ELR Citation: ELR 21048
No(s). 3:95 CV 7343 (N.D. Ohio Feb 9, 1996)

The court holds time barred or dismisses on the merits environmental groups' claims that federal, state, and local agencies' actions in connection with an urban corridor development project violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the Intermodal Surface Transportation Efficiency Act (ISTEA), the Federal Water Pollution Control Act (FWPCA), the Federal Aid to Highways Act (FAHA), and the Clean Air Act (CAA). The court first denies plaintiffs' motion to amend their complaint. Amendment could not result in any new or additional recovery, could delay the ultimate disposition of the case, would add no new claims, and would be futile. The court next grants plaintiffs' motion to supplement the record as to items contained in their proffer, and denies the motion as to all other items. The court denies defendants' motion to dismiss on jurisdictional grounds plaintiffs' claims under the CAA. The arguments on this issue go to the merits of the case—the extent and components of the project—rather than to the issue of whether the court has jurisdiction to hear the merits. The court next dismisses plaintiffs' claims under ISTEA. ISTEA's language does not indicate congressional intent to create a private right-of-action, and plaintiffs have pointed to nothing in the legislative history of ISTEA or the context surrounding its passage from which the court can conclude that Congress intended to create a private right-of-action under the statute. The court next holds that it has subject matter jurisdiction over plaintiffs' claim that the U.S. Army Corps of Engineers' (the Corps') issuance of a FWPCA §404 dredge and fill permit for the project violated the FWPCA. Although plaintiffs may not bring a citizen suit against the Corps under the FWPCA, the action is properly brought under the Administrative Procedure Act (APA). There is a fundamental difference between the decision to deny a permit, which is unreviewable, and the decision to grant a permit, which is not. The court next holds that the six-year statute of limitations in 28 U.S.C. §2401(a) applies to plaintiffs' NEPA claims. Correctly stated, plaintiffs bring an action under the APA alleging violations of NEPA and other federal environmental protection statutes, and courts have consistently held that the APA has a six-year statute of limitations pursuant to §2401. Thus, all claims arising before June 8, 1989, including all claims related to a 1984 environmental impact statement (EIS) for the project, are time barred. However, the claim that the Federal Highway Administration (FHwA) violated NEPA by failing to supplement the EIS accrued within the limitations period and is not time barred. Similarly, the claim that the Department of Transportation's 1984 record of decision for the project violated the FAHA is time barred, but its 1995 decision that no new determination under the FAHA was needed is not. The court also dismisses as time barred plaintiffs' claims under the NHPA and the CAA, which arose in connection with the 1984 EIS, and all of plaintiffs' FWPCA claims except those arising directly out of the Corps' 1992 issuance of the §404 permit. The court further holds that laches does not bar the remaining claims, all of which arose no more than three years before plaintiffs brought suit.

Turning to the merits of the remaining claims, the court holds that defendants' failure to supplement the EIS in connection with changes to the project was not arbitrary and capricious or a violation of the law. For each of plaintiffs' claims, there are at least 10 pages, and in most cases, 20 to 30 pages, of detailed scientific study by neutral professionals and explanation of why defendants made the substantive decisions they did. The court next holds that defendants' decision not to perform an FAHA §4(f) redetermination was neither arbitrary nor capricious, nor in violation of law. The court finds that defendants heard and carefully considered each of the claims plaintiffs raised during the administrative process, and provided a colorable explanation of why each of plaintiffs' claimed sites did not need to be included in a redetermination. Regarding plaintiffs' claims that the defendants violated federal wetlands law, the court finds that another highway project and development scheme are not so closely related to the project at issue as to require their mention in a §404 permit application. The Corps satisfied notice-and-comment requirements regarding the permit, and the district engineer reasonably determined that a change in the proposal that reduced the amount of wetlands affected would not affect the public's review of the proposal. Omission in the public notice of a reference to the Ohio EPA was harmless error, because the requirement that the Ohio EPA have actual notice of the permit was functionally satisfied. The court holds that the Ohio Department of Transportation's determination that no practical alternatives to the proposed roadway existed is not arbitrary. Additionally, the Corps' failure to require a detailed mitigation implementation plan was not a violation of law. The court next holds that the Corps' decision not to prepare a full-scale EIS for the project was made in accordance with applicable regulations and was neither arbitrary or capricious. The Corps conducted a detailed survey of the potentially affected areas, considered the impact of the planned project, and determined that there would be no significant adverse effects on the environment. Finally, the court holds that whatever technical violation there may have been in the fact that FHwA, and not the Corps, submitted certain papers to the Advisory Council for Historic Preservation was harmless error.

Counsel for Plaintiffs
Terry J. Lodge
618 N. Michigan St., Toledo OH 43624
(419) 255-7552

Counsel for Defendants
Robin L. Juni
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000