Hurd Urban Development v. Federal Highway Admin.

• Decision Date: 21 December 1998
• Docket Number: No. Civ.A. L-98-57.,Civ.A. L-98-57.
• Citation: 33 F.Supp.2d 570
• Parties: HURD URBAN DEVELOPMENT, L.C., et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

33 F.Supp.2d 570

HURD URBAN DEVELOPMENT, L.C., et al., Plaintiffs, v. FEDERAL HIGHWAY ADMINISTRATION et al., Defendants.

No. Civ.A. L-98-57.

United States District Court, S.D. Texas, Laredo Division.

December 21, 1998.

Martin G. Wiele, Hughes & Luce, Austin, TX, David C. Duggins, Clark Thomas and Winters, Austin, TX, for Hurd Urban Development, L.C., Speedy Stop Food Stores, Ltd. and Retail Property Partners, Ltd.

Hector Carlos Ramirez, Office of U.S. Attorney, Laredo, TX, Ernest C. Garcia, Assistant U.S. Attorney, Austin, TX, for Federal highway Admin., Kenneth R. Wykle, Edward Wueste and C.D. Regan.

Ronda Leigh Neff, Office of Attorney General, Transportation Division, Austin, TX, for Texas Department of Transportation, City of Laredo, Tex. and Charles W. Heald.

Manuel O. Mendez, Bickerstaff Heath et al, Austin, TX, Bonnie Cox Lockhart, Bickerstaff Heath et al., Austin, TX, Jaime L. Flores, City Attorney, Laredo, TX, Douglas G. Caroom, Bickerstaff Heath et al., Austin, TX, for City of Laredo TX and Betty Flores.

MEMORANDUM AND ORDER

KAZEN, Chief Judge.

Pending are Defendants' Motions to Dismiss,¹ as well as Plaintiffs' Motion for Summary Judgment (Dkt. No. 48) and City of Laredo Defendants' Cross-Motion for Summary Judgment (Dkt. No. 54). In addition to considering the briefs, the Court discussed the disputed issues with attorneys for all parties at a hearing on November 19, 1998.

I. Background

A. Facts of the Case

This dispute centers around the alignment of a road ("Bridge Road") that is to be constructed between Interstate 35 and the soon-to-be-built International Bridge IV in north Laredo, Texas. Originally, the Bridge Road was to be an expansion of the existing FM 3464, but Defendants have altered that alignment. The Bridge Road is now slated to run one thousand feet to the south of FM 3464. Plaintiffs are land owners on the north side of FM 3464. Under the old alignment, Plaintiffs' lands would abut the Bridge Road. As currently planned, Plaintiffs' lands lie one thousand feet north of the Bridge Road.

B. Claims Brought and Relief Sought

Plaintiffs allege various economic and environmental harms, suing for violations of the National Environmental Policy Act ("NEPA"), the International Bridge Act ("IBA"), and 23 U.S.C. § 323(d). Plaintiffs claim standing to sue by virtue of the Administrative Procedures Act ("APA").

Plaintiff's Complaint specifically alleges four causes of action. First, that selection of the new Bridge Road alignment allegedly violates 23 U.S.C. § 323(d), a statute which Plaintiffs claim "prohibits donations of property from influencing the selection of right-of-way." Second, that the project's final environmental assessment allegedly failed to comply with NEPA. Third, that the Federal Highway Administration's issuance of the project's Finding of No Significant Impact ("FONSI") allegedly is "arbitrary and capricious, unreasonable, an abuse of discretion and in violation of law," because the FONSI issuance violates NEPA and 23 U.S.C. § 323(d). Fourth, that the change in the Bridge Road alignment allegedly violates the terms and conditions of the Presidential Permit.

Plaintiffs request declaratory judgment and injunctive relief. They seek a judicial declaration that the realignment of the Bridge Road violates NEPA, related federal regulations, and the Presidential Permit. Plaintiffs want this Court to effectively (1) void the donation of land to be utilized in the new Bridge Road alignment, and (2) rescind funding for the project. Plaintiffs also seek preliminary and permanent injunctions prohibiting Defendants (1) from using any alignment for the Bridge Road other than the originally planned FM 3464, and (2) from realigning the Bridge Road without performing an environmental impact statement.

During the hearing of November 19, 1998, Plaintiffs' counsel acknowledged that Plaintiffs' first three causes of action all hinge on their NEPA claim. Defendants' Motions to Dismiss allege, inter alia, that Plaintiffs lack standing to sue under NEPA.

