City of Olmstead Falls v. U.S. E.P.A.
| Citation | 266 F.Supp.2d 718 |
| Decision Date | 13 May 2003 |
| Docket Number | No. 1:02 CV 2210.,1:02 CV 2210. |
| Parties | CITY OF OLMSTED FALLS, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Barbara E. Lichman, Berne C. Hart, Chevalier, Allen & Lichman, LLP, Costa Mesa, 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.
This matter is before the Court on Defendants' Motion to Dismiss First Amended Complaint in Part (Doc. 28). 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. For the following reasons, defendants' Motion is GRANTED.
Plaintiff, City of Olmsted Falls (hereafter "Olmsted Falls"), is a municipal corporation located near the Cleveland Hopkins International Airport (hereafter "Airport"). (Compl.¶ 2).1 Plaintiff, Marvin Hirschberg, is an individual resident of Olmsted Falls. (Compl.¶ 4).
Plaintiffs bring this action against seven defendants.
Defendant, United States Environmental Protection Agency (hereafter "USPA"), is the federal agency responsible for oversight of the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (). (Comp.f 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 responsible for the issuance of dredge and fill permits pursuant to Clean Water Act Section 404. (Compl.¶ 8). Defendant, Thomas E. White, is the Secretary of the Army. (Compl.¶ 9). Defendant, Department of the Army Corps of Engineers (hereafter "Corps"), is a federal agency of the Army possessing direct authority for the issuance or denial of Section 404 Permits. (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."
In addition to these seven defendants, plaintiffs named ten Doe defendants.
For the purpose of ruling on defendants' Motion, the allegations in the First Amended 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, the City of Cleveland (hereafter "Cleveland") submitted to the Federal Aviation Administration (hereafter "FAA") an Airport Master Plan Update outlining the proposed expansion and redesign at the Airport. (Compl.¶ 16). Completion of the Airport project will result in the culverting of 5,400 feet of Abram Creek and an additional 2,500 feet of its tributaries, as well as adjacent wetlands. (Compl.U 16).
In October 1999, the FAA issued a draft environmental impact statement (hereafter "DEIS"). Plaintiffs submitted comments to the FAA indicating their dissatisfaction with the treatment of water quality issues in the DEIS. (Compl.¶ 17). In addition, on February 1, 2000, the Ohio Environmental Protection Agency (hereafter "OEPA") informed the FAA that OEPA did not agree with Cleveland's "proposed preferred alternative" based on the information contained in the DEIS. (Compl.U 18). On June 5, 2000, the FAA released the final environmental impact statement (hereafter "FEIS") maintaining the "preferred alternative". (Compl.119).
In approximately July 2000, Cleveland applied for a "dredge or fill permit" pursuant to Section 404 of the Clean Water Act, 33 U.S.C. § 1344, (hereafter "Section 404 Permit"). (Compl 20). In addition, Cleveland applied to the OEPA for state certification as required by Section 401 of the Clean Water Act, 33 U.S.C. 1341 (hereafter "Section 401 Application").2 (Complex. G).
OEPA commented on Cleveland's Section 401 Application on October 3, 2000, and indicated that Cleveland's application for certification did not adequately address proposed alternatives. Accordingly, on October 30, Cleveland submitted a revised Section 401 Application. (Compl.¶ 23).
On November 29, 2000, USEPA sent a letter to the Corps indicating its position that Cleveland's Section 401 Application failed to adequately address alternatives to the project. The USEPA recommended that the Corps withhold approval of the project until Cleveland responded to these issues.
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¶ 27).
On March 21, 2001, the USEPA sent a letter to the Corps and reiterated its concerns regarding the project. The USEPA further indicated that it believed the project should not be authorized if further impairment of Abram Creek would result. . On April 13, 2002, the Director of the OEPA sent a letter to the Corps indicating that Ohio waived its authority to act on the Section 401 Application. (Compl.¶ 30).
Thereafter, on May 18, 2001, the Corps issued the Section 404 Permit to Cleveland. (Compl.¶ 32). Construction at the Airport began on May 20, 2001. (Compl.¶ 33).
On May 13, 2001, Olmsted Falls appealed the OEPA Director's decision to waive its authority to act on Cleveland's Section 401 Application. (Compl.¶ 31). 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 the Section 401 Application is not permitted under Ohio law. (Compl.¶ 35). Subsequent to the filing of defendants' Motion in this action, the Ohio Court of Appeals for the 10th District reversed ERAC's ruling, holding that plaintiffs did not have standing to appeal the issuance of the waiver by the OEPA Director. See City of Olmsted Falls v. Jones, 152 Ohio App.3d 282, 787 N.E.2d 669 (2003).
Olmsted Falls contacted the defendants requesting that the Section 404 Permit be revoked because the waiver issued by the OEPA Director violates Ohio law and, accordingly, Section 401 of the Clean Water Act was not satisfied prior to issuance of the Section 404 Permit. (Compl.¶ 36-39). The defendants refused. (Compl.¶ 39-40).
The issues before this Court were originally raised in City of Olmstead Falls v. U.S. Environmental Protection Agency, 233 F.Supp.2d 890 (N.D.Ohio 2002) (hereafter "Olmsted Falls I"). That case was dismissed by the Court for lack of subject matter jurisdiction. Plaintiffs then filed the current action based on similar alleged misconduct. Defendants filed a motion to dismiss the Complaint and, in lieu of opposing defendants' motion, plaintiffs filed the first amended complaint asserting four claims for relief. Count One asserts a claim under the Clean Water Act. Count Two asserts a claim for declaratory relief. Count Three asserts a claim under the federal mandamus statute, 28 U.S.C. § 1361. Count Four seeks preliminary and permanent injunctive relief. Defendants move to dismiss the first amended complaint in part, and plaintiffs oppose defendants' Motion.
The EPA Defendants challenge this Court's subject matter jurisdiction over the claims filed against them. The Corps Defendants argue that, to the extent the claims filed against them pertain to their reliance on the OEPA Director's waiver, the claims fail to state a claim for which relief may be granted. Each argument will be addressed in turn.
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., Ill F.Supp.2d 979, 982 (S.D.Ohio 2000) (citing Ohio Natl 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 Natl, 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 facts alleged in the complaint, the Court is without subject matter jurisdiction to hear the claim. Matteson v. Ohio State University, 2000 WL 1456988 *3 (S.D.Ohio Sept. 27, 2000).
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