Sierra Club v. Slater, No. 96-3295

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtRYAN
Citation120 F.3d 623
Docket NumberNo. 96-3295
Decision Date15 October 1997
Parties, 27 Envtl. L. Rep. 21,421 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, Plaintiffs--Appellants, v. Rodney SLATER, Secretary, United States Department of Transportation; Robert D. Bush, Executive Director, Advisory Council on Historic Preservation; Fred J. Hempel, Division Administrator, Federal Highway Administration; W. Ray Luce, Director, Ohio Historical Preservation Office; Jerry Wray, Director, Ohio Department of Transportation; William Knight, Director, Toledo Metro Area Council of Governments; Carleton S. Finkbeiner, Mayor, City of Toledo; Donald Schregardus Director, Ohio Environmental Protection Agency; Togo D. West, Jr., Secretary, Department of the Army Corps of Engineers, Defendants--Appellees.

Page 623

120 F.3d 623
45 ERC 1197, 27 Envtl. L. Rep. 21,421
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, Plaintiffs--Appellants,
v.
Rodney SLATER, Secretary, United States Department of
Transportation; Robert D. Bush, Executive Director,
Advisory Council on Historic Preservation; Fred J. Hempel,
Division Administrator, Federal Highway Administration; W.
Ray Luce, Director, Ohio Historical Preservation Office;
Jerry Wray, Director, Ohio Department of Transportation;
William Knight, Director, Toledo Metro Area Council of
Governments; Carleton S. Finkbeiner, Mayor, City of
Toledo; Donald Schregardus Director, Ohio Environmental
Protection Agency; Togo D. West, Jr., Secretary, Department
of the Army Corps of Engineers, Defendants--Appellees.
No. 96-3295.
United States Court of Appeals,
Sixth Circuit.
Argued Jan. 27, 1997.
Decided Aug. 6, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied Oct. 15, 1997.

Page 627

Terry J. Lodge (argued and briefed), Toledo, OH, for Plaintiffs-Appellants.

Ralph J. Lewis, Office of the U.S. Attorney, Western Division, Toledo, OH, Robin N. Michael, Environmental & Natural Resources Division, Department of Justice, Washington DC, Lisa E. Jones (argued), Department of Justice, Environment & Natural Resources Division, Washington, DC, Jacques B. Gelin (briefed), Robin L. Juni, Cecilia E. Kim, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Rodney Slater, Robert D. Bush, Fred J. Hempel, and Togo D. West, Jr., Defendants-Appellees.

Fred J. Milligan, Jr., Milligan & Milligan, Westerville, OH, Andrew J. Ayers (briefed), Meister, Ayers & Meister, Toledo, OH, for W. Ray Luce, Defendant-Appellee.

Frederick C. Schoch, Asst. Attorney Gen., (argued and briefed), Ellen B. Leidner (briefed), Office of the Attorney General, Transportation Section, Columbus, OH, for Jerry Wray, Defendant-Appellee.

Terrence K. Davis, John F. Hayward, Shumaker, Loop & Kendrick, Toledo, OH, for William Knight, Defendant-Appellee.

Lawrence J. Kiroff (briefed), Lourdes Santiago, Senior Attorney (briefed), Office of the City of Toledo Law Department, Toledo, OH, for Carleton S. Finkbeiner, Defendant-Appellee.

Lisa E. Jones (argued), Department of Justice, Environment & Natural Resources Division, Washington, DC, Robin L. Juni, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Donald Schregardus, Defendant-Appellee.

Page 628

Before: CONTIE, RYAN, and BOGGS, Circuit Judges.

RYAN, Circuit Judge.

The Sierra Club and other plaintiffs brought suit against federal, state, and municipal officials in their official capacities under numerous federal statutes, seeking to prevent the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project, also known simply as the Project, in Toledo, Ohio. The centerpiece of the Project is an approximately 3.5-mile-long four-lane highway connecting downtown Toledo and its northern suburbs, and is referred to as the Parkway. Currently, construction on the Project is scheduled to be completed in mid-1998.

The district court granted summary judgment to the defendants with regard to all of the plaintiffs' claims. The plaintiffs now appeal, raising numerous issues. Concluding that their assignments of error are uniformly without merit, we will affirm the district court's judgment.

