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

• Decision Date: 14 September 2009
• Docket Number: Case No. 05-C-0212.
• Citation: 656 F.Supp.2d 868
• Parties: HIGHWAY J CITIZENS GROUP, U.A. and Waukesha County Environmental Action League, Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Secretary of Transportation Ray LaHood; Federal Highway Administration; Acting Administrator of Federal Highway Administration Jeffrey Paniati; U.S. Army Corps of Engineers; District Engineer Colonel Jon L. Christensen; and Frank Busalacchi, Secretary of the State of Wisconsin Department of Transportation, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

656 F.Supp.2d 868

HIGHWAY J CITIZENS GROUP, U.A. and Waukesha County Environmental Action League, Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Secretary of Transportation Ray LaHood; Federal Highway Administration; Acting Administrator of Federal Highway Administration Jeffrey Paniati; U.S. Army Corps of Engineers; District Engineer Colonel Jon L. Christensen; and Frank Busalacchi, Secretary of the State of Wisconsin Department of Transportation, Defendants.

Case No. 05-C-0212.

United States District Court, E.D. Wisconsin.

September 14, 2009.

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Dennis M. Grzezinski, Law Office of Dennis M. Grzezinski, Charles H. Barr, Croen & Barr LLP, Joseph R. Cincotta, Law Offices of Joseph R. Cincotta, Milwaukee, WI, Elizabeth G. Rich, Petrie & Stocking SC, Plymouth, WI, for Plaintiffs.

Daniel R. Dertke, Pamela S. West, United States Department of Justice, Washington, DC, Kathleen M. Batha, Abigail CS Potts, Wisconsin Department of Justice Office of The Attorney General, Madison, WI, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

In 2005, plaintiffs Highway J Citizens Group, U.A. ("Citizens"), and Waukesha County Environmental Action League ("WEAL") commenced this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, on behalf of their members, alleging that defendants, the Federal Highway Administration ("FHWA"), Army Corps of Engineers (the "Corps") and the Wisconsin Department of Transportation ("WisDOT"), acted arbitrarily and capriciously in approving a highway expansion project in Southeastern Wisconsin. On April 27, 2005, 2005 WL 1076071, I denied plaintiffs' motion to preliminarily enjoin the project. Plaintiffs appealed, the court of appeals affirmed, and plaintiffs sought review by the Supreme Court. The Court denied review, and plaintiffs proceeded with the litigation in this court. Before me now are the parties' cross-motions for summary judgment.

I. BACKGROUND

In 1999, the FHWA and WisDOT began studying proposals to address existing and future transportation needs along the County J/Highway 164 corridor in Waukesha and Washington Counties, Wisconsin.¹ The FHWA and WisDOT worked together because although WisDOT was primarily responsible for the project, federal funds managed by the FHWA would be used to construct it. The relevant project area starts just north of I-94 on County J, runs north along County J and Highway 164, and ends just north of the intersection of Highway 164 and County E. See Final Environmental Impact Statement [hereinafter "FEIS"] at Ex. 2-9.² The FHWA and WisDOT found that improvements in this area were necessary in order to:

• Improve safety by reducing conflicts between through and local traffic and providing a facility that meets current design standards for a principal arterial highway.

• Provide a recommended plan that can be used by local governments as a blueprint to guide future land use and development decisions, and to preserve land for future transportation improvements.

• Improve local and through traffic access to development and community services adjacent to County J/WIS 164 as well as to destinations outside the corridor.

• Improve operational efficiency commensurate with the highway's function as a principal arterial and primary north-south route in northern Waukesha County and southern Washington County.

• Accommodate traffic demand generated by existing and planned development along the County J/WIS 164 corridor as well as in the surrounding region.

Id. at 1-2 to 1-3. The FHWA and WisDOT decided that these needs would be best addressed by expanding the County J/Highway 164 corridor from two to four lanes. Because the expansion would be a "major Federal action[] significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, required the FHWA to prepare an environmental impact statement. The agency completed the FEIS on December 11, 2001. On March 6, 2002, the FHWA issued a record of decision ("ROD") in which it explained its decision to expand the highway.³

