Highway J Citizens Group v. U.S. Dept. of Transp.

• Decision Date: 02 August 2006
• Docket Number: No. 05-2667.,05-2667.
• Citation: 456 F.3d 734
• Parties: HIGHWAY J CITIZENS GROUP and WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Maria Cino,<SMALL><SUP>1</SUP></SMALL> Acting Secretary of Transportation, Federal Highway Administration, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

456 F.3d 734

HIGHWAY J CITIZENS GROUP and WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE, Plaintiffs-Appellants, v.UNITED STATES DEPARTMENT OF TRANSPORTATION, Maria Cino,¹Acting Secretary of Transportation, Federal Highway Administration, et al., Defendants-Appellees.

No. 05-2667.

United States Court of Appeals, Seventh Circuit.

Argued February 14, 2006.

Decided August 2, 2006.

Dennis M. Grzezinski, Milwaukee, WI, Shannon W. Fisk(argued), Environmental Law & Policy, Chicago, IL, for Plaintiffs-Appellants.

Tamara N. Rountree(argued), Department of Justice, Environment & Natural Resources Division, Washington, DC, Peggy A. Lautenschlager, Office of the Attorney General Wisconsin, Department of Justice, Madison, WI, for Defendants-Appellees.

Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

In 2005, the Highway J Citizens Group ("Citizens") and the Waukesha County Environmental Action League("WEAL") brought this action against the United States Department of Transportation("DOT"), the Secretary of Transportation in his official capacity, the Federal Highway Administration ("FHWA"), Mary Peters in her official capacity as the Administrator of FHWA, the United States Army Corps of Engineers ("Corps"), Michael Pfenning in his official capacity as District Engineer for the Corps, and Frank Busalacchi in his official capacity as Secretary of the State of Wisconsin Department of Transportation("WisDOT").The plaintiffs alleged that federal approval of a project to expand an eighteen-mile segment of the former County Highway J/Wisconsin State Highway 164 violated the Administrative Procedure Act("APA"), 5 U.S.C. § 500 et seq.; the Clean Water Act("CWA"), 33 U.S.C. § 1344; the Federal-Aid Highway Act ("FAHA"), 23 U.S.C. § 101 et seq.; and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.The district court denied the plaintiffs' motion for a preliminary injunction; it held that the plaintiffs had not demonstrated a reasonable likelihood of success on the merits of their claims because those claims likely were barred by claim preclusion.The plaintiffs now appeal.They contend that the doctrine of res judicata is not applicable to the present case because the claims that they seek to litigate here are factually and legally distinct from those that they litigated previously.Because we believe that the district court correctly held that this action is barred by res judicata, we affirm the judgment of the district court.

IBACKGROUND

A.Facts

There are two construction projects at issue in this litigation; both are "major Federal actions"² as defined by federal environmental regulations.³The first, the County J/Highway 164 Project (Project # 2748-01-01), involves the expansion of an eighteen-mile segment of Wisconsin State Highway 164⁴ from two to four lanes.In 1999, these eighteen miles, which run through Waukesha and Washington Counties in Wisconsin, were experiencing substantial traffic congestion, delays and related safety issues.The Wisconsin Department of Transportation("WisDOT") commissioned a study of proposals to increase the highway's capacity.The WisDOT, in conjunction with the Federal Highway Administration ("FHWA") and as required by federal law, subsequently drafted an Environmental Impact Statement ("EIS") that recommended widening the highway.SeeR.19, Ex.5.The proposed expansion converts approximately 100 acres of land for highway use and, according to the plaintiffs, raises significant environmental concerns with regard to the destruction of wetlands.⁵

The EIS for the project was made available to the public on April 9, 2001, and a public hearing was held on May 30, 2001.On December 11, 2001, the FHWA and WisDOT issued a revised EIS; this document addresses alternative proposals raised during the hearing, but concludes in favor of expanding the highway.The DOT and FHWA issued a Record of Decision ("ROD")⁶ on March 6, 2002, marking their final approval of the recommendations contained in the revised EIS.Construction by WisDOT, using federal funds appropriated under FAHA, now has commenced on this project.Phase I was completed in late 2004; on January 14, 2005, the Army Corps granted a permit under § 404 of the CWA to the WisDOT to fill 9.27 acres of wetlands, thus allowing the WisDOT to commence Phase II of the project.

