval of the location and design."[39] Indeed, the Court deems this location or design "approval event" to be clearly the most appropriate time for consideration of these values.[40] The wisdom of designating one approval date as the "major federal action" date for purposes of NEPA applicability is made evident by the facts and decision in the San Antonio case. For that reason, for purposes of this ongoing project, the Court declines to concur with plaintiff's emphasis of the subsequent federal action of authorizing construction funding as a further critical "approval event" and as the determinative element in this case for to do so, the Court believes, would, at leasttacitly, give the Court's imprimatur to the "piecemeal approval" approach declared unlawful in San Antonio.
This determination does not, however, end the inquiry. A recognition of the teachings of San Antonio and the Court's concurrence in the observation that the substantive federal approvals (of highway location and highway design) occurred prior to the effective date of the NEPA do not afford the defendants the opportunity to ignore the requirements of Section 102 of the NEPA. As did the Courts in Defense Fund and Calvert Cliffs, supra, this Court relies upon the clear legislative mandate that Section 102 of the NEPA be implemented "to the fullest extent possible." Also, the interim guidelines of the Council on Environmental Quality,[41] which strongly suggest the application of the Section 102 procedures to ongoing projects, are entitled to considerable weight.[42] While much work has already been done, the Court is not dealing with a fait accompli. In short, the Court holds that compliance with Section 102 of the NEPA is required as to an ongoing federal project on which substantial actions are yet to be taken, regardless of the date of "critical" federal approval of the project. The Court must *145 remand this case to the Secretary of Transportation for compliance with Section 102 of the NEPA.[43]
This action should not be deemed to be ruling on the merits of the case; i. e., a ruling on the question of whether or not the project should continue, be altered or be abandoned. That decision is, in the first instance, for the Secretary of Transportation upon his completion of the Section 102 procedures. Following the Secretary's determination, the Court will review whatever decision the Secretary makes under the appropriate standards of the Administrative Procedure Act.
Neither should the Court's decision be taken to suggest that previous expenditure of funds and the status of the work in general should be ignored. Obviously, defendants may approach the required compliance with Section 102 differently from what might be done with respect to new projects. For purposes of ongoing projects, in some instances, all that may be required for compliance would be appropriate updating. Any reasonable approach will be acceptable so long as the "detailed statement" requirement and other requirements of Section 102 are met.[44]
While there is considerable support in the legislative history and in prior case law for the proposition that NEPA should be applied retroactively,[45] the Court does not consider its ruling here as "retroactive" in the true sense of the word. The Court is not directing the defendants to rip up a multi-million dollar highway project or otherwise to undo anything that has already been done. All that is required, in this order, is compliance with the procedures in Section 102 before the project is continued. Should the Secretary's final decision require substantive alterations in or complete abandonment of the project, neither of which the Court means to suggest, then policy and constitutional considerations which normally accompany a proposed divestment of vested rights (contract or otherwise) must be taken into account.[46] The Court hastens to add, however, that the existence of executed contracts and the performance of prior contracts do not grant the project immunity from a requirement of thorough[47] compliance with Section 102 of the NEPA. Those who do business with *146 a regulated federal agency, directly or indirectly, cannot necessarily object to what the agency is required to do or not do by virtue of subsequent statutory regulation.[48]
In addition to its contentions with regard to the NEPA, plaintiff alleges that defendants have violated various other federal statutes. While it is clear that the doctrines of res judicata and collateral estoppel cannot be invoked by the state or federal defendants, respectively, with regard to the NEPA issue,[49] the application of one or both of those doctrines to the other issues raised is not clear. Under traditional tests, it may be that the doctrine of res judicata would bar the raising of the other issues against the state defendant while the doctrine of collateral estoppel would not bar the raising of those issues against the federal defendant. An important factor in this regard is that the Court's application of the NEPA applies to both defendants, and precludes both the state and federal defendants from continuing with the project until the environmental studies have been accomplished. This approach is taken in light of the fact that the state and federal defendants have engaged in this venture from its inception, and, since the project has been a federal project from the beginning, the state, as a partner in the project, is bound by federal laws and regulations.[50] To separate the two defendants with respect to the effect of res judicata and/or collateral estoppel on issues other than NEPA would appear to be inconsistent with this approach.
