Crabb v. U.S. Fed. Highway, CIVIL ACTION NO. H-11-0848
| Decision Date | 09 March 2015 |
| Docket Number | CIVIL ACTION NO. H-11-0848 |
| Parties | BEN CRABB, et al., Plaintiffs, v. UNITED STATES FEDERAL HIGHWAY, ADMINISTRATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
This lawsuit challenges the Federal Highway Administration's approval of a highway-construction project in Houston. The plaintiffs are seven Houston residents, represented by one resident who is also an attorney. They sued the Federal Highway Administration, the United States Department of Transportation, and three agency officials, asserting violations of the Federal Aid Highways Act, the National Environmental Policy Act, the Administrative Procedure Act ("APA"), and the Fifth Amendment's Due Process Clause. The Texas Department of Transportation ("TxDOT") intervened as a defendant. (Docket Entry No. 69).
This lawsuit has proceeded slowly. The plaintiffs' complaint, filed in March 2011, violated Rule 8 of the Federal Rules of Civil Procedure; despite its great length, the complaint was very unclear about what claims the plaintiffs asserted and what relief they sought. Pleading challenges resulted, followed by several amendments. In July 2012, the court granted the parties' joint motion to stay to permit the defendants to conduct additional environmental-impact studies. The Federal Highway Administration filed a notice of final agency decision in September 2013. Another set ofpleading challenges and motions to dismiss, (Docket Entry Nos. 95, 96), led to a fourth amended complaint and another set of motions to dismiss. (Docket Entry Nos. 98, 109, 110). The plaintiffs have responded to the most recent motions to dismiss. (Docket Entry Nos. 111, 112).
Based on the pleadings, the motions and responses, the record, and the applicable law, the court grants the motions to dismiss in part and denies them in part. Given the number of amendments and the repeated inability to state certain claims, the dismissals of those issues are with prejudice and without leave to amend. A status conference and hearing is set for March 26, 2015, at 10:00 a.m., in Courtroom 11-B, to address the claim that remains.
The reasons for these rulings are explained below.
The plaintiffs challenge the 290/610 highway project in Houston, Texas. The project runs 38 miles from Farm-to-Market Road 2920 to Interstate Highway Loop 610. TxDOT first evaluated the environmental impacts of the project in 2010, issuing a Final Environmental Impact Statement in May 2010. (Docket Entry No. 32, Administrative Record (AR) 839-41). The Federal Highway Administration issued a Record of Decision approving TxDOT's Final Environmental Impact Statement in August 2010. (Docket Entry No. 32, AR 945).
In March 2011, TxDOT completed its first reevaluation of the Final Environmental Impact Statement, focused on the first phase of the project. TxDOT completed a second reevaluation, focused on the area covered by the first part of the second project phase, in July 2012.
TxDOT completed a third reevaluation of the Final Environmental Impact Statement, focused on the area in the second part of the second project phase, in October 2012. TxDOT completed its latest Final Environmental Impact Statement reevaluation, the fourth, in August 2013. In this lastreevaluation, TxDOT studied the project's noise impacts and how they might be mitigated. TxDOT used the most recent traffic-noise model, TNM 2.5, that the Federal Highway Administration had approved. In the earlier reevaluations, TxDOT had used TNM 2.1, the then-approved traffic-noise model. TNM 2.5 replaced TNM 2.1 in April 2012. TxDOT's fourth and last reevaluation also examined the project's interim design phase and other minor design changes, the use of reversible lanes to accommodate peak traffic, tolling options, managed lanes, detention ponds, lighting, right-of-way changes, and schematic adjustments. (Docket Entry No. 85, Exs. 1-4 (Record of Decision and Appendices)).
