Bald Eagle Ridge Protection Ass'n, Inc. v. Mallory

• Decision Date: 24 October 2000
• Docket Number: No. 4:CV-00-0187.,4:CV-00-0187.
• Citation: 119 F.Supp.2d 473
• Parties: The BALD EAGLE RIDGE PROTECTION ASSOCIATION, et al., Plaintiffs, v. Bradley L. MALLORY, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

119 F.Supp.2d 473

The BALD EAGLE RIDGE PROTECTION ASSOCIATION, et al., Plaintiffs, v. Bradley L. MALLORY, et al., Defendants.

No. 4:CV-00-0187.

United States District Court, M.D. Pennsylvania.

October 24, 2000.

COPYRIGHT MATERIAL OMITTED

Amy Sinden, Charles McPhedran, Penn-Future, Philadelphia, PA, for plaintiffs.

Joseph J. Terz, Assistant United States Attorney, Dulce Donovan, Assistant United States Attorney, United States Attorney's Office, Harrisburg, PA, for federal defendants.

John M. Hrubovcak, Assistant Counsel, Office of Chief Counsel, Pennsylvania Department of Transportation, Harrisburg, PA, for defendant Mallory.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

On February 1, 2000, plaintiffs The Bald Eagle Ridge Protection Society, the National Audubon Society, Pennsylvania Trout, Inc., Pennsylvania Federation of Sportsmen's Clubs, Inc., The Pennsylvania Deer Association, Inc., and United Bow-hunters of Pennsylvania commenced this action by filing a complaint under the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq., section 4(f) of the Department of Transportation Act (DOT Act), 49 U.S.C. § 303(c), and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. Defendants included Secretary of the Pennsylvania Department of Transportation Bradley L. Mallory, Secretary of the U.S. Army Louis Caldera, the U.S. Army Corps of Engineers, Secretary of the U.S. Department of Transportation Rodney Slater, and the Federal Highway Administration (FHWA).

On March 21, 2000, plaintiffs filed an amended complaint, designated the First Amended Complaint, adding as defendants the U.S. Environmental Protection Agency (EPA) and its Administrator, Carol M. Browner. Answers to the complaint and amended complaint have been filed, as has the administrative record.

While plaintiffs indicated in the complaint and amended complaint that they sought injunctive relief, no motion therefor was filed, and so no injunction has issued. See Fed.R.Civ.P. 65(d) (describing form for order granting injunction); Fed. R.Civ.P. 7(b)(1) (application for order must be by written motion unless made during trial or hearing).

At issue is a stretch of highway which will connect the Tyrone Expressway north of Altoona, Pennsylvania, to the Mount Nittany Expressway outside of State College, Pennsylvania. The project is part of the Interstate Highway System and has been designated "I-99." The Pennsylvania Department of Transportation (PennDOT) and the U.S. Department of Transportation have selected a route for the project which will run along Bald Eagle Ridge for approximately eight miles. In simple terms, plaintiffs want the highway to run along Bald Eagle Valley in contrast to defendants' selection of the ridge.

Of course, differences of opinion over highway construction projects are not uncommon and serve as a fertile ground for litigation under federal environmental statutes. What sets this case apart from the usual dispute is Congress' apparent attempt to exempt the I-99 project from the operation of otherwise applicable statutes, using an appropriations bill as its vehicle. The issue is whether the language of the appropriations bill, which has been signed into law, has that effect. Before the court is defendants' motion for judgment on the pleadings, through which defendants argue that the environmental laws do not apply to I-99.

DISCUSSION:

I. STANDARD

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is analyzed under the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Prima v. Darden Restaurants, Inc., 78 F.Supp.2d 337, 342 (D.N.J.2000); De-Braun v. Meissner, 958 F.Supp. 227, 229 (E.D.Pa.1997). The primary difference is that a Rule 12(c) motion is filed after an answer while a Rule 12(b)(6) motion is filed before an answer. Prima at 341-342.

A motion to dismiss under Rule 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The complaint must be construed in favor of the plaintiff with every doubt resolved in the plaintiff's favor. In re Arthur Treacher's Franchise Litig., 92 F.R.D. 398, 422 (E.D.Pa.1981). That is, the court must accept as true all factual allegations set forth in the complaint as well as all reasonable inferences that can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). The court looks only to the facts alleged in the complaint and any attachments, without reference to any other parts of the record. Jordan at 1261. "[A] case should not be dismissed unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id. (citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Whether a plaintiff will ultimately prevail is not a consideration for review of a motion under Rule 12(b)(6). Nami at 65.

