ELR Citation: ELR 21151
No(s). 80 C 3072 (N.D. Ill. Jan 28, 1982)

The court rules that it has jurisdiction under the Administrative Procedure Act (APA) to review Department of Transportation Act, Federal-Aid Highway Act, and National Environmental Policy Act challenges to defendants' decision to build a bridge. The court notes that there is a general presumption in favor of review under statutes that do not expressly prohibit review. It rules that although the decision is within the discretion of the defendants, that discretion is not so broad as to qualify for exception to the APA's provision for judicial review. The court rejects defendants' argument that the statutes must also provide for an implied private cause of action for plaintiffs to seek judicial reivew. Where plaintiff is only seeking review under the APA, plaintiffs need no private cause of action. The court also rules that plaintiffs meet the zone of interest test for standing under the statutes since the interests addressed by the statutes include plaintiffs' endangered species and historic preservation claims. However, plaintiffs' claim under the Migratory Bird Treaty Act, which implements the treaty between the United States and Japan to protect migratory birds, must be dismissed because neither the Act nor the treaty create a private right-of-action and judicial reivew is not available under the APA since the decision was not made under the treaty.

Counsel for Plaintiffs
David Lincoln Ader
Ader & Ader
11 S. La Salle St., Chicago IL 60603
(312) 726-6611

Counsel for Defendants
Kenneth Anspach, Ass't Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Kevin J. Egan, Ass't U.S. Attorney
219 S. Dearborn St., Rm. 1500S, Chicago IL 60604
(312) 353-5300

Robert J. Bolger, Regional Counsel
Federal Highway Administration, 18209 Dixie Hwy., Homewood IL 60430
(312) 799-6300