City of Olmstead Falls v. U.S. E.P.A., No. 1:02 CV 1460.

Decision Date25 October 2002
Docket NumberNo. 1:02 CV 1460.
Citation233 F.Supp.2d 890
PartiesCITY OF OLMSTED FALLS, et al., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Barbara E. Lichman, Berne C. Hart, Jacqueline E. Serrao, Chevalier, Allen & Lichman, LLP, Irvine, CA, Kevin T. Roberts, Roberts Law Firm, Cleveland, OH, for plaintiffs.

Andrew J. Doyle, U.S. Dept. of Justice, Environment & Natural Resources Division, Washington, DC, Steven J. Paffilas, U.S. Attorney's Office, Cleveland, OH, for defendants U.S. Environmental Protection Agency, Christie Todd Whitman, Thomas Skinner, U.S. Dept. of the Army, Thomas E. White, Army Corps of Engineers, Glen R. DeWillie, U.S. Dept. of Transportation, Norman Y. Mineta, Federal Aviation Administration, and Jane Garvey.

Julianne Kurdila, Thomas L. Anastos, City of Cleveland, Dept. of Law, Cleveland, OH, for defendants City of Cleveland and Jane L. Campbell.

Margaret A. Malone, David Kern, Office of Attorney General, Environmental Enforcement Section, Columbus, OH, for defendants State of Ohio, Robert A. Taft, Ohio Environmental Protection Agency, and Christopher Jones.

Memorandum of Opinion and Order

GAUGHAN, District Judge.

INTRODUCTION

This matter is before the Court on Federal Defendants' Motion to Dismiss (Doc. 39). This case arises out of construction currently underway at the Cleveland Hopkins International Airport. Specifically, this case focuses on the "dredge or fill" permit issued under the Clean Water Act in conjunction with the construction.

FACTS
The Parties

Plaintiff, City of Olmsted Falls (hereafter "Olmsted Falls"), is a municipal corporation located near the Cleveland Hopkins International Airport (hereafter "Airport"). (Compl.¶ 3). Plaintiff, Marvin Hirschberg, is an individual resident of Olmsted Falls. (Compl.¶ 4).

Plaintiffs bring this action against eighteen defendants.

Defendant, United States Environmental Protection Agency (hereafter "USEPA"), is the federal agency responsible for oversight of the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (commonly and hereafter referred to as "Clean Water Act"). (Comp.¶ 5). Defendant, Christine Todd Whitman, is the Administrator of the USEPA. (Compl.¶ 6). Defendant, Thomas Skinner, is the Regional Administrator of the USEPA. (Compl.¶ 7). These three defendants are hereafter collectively referred to as the "USEPA Defendants."

Defendant, Department of the Army, is an agency of the federal government. (Compl.¶ 8). Defendant, Thomas E. White, is the Secretary of the Army. (Compl.¶ 9). Defendant, Department of the Army Corps of Engineers, is a federal agency responsible for regulating the discharge of dredged and fill material in navigable waters of the United States. (Compl.¶ 10). Defendant, Glen R. Dewillie, is the District Engineer for the Army Corps of Engineer's Buffalo District. These four defendants are hereafter collectively referred to as the "Corps Defendants."

Defendant, United States Department of Transportation, is the agency of the federal government responsible for the construction and operation of airports in the United States. (Compl.¶ 12). Defendant, Norman Y. Mineta, is the Secretary of the Department of Transportation. (Compl.¶ 13). Defendant, Federal Aviation Administration (hereafter "FAA") is the agency of the federal government responsible for safe air transportation. (Compl.¶ 14). Defendant, Jane Garvey, is the Administrator of the FAA. These four defendants are collectively referred to as the "FAA Defendants."

The USEPA Defendants and the Corps Defendants are collectively referred to as the "Federal Defendants."1

Defendant, City of Cleveland (hereafter "Cleveland"), is the owner and operator of the Airport. (Compl.¶ 17). Defendant, Jane L. Campbell, is the Mayor of Cleveland. (Compl.¶ 18). Defendant, State of Ohio, is a governmental entity charged with the enforcement of state water quality laws. (Compl.¶ 19). Defendant, Robert A. Taft, is the Governor of Ohio. (Compl.¶ 20). Defendant, Ohio Environmental Protection Agency (hereafter "OEPA"), is an agency of Ohio responsible for state certifications under the Clean Water Act. (Compl.¶ 21). Defendant, Christopher Jones, is the Director of the OEPA. (Compl.¶ 22). These six defendants are collectively referred to as the "State Defendants."

In addition to these seventeen defendants, plaintiffs name John Doe defendants.

The Dispute2

For the purpose of ruling on the Federal Defendants' Motion, the allegations in the Complaint are presumed true. Moreover, it appears from the briefs that the facts of this case are largely undisputed.

This dispute arises out of the ongoing construction at the Airport.