I.

About twenty-five years ago, in 1972, planning commenced for the highway project at the center of this lawsuit. Federal funding was first requested in 1974.

The parties do not agree what, precisely, constitute the components of the Project as a whole. All agree that the centerpiece is the Parkway, which is meant to serve as a connection between downtown Toledo, I-280, and Point Place, in the northern suburbs of Toledo, and is intended to provide commercial, industrial, and residential development in North Toledo. But while all parties agree that the City of Toledo has contemplated certain other construction projects, they disagree whether those projects are properly considered part of the Project. According to the defendants, the Project consists of nothing other than the Parkway; a paved bikeway paralleling part of the Parkway; and an extension of Champlain Street from its current northeastern terminus beyond I-280, called the Champlain Extension. The plaintiffs claim that two other construction projects--a paved connection of the Anthony Wayne Trail and I-75 with the Parkway through the Central Business District of Toledo, called the CBD Connection or CBD Connector, and a Development Scheme including, among other things, four industrial parks--are also part of the Project, despite the defendants' contention that these are separate and distinct endeavors. The defendants point out that no federal funding has ever been received, or even sought, for these projects, and that no federal permit or certification has ever been requested. The defendants also claim that it is "currently unlikely" these projects "will ever come to fruition."

Because the Project required federal funds, it was necessary to comply with the National Environmental Policy Act of 1969, or NEPA, 42 U.S.C. § 4321 et seq., which requires that an environmental impact statement, or EIS, be filed before any major federal action is undertaken that will significantly affect the environment. The Federal Highway Administration, or FHWA, delegated preparation of the EIS to the Ohio Department of Transportation, which in turn delegated responsibility for the necessary environmental studies to the City of Toledo. A draft EIS was completed in 1981, and the final EIS was approved by FHWA in February 1984. In April 1984, the FHWA then issued a Record of Decision, or ROD, memorializing its approval.

Another environmental consideration arose because the Parkway is intended to run through the Buckeye Basin, which contains naturally occurring wetlands. The Project is, therefore, subject to federal laws that prohibit federally subsidized construction in wetlands unless there is no practical alternative, and unless all practical measures to minimize harm to the wetlands have been taken. Federal law requires that a party seeking to place fill material in a wetland must first obtain a special permit from the Army Corps of Engineers, called a § 404 permit. However, at an early stage of the Project, the Corps concluded that the Buckeye Basin wetlands benefitted from an exception to this general rule, because they were covered by a nationwide permit authorizing the filling of isolated wetlands of less than ten acres under certain circumstances, and

Page 629

rendering unnecessary a § 404 permit. Almost ten years later, however, in 1989, the Corps altered this determination following a change in the legal definition of "wetlands," and concluded that a § 404 permit was necessary. The City applied for the requisite permit in 1990, and it was granted in 1992. The Corps determined that some impact on the wetlands was unavoidable, and so, the permit was conditioned on the implementation of a wetland mitigation plan, intended to minimize any negative effects.

More than three years elapsed between the approval of the final EIS and the inception of construction on the Project. Consequently, it was necessary under the regulations for the FHWA to prepare a written reevaluation of the EIS. The purpose of the reevaluation was to determine whether a supplemental EIS was required. The reevaluation discussed the impact of the Project on the wetlands, certain hazardous waste implications, and design modification measures; it also reevaluated the environmental impacts previously considered in the final EIS. After performing the reevaluation, the FHWA determined in January 1995 that no supplemental EIS was required.

In June 1995, the plaintiffs filed a five-count complaint in federal court against various federal, state, and municipal defendants, alleging that the Project violated NEPA, 42 U.S.C. § 4321 et seq. (Counts I and II); § 4(f) of the Federal-Aid Highway Act, 23 U.S.C. § 138 (Count III); the National Historic Preservation Act, or the NHPA, 16 U.S.C. § 470 (Count IV); and the Intermodal Surface Transportation Efficiency Act of 1991, or ISTEA, 23 U.S.C. § 134(l), and the Clean Air Act, 42 U.S.C. § 7401 et seq. (Count V). Four months later, plaintiffs filed an amended complaint adding a Count VIII, although the pleading contained no Counts VI and VII, alleging violations of § 404 of the Clean Water Act, 33 U.S.C. § 1344; § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403; and of NEPA and the NHPA. The amended complaint names, as federal defendants, the Secretary of the United States Department of Transportation, officials of the Federal Highway Administration and the Advisory Council on Historic Preservation, and the Secretary of the Army Corps of Engineers. The state defendants are the Ohio Historical Preservation Office, the Ohio Department of Transportation, and the Ohio Environmental Protection Agency. Finally, the municipal defendants are the Toledo Metro Area Council of Governments and the Mayor of the City of Toledo.

