Sierra Club v. Pena

• Decision Date: 09 February 1996
• Docket Number: No. 3:95 CV 7343.,3:95 CV 7343.
• Citation: 915 F. Supp. 1381
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Federico PENA, et al., Defendants.
• Court: U.S. District Court — Northern District of West Virginia

915 F. Supp. 1381

SIERRA CLUB, et al., Plaintiffs, v. Federico PENA, et al., Defendants.

No. 3:95 CV 7343.

United States District Court, N.D. Ohio, Western Division.

February 9, 1996.

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Terry J. Lodge, Toledo, OH, for Sierra Club, Citizens for Buckeye Basin Parks, Inc., Friends of Mulberry Park, Rick B. Van Landingham, III, Gene Cook, Sandy James, Robert Wayne James, Helen Martin, Henry Martin, Emilie Martin, Edward Knapp, Anthony P. Urbanski, Jeannine Urbanski, Maryann Hollaway, Mara Hollaway.

Robin L. Juni, Department Of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department Of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, Lawrence J. Kiroff, City Of Toledo, Department Of Law, Toledo, OH, Robin N. Michael, Andrea L. Berlowe, Department Of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office Of The U.S. Attorney, Toledo, OH, for Federico Pena, Robert D. Bush.

Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, City of Toledo, Department of Law, Toledo, OH, Robin N. Michael, Andrea L. Berlowe, Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office of the U.S. Attorney, Toledo, OH, for Fred Hempel.

Andrew J. Ayers, Meister, Ayers & Meister, Toledo, OH, Fred J. Milligan, Jr., Law Offices Of Fred J. Milligan, Jr., Westerville, OH, for W. Ray Luce.

Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Ellen Beth Leidner, George Michael Payton, Transportation Sec., Office Of The Attorney General, Columbus, OH, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Frederick C. Schoch, Office Of The Attorney General, Columbus, OH, for Jerry Wray.

John F. Hayward, Terrance K. Davis, Shumaker, Loop & Kendrick, Toledo, OH, for William Knight.

John D. Scouten, Mark S. Schmollinger, Lourdes Santiago, City of Toledo, Department Of Law, Toledo, OH, for Carleton S. Finkbeiner.

Robin L. Juni, Department of Justice, Land & Natural Resources Division, Environmental Defense Section, Washington, DC, Cecilia E. Kim, Department of Justice, Environmental Protection Section, Washington, DC, Lourdes Santiago, Lawrence J. Kiroff, City of Toledo, Department of Law, Toledo, OH, Andrea L. Berlowe, Department of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington, DC, Ralph J. Lewis, Office of the U.S. Attorney, Toledo, OH, for Togo D. West, Jr.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on numerous Motions, which can be divided into four general categories: (1) Plaintiffs have filed a motion requesting authorization to file a second amended complaint; (2) Plaintiffs have filed a motion to order supplementation of the administrative record in this case, and have proffered such a supplement; (3) the various Defendants have filed numerous motions for summary judgment and/or dismissal of Plaintiffs' complaint; and (4) several nondispositive motions relating to administration and deadlines in this case are pending. For the following reasons, Plaintiffs' motion again to amend their complaint will be denied. Plaintiffs' proffered supplement will be admitted into the record. Defendants' motions for summary judgment will be granted. All other motions will be denied as moot.

BACKGROUND

The Sierra Club, along with several local individuals and organizations, brought this suit seeking to prevent the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project ("Project"). The named defendants, sued in their official capacities, are the Secretaries, Directors, and/or Administrators of the United States Department of Transportation ("USDOT"), the Advisory Council on Historic Preservation ("ACHP"), the Federal Highway Administration ("FHWA") and the Army Corps of Engineers ("the Corps") (collectively, "the Federal Defendants"); the Ohio Historical Preservation Office ("OHPO"), the Ohio Department of Transportation ("ODOT"), and the Ohio Environmental Protection Agency ("OEPA") (collectively, "the State Defendants"); and the Toledo Metro Area Council of Governments ("TMACOG"), and the Mayor of the City of Toledo ("Toledo" or "the City") (collectively, "the Municipal Defendants").

