Litigation Procedure

Ripeness.  The defendants argued that the plaintiffs’ challenge to FHWA’s approval of Section 4 was not ripe for review by the court, because FHWA had not taken final action on Section 4 at the time the suit was filed.  (The lawsuit was filed on August 1, 2011, and the Tier 2 ROD for Section 4 was not issued until September 8, 2011.)  Because the lawsuit was filed  before the ROD was issued, the court held that “[t]he claims challenging the decisions embodied in the Section 4 ROD were thus unripe at the time of their filing, depriving this court of jurisdiction even if the agency decision became final in the intervening time.” 

Mootness.  The plaintiffs claimed that FHWA and INDOT had violated NEPA by engaging in certain activities - including final design, geotechnical borings, tree clearing for survey work, and some land acquisition - before the Tier 2 ROD for Section 4 had been issued.  The defendants argued that these claims had become moot, because those activities ceased by the time the court actually was considering the parties’ summary judgment motions.  The court agreed that the plaintiffs’ challenges to these pre-construction activities had become moot and dismissed those claims. In reaching this conclusion, the court noted that the plaintiffs’ own delay in pursuing their claims had allowed the claims to become moot.

Administrative Record - Supplementation.  The plaintiffs asked the court to allow discovery - additional fact-finding - rather than deciding the case based on the administrative record submitted by FHWA.  Plaintiffs sought discovery based in part on alleged “misconduct” by the defendants’ counsel during the course of the litigation.  The court found that the plaintiffs’ allegations of misconduct had no merit and that the plaintiffs had not identified any other special circumstances that warranted discovery.  The court also held that the plaintiffs’ argument for more discovery “is severely undermined by their dilatory pursuit of discovery throughout this litigation, including their failure to meet more than one court-imposed deadline for presenting challenges to the sufficiency of the Administrative Record.”  Therefore, the plaintiffs’ requests for discovery were denied.

NEPA

Supplemental EIS.  The plaintiffs claimed that FHWA and INDOT had violated NEPA by failing to prepare a supplemental EIS.  They claimed that an SEIS was required for several reasons, including new information or changed circumstances regarding (1) the project’s impacts on the endangered Indiana bat, (2) air quality standards under the Clean Air Act, and (3) the project’s impacts on certain historic sites.

Indiana Bat.  The plaintiffs claimed that FHWA was required to prepare a SEIS because of new information regarding the effects of white nose syndrome on the Indiana bat, and because a construction contractor had felled a potential Indiana bat roost tree outside of the season during which tree removal was allowed under the Biological Opinion.  The court found that the existence of white nose syndrome had been adequately addressed in the Section 7 process and did not warrant preparation of an SEIS.  The court also found that the felling of a single tree had “minimal or non-existent” impact on the Indiana bat, and that INDOT had taken sufficient steps to ensure that further violations did not occur, including firing the supervisor responsible for the felling of the tree; therefore, the court also found that the out-of-season tree-removal did not require preparation of an SEIS.

Air Quality.  The plaintiffs claimed that an SEIS was required because new vehicle registration data showed that the project’s air quality impacts would not meet air quality conformity requirements in one county.  The plaintiffs relied in part on statements made by an alleged “whistleblower” within INDOT.  The court found that plaintiffs had not shown that new data caused the county to be in non-conformity, and noted that the county had actually been re-designated as an “attainment” area by EPA, so the conformity requirements no longer applied.  Therefore, the court found an SEIS was not required.

Historic Sites.  The plaintiffs claimed that new information regarding certain historic sites in Section 3 of I-69 required a supplemental EIS for that section.  The court held that plaintiffs’ claims regarding Section 3 were barred by the statute of limitations, because the statute of limitations for the Section 3 ROD had expired before this lawsuit was filed. The court also held that any claims regarding the adequacy of the Tier 2 EIS for Section 3 provided no basis for requiring an SEIS for Section 4.

ESA

Compliance with BO.  The plaintiffs claimed that FHWA and INDOT had violated Section 7 of the ESA by allowing construction activities (out-of-season tree-cutting) that did not comply with the Biological Opinion and by failing to re-initiate Section 7 consultation when they learned that those construction activities had occurred.  The defendants argued, and the court agreed, that the plaintiffs had failed to file a 60-day notice of intent to sue as required by the ESA, and also found that the plaintiffs had not responded substantively to any of the other defenses raised by FHWA and INDOT to the ESA claims.  Therefore, the court granted summary judgment for the defendants on the ESA claims.

• CARR v Foxx - 03-31-2014.pdf (143 kb)