In view of the above, all parties are directed to inform the Court, by brief or otherwise, of their respective positions on the effect, if any, of the doctrines of res judicata and/or collateral estoppel on the issues (other than NEPA) raised by the plaintiff, said brief to be prepared jointly by the state and federal defendants. Since the NEPA is a relatively comprehensive environmental statute, it may be that, as a practical matter, the considerations and procedures required by Section 102 of the NEPA will overlap with the requirements of other statutes and that compliance with Section 102 will be tantamount to compliance with other statutes.
Defendant Volpe has indicated that compliance with Section 102 of the NEPA will take a substantial amount of time. Thus, whatever remand proceedings, if any, are required with regard to the other issues raised presumably can be accomplished within the time required for NEPA compliance. The parties are allowed thirty (30) days from the filing of this order to submit the required briefs on the other issues raised in the complaint.
The Court does not wish to suggest by this ruling that defendants have in any way acted in other than the utmost good faith in performing their statutory functions. In fact, the sheer weight of the administrative record, which consists of over 350 exhibits, reveals clearly the substantial amount of time and effort which has been spent on all aspects of the project and in the attempt to comply fully with all legal requirements.
Defendants Volpe and Lance are hereby enjoined, pending final decision of the Court, from proceeding with any action in furtherance of the development or construction of the federal-aid project, Interstate 485, except to the extent necessary to comply with the procedures set out in Section 102 of the NEPA; provided that defendants will not be precluded, upon application to (and approval of) the Court with notice to the plaintiff, from taking actions which are required by compelling practical or emergency considerations.
NOTES
[1]  For examples of major cities throughout the nation which are engaged in urban highway controversies, see Aman, Urban Highways: The Problems of Route Location and a Proposed Solution, 47 Journal of Urban Law 817 at note 1 (1970). See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed. 2d 136 (1971); Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept. et al., 446 F. 2d 1013 (5th Cir., dated August 5, 1971).
[2]  The primary source for the Court's exposition of the factual background is the lengthy affidavit of Herschel Bryant, Division Engineer (Georgia), Federal Highway Administration (FHWA).
[3]  A highway project which is designated as "F" or "FAP" is a federal-aid primary project which is jointly financed by the federal government in cooperation with the state, with primary funds from the Highway Trust Fund. A project designated as "U" is a federal-aid highway project within the primary system in an urban area, financed with so-called "urban" funds from the Highway Trust Fund.
[4]  The only "evidence" that U-061 was approved in 1960 is the Affidavit of Herschel Bryant. There is no independent evidence of this fact in the administrative record.
[5]  Attached to the administrative record is a glossary of pertinent terms and abbreviations. "Highway Design" is defined as "The orderly development of a roadway facility after the final location has been approved, and continuing through the economic, geometric, hydraulic, and structural design considerations." "Highway Location" is defined as "Roadway alignment based on studies of the physical features of various alternate locations, using all available data, to determine the proper fitting of the highway to the environment."
[6]  The "Draft Instructional Memorandum" (Interim Guidelines for Implementation of Section 102(2) (C) of the NEPA) provides, in paragraph 4(b): "The provisions of this memorandum do not apply to projects that received or receive design approval before February 1, 1971."
[7]  In 1966, the plaintiff brought suit in Superior Court against the State Highway Department seeking certain declaratory relief and to enjoin the defendant from acquiring any right of way in, expending any moneys on, planning or constructing Highway I-485 along Route "B". The state court complaint alleged that the State Highway Department had abused its discretion in selecting line "B" and that the selection of line "B" was contrary to Section 134 of the Federal Highway Act of 1962, 23 U.S.C. § 134. The Superior Court of Fulton County sustained the defendant's demurrers to the petition. The Supreme Court of Georgia determined that the complaint failed to state a cause of action and affirmed the Superior Court. Morningside-Lenox Park Association v. State Highway Department, 224 Ga. 344, 161 S.E.2d 859 (1968).
[8]  224 Ga. at 346, 161 S.E.2d at 861 (emphasis added).
[9]  The only specific federal statute raised in the state court action was Section 134 of the Federal Highway Act of 1962, 23 U.S.C. § 134, whereas several other federal statutes are relied upon in the instant suit. The complaint in state court did allege, in several instances, that "federal" requirements were not complied with. None of the "federal questions", whether specifically pleaded or not, were decided by the state court.
[10]  See United States v. Burch, 294 F.2d 1, 5 n. 4 (5th Cir. 1961); 1B J. Moore, Federal Practice, ¶ 0.405 [1], et seq.
[11]  The effect of res judicata upon other claims raised by the plaintiff is discussed infra.
[12]  E. g., Environmental Education Act, 20 U.S.C. § 1531 et seq. (1971 Pocket Part); Air Quality Act of 1967, 42 U.S.C. § 1857 et seq.; Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4372 et seq. (1971 Pocket Part); Water and Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4321 et seq. (1971 Pocket Part).
