Southwest Williamson County Community Ass'n, Inc. v. Slater

• Decision Date: 28 April 1999
• Docket Number: No. 97-6526,97-6526
• Parties: SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASSOCIATION, INC., Plaintiff-Appellant, v. Rodney E. SLATER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1033

173 F.3d 1033

SOUTHWEST WILLIAMSON COUNTY COMMUNITY ASSOCIATION, INC. Plaintiff-Appellant, v. Rodney E. SLATER et al., Defendants-Appellees.

No. 97-6526.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1998.

Decided April 28, 1999.

Joe W. McCaleb (argued and briefed), Hendersonville, Tennessee, for Plaintiff-Appellant.

Ellen D. Katz (argued and briefed), U.S. Department of Justice, Land & Natural Resources Division, Washington, D.C., Michael L. Roden, Asst. U.S. Atty., Nashville, Tennessee, for Defendant-Appellee Rodney E. Slater.

Michael L. Roden, Asst. U.S. Atty., Nashville, Tennessee, for Defendants-Appellees Jane F. Garvey, James Scapellato.

Michael W. Catalano (argued and briefed), Associate Solicitor General, Nashville, Tennessee, for Defendant-Appellee John Bruce Saltsman, Sr.

Before: BOGGS and MOORE, Circuit Judges; DOWD, ^* District Judge.

OPINION

MOORE, Circuit Judge.

Plaintiff Southwest Williamson County Community Association ("Association") appeals the dismissal of its several claims by the district court. The complaint centers upon the construction of a highway in Tennessee. The Association complains of a failure to comply with certain provisions of the National Environmental Policy Act ("NEPA") and the Intermodal Surface Transportation Efficiency Act ("ISTEA") on the part of the state and federal defendants, and seeks injunctive and declaratory relief pending compliance with these statutes.

The district court dismissed the plaintiff's first two causes of action under NEPA as barred by the applicable statute of limitations, the third under ISTEA because the statute provides no private right of action, and the fourth, a state claim, because all federal claims had been dismissed. For the reasons discussed below, we affirm in part, vacate in part, and remand for development of two of the claims.

I. JURISDICTION

The district court had jurisdiction of this case pursuant to 28 U.S.C. §§ 1331, 1361, 1367, 2201-2202, and 5 U.S.C. §§ 701-706. This court has jurisdiction pursuant to 28 U.S.C. § 1291. The notice of appeal was filed within sixty days of the district court's denial of the plaintiff's Rule 59 motion, making it timely under Federal Rule of Appellate Procedure 4(a)(1) because the United States is a party.

II. BACKGROUND

The cause of this controversy is the design and construction of Route 840-South in Tennessee. The Tennessee Department of Transportation ("TDOT") prepared three Environmental Assessments ("EA") at the beginning stages of the project: one EA involved two cloverleaf intersections with federal interstates; a second involved two other cloverleaf interchanges with interstates; and the third involved the length of the highway--approximately fifty-three miles--called the corridor. Environmental Assessments are a tool used by state and federal officials to assess preliminarily a construction project. When it is necessary to do so, the Federal Highway Administration ("FHWA") will evaluate the EA and either issue a Finding of No Significant Impact ("FONSI") or require an Environmental Impact Statement ("EIS"). For the two EAs involving the cloverleaf intersections, the FHWA issued FONSIs in 1989 and 1990.

The construction project was divided into three segments, one of which has been completed and two others of which are in various stages of construction. On April 10, 1997, TDOT held a design public hearing in Leipers Fork, Tennessee, and it was shortly after this meeting that the plaintiff Association incorporated. The Association filed the complaint at issue here on July 14, 1997, against a state official of TDOT and federal officials of the U.S. Department of Transportation and the FHWA. Both sets of defendants filed motions to dismiss. The plaintiff filed a motion for a preliminary injunction on August 7, 1997, which was opposed by both sets of defendants. On September 15, 1997, the district court issued a memorandum opinion granting the defendants' motions to dismiss. See Southwest Williamson County Community Ass'n v. Slater, 976 F.Supp. 1119 (M.D.Tenn.1997).

III. ANALYSIS

The Association's suit challenges the public hearing process and some documentation concerning the project that was prepared by the state and accepted by the FHWA in 1989 and 1990, and seeks declaratory and injunctive relief against both the federal and state defendants. These claims are based on NEPA, ISTEA, and a Tennessee statute. We address only the federal claims, which are brought pursuant to the Administrative Procedure Act ("APA"). Because the district court decided on statute-of-limitations and Federal Rule of Civil Procedure 12(b)(6) grounds, the standard of review is de novo.