The FHWA and WisDOT plan to complete the expansion project in eight phases over the course of decades. FEIS Ex. 2-9. The exact time frame will be determined by traffic volume. The latter phases of the project will not be implemented until the "average daily traffic" or "ADT" on the stretch of Highway 164 included in those phases reaches 13,000. ROD at 2. However, the first three phases of the project, which involve areas that have already reached 13,000 ADT, have been completed. Defendants estimate that traffic on the remaining five phases of the project will not reach 13,000 ADT until 2018, at the earliest. Thus, unless traffic volume increases faster than expected, the roadway will not be expanded to four lanes in the remaining areas until sometime after 2018. However, defendants plan to proceed with some related construction projects in these areas even before traffic reaches 13,000 ADT. For example, WisDOT indicates that it will soon begin construction on a project involving the County Q intersection, which is located in the fifth phase of the project.⁴

In the present suit, plaintiffs allege that FHWA's decision to approve the expansion project was contrary to NEPA and the Federal Aid Highway Act ("FAHA"), 23 U.S.C. §§ 101 et seq., and that therefore the decision should be set aside pursuant to the APA. Plaintiffs also allege that in furtherance of the project the Corps issued two permits allowing wetlands to be filled in violation of § 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344.

Before plaintiffs filed the present suit, however, plaintiff Citizens filed a lawsuit challenging a related project located just north of the eighth phase of the corridor-expansion project. The related project was known as the "Ackerville Bridge" project. In the prior suit, Citizens argued, among other things, that the defendant agencies were required by law to consider the environmental impacts of the Ackerville Bridge project and the Highway 164 expansion project together as part of the same EIS, rather than segmenting them into two distinct projects and considering their environmental effects separately. The district court sided with the agencies, and the court of appeals affirmed. See Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir.2003) (hereinafter "Citizens I"). Importantly, in the first lawsuit, Citizens sought to enjoin not only the Ackerville Bridge project, but also the entire Highway 164 expansion. Thus, when Citizens and WEAL filed the present action seeking to enjoin the expansion of Highway 164, defendants argued that plaintiffs' claims were barred by claim preclusion (also known as res judicata).

Defendants raised the claim preclusion defense in opposition to plaintiffs' motion for a preliminary injunction. I found that because Citizens had raised its claim concerning the Highway 164 expansion in its prior lawsuit, Citizens was precluded from relitigating that claim as part of this lawsuit. However, I noted that plaintiff WEAL was not a plaintiff in the prior lawsuit and questioned whether the judgment in Citizens I also precluded WEAL's claims. Defendants responded that WEAL was in privity with Citizens and therefore was bound by the judgment against Citizens. Although at the hearing on the preliminary injunction motion I questioned whether WEAL was in fact in privity with Citizens, WEAL did not dispute that it was. After the hearing, defendants submitted additional evidence supporting its claim that WEAL and Citizens were privies, and WEAL did not dispute that evidence. Thus, in my decision denying the motion for preliminary injunction, I concluded that WEAL and Citizens were privies and that therefore WEAL's claims were also barred by claim preclusion.

On appeal, WEAL did not dispute that it was in privity with Citizens. See Highway J Citizens Group v. U.S. Dep't of Transp., 456 F.3d 734, 741 (7th Cir.2006). Rather, it argued that the present litigation and Citizens I did not involve the same cause of action, and that therefore the judgment in Citizens I did not preclude Citizens' claims or its own. Id. The court of appeals determined that both lawsuits involved the same claim and that therefore Citizens I precluded both WEAL and Citizens from pursuing their attack on the March 6, 2002 ROD. Id. at 744.

As stated, plaintiffs then proceeded with the litigation in this court. They concede that Citizens' challenge to the March 6, 2002 ROD is barred by claim preclusion but argue that WEAL and Citizens were not privies and that therefore WEAL's challenge is not barred. Further, both Citizens and WEAL continue to challenge the Corps's decisions to issue wetland-fill permits for the project.

II. PROCEDURAL DEFENSES

A. Standing

Defendants first argue that plaintiffs have not established that they have standing to sue. To show that they have standing to seek injunctive relief, plaintiffs must demonstrate that they are under threat of suffering an injury-in-fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. See, e.g., Summers v. Earth Island Inst., ___ U.S. ___, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009). Because plaintiffs are organizations, to establish standing, plaintiffs must show that they each have at least one member that has standing to seek injunctive relief. Id.

On May 27, 2009, I directed plaintiffs to file affidavits from their individual members indicating that they have suffered, or are threatened with, the requisite injury-in-fact. Plaintiff WEAL submitted affidavits from members Steven D. Schmuki...