[13]  Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728 (E.D.Ark.1971).
[14]  42 U.S.C. § 4332.
[15]  Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.Cir. 1971).
[16]  E. g., Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash.1970); Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038 (D.Ore.1970); Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 (M.D.Pa.1970).
[17]  E. g., Named Individual Members of San Antonio Conservation Society, Inc. v. Texas Highway Dept. et al., supra note 1; Environmental Defense Fund, Inc. v. Corps of Engineers, supra note 13; Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, supra note 15.
[18]  Supra note 16.
[19]  315 F.Supp. at 247.
[20]  Supra note 16.
[21]  319 F.Supp. at 92.
[22]  Supra note 16.
[23]  Supra note 13.
[24]  After the commencement of the suit, defendants filed a statement purportedly in compliance with Section 102(2) (C) of the NEPA, which "statement" the Court rejected as insufficient.
[25]  325 F.Supp. at 743.
[26]  Section 101(a), 42 U.S.C. § 4331 (emphasis added).
[27]  Section 101(b), 42 U.S.C. § 4331 (emphasis added).
[28]  325 F.Supp. at 743.
[29]  Section 102, 42 U.S.C. § 4332.
[30]  Supra note 28.
[31]  Conference Report 91-765, 2 U.S.C. Cong. and Admin.News at p. 2770 (1969).
[32]  Supra note 28. Citations omitted.
[33]  325 F.Supp. at 746 (emphasis added).
[34]  Supra note 15.
[35]  D.C.Cir., 449 F.2d at 1128.
[36]  Id. at n. 43.
[37]  Supra note 1.
[38]  The highway project in San Antonio was extremely controversial and had been bitterly opposed since it was suggested in 1956. Although, as defendant Volpe points out, the pre-1970 work had been accomplished exclusively with non-federal funds, it is clear that the project was envisioned as a federal-aid project from the beginning and the responsible officials ultimately anticipated federal funding. Though not directly by way of the federal purse, the Secretary of Transportation did play an important part in the controversy prior to 1970 and announced "conditional approval" of the project in 1968, pending the submission of design changes. In an effort to defuse the controversy, the Secretary divided the project into segments and approved construction of the two "end segments", leaving the middle segment, which went through the park, until later. In opposition to the plaintiffs' contention that 49 U.S.C. § 1653(f) was being violated, the Secretary argued that approval of the two end segments did not (technically) involve the taking of any park land. Noting that construction of the two end segments to the very border of the park (from both sides) would drastically reduce, if not completely eliminate, the number of "feasible and prudent" alternatives to avoiding the park, the Court rejected the Secretary's "piecemeal approval", and specifically declared that approach "unlawful".
[39]  Defendant Volpe's Reply Brief at 6.
[40]  See text surrounding note 34, supra.
[41]  See text surrounding note 32, supra.
[42]  Insofar as "guidelines" are concerned, the Court notes that, although the effective date of the NEPA was January 1, 1970, and the interim guidelines of the Council on Environmental Quality were issued on April 30, 1970, there appears to have been no procedure for implementation of the NEPA set up by the Department of Transportation until late November 1970. (See Draft Instructional Memorandum dated November 24, 1970.)
[43]  In remanding the case, the Court recognizes that the Court in San Antonio deemed the Secretary's approval of that project for federal funding the "critical" date for determining the applicability of the NEPA, which determination reflects at least tacit approval of the approach to the applicability issue employed by the courts in Investment Syndicates, Brooks, and Bartlett, all supra. The "critical" event in San Antonio, however, clearly occurred after the effective date of the NEPA and it was, therefore, unnecessary for the Court to rely upon or even consider the statutory language and legislative history relied upon here. The Court does not consider the decision in San Antonio as precluding, explicitly or implicitly, the Court's approach to the applicability issue in this case.
[44]  See Environmental Defense Fund v. Corps of Engineers, supra, note 13, 325 F.Supp. at 758.
[45]  Note, Retroactive Application of the NEPA, 69 Mich.L.Rev. 732 (1971); Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970). In Zabel, the Fifth Circuit applied the NEPA to a licensing decision of the Army Corps of Engineers which was made prior to the effective date of the Act. The Court merely stated that "the correctness of that decision [on the license application] must be determined by the applicable standards of today." Id. at 213. This brief statement does not shed much light on the retroactivity issue but the decision has been read as having "merely assumed the retroactive application of the Act without any further elaboration." Note, id. at 739.
[46]  A good analysis of the various policy and constitutional considerations which would attend a pure retroactive application of the NEPA is found in Note, Retroactive Application of the NEPA, id.
[47]  The detail required in Section 102 statements may be seen from the decision in Environmental Defense Fund v. Corps of Engineers, supra note 13. The statute requires a "detailed" statement and the Court expects nothing less than a thorough compliance with the statute.
[48]  Cf. Federal Housing Administration v. The Darlington, Inc., 358 U.S. 84, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958).
[49]  See text surrounding notes 7-11, supra.
[50]  See Named Individual Members of San Antonio Conservation Society v. Texas Highway Department et al., supra note 1.