A. The State Defendants

This circuit has held that NEPA does not authorize a private right of action, Sierra Club v. Slater, 120 F.3d 623, 630 (6th Cir.1997), and the district court in Sierra Club found that ISTEA also does not authorize a private right of action. Sierra Club v. Pena, 915 F.Supp. 1381, 1390-91 (N.D.Ohio 1996). The district court's determination of the ISTEA issue in Sierra Club was not appealed by the plaintiff in that case and thus was not reviewed, Sierra Club v. Slater, 120 F.3d at 629, so this circuit has not definitively ruled on whether ISTEA creates a private right of action. However, the plaintiff Association before us does not take issue with the lack of a private right of action under either statute, and explicitly brings its claims pursuant to the APA, 5 U.S.C. §§ 701-706. Therefore, we need not, and do not, decide whether a private right of action exists under ISTEA.

The APA allows judicial review for persons "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action," and defines "agency" as "each authority of the Government of the United States...." 5 U.S.C. §§ 701(b)(1), 702. By its own terms, the APA does not apply to state agencies. This result is confirmed by case law. See, e.g., Resident Council of Allen Parkway Village v. HUD, 980 F.2d 1043, 1055 (5th Cir.), cert. denied, 510 U.S. 820, 114 S.Ct 75, 126 L.Ed.2d 43 (1993); Gilliam v. Miller, 973 F.2d 760, 764 (9th Cir.1992); Clark Constr. Co. v. Pena, 930 F.Supp. 1470, 1475 (M.D.Ala.1996). Because TDOT is not an agency as defined by the APA, the federal actions against TDOT in the person of its commissioner should be dismissed on this ground, which is essentially "failure to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). Although the state defendant did not raise this argument explicitly in his initial motion to dismiss, Joint Appendix ("J.A.") at 317-19, he did so on appeal, and this court can affirm the district court on alternate grounds supported by the record. See Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985).

B. NEPA

Among the agencies that promulgate regulations pursuant to NEPA is the FHWA. NEPA is essentially a procedural statute that requires federal agencies to consider the environmental consequences of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Only "major federal actions" trigger NEPA review pursuant to regulations promulgated by agencies such as FHWA and the Council on Environmental Quality, among others. Count One of the complaint alleges violations of FHWA regulations that implement NEPA. 42 U.S.C. § 4321 et seq.; 23 C.F.R. Part 771. Count Two alleges violations of NEPA itself--specifically, that the EAs prepared were inadequate, and a full EIS should have been required.

The district court dispensed with all of the NEPA claims on statute-of-limitations grounds, and we turn to this issue first. The district court relied extensively and correctly on this court's opinion in Sierra Club v. Slater, 120 F.3d 623 (6th Cir.1997). Sierra Club applies the six-year statute of limitations for "civil actions" against the United States, 28 U.S.C. § 2401(a), to actions under NEPA brought pursuant to the APA. Sierra Club also discusses the fact that although NEPA does not allow a private right of action, a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action" can bring suit under the APA. 5 U.S.C. § 702. See Sierra Club, 120 F.3d at 630-31. Thus, the statute of limitations is six years from the time the claim accrues; in this case, from the time of "final agency action" as required by the APA. 5 U.S.C. § 704. The Supreme Court has noted that in making a determination about final agency action, "[t]he core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).

The Sierra Clubcourt engaged in an analysis similar to the one at issue here and held that for purposes of NEPA and the APA, a final EIS or the record of decision issued thereon constituted final agency action. Because a FONSI is for purposes of finality analogous to an EIS, the statute of limitations should run from the time the FONSIs issued. The two FONSIs were issued by FHWA in 1989 and 1990, and the Association did not bring suit until 1997, which is beyond the statute of limitations. The district court was correct in so holding.

The relevant regulations discuss three potential classes of actions: Class I actions are presumed to affect the environment and require an EIS; Class II actions are presumed not to affect the environment and are categorically excluded; Class III actions require an EA because the significance of impact on the environment is not yet clearly established. 23 C.F.R. § 771.115. The state defendant, in cooperation with federal officials, chose to prepare EAs. The Sierra Club court explained that an EA is a preliminary...