II. Standing to Sue Under NEPA

Because NEPA does not expressly contain a private right of action, a plaintiff must rely on the APA as the basis to sue. Therefore, in addition to satisfying the constitutional standing requirements, a plaintiff must meet the APA standing requirement that the plaintiff is "adversely affected or aggrieved ... within the meaning of a relevant statute" by some final agency action. Lujan v. National Wildlife Federation 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996). To be adversely affected within the meaning of NEPA, a plaintiff must establish an injury in fact falling within the "zone of interests" protected by NEPA. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); see also National Wildlife Federation, 497 U.S. at 883, 110 S.Ct. 3177; Nevada Land Action Ass'n v. U.S. Forest Service, 8 F.3d 713, 715-16 (9th Cir. 1993) ("Thus, in addition to constitutional standing requirements, under the APA a plaintiff must assert an interest `arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" (quoting Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970))).

Plaintiffs enumerate five ways in which Defendants' actions will adversely affect or aggrieve their interests. Complaint, Dkt. 1, ¶ 31. In the November hearing, Plaintiffs' counsel candidly stated that Plaintiffs' protected interests were reducible to purely economic concerns—they seek to avoid a loss of business from the reduced traffic flow that arguably would occur if FM 3464 becomes a side street rather than the new Bridge Road.

a. Economic Harms

Plaintiffs maintain that economic concerns are within NEPA's zone of interest, citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (to be published at 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281). The Bennett petitioners filed under the citizen-suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g)(1), to protect parts of both the Klamath River and the Lost River, and to protect the short-nose sucker fish. Bennett, 117 S.Ct. at 1158-59. Petitioners claimed that their "use of the reservoirs and related waterways for `recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water' will be `irreparably damaged' by the actions complained of." Id. at 1160 (quoting App. to Pet. for Cert., p. 34).

Plaintiffs' reliance on Bennett is apparently based upon the Supreme Court's interpretation of the requirement in 16 U.S.C. § 1536(a)(2) that each agency "use the best scientific and commercial data available" when making ESA jeopardy determinations. Plaintiffs contend that the Supreme Court's interpretation of this language now supports the conclusion that a NEPA suit may be based purely on a plaintiff's economic harm. This Court disagrees.

First, Bennett interprets the ESA, not NEPA, and the ESA contains a citizen-suit provision which has a much looser standing requirement than an APA-based NEPA action. Second, the language construed by Bennett, calling for use of "the best scientific and commercial data available" in making ESA jeopardy determinations (16 U.S.C. § 1536(a)(2)), is language not found in NEPA. Indeed, the Supreme Court construed § 1536(h) to mean that "economic consequences are an explicit concern" of the ESA. 117 S.Ct. at 1168. Plaintiffs point to no similar provision in NEPA.²

Third, NEPA cases prior to Bennett consistently have held that economic harms are not within NEPA's zone of interest. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983) ("The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions."); Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir.1993) ("Therefore a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA."); Churchill Truck Lines, Inc. v. United States, 533 F.2d 411, 416 (8th Cir.1976) (stating that plaintiffs "whose sole motivation in this case was their own economic self-interest and welfare, are singularly inappropriate parties to be intrusted with the responsibility of asserting the public's environmental interest"); Clinton Community Hosp. Corp. v. Southern Maryland Medical Center, 510 F.2d 1037, 1038 (4th Cir.1975) ("If it has in fact suffered an injury, appellant's economic well-being vis-a-vis its competitors is certainly not `arguably within the zone of interests to be protected' by the Federal environmental laws [including NEPA]." (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970))); Presidio Bridge Co. v. Secretary of State, 486 F.Supp. 288, 294 (W.D.Tex. 1978) ("The N.E.P.A. simply was not meant to be used as a device whereby plaintiffs with strictly economic interests would be allowed to thwart governmental activity under the guise of environmental interest." (quoting Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 487 (D.Kan.1978))). The Court does not read Bennett as overturning this established NEPA jurisprudence sub silentio, and therefore concludes that all NEPA claims based on economic harm must be dismissed for lack of jurisdiction over the subject matter. See Presidio, 486 F.Supp. at 294.

b. Environmental Harms

Although Plaintiffs admit they are essentially complaining of economic injury, their Complaint does allege specific environmental injuries, and Plaintiffs' Reply in Opposition to ...