931 P.2d 1036 (1997)
Rex Lamont BUTLER, Appellant,
v.
Donald DUNLAP, Appellee.
No. S-7330.
Supreme Court of Alaska.
January 24, 1997.
*1037 Rex Lamont Butler and Linda Thomas, Anchorage, for Appellant.
Herbert A. Viergutz, Anchorage, for Appellee.
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

OPINION
PER CURIAM.

I. INTRODUCTION

Rex Butler challenges the standard of review applied by the superior court in upholding a Bar Association Fee Arbitration Panel's decision awarding a $4,417.50 attorney's fee refund. He argues in part that the proper scope of review is not the highly deferential standard called for by the Uniform Arbitration Act but, rather, the arbitrary and capricious standard applied in cases of mandatory arbitration.

II. FACTS AND PROCEEDINGS

On July 29, 1993, Donald Dunlap entered into a written contract governing the provision of legal services by Rex Butler. Under the terms of the contract, Butler agreed to represent Dunlap in the pending appeal of Dunlap's claim against the Bavarian Village Condominium Association (Association). The lawsuit related to the towing of Dunlap's vehicle by the Association in 1991. According to the written agreement governing the provision of legal services, Butler agreed to represent Dunlap "as to all claims arising out of" his suit against the Association and to "prosecute [Dunlap]'s claim with all reasonable vigor and force." In exchange, Dunlap agreed to pay Butler the sum of $150 per hour for work in conjunction with his appeal.
Subsequently this court issued a Memorandum Judgment and Opinion affirming the superior court's grant of summary judgment for the Association. Dunlap, dissatisfied with Butler's performance in the matter, requested through the Alaska Bar Association a Fee Arbitration Proceeding in accordance with Alaska Bar Rule 34.[1] Dunlap alleged that Butler had breached their agreement by not briefing the issues specifically referenced in the statement of points on appeal. Dunlap requested that he be reimbursed $5000 in attorney's fees.
The Bar Association Fee Arbitration Panel issued a decision awarding Dunlap $4,417.50 plus interest from February 4, 1994. The panel found by a preponderance of the evidence that Butler had agreed to litigate five specific points on appeal, and that although he filed a "Statement of Point [sic] on Appeal" *1038 shortly after taking the case, Butler failed to fully brief the five points in accordance with the minimal standards of Appellate Rule 212(c)(1)(i). The panel additionally noted that Butler had never informed Dunlap of any intention to deviate from the scope of his agreement to litigate the five points, and that Dunlap never acquiesced in any such deviation.
The panel rested its decision to reduce Butler's fee on two alternative grounds. First, it determined that the total fee charged by Butler for work on Dunlap's case was excessive. In particular, the panel found that Dunlap's "most significant argument on appeal" was briefed in a "cursory" fashion and that the case was "relatively simple ... in terms of the size of the record and the complexity of the issues." Second, the panel found relevant Butler's failure to advise Dunlap that the fees would exceed his initial estimate and stated that "[w]hile this failing alone would not necessarily mandate a significant reduction of the fee, it is a further indication of the poor communication practices utilized by Butler in this case."
After the panel rendered its decision, Butler applied to the superior court for vacation or correction of the award pursuant to Alaska Bar Rule 40 and AS 09.43.020. The superior court denied the motion. In so doing, the superior court stated:
This court may not review the factual findings of the Panel, and will only overturn the Panel's construction of a contract if it is not a "reasonably possible" interpretation. Breeze v. Sims, 778 P.2d 215, 217 (Alaska 1989). I find that in light of the evidence before it, the Panel's interpretation of the contract between Dunlap and Butler is reasonable enough to withstand review. Additionally, the panel's determination that the fee charged to Dunlap was unreasonable is a factual determination that I have no power to review. The application is DENIED. The fee award is AFFIRMED.
Butler now brings this appeal.

III. STANDARD OF REVIEW

The fundamental issue on appeal is the proper standard of review of an arbitrator's decision made in accordance with the Alaska Bar Rules. This is a question of law. Accordingly, this court will review the superior court's decision de novo, adopting the rule of law that is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
The usual rule applied by this court is to give great deference to the arbitrator's findings of both fact and law. As a matter of both policy and law, the court is generally "loathe to vacate an award made by an arbitrator." Department of Pub. Safety v. Public Safety Employees Ass'n, 732 P.2d 1090, 1093 (Alaska 1987).

