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Citizens for Appropriate Rural Roads, Inc. v. Foxx

United States District Court, S.D. Indiana, Indianapolis Division

March 31, 2014

CITIZENS FOR APPROPRIATE RURAL ROADS, INC., et al., Plaintiffs,
v.
ANTHONY FOXX, in his official capacity as Secretary of the United States Department of Transportation, et al., Defendants

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For CITIZENS FOR APPROPRIATE RURAL ROADS, INC., ANDREW JOHN KNOTT, MICHAEL KNOTT, WILLIAM A. BOYD, JANICE ANN BOYD, RUTH ANN FLYNN, WILLIAM SCOTT FLYNN, THE I-69 ACCOUNTABILITY PROJECT, THOMAS TOKARSKI, SANDRA TOKARSKI, THOMAS JOCHIM, KENDA JOCHIM, JERRY JOCHIM, CHARLOTTE ANN PAUL, ANN M. BAAS, LYNNE BERGH, DARRELL BREEDEN, CORA E. YOUNG, H. WAYNE SULLIVAN, Plaintiffs: Mick G. Harrison, Bloomington, IN.

For RAY LAHOOD, in his official capacity as Secretary of the United States Department of Transportation, ROBERT F. TALLY, in his official capacity as the Division Administrator -- Indiana Division of the Federal Highway Administration, VICTOR MENDEZ, in his official capacity as Administrator of the Federal Highway Administration, Defendants: Daniel W. Pinkston, U.S. DEPARTMENT OF JUSTICE, Environmental and Natural Resources Division, Denver, CO; Jared S. Pettinato, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; John Brett Grosko, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Shelese M. Woods, UNITED STATES ATTORNEY'S OFFICE, Indianapolis, IN.

For MICHAEL B. CLINE, in his official capacity as the Commissioner of the Indiana Department of Transportation, Defendant: Albert M. Ferlo, PRO HAC VICE, Elisabeth C. Frost, PERKINS COIE LLP, Washington, DC; Shelese M. Woods, UNITED STATES ATTORNEY'S OFFICE, Indianapolis, IN; Timothy J. Junk, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN; William G. Malley, Washington, DC.

For KEITH LOCHMUELLER, VINCENT BERNARDIN, THOMAS H. CERVONE, Interested Parties: Jean Marie Blanton, ZIEMER STAYMAN WEITZEL & SHOULDERS LLP, Evansville, IN.

For Dawn M. Replogle, Interested Party: Daniel P. King, FROST BROWN TODD LLC, Indianapolis, IN.

OPINION

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SARAH EVANS BARKER, United States District Judge.

ORDER ON MOTIONS FOR PRELIMINARY INJUNCTION AND SUMMARY JUDGMENT

This cause is before the Court on Plaintiffs' Second Motion for Preliminary Injunction [Docket No. 141], and the parties' cross motions for summary judgment [Docket Nos. 142, 160 & 162]. For the reasons set forth below, Plaintiffs' motions for preliminary injunction and summary judgment are DENIED, and Defendants' motions for summary judgment are GRANTED.

Factual and Procedural Background

This case is one of several that have come before this Court involving the extension of Interstate 69 in Southern

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Indiana. The project, now in its final stages, has evolved over several decades. In 1944, Indiana state transportation authorities initiated the first study of a highway connecting Evansville and Indianapolis; such a route was not included in the original Interstate Highway System, however, and the interstate eventually named I-69 reached only as far south as the northeast suburbs of Indianapolis. Discussion of an Evansville-to-Indianapolis highway was sparked anew in the 1990s, prompted by two Acts of Congress. The Intermodal Surface Transportation Act of 1991, Pub. L. No. 102-240 § 1105(c), designated a potential new route from Indianapolis to Memphis, Tennessee, via Evansville as a " high priority corridor" for future development. Docket No. 161 at 4 n.6.[1] As part of the Transportation Equity Act for the 21st Century, Pub. L. No. 105-178 § 1211(i)(1)(D)(i), Congress in 1998 designated this corridor as an extension of I-69 southward from Indianapolis. Id.[2]

When the Federal Highway Administration (FHWA) began its review of the I-69 extension, it divided the project into two schematic " tiers." In Tier 1 of the project, the FHWA and the Indiana Department of Transportation (INDOT) reached several broad decisions about the goals of the project, its scope, and the general geographic corridor in which construction would take place. More specifically, they selected " Alternative 3C" --one of 12 routes that had received consideration--as the path the new interstate would take, connecting Evansville to Bloomington via a newly-constructed corridor and upgrading the existing State Road 37 route between Bloomington and I-465 in Southwestern Indianapolis. Docket No. 161 at 5 (citing AR ROD0000008-12).

FHWA and INDOT identified a number of programmatic goals for the project, including: (1) to improve international and interstate freight transportation, (2) to enhance regional and local transportation, (3) to facilitate economic development and growth opportunities " domestically and internationally through efficient and flexible transportation," (4) to facilitate connections to facilities that use other modes of transportation, (5) to enhance safety and to reduce crashes, (6) to upgrade existing facilities to meet projected demand, and (7) to connect the cities that Congress designated for I-69, most notably Indianapolis and Evansville. Docket No. 163 at 10 (citing AR T1FEIS95). The agencies also divided " Tier 2" of the project into six sections, each corresponding to a discrete geographic stretch of the highway project, and each to receive its own Tier 2 environmental analysis. FHWA and INDOT issued a Tier 1 " Record of Decision" (ROD)--finalizing their action with respect to this stage of the project--on March 24, 2004. Docket No. 163 at xix. In Hoosier Environmental Council v. United States Department of Transportation, 2007 WL 4302642 (S.D. Ind. Dec. 10, 2007), this court upheld the agencies' Tier 1 decision

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against claims from the current plaintiffs and other organizations under the Administrative Procedure Act (APA) that aspects of the project violated federal law.

