Case Law Details
Petzel v. Kane County DOT
Project Description:
The Longmeadow Parkway is a new 5.6-mile four-lane highway in Kane County, Illinois, that would include a new bridge crossing over the Fox River. The project was undertaken by the Kane County DOT with funding from the Illinois DOT and FHWA. An EIS was prepared in 2001, and FHWA issued a ROD approving the project in 2002. After Kane County proposed turning the project into a tollway, the agencies prepared a reevaluation of the EIS, and FHWA determined in 2009 that a supplemental EIS was not necessary. The agencies prepared another reevaluation of the EIS in 2016, and FHWA issued a FONSI in November 2016. In March 2017, shortly before construction of the project began, the Fish and Wildlife Service (FWS) listed the rusty patched bumble bee, which has habitat near the project, as an endangered species. FHWA then prepared a biological assessment that concluded the project may affect, but is not likely to adversely affect, the rusty patched bumble bee. In July 2017, FWS concurred with the conclusion in the biological assessment.
2018 WL 3740629
2018 WL 3740629
U.S. District Court – Illinois
08/07/2018
Longmeadow Parkway
Highway
Case Summary
An individual plaintiff (Petzel) filed this lawsuit in 2016. Stop Longmeadow, a nonprofit organization, intervened as a plaintiff in the lawsuit in 2017, alleging violations of NEPA, Section 4(f), and the Endangered Species Act. In a prior ruling on July 6, 2017, the court dismissed the claims brought by Petzel. In this ruling, the court dismissed many of the claims brought by Stop Longmeadow.
Key Holdings
Litigation Procedure Statute of Limitations. The court ruled that the plaintiff’s NEPA and Section 4(f) claims were barred by the applicable six-year statute of limitations to the extent they challenged the EIS and ROD. The plaintiff intervened in the lawsuit in 2017, more than six years after FHWA issued the EIS (2001) and the ROD (2002). Mootness. The court ruled that the plaintiff’s claims alleging a failure to consult with FWS on impacts to endangered species were moot. The court held that the consultation process required by Section 7 of the ESA was completed when FWS issued its July 2017 letter concurring in FHWA’s determination that the project may affect, but is not likely to adversely affect, the rusty patched bumble bee. Notice of Intent to Sue – Timeliness. The court also dismissed the plaintiff’s Section 7 claims because the plaintiff did not provide a 60-day notice of intent to sue before filing its lawsuit, which is a requirement to bringing a citizen suit to enforce the ESA. The plaintiff sent the agencies a notice of intent to sue after it filed its complaint. Several months later (after more than 60 days had elapsed), the plaintiff filed an amended complaint that added claims alleging ESA violations. The court recognized that a plaintiff could file a lawsuit with non-ESA claims and then amend then complaint to add ESA claims at least 60 days after sending a notice of intent to sue. Here, however, the plaintiff’s original complaint alleged that the agencies violated Section 7 of the ESA. The court ruled that the plaintiff failed to comply with the 60-day notice requirement by bringing a claim alleging an ESA violation in its original complaint before the 60-day notice period had elapsed. The court therefore dismissed the ESA claim. Notice of Intent to Sue – Substantive Adequacy. In its amended complaint, the plaintiff claimed that the agencies violated the ESA by relying on inadequate data for the biological assessment. The court ruled that the plaintiff’s notice of intent to sue did not raise this issue or put the agencies on notice of this claim. The notice of intent to sue alleged that the agencies entirely failed to conduct a biological assessment; the court ruled that this was substantively different from the plaintiff’s claim challenging the data used in the biological assessment.
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