IV. DISCUSSION

The proper standard of review of an arbitration award depends on the basis of the arbitration. For arbitrations conducted pursuant to the Alaska Uniform Arbitration Act (UAA), the standard of review is highly deferential. In Breeze v. Sims, 778 P.2d 215 (Alaska 1989), this court reviewed a superior court affirmance of an arbitration panel's decision ordering an attorney to partially refund fees paid pursuant to an oral agreement. The arbitration action was maintained pursuant to Alaska Bar Rule 34. Id. at 216. The Breeze court held that the proper standard for review of an arbitrator's decision is as follows:
[F]indings of fact are unreviewable and the arbitrator's construction of the contract will be reviewed to determine whether "it is a reasonably possible one that can seriously be made in the context in which the contract was made."
Id. at 217 (citation omitted).[2]
In Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657 (Alaska 1995), we emphasized that even this narrow judicial review of an arbitrator's construction of the contract is unavailable in a UAA governed arbitration unless the dispute is limited to the meaning of the arbitration clause itself. There we said:
*1039 Ebasco claims that the standard of review with regard to an arbitrator's "conclusions of law" is found in the following passage of Breeze v. Sims: "the arbitrator's construction of the contract will be reviewed to determine whether it `is a reasonably possible one that can be seriously made in the context in which the contract was made.'" 778 P.2d at 217 (quoting University of Alaska v. Modern Constr. Inc., 522 P.2d 1132, 1137 (Alaska 1974)). Ebasco argues that the arbitrator's interpretation of the JVA could not be "seriously made," and therefore urges us to affirm the superior court's vacation of the award.
Ebasco is wrong to contend that Alaska law allows courts to routinely review the merits of an arbitrator's legal conclusions. An examination of Breeze and Modern Construction reveals that the language Ebasco proffers here represents the standard of review for examining the arbitrator's construction of the contract with regard to arbitrability. As we have elsewhere held, "[t]here are no statutory grounds for review of an arbitrator's determination as to the meaning of contract provisions which do not pertain to the issue of arbitrability." Alaska State Housing Auth. v. Riley Pleas, Inc., 586 P.2d 1244, 1247 (Alaska 1978). "We clearly indicated [in Riley Pleas] that judicial review under AS 09.43.120 of an arbitrator's decision is limited to issues of arbitrability.... In accordance with Riley Pleas, we cannot address [an] argument that the arbitrator incorrectly interpreted the collective bargaining agreement," unless such an argument is limited to a dispute over the meaning of the arbitration clause. Masden v. University of Alaska, 633 P.2d 1374, 1376-77 (Alaska 1981) (emphasis added, footnote omitted).
Id. at 661.
A somewhat less deferential standard is used to review arbitration awards governed by contracts that are expressly excluded from the UAA by AS 09.43.010, such as labor-management contracts.[3] For cases of this nature, the common law standard of judicial review is gross error, either factual or legal. See Nizinski v. Golden Valley Elec. Ass'n, Inc., 509 P.2d 280, 283 (Alaska 1973); City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981); City of Valdez v. 18.99 Acres, 686 P.2d 682, 687-88, n. 9 (Alaska 1984). "Gross error" is defined as "only those mistakes which are both obvious and significant." Rice, 628 P.2d at 567.