Since the Tier 1 plan was finalized in 2004, agency planning and subsequent construction work on the project's six sections have continued steadily. Final FHWA approval for Sections 1, 2, 3, 4, and 5 has now been issued, and construction on the first three sections--spanning from Evansville to near the Crane Naval Surface Warfare center--is complete. Construction on Section 4 between Crane and the Bloomington area now nears completion, while work on the final two sections between Bloomington and Indianapolis has yet to begin. See Docket No. 163 at xix.

The portion of the I-69 project primarily at issue in this case is Section 4. Pursuant to the National Environmental Policy Act (NEPA) and other statutory prerequisites, the FHWA and INDOT issued a Draft Environmental Impact Statement (DEIS) for Section 4 on July 23, 2010. After the required public comment period had elapsed, the agencies then issued their Final Environmental Impact Statement (FEIS) on July 13, 2011, followed by a Record of Decision on September 8, 2011. Docket No. 163 at xix. In selecting the final route and construction plan for Section 4 from some 48 options available (within the constraints established by the Tier 1 ROD), the agencies produced a record reflecting their consideration of the plan's impact on historic sites, geological formations, and air quality, among other factors. Pursuant to their obligations under Section 7 of the Endangered Species Act (ESA), the agencies underwent consultation with the United States Fish and Wildlife Service (FWS) and issued a Biological Opinion (BiOp) regarding the possible impact of the project's tree-clearing on the endangered Indiana bat. S4AR12716.[3] Consultation was then reinitiated, and a revised BiOp for both Tier 1 and Tier 2 issued, to address the issue of " White Nose Syndrome," an affliction affecting a large number of bats in the target area. See T1PD26754.

Plaintiff Citizens for Appropriate Rural Roads, Inc., is an Indiana non-profit organization consisting of approximately 800 members dedicated to " educating Hoosiers about the benefits of financially responsible and environmentally sound transportation policies." Compl. ¶ 10. Plaintiff The I-69 Accountability Project is also an Indiana non-profit organization, dedicated more specifically to opposing the state and federal governments' current plans for the construction of the highway on policy, health, and environmental grounds Compl. ¶ 12. Individual Plaintiffs Andrew Knott, Michael Knott, William Boyd, Janice Boyd, Ruth Flynn, William Flynn, Sandra Tokarski, Sandra Tokarski, Thomas Jochim, Kenda Jochim, Jerry Jochim, Charlotte Paul, Ann Baas, Lynne Bergh, Darrell Breeden, Cora Young, and H. Wayne Sullivan are residents of Indiana who own property or reside within the proposed I-69 corridor or in its immediate vicinity. Compl. ¶ ¶ 9, 11, 13-21.

Plaintiffs filed this suit on August 1, 2011, and they moved for a preliminary injunction on December 9, 2011. Lengthy inactivity by Plaintiffs, including several missed case management deadlines by Plaintiffs' counsel, prompted the Court to dismiss Plaintiffs' first motion for preliminary injunction and direct Plaintiffs to show cause why the entire case should not be dismissed for failure to prosecute. See

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Docket No. 133.[4] Plaintiffs subsequently filed a renewed motion for preliminary injunction and a partial motion for summary judgment on Counts 1, 2, 7, 11, 13, 17, and 18 of their Amended Complaint. Docket Nos. 141, 142. INDOT and the Federal Defendants responded with their own motions for summary judgment on all counts. Docket Nos. 160, 162.

Legal Analysis

Standard of Review

1. Under the Administrative Procedure Act

Plaintiffs allege that the Defendants' actions in approving and implementing plans for the I-69 extension violated various federal statutes, including the National Environmental Policy Act (NEPA), the Clean Air Act (CAA), the Department of Transportation Act, the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). As we shall discuss more fully below, these statutes provide the procedural or substantive standards to which agencies are bound, but Plaintiffs' cause of action is under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. See Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 858, 859 (7th Cir. 2003).

The APA " sets forth the full extent of judicial authority to review executive agency action for procedural correctness." F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (citing Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 545-549, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). The standard of review under the APA " is a narrow one," see Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and the plaintiff bears the burden of proof. See Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995). The type of judicial review to which an agency is subject depends on whether the plaintiff challenges agency action, or agency inaction. See 5 U.S.C. § 706. A plaintiff claiming government inaction contrary to law must show that the governmental entity " failed to take a discrete agency action that it is required to take." 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 72, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). If the plaintiff seeks to set aside agency action, he or she must show that the action was " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). The purpose of APA review is limited; courts' role in screening for " arbitrary" or " capricious" actions is to " insist that the agency examine the relevant data and articulate a satisfactory explanation for its action." F.C.C., 556 U.S. at 513 (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). A court does not " substitute its judgment for that of the agency," and should uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Id. at 513-514.

2. Under Rule 56

Federal Rules of Civil Procedure 56 provides that summary judgment should be granted when the record evidence shows that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91

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L.Ed.2d 265 (1986). The purpose of summary judgment is to " pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. See id. at 255. However, neither the " mere existence of some alleged factual dispute between the parties," id., 477 U.S. at 247, nor the existence of " some ...


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