II. STATEMENT OF FACTS

Plaintiffs do not contest the summary of the allegations of the amended complaint provided by defendants, and we find it to be an accurate summary which is sufficient for present purposes. We therefore restate that summary, without citations.

The Bald Eagle Valley is a narrow valley in Blair and Centre Counties within the Susquehanna-Chesapeake Watershed. The valley is bordered to the northwest by the Allegheny Front and to the southeast by the Bald Eagle Ridge. Existing U.S. Route 220 runs along the valley floor, roughly paralleling the courses of North and South Bald Eagle Creeks. Most of the commercial and residential development in the area has occurred on the Bald Eagle Valley floor adjacent to existing roads.

Bald Eagle Ridge itself has remained in its relatively natural state. It is covered by an extensive tract of largely undeveloped forested land. The hardwood forest ecosystem supports a diversity of wildlife and plant life. There are more than 500 spring seeps and wetlands and 66 perennial and intermittent streams scattered along the west slopes of Bald Eagle Ridge.

In an attempt to relieve congestion and traffic safety problems on existing Route 220, PennDOT and FHWA plan to build a section of I-99 that would lead from the Tyrone Expressway north of Altoona to the Mount Nittany Expressway outside of State College. PennDOT and FHWA have chosen a route that would run eight miles along the Bald Eagle Ridge. Plaintiffs allege that constructing the highway along the Bald Eagle Ridge will irreparably harm the ecosystem of the ridge.

As necessary, other factual and procedural matters will be discussed in the appropriate context. We omit the allegations relating directly to the merits of the complaint as recited by both defendants and plaintiffs in their briefs.

III. RELEVANT STATUTORY PROVISION

Defendants contend that the various statutory provisions, and particularly the environmental statutes, on which plaintiffs rely are not applicable because Congress has so stated. Specifically, defendants rely on the following statutory provision:

(o) CLARIFICATION.—Notwithstanding any other provision of law, the Secretary shall approve, and the Commonwealth of Pennsylvania is authorized to proceed with, engineering, final design, and construction of Corridor O of the Appalachian development highway system between Bald Eagle and Interstate Route 80 (as redefined by this Act). All records of decision relating to Corridor O issued prior to the date of enactment of this Act shall remain in effect.

Transportation Equity Act for the 21st Century, Pub.L. No. 105-178, § 1212(o), 112 Stat. 107, 198 (1998), as amended, TEA 21 Restoration Act, Pub.L. No. 105-206, Title IX, § 1226(e), 112 Stat. 834, 840 (1998).

IV. REPEAL BY IMPLICATION

A preliminary matter is one of the terminology to be used. Defendants argue in terms of "exemption" from other statutes and acts, while plaintiffs contend that the proper analysis is that of "repeal by implication." While plaintiffs felt the need to file a sur-reply brief on this distinction, we note that the characterization does not affect the arguments of the parties, as the same principles are addressed and generally the same cases are cited.

Congress has the power to amend, suspend or repeal a statute by an appropriations bill, as long as it does so clearly. Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440, 112 S.Ct. 1407, 1414, 118 L.Ed.2d 73 (1992). "There can be no doubt that Congress could suspend or repeal the authorization contained in [a current statute] ...; and it could accomplish its purpose by an amendment to an appropriation bill, or otherwise." United States v. Dickerson, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356 (1940). "The whole question depends on the intention of Congress as expressed in the statutes." United States v. Mitchell, 109 U.S. 146, 150, 19 Ct.Cl. 703, 3 S.Ct. 151, 153, 27 L.Ed. 887 (1883).

United States v. McGill, 74 F.3d 64, 66 (5th Cir.) (brackets in original), cert. denied, 519 U.S. 821, 117 S.Ct. 77, 136 L.Ed.2d 35 (1996). See also Rice v. Dep't of Alcohol, Tobacco and Firearms, 68 F.3d 702, 707 (3d Cir.1995) (Congress may use appropriation legislation to amend or repeal substantive legislation).

There are two kinds of repeal, express and by implication. A repeal is express when Congress states overtly and with specificity that the subsequent statute repeals a portion of the earlier statute. Patten v. United States, 116 F.3d 1029, 1033 (4th Cir.1997) (quoting Gallenstein v. United States, 975 F.2d 286, 290 (6th Cir. 1992)). Neither party argues that § 1212(o) constitutes an express repeal of any other legislation, and we therefore do not address the term further.

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