The most searching standard of review of arbitration awards applies in cases of compulsory arbitration. Here the court must overturn an arbitrator's finding if it concludes the determination was "arbitrary and capricious." See Public Safety Employees Ass'n, Local 92 v. State, 895 P.2d 980, 984 (Alaska 1995), aff'd on reh'g, 902 P.2d 1334 (Alaska 1995), and Municipality of Anchorage v. Anchorage Police Dept. Employees Ass'n, 839 P.2d 1080, 1088 (Alaska 1992). The arbitrary and capricious standard of review has been impliedly equated with an abuse of discretion standard. Id.
Butler claims that the superior court was required, by due process, to review the legal conclusions of the arbitration panel under the arbitrary and capricious standard. Butler's arguments based upon due process are foreclosed by our recent decision in A. Fred Miller v. Purvis, 921 P.2d 610 (Alaska 1996). There attorney Miller argued that mandatory fee arbitration, pursuant to Alaska Bar Rules 34 through 40, is constitutional only where there is judicial review on the merits, that is, awards should be reviewable for clearly erroneous findings of fact and arbitrary and capricious applications of law. In Miller, we held that the limited scope of judicial review provided by the Alaska Bar Rules in connection with mandatory fee arbitrations does not constitute a denial of due *1040 process.[4] In reaching this holding, we employed the balancing approach expressed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), stating in part:
Both the attorney and the former client have an interest in fair, expedient and inexpensive adjudication. Appellate review of an arbitration panel's decision in order to determine either clear error of fact or law would reduce the risk of an unjust decision by an arbitration panel. On the other hand the same concerns which underlie the limits on appealability under the arbitration act apply to those limits in the context of attorney fee arbitration. They are that review on the merits tends to cause delay, necessitates greater judicial involvement, is more apt to require the employment of counsel, and thus cause greater expense....
In addition to these generic considerations there are factors which are unique to attorney fee arbitration. These are the need for public confidence in the lawyer/client relationship, the difficulty which clients of limited income may have in procuring an attorney to represent them against another attorney, and the vulnerability of clients when litigating against their former lawyers. Also to be considered is the fact that Alaska has had mandatory fee arbitration since 1974. The system has apparently worked well.... In view of these factors and circumstances we are not convinced that, for purposes of the Mathews v. Eldridge approach, the benefits to be gained from appellate review on the merits necessarily outweighs the detriments which such review would entail.
Miller at 618.
Relying on prior precedent, Butler also urges this court to adopt, under the common law, the arbitrary and capricious standard for review of fee arbitration decisions. In State v. Public Safety Employees Ass'n, 798 P.2d 1281, 1287-88 (Alaska 1990), in the context of compulsory "interest" arbitration, we indicated in dictum that a heightened standard of judicial review might be constitutionally required.[5] In addition to noting that his participation in the arbitration was compelled by Bar Rule, thus distinguishing it from voluntary arbitration under the UAA, Butler suggests that the subject matter of the case at bar is akin to "interest arbitration" as defined in Public Safety Employees Ass'n.
We hold that Miller requires rejection of Butler's arguments in favor of adopting an arbitrary and capricious standard of review for fee arbitration awards based on Public Safety Employees Ass'n. A similar contention was implicitly rejected in Miller.