The second project, Project # 2748-01-00, is known as the "Ackerville Bridge/Lovers Lane Reconstruction Project"("Ackerville Bridge Project").It primarily involves the construction of two overpass structures on Highway 164 in Washington County, near the northern end of the highway expansion project.One overpass will cross railroad tracks, thus eliminating the need for existing at-grade crossings; the second overpass will facilitate passage over State Highway 175.Like the Highway 164 expansion project, the new overpass structures are designed to ease the flow of traffic.

The Ackerville Bridge Project commenced with the FHWA and WisDOT's preparation of an Environmental Assessment ("EA").⁷After a public hearing was held in March 2000, the FHWA issued a "Finding of No Significant Impact"; the FHWA concluded that the construction of the overpasses would not affect significantly the quality of the human environment.Construction on this project began in May 2002.

B.TheCitizens ILitigation

Highway J Citizens Group ("Citizens") is an unincorporated association representing citizens of Waukesha and Washington Counties in Wisconsin "who are concerned about the potential destruction of the region along [Highway] 164 and [County Highway] J." R.1 at 6.According to the complaint in this case, Citizens' mission includes "maintaining Highway 164 as a two-lane scenic road[,][] maintaining the environmental resources and preserving the remaining rural character of the area."Id.

In July 2003, Citizens filed suit in the United States District Court for the Eastern District of Wisconsin against the Secretary of Transportation in his official capacity; Frederick Wright in his official capacity as Executive Director of the FHWA; and Thomas E. Carlsen in his official capacity as Acting Secretary of the WisDOT.Citizens alleged that the defendants' approval of the Highway 164 and Ackerville Bridge projects violated the APA, 5 U.S.C. §§ 701-06;NEPA, 42 U.S.C. § 4321 et seq.; regulations implementing NEPA; and the Wisconsin Environmental Policy Act ("WEPA"), Wis. Stat. § 1.11,Wis. Admin. Code Transp. § 400 et seq.Citizens first claimed that drilling for the Ackerville Bridge Project risked disturbing an underground "contamination plume" containing arsenic and trichlorethylene, which was migrating towards the site of construction.Highway J Citizens Group v. Mineta,349 F.3d 938, 942(7th Cir.2003)("Citizens I").Citizens requested that the court enjoin the continued construction of the Ackerville bridges, as well as require the defendants to fill current holes with concrete.They also asked the court to mandate that the defendants conduct another environmental impact study; they claimed that the EA for the Ackerville Bridge Project failed to examine the implications of the contamination plume.Second, Citizens contended that the FHWA and WisDOT had failed to consider reasonable alternatives to the building of the Ackerville bridges.Lastly, Citizens claimed that the defendants had improperly segmented⁸ the Ackerville Bridge Project from the Highway 164 Project.SeeCitizens I Complaint, Supp.App.at 192(arguing that the two actions constitute "one project or, if not, the Lovers Lane Road/Ackerville Project is an interdependent part of the larger action and depends on the larger action for its justification").According to Citizens, both the EIS for the Highway 164 Project and the EA and Finding of No Significant Impact for the Ackerville Bridge Project were incomplete because each project failed to take into account the environmental impacts of the other.Seeid. at 193.As a remedy, Citizens requested that the court require the defendants to prepare another "[EIS] for all of the County J/Highway 164 project," as well as "enjoin[]the defendants from widening County J/Highway 164 ... from two lanes to four lanes."Id. at 193-94.⁹

On June 12, 2003, the district court denied Citizens' motion for a preliminary injunction and then ruled against Citizens on the merits.In pertinent part, the district court determined that the defendants' environmental analysis was thorough and sufficient, as was their consideration of feasible alternatives.The district court further found that the defendants had made a "reasonable decision in establishing the project termini" and that the Ackerville Project had not been segmented improperly from the Highway 164 Project.Id. at 179.

Citizens appealed.We affirmed the judgment of the district court.SeeCitizens I,349 F.3d 938.We agreed with the district court that the defendants' environmental analysis and consideration of alternatives were sufficient.Seeid. at 952-62.We also affirmed the district court's holding on the segmentation issue:

In the [EA and Finding of No Significant Impact], the defendants explicitly considered the three criteria for segmentation set out in 23 C.F.R. § 771.111, and gave a reasoned justification of how their segmentation fit each factor.As to logical termini, the defendants explained that "[s]ince the need to bridge the train tracks is the driving force behind this project," the south termini for the Project was established just beyond the bridge touchdown point.

...

The second factor, independent utility, is the most important factor in highway cases such as this....With respect to this factor, the [EA and Finding of No Significant Impact] pointed out that neither the bridge construction project, with its safety focus, or the County J/Highway 164 Project, with its expansion focus, require the construction of any other projects to be usable....