Litigation Procedure

Ripeness.  The defendants argued that the plaintiffs’ challenges to the Tier 2 ROD for Section 4 should be dismissed as unripe because the plaintiffs filed their lawsuit before the Tier 2 ROD was issued.  The plaintiffs’ lawsuit was filed under the Administrative Procedure Act (APA), which allows lawsuits challenging “final actions” taken by federal agencies.  For purposes of the APA, a final action occurs in the NEPA process only when the federal agency issues a ROD or other decision document.  Because the lawsuit was filed before the Tier 2 ROD was issued, the court agreed that the claims were unripe and therefore dismissed the challenges to the Tier 2 ROD. 

Notably, the Tier 2 ROD  was issued while the lawsuit was pending, so the FHWA’s action had become final before the court issued its decision.  Even so, the court held that the plaintiffs’ challenges to the Tier 2 ROD were not ripe because there was no final agency action at the time the lawsuit was filed:  “The 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 lawsuit included two claims alleging that INDOT had prematurely undertaken certain design, right-of-way, and construction activities prior to completion of the NEPA process.  INDOT asked the court to dismiss these claims as moot, and the court agreed.  The court held that these claims were moot because  “they seek to enjoin activities—preliminary survey work, geotechnical studies, and land acquisitions—that have long since ceased”. 

Waiver,  The defendants asked the court to dismiss the plaintiffs’ challenges to several claims under NEPA and the ESA because, while the claims were raised in the complaint, the plaintiffs failed to address those claims in their briefs.  The court agreed, holding that “[w]hen a plaintiff fails to provide any arguments in favor of his claims and offers no response to a defendant’s arguments in favor of summary judgment on those claims, he has waived the claims.”

NEPA

Supplemental EIS.  In addition to challenging the Tier 2 ROD itself, the plaintiffs claimed that FHWA was required to prepare a supplemental EIS (SEIS) to address issues relating to the Indiana bat, air quality impacts, and historic sites.  The court agreed with FHWA that an SEIS was not required.

Indiana bat.  The plaintiffs cited two reasons for requiring an SEIS to address impacts to the endangered Indiana bat: (1) the effects of a fungal disease, “white nose syndrome,” on the bat and (2) the fact that INDOT’s construction contractor had engaged in tree-clearing in violation of the terms of the Incidental Take Statement for the bat in the USFWS’s Biological Opinion.  The court noted that FHWA and INDOT had reinitiated Section 7 consultation in 2011 and again in 2012 specifically to address the effects of white nose syndrome on the Indiana bat, and both times the USFWS re-affirmed its “no jeopardy” finding for the bat.  Regarding tree-clearing, the court noted that a contractor had removed a single tree in violation of the Incidental Take Statement, but found that evidence in the record “makes clear that the incident’s impact on Indiana bats was minimal or nonexistent.”  Further, the court noted that INDOT “took steps to ensure that further tree-removal in violation of the FEIS did not occur, including: firing the supervisor responsible for the felling of the tree, re-training of contractor employees on the Indiana bat issue, and additional mapping of trees with diameter greater than three inches within the project area to ensure their protection.”  Based on all of these facts, the court found that effects on the Indiana bat did not require preparation of an SEIS.

Air quality impacts.  The plaintiffs claimed that an SEIS was required because the air quality conformity analysis was based on out-of-date assumptions about vehicle fleet mix.  Specifically, the analysis in the FEIS was based on fleet-mix data from 2004; the plaintiffs said the analysis should have been based on more recent fleet-mix data from 2009, which would have resulted in a higher estimate of vehicle emissions.  The court noted that the 2009 fleet-mix data was available at the time the FEIS was issued, and observed that “The record evidence designated by Plaintiffs is sufficiently persuasive that, if Plaintiffs’ claim were a facial challenge to the agencies’ decision to exclude the 2009 data from the FEIS and ROD, it would present a close question.”  Nonetheless, the court found that this issue did not require an SEIS because, by the time the lawsuit was being decided, Greene County had been designated as an “attainment” area, so air quality conformity requirements were no longer applicable. 

Historic sites.  The plaintiffs claimed that an SEIS was required because certain historic properties had been “declared eligible and then reclassified as ineligible ... by the use of a highly irregular procedure and double standard.”  The court found that the plaintiffs had provided no evidence in support of this allegation, and therefore found that this allegation provided no basis for requiring an SEIS. 

ESA

No-Jeopardy Finding.  The plaintiffs challenged the adequacy of the USFWS’s Tier 2 Biological Opinion for Section 4 of I-69, and also argued that Section 7 consultation should be initiated based on the same reasons they cited in their request for an SEIS - namely, white-nose syndrome and the tree-clearing that occurred in violation of the Incidental Take Statement.  In their briefs, the plaintiffs failed to make arguments in support of these claims, and instead asserted that additional time was needed for discovery (i.e., gathering facts outside the administrative record).  The court found that the plaintiffs “have not demonstrated the necessity of looking beyond the Administrative Record or of granting them more time to seek its enlargement.”  Because the plaintiffs offered no other response to the defendants’ arguments on these issues, the court granted summary judgment for the defendants on all ESA claims 

• CARR v. Foxx - 01-14-2015.pdf (237 kb)