The district court ruled on a number of pretrial motions, including the motions for summary judgment filed by various defendants, which it granted. Sierra Club v. Pena, 915 F.Supp. 1381 (N.D.Ohio 1996). A motion for supplementation of the record, filed by the plaintiffs, was granted in part and denied in part. While those determinations are challenged in this appeal, the plaintiffs do not take issue with the district court's determination that two of their claims in Count V, brought under ISTEA, were barred because no private right of action under ISTEA exists....

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223 practice notes
  • Central Delta Water v. Fish and Wildlife, No. 1:09-CV-00861 OWW DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 8 Septiembre 2009
    ...v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982). The issuance of a final EIS or a ROD constitutes final agency action. Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.1997) (citing Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir.1995)). In contrast, preliminary decis......
  • Buck Mountain Cmty. Org. v. Tennessee Valley Auth., Case No. 2:08-cv-0040.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • 18 Mayo 2009
    ...Environmental 629 F.Supp.2d 794 Assessment, or EA, to determine whether an EIS is required. 40 C.F.R. § 1501.4(b); Sierra Club v. Slater, 120 F.3d 623, 635 (6th Cir.1997). An EA is "a concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whethe......
  • Norton v. Beasley, Civil Action 5:17-cv-351-CHB
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • 30 Septiembre 2021
    ...standing requirement. B. Statute of Limitations The APA does not provide a specific limitations period. See Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (citation omitted). “Numerous courts have held, however, that a complaint under the APA for review of an agency action is a ‘c......
  • Ky. Coal Ass'n, Inc. v. Tenn. Valley Auth., CIVIL ACTION NO. 4:14CV-00073-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Febrero 2015
    ...have jurisdiction to review NEPA claims pursuant to the Administrative Procedure Act (the "APA"), 5 U.S.C. § 704. Sierra Club v. Slater, 120 F.3d 623, 630-31 (6th Cir. 1997). "It is well settled that a reviewing court grants substantial deference to an agency's determination under NEPA, inc......
  • Request a trial to view additional results
223 cases
  • Central Delta Water v. Fish and Wildlife, No. 1:09-CV-00861 OWW DLB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 8 Septiembre 2009
    ...v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982). The issuance of a final EIS or a ROD constitutes final agency action. Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir.1997) (citing Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir.1995)). In contrast, preliminary decis......
  • Buck Mountain Cmty. Org. v. Tennessee Valley Auth., Case No. 2:08-cv-0040.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • 18 Mayo 2009
    ...Environmental 629 F.Supp.2d 794 Assessment, or EA, to determine whether an EIS is required. 40 C.F.R. § 1501.4(b); Sierra Club v. Slater, 120 F.3d 623, 635 (6th Cir.1997). An EA is "a concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whethe......
  • Norton v. Beasley, Civil Action 5:17-cv-351-CHB
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • 30 Septiembre 2021
    ...standing requirement. B. Statute of Limitations The APA does not provide a specific limitations period. See Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (citation omitted). “Numerous courts have held, however, that a complaint under the APA for review of an agency action is a ‘c......
  • Ky. Coal Ass'n, Inc. v. Tenn. Valley Auth., CIVIL ACTION NO. 4:14CV-00073-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 2 Febrero 2015
    ...have jurisdiction to review NEPA claims pursuant to the Administrative Procedure Act (the "APA"), 5 U.S.C. § 704. Sierra Club v. Slater, 120 F.3d 623, 630-31 (6th Cir. 1997). "It is well settled that a reviewing court grants substantial deference to an agency's determination under NEPA, inc......
  • Request a trial to view additional results

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