The Federal Highway Administration issued a Revised Record of Decision in September 2013, approving the fourth TxDOT reevaluation of the Final Environmental Impact Statement. (Docket Entry No. 85). The Revised Record of Decision increased the number of planned noise abatement measures from seven to twenty. (Docket Entry No. 98 at 4). The federal defendants notified the court of the final agency action, and the case was reinstated. (Docket Entry No. 88). The defendants once again moved to dismiss the plaintiffs' complaint. (Docket Entry No. 95, 96). The plaintiffs filed a fourth amended complaint, (Docket Entry No. 98), and the defendants filed new motions to dismiss. (Docket Entry No. 109, 110). These motions are analyzed below.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. "Under Rule 12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim." In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quotationomitted). Rule 12(b)(1) challenges to subject-matter jurisdiction may be facial or factual attacks. See, e.g., Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012); Russell v. City of Houston, 808 F. Supp. 2d 969, 972 (S.D. Tex. 2011) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981)). "A facial attack, which consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence, challenges the court's jurisdiction based solely on the pleadings." Russell, 808 F. Supp. 2d at 972 (citing Paterson, 644 F.2d at 523). The pleading's allegations are presumed to be true, and "[i]f those allegations sufficiently allege a claim for recovery the complaint stands and the federal court must entertain the suit." Jones v. Super Media Inc., 281 F.R.D. 282, 286 (N.D. Tex. 2012) (citing Paterson, 644 F.2d at 523). To the extent the motions to dismiss challenge subject-matter jurisdiction, they are facial challenges.
The defendants move under Rule 12(b)(1) to dismiss the claims arising under the National Environmental Policy Act and the Federal Aid Highway Act for lack of subject-matter jurisdiction. They contend that the plaintiffs have not identified a "final agency action" under either statute that allows the court to adjudicate the plaintiffs' claims against the federal government. (Docket Entry Nos. 109, 110).
Immunity precludes suit against the United States without the consent of Congress. See United States v. Mottaz, 476 U.S. 834, 841 (1986); FDIC v. Meyer, 510 U.S. 471, 475 (1994). The APA, 5 U.S.C. § 701 et seq., provides a waiver of that immunity under certain conditions. The waiver applies only if no other judicial remedies are available, see El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health and Human Servs., 396 F.3d 1265, 1273-74 (D.C. Cir. 2005), and only to "final agency actions." SeeLujanv. Nat'l Wildlife Federation, 497 U.S. 871, 882(1990). To be final, the agency action "must mark the 'consummation' of the agency's decisionmaking process" and "be one by which 'rights or obligations have been determined,' or from which 'legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal citations omitted).
The plaintiffs challenge the September 2013 Revised Record of Decision under the Federal Aid Highway Act, 23 U.S.C. § 109, and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. These statutory provisions do not create a private right of action. The plaintiffs' claims must be asserted under the APA. See Ware v. U.S. Fed. Highway Admin., No. Civ. A. H-04-2295, 2005 WL 2416667, at *4 (S.D. Tex. Sept. 30, 2005), aff'd 255 Fed. App'x 838 (5th Cir. 2007) (citing Allendale Neighborhood Ass'n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258, 265 (5th Cir. 1988); Noe v. Metro Atlanta Rapid Transit Auth, 664 F.2d 434, 436-39 (5th Cir. 1981)).
The defendants agree that the September 2013 Revised Record of Decision is a final agency action. (Docket Entry No. 110 at 7). Subject-matter jurisdiction is present as to the plaintiffs' APA claims challenging this decision. The plaintiffs' fourth amended complaint also challenges the 2010 Record of Decision for this project, as well as the 2013 Revised Record of Decision, the Final Environmental Impact Statement and subsequent reevaluations of that statement, and environmental and noise studies. The 2013 Revised Record of Decision approving the 290/610 highway project is the only final agency action and the action at issue in this case. There is no subject-matter jurisdiction over the plaintiffs' challenges under the National Environmental Policy Act or the Federal Aid Highway Administration Act based on the earlier Records of Decision or earlier versions of the project. The September 2013 Revised Record of Decision supercedes.
The plaintiffs' claims directed at earlier Records of Decision, earlier environmental impactstatements, earlier noise studies, and earlier versions of the project fail for another reason. Limitations bars the plaintiffs' claims arising from agency actions related to earlier versions of the project. See 28 U.S.C. § 2401 (a) ().
To the extent the plaintiffs challenge and seek relief based on agency actions other than the September 2013 Revised Record of Decision, their claims are dismissed for lack of subject-matter jurisdiction.
Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a...
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