Burkholder v. Wykle, 1:01CV1165.

• Citation: 268 F.Supp.2d 835
• Decision Date: 22 February 2002
• Docket Number: No. 1:01CV1165.,1:01CV1165.
• Parties: Donald BURKHOLDER, et al., Plaintiff, v. Kenneth R. WYKLE, et al., Defendant.
• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

Page 835

268 F.Supp.2d 835

Donald BURKHOLDER, et al., Plaintiff, v. Kenneth R. WYKLE, et al., Defendant.

No. 1:01CV1165.

United States District Court, N.D. Ohio, Eastern Division.

February 22, 2002.

COPYRIGHT MATERIAL OMITTED

Denise J. Knecht, Edward G. Kramer, Kramer & Associates, Cleveland, OH, Frederick M. Gittes, Gittes & Schulte, Richard C. Sahli, Columbus, OH, for Plaintiff.

Arthur I. Harris, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, Fred R. Wagner, Beveridge & Diamond, Washington, DC, Frederick C. Schoch, Office of the Attorney General, State of Ohio, Transportation Section, Stephen H. Johnson, Office of the Attorney General, State of Ohio Transportation Section, Transportation Section, Thomas P. Pannett, Office of the Attorney General, State of Ohio, Transportation Section, Columbus, OH, for Defendant.

MEMORANDUM OF OPINION

MANOS, District Judge.

On May 14, 2001, Donald and Marilyn Burkholder, plaintiffs, initiated the above-captioned case against Kenneth R. Wykle,¹ Administrator of the Federal Highway Administration ("FHWA"), and Gordon Proctor, Director of the Ohio Department of Transportation ("ODOT"), defendants. Specifically, the plaintiffs allege numerous violations of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. ("NEPA"), the National Federal Aid Highway Act, 23 U.S.C. § 100, et seq. ("Highway Act"), and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), and seek to enjoin the state and federal agencies from completing the expansion and relocation of U.S. Route 30 until such time as an Environmental Impact Statement ("EIS") can be completed.

As the claims arise under the above-stated laws of the United States, jurisdiction is properly predicated upon 28 U.S.C. § 1331.

On November 2, 2001, both parties filed cross motions for summary judgment (Docket Nos. 21 and 23).² On August 27, 2001, the administrative record was filed with this Court (Docket No. 13) and, on October 25, 2001, November 5, 2001, and December 10, 2001, the parties supplemented the record (Docket Nos. 19 and 24) and identified specific relevant portions therein (Docket No. 38).³ The Court finds that the issues have been fully briefed by the parties and that an evidentiary hearing on the matter is unnecessary.

For the following reasons, the plaintiffs' motion for summary judgment is DENIED and the defendants' motion for summary judgment is GRANTED.

I. FACTS

The facts are largely undisputed. U.S. Route 30 ("US 30") is part of the Lincoln Highway, the first transcontinental highway in the United States, and extends from Atlantic City, New Jersey to Astoria, Oregon (EA p. 1; AR004862). In Ohio, U.S. 30 spans 242.1 miles, the entire width of the state (Id.) At the present time, approximately 54 percent of the highway in Ohio exists as a four-lane, divided highway, while the remaining 46 percent, divided into seven discrete segments, consists of a "2-lane or multi-lane undivided rural highway." (Id.). The Ohio Department of Transportation has identified U.S. 30 as a "Macro Corridor" and desires to upgrade the remaining seven segments so that a four-lane, divided highway will then span the entire state (Id.; AR004859; Access Ohio).

The instant controversy concerns the upgrade of one such segment and the proposed relocation of approximately 16.31 miles of the highway between the cities of Bucyrus and Ontario, Ohio ("the project area"). At present, the road is a two lane, undivided highway, but is abutted, at both its eastern and western termini, by modern four-lane, limited access freeways.⁴ ODOT has examined the possibility of improving this section of road, with varying degrees of interest, since the 1970s when the roads on either end of the project area were improved. (Plaintiffs' Motion for Summary Judgment, p. 24; EA p. i). By the 1990s, however, ODOT had determined that the existing two-lane highway was insufficient to accommodate present and future traffic, and began to consider the instant upgrade in earnest. (AR013019).⁵

On June 7, 1993, the state retained the firm of McCoy/Fok & Associates, Inc. ("McCoy/Fok") to prepare a preliminary study of the project and its associated environmental, economic, social, and cultural impacts. (AR003678).⁶ McCoy/Fok then began the task of reviewing the relevant literature (AR004137), coordinating their efforts with those of other governmental agencies (EA p. 62; EA Table 16; EA Appendix E), and conducting appropriate ecological investigation. (AR001558).

On November 4, 1993 and January 26, 1995, ODOT conducted public hearings wherein public input was sought and comments were recorded. (AR003634; AR003664; AR017221; AR018511). While the information presented at the 1993 meeting was more generalized, at the 1995 meeting, ODOT informed the residents that four alternative routes had been developed for U.S. 30, and that a "no build" alternative was being considered as well. (AR003634). On December 10, 1996, purportedly based upon "environmental issues, comments received from citizens attending the public meeting and responses received after the meeting", ODOT issued a press release, which indicated that a "preferred route" had been selected. (AR012636). On April 22, 1999, ODOT convened a third public meeting to discuss this decision. (AR012457).

After seven years of preparation, on November 27, 2000, ODOT issued an Environmental Assessment, prepared by McCoy/Fok, and submitted the document to FHWA, the project's financier⁷ for the return of either a Finding of No Significant Impact, which would permit the project to go forward without further environmental review, or instructions to prepare a more detailed Environmental Impact Statement.⁸ On January 25, 2001, the environmental document was presented to the public at a formal hearing and comments were again sought regarding the adequacy of the document, the process by which it had been prepared, and the ultimate conclusion that no significant environmental impacts were created by adopting the preferred route. (AR024150).

On April 12, 2001, based on the EA, the FHWA authorized the construction of the 16.31 mile relocation of U.S. 30 by issuing a Finding of No Significant Impact, and obviated the preparation of an Environmental Impact Statement (AR024239).

Unfortunately, the identified "preferred alternative" discussed above passes through property presently occupied by the plaintiffs' home. Not surprisingly, the plaintiffs herein object to both this determination and the process by which it was reached.

II. STANDARD OF REVIEW

When examining the propriety of a federal agency's action upon a motion for summary judgment, a reviewing Court must base its decision upon both the summary judgment standard of review, and the analysis required by the Administrative Procedures Act, 5 U.S.C. § 701, et seq. This being so, the Court will briefly examine both standards.

A. SUMMARY JUDGMENT

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The party moving for summary judgment bears the initial burden of production under Rule 56. The burden may be satisfied by presenting affirmative evidence that negates an element of the non-movant's claim or by demonstrating "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the movant meets this burden, the non-movant must "set forth the specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The substantive law identifies which specific facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To avoid summary judgment, the non-movant must "make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

"The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). However, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual disputes between the parties will not defeat an otherwise properly supported motion" for summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505.

B. NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURES ACT

Administrative actions, such as FHWA's instant Finding of No Significant Impact, are subject to review in this Court by virtue of the Administrative Procedures Act, 5 U.S.C. § 704. Pursuant to this statute, a reviewing court must "compel agency action unlawfully withheld or unreasonably delayed; and hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(1) and (2)(a); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972 (10th Cir.1992). An agency decision will be found "arbitrary and capricious" and set aside if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be...