V. CONCLUSION

The superior court's denial of Butler's application for vacation or correction of the December 19, 1994 award of the Bar Association Fee Panel is AFFIRMED.
NOTES
[1]  Alaska Bar Rule 34(b) provides in relevant part:

Arbitration pursuant to these rules is mandatory for an attorney when commenced by a client....
Alaska Bar Rule 34(c) provides:
All disputes concerning fees charged for professional services or costs incurred by an attorney are subject to arbitration under these rules except for:
(1) disputes where the attorney is also admitted to practice in another state or jurisdiction and (s)he maintains no office in the state of Alaska and no material portion of the legal services were rendered in the state of Alaska, unless (s)he appeared under Alaska Civil Rule 81;
(2) disputes where the client seeks affirmative relief against the attorney for damages based upon alleged malpractice or professional misconduct; or
(3) disputes where the fee to be paid by the client or on his behalf has been determined pursuant to state statute or by a court rule, order or decision;
(4) disputes over fees which were charged more than six years earlier, unless the attorney or client could maintain a civil action over the disputed amount.
[2]  This standard of review was explicitly adopted by the superior court in the case at bar.
[3]  AS 09.43.010 states: "A written agreement to submit an existing controversy to arbitration or a provision in a written contract to submit to arbitration a subsequent controversy between the parties is valid, enforceable, and irrevocable, except upon grounds that exist at law or in equity for a revocation of a contract." However, AS 09.43.010-.180 do not apply to a labor-management contract unless they are incorporated into the contract by reference or their application is provided for by statute.
[4]  In the context of fee arbitration disputes, the grounds for vacating an award are

(1) [t]he award was procured by fraud or other undue means;
(2) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of a party;
(3) the arbitrators exceeded their powers; [or]
(4) the arbitrators refused to postpone the hearing upon sufficient cause being shown for postponement or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of AS 09.43.050, as to prejudice substantially the rights of a party[.]
AS 09.43.120(a)(1)-(4).
AS 09.43.130 provides the following additional grounds for judicial modification or correction of an arbitration award:
(1) there was an evident miscalculation of figures or an evident mistake in the description of a person, thing or property referred to in the award;
......
(3) the award is imperfect in a matter of form not affecting the merits of the controversy.
[5]  "We believe it appropriate to apply the arbitrary and capricious standard when reviewing awards in compulsory interest arbitrations. Without deciding whether such a standard is constitutionally required, ... we will henceforth apply it as a matter of common law."


                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                             No. 96-6205

MICHAEL D. REMER,

                                             Plaintiff - Appellant,

         versus

A. ZERVAKOS, CCMS; J. CUMMONS, CCMM; G.
LOVICK, Parole Hearing Officer; MARYLAND
PAROLE COMMISSION,

                                            Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Peter J. Messitte, District Judge. (CA-
94-3099-PJM)

Submitted:   June 20, 1996                   Decided:   July 1, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael D. Remer, Appellant Pro Se.    John Joseph Curran, Jr.,
Attorney General, Glenn William Bell, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals from the district court's order denying

relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed

the record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. Remer v. Zervakos, No. CA-94-3099-PJM (D. Md. Jan. 5, 1996).
We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

                                                          AFFIRMED

                                2