In March 1999, an Airport Master Plan (including an Airport Layout Plan) outlining the proposed expansion and redesign at the Airport was submitted to the FAA. (Compl.¶ 28). The Airport Layout Plan is a prerequisite to the receipt of federal funding for the Project. (Compl.¶ 28). Ultimately, the FAA approved the Airport project subject to securement of all required environmental permits. (Compl.¶¶ 27, 40).

Completion of the Airport project will result in the fill of 5,400 linear feet of Abram Creek and 2,500 linear feet of two it its tributaries.3 (Compl.¶ 3).

In approximately July 2000, Cleveland applied for a "dredge or fill permit" pursuant to § 404 of the Clean Water Act, 33 U.S.C. § 1344, (hereafter "Section 404 Permit"). (Compl.¶ 34). In addition, on October 30, 2000, Cleveland applied to the OEPA for state certification as required by § 401 of the Clean Water Act, 33 U.S.C. 1341 (hereafter "Section 401 Application").4 (Compl.¶ 39).

Over the course of the next few months, OEPA issued a public notice concerning Cleveland's Section 401 Application, held a public hearing and accepted comments from the public to assist the Director of the OEPA in handling Cleveland's Section 401 Application. (Compl.¶¶ 45-47).

On April 13, 2002, the Director of the OEPA sent a letter to the Army Corps of Engineers indicating that Ohio waived its authority to act on the Section 401 Application. (Compl.¶ 50).

Thereafter, on May 18, 2001, the Army Corps of Engineers issued the Section 404 Permit to Cleveland. (Compl.¶ 51). Construction at the Airport began on May 20, 2001. (Compl.¶ 53).

On May 30, 2001, Olmsted Falls appealed the OEPA Director's decision to waive its authority to act on Cleveland's Section 401 Application. (Compl.¶ 54). On June 11, 2002, the Ohio Environmental Review Appeals Commission (hereafter "ERAC") ruled that the OEPA Director's "action" of waiving its authority to act on a Section 401 Application is not permitted under Ohio law. (Compl. ¶ 57; Compl. Ex. R). Instead, the ERAC determined that the OEPA Director must either certify or deny Section 401 applications. (Compl.Ex. R).

Olmsted Falls contacted the Federal Defendants requesting that the Section 404 Permit be revoked in light of the ERAC's ruling that the OEPA Director's "waiver" with regard to the Section 401 Application is invalid. (Compl.¶¶ 58, 62). The Federal Defendants refused. (Compl.¶ 63).

Thereafter, plaintiffs filed suit.

The Complaint asserts seven causes of action. In Count One plaintiffs assert a claim under the Clean Water Act against the USEPA Defendants and the Corps Defendants. Count Two asserts a claim under the Airports and Airways Improvement Act, 49 U.S.C. § 47106, against the FAA Defendants. Count Three asserts a claim for declaratory relief against all defendants. Count Four asserts a claim under the federal mandamus statute, 28 U.S.C. § 1361, against the Federal Defendants and the FAA Defendants. Count Five seeks preliminary and permanent injunctive relief against the Federal Defendants and the FAA Defendants. Count Six is a citizen's suit action under the Clean Water Act, 33 U.S.C. § 1365(a) against the USEPA Defendants. Finally, Count Seven seeks mandamus relief under Ohio Revised Code § 2731, et seq. against the State Defendants.

The Federal Defendants move to dismiss the Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

Plaintiffs oppose the Federal Defendants' Motion with respect to the arguments raised by the USEPA Defendants and the Corps Defendants.5

STANDARD OF REVIEW

When a court's subject matter jurisdiction is challenged under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party seeking to invoke jurisdiction bears the burden of proof. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Rogers v. Stratton, 798 F.2d 913, 915 (6th Cir.1986). This burden is not onerous. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). The party need only show that the complaint alleges a substantial claim under federal law. Id.

A 12(b)(1) motion to dismiss may constitute either a facial attack or a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). Facial attacks question the sufficiency of the jurisdictional allegations in the complaint. Id. Thus, those allegations must be taken as true and construed in the light most favorable to the nonmoving party. Id. Factual attacks, however, challenge the actual fact of the court's jurisdiction. Id. In such cases, the truthfulness of the complaint is not presumed. McGee v. East Ohio Gas Co., 111 F.Supp.2d 979, 982 (S.D.Ohio 2000) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir.1990)). Instead, the Court may weigh any evidence properly before it. Morrison v. Circuit City Stores, Inc., 70 F.Supp.2d 815, 819 (S.D.Ohio 1999) (citing Ohio Nat'l, 922 F.2d 320; Rogers, 798 F.2d 913).

When presented with a facial attack, the non-moving party "can survive the motion by showing any arguable basis in law for the claim made." Musson Theatrical, 89 F.3d at 1248. Thus, such a motion will be granted only if, taking as true all...

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