Litigation Procedure

Statute of Limitations. The District Court held that the 180-day statute of limitations contained in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, 23 U.S.C. § 139(l), applied to the plaintiffs’ claims, rather than the six-year statute of limitations contained in 28 U.S.C. § 2401. The court reasoned that the 180-day statute of limitations for contesting the FONSI “was explicitly mentioned in the notice posted in the Federal Register” and the plaintiffs had ample time in which to file a lawsuit, and therefore, there was “no inequity in its application.” Because the plaintiffs failed to file the lawsuit within the applicable statute of limitations, and because the reevaluation did not reopen the agencies’ environmental review to litigation, as discussed below, the court dismissed the plaintiffs’ action for lack of subject-matter jurisdiction.

No Cause of Action against State Agencies. The District Court dismissed the claims against the state agencies, holding that the plaintiffs could not bring suit against the state agencies because the Administrative Procedure Act “does not provide a judicial forum for complaints against state agencies.”

No Reopening of Litigation Due to Reevaluation. The District Court held that the reevaluation did not reopen the agencies’ environmental review to litigation. The court first held that the plaintiffs could not challenge FHWA’s failure to consider the effects of Mobile Source Air Toxics in the EA at the time of issuance of the reevaluation. The court reasoned that the appropriate time to attack FHWA’s actions was at the time of issuance of the EA. Next the court held that the reevaluation “serves as neither an independent basis for filing a lawsuit nor as a basis for reopening prior agency decisions.” The court reasoned that the changes made in the reevaluation were not so significant as to require a supplemental EIS that would be separately reviewable, stating as follows:

“[W]here, as here, the reevaluation makes minor changes pursuant to design elements specifically called for in the FONSI, a plaintiff’s reliance on such a document as the basis for filing suit is inappropriate. Otherwise, the decisionmaking process would be “intractable,” and public facilities would rarely get off the drawing board because efforts “in reliance on the validity of” any intermediate agency decision would never be made.” Finally, the court held that the agencies’ failure to issue another statement pursuant to Section 4(f) of the Department of Transportation Act was not reviewable. The court reasoned that the appropriate time to challenge the agencies’ Section 4(f) statement was at the time of issuance of the EA.