The Project is designed to provide commercial, industrial and residential development in North Toledo, with access to be provided by a new four-lane highway. There is some dispute as to what components constitute the Project. Plaintiffs state that it will consist of (1) a 3.6 mile parkway from the intersection of Manhattan Boulevard and Summit Street to Cherry Street ("Parkway"); (2) a paved bikeway paralleling the parkway, extending from Detwiler Park to Cherry Street ("Bikeway"); (3) a paved connection of the parkway through the Central Business District to the Anthony Wayne Trail ("CBD Connection"); (4) an extension of Champlain Street from its northeastern terminus to beyond Interstate 280 ("Champlain Extension"); and (5) developments including four industrial parks, an expansion of Forest Cemetery and Miracle Park, and possibly a prison ("Development Scheme"). Defendants, while not disputing that the City has contemplated all of the above construction projects, claim that the Project consists of only the Parkway, Bikeway, and Champlain Extension. Defendants believe and contend that the proposed CBD Connection and Development Scheme are projects separate and apart from the Buckeye Basin Greenbelt Parkway Project.

The Buckeye Basin Greenbelt Parkway Project was first proposed in 1972 and federal funding was first requested for the Project in 1974. The National Environmental Protection Act of 1970 ("NEPA") requires that an Environmental Impact Statement ("EIS") be filed before any major federal action significantly affecting the environment is undertaken. The FHWA delegated the preparation of the EIS to ODOT, which largely redelegated the actual preparation and performance of the environmental studies to the City and a management team appointed by Toledo's City Manager. A draft EIS for the Project was completed in 1981, and the final EIS was approved by FHWA on April 16, 1984.

Because the Buckeye Basin contains naturally-occurring wetlands, it is also subject to federal laws prohibiting federally subsidized construction in wetlands areas unless there is no practical alternative to such construction, and all practical measures to minimize harm to wetlands are taken. Before fill material can be placed in a wetland, the party seeking to fill the wetland generally must obtain a special permit, called a § 404 permit, from the Army Corps of Engineers, except that a general, nationwide permit authorizes the filling of isolated wetlands of less than ten acres in certain circumstances. The Corps determined in 1979 that the national permit covered the Buckeye Basin wetlands, and a § 404 permit was not required. Subsequent to the Corps' determination, the legal definition of "wetlands" changed, and, in 1988 the Corps determined that a § 404 permit was required. The City applied for such a permit in 1990; it was granted in 1994.

The Project is scheduled to span the construction seasons of 1996 and 1997, and be completed in mid-1998.

Plaintiffs have filed suit challenging the approval, funding and planned construction of the Project, especially the Parkway, Bikeway, and Champlain Street Extension. They allege numerous violations of NEPA; the Environmental Quality Improvement Act of 1970; the National Historic Preservation Act; the Intermodal Surface Transportation Efficiency Act ("ISTEA"); the Clean Water Act; and the Clean Air Act. On October 6, 1995, this Court denied Plaintiffs' motion for a preliminary injunction against the letting of contracts for the Project.

PLAINTIFFS' MOTION TO FILE AMENDED COMPLAINT

Plaintiffs have moved to file a second amended complaint adding five new claims against the Army Corps of Engineers. The Federal Defendants, ODOT, and the Municipal Defendants have filed opposition thereto. The Court freely grants a party leave to amend its pleadings "when justice so requires." Fed.R.Civ.P. 15(a). The disposition of a motion to amend is within the sound discretion of the trial court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Such a motion should be denied where the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile. Crawford v. Roane, 53 F.3d 750, 753 (citing Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); Marx v. Centran, 747 F.2d 1536, 1550 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2656, 86 L.Ed.2d 273 (1985).

The Court finds that justice does not in this instance require that Plaintiffs be granted leave to amend their pleadings as they have moved to do. First, allowing Plaintiffs to amend their complaint could not result in any new or additional recovery for Plaintiffs, even if they were to prevail on their claims. Plaintiffs' proposed additional claims are based on the same administrative record as the original claims, and stand or fall with the original claims. If the Court determines that the administrative record is inadequate on Plaintiffs' original claims, the injunction requested by Plaintiffs must issue; if the Court determines that the administrative record is adequate on Plaintiffs' original claims, the injunction requested by Plaintiffs must be denied. Second, if the Court permits amendment of Plaintif...