Wade v. Dole
| Decision Date | 24 March 1986 |
| Docket Number | No. 85 C 7775.,85 C 7775. |
| Citation | 631 F. Supp. 1100 |
| Parties | Juliet WADE and the Eagle Foundation, Inc., Plaintiffs, v. Elizabeth DOLE, Secretary of the United States Department of Transportation; Ray Barnhart, Director of the Federal Highway Administration; John O. Hibbs, Regional Director for Region V, Federal Highway Administration; Jay Miller, Division Administrator, Federal Highway Administration; E.V. Heathcock, Director of Office of Planning and Program Development, Federal Highway Administration, Region V; United States Department of Transportation; and Federal Highway Administration, Defendants, and Harry Hanley, Secretary of the Illinois Department of Transportation, and the Illinois Department of Transportation, Defendants-Intervenors. |
| Court | U.S. District Court — Northern District of Illinois |
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Edward Boraz, Landesman & Schwartz, David Ader, Ancel Gleib Diamond & Cope, Chicago, Ill., for plaintiffs.
Joan Laser, Asst. U.S. Atty., Chicago, Ill., for Federal defendants.
Russell R. Eggert, Asst. Atty. Gen., Chicago, Ill., for State defendants.
This case forms a sequel to Wade v. Lewis, 561 F.Supp. 913 (N.D.Ill.1983), appeal dismissed as moot sub nom. Wade v. Baise, 767 F.2d 925 (7th Cir.1985) (unpublished order), in which this Court granted a permanent injunction barring the construction of federally-funded highway FAP 408 through Napoleon Hollow in west central Illinois. Napoleon Hollow, bordering the west bank of the Illinois River between Valley City and Florence, contains historic sites and parkland protected by section 4(f) of the Department of Transportation Act of 1966, codified as amended at 49 U.S.C. § 303(c) (formerly 49 U.S.C. § 1653(f)) ("section 4(f)"), and section 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 ("section 138"). These statutes each provide that the Secretary of Transportation ("Secretary") may not authorize the use of federal funds to finance the construction of highways through the land of a public park, recreation area, wildlife and waterfowl refuge, or historic site unless (1) there is no feasible and prudent alternative to using such property, and (2) the project includes all possible planning to minimize harm to the property.
Our reasons for disallowing the proposed highway segment were two-fold: (1) the defendants planned to finance construction of two entirely new bridges over the Illinois River at Napoleon Hollow with funds appropriated by Congress for rehabilitating or replacing existing bridges, see 23 U.S.C. § 144; and (2) the administrative record did not adequately support the determination of the Secretary that no feasible and prudent alternatives to the Napoleon Hollow alignment existed. We retained jurisdiction to vacate or modify the injunction in the event that a proper source of funds and an adequate evaluation under sections 4(f) and 138 were secured.
In our previous opinion, we described in some detail the unique environmental, historical, archaeological, and wildlife characteristics of Napoleon Hollow. See Wade v. Lewis, 561 F.Supp. at 918-34. These attributes have not changed and we need not repeat them here. Napoleon Hollow remains a unique and priceless national treasure.
There have been changes, however, in the nature of the defendants' highway proposal. During the previous litigation, the defendants agreed not to construct the highway on any part of the 190-acre Wade farm. Because it is eligible for inclusion on the National Register of Historic Places, the Wade farm was then and is now protected under sections 4(f) and 138. The plan was to carry the highway west of the Illinois River through the Pike County Conservation Area ("PCCA"), a 4(f)-protected parkland, then to curve north to avoid the adjacent Wade property. The defendants now propose to build the highway on a route (alignment # 5) that requires the taking of 31 acres of land from the PCCA and 12.5 acres from the Wade farm. Further, the defendants have adopted additional measures, described later in this opinion, to minimize harm to the PCCA and Wade farm.
A number of other significant events have occurred since our decision three years ago. First, Congress enacted Pub.L. No. 98-229, 98 Stat. 55 (March 9, 1984), section 9 of which specifically authorizes the use of bridge replacement funds to finance a new bridge in the vicinity of Napoleon Hollow. In dismissing the appeal from our previous decision, the United States Court of Appeals for the Seventh Circuit found that this act effectively mooted the dispute over funding sources. Wade v. Baise, 767 F.2d 925 slip op. at 5 (7th Cir.1985).1 Second, the Secretary, acting in conjunction with the Federal Highway Administration ("FHWA") and the Illinois Department of Transportation ("IDOT"), conducted additional studies and developed a new 4(f) Statement concluding that there are no feasible and prudent alternatives to running the highway through Napoleon Hollow along alignment # 5. Thus, the question of the validity of the Secretary's prior 4(f) Statement also was rendered moot. Id. at 6.
By direction of the court of appeals, we dismissed the previous case as moot. Subsequently, the plaintiff in the previous case, Juliet Wade, and her lessee the Eagle Foundation, Inc., filed the present action against the Secretary, the Department of Transportation, the FHWA, and various officials of these agencies ("federal defendants"). The Secretary of the Illinois Department of Transportation ("IDOT") and IDOT itself were granted leave to intervene as defendants ("state defendants"). Juliet Wade died in the fall of 1985, and her successors did not seek leave to intervene in this case, but the Eagle Foundation continues to seek a new permanent injunction against construction of FAP 408 through Napoleon Hollow.
Based on an extensive administrative record and numerous additional documents submitted for purposes of judicial review, the parties filed cross-motions for summary judgment. For the reasons stated below, we affirm the Secretary's findings (1) that there are no feasible and prudent alternatives to building FAP 408 through Napoleon Hollow at alignment # 5, and (2) that the project includes all possible planning to minimize harm to the Wade farm and the PCCA. We therefore grant the Secretary's motion for summary judgment and deny the plaintiff's motion for summary judgment.
The defendants' maintain that the Eagle Foundation is not entitled to challenge the validity of the Secretary's 4(f) determination. Their first line of argument is that the Eagle foundation has no legal capacity to sue because it is neither incorporated in Illinois nor registered to do business here as a foreign not-for-profit corporation. After the filing of the state and federal defendants' joint memoranda, the Eagle Foundation produced documents establishing (1) that it is incorporated under the laws of Wisconsin as a nonstock, not-for-profit corporation, see Plaintiff's Exhs. 10, 26; and (2) that it has secured from the Secretary of State of Illinois a certificate of authority to conduct business in Illinois as a foreign not-for-profit corporation. See Plaintiff's Exh. 27; Ill.Rev.Stats. ch. 32, ¶ 163a66. As we explain below, these documents settle the question of the plaintiff's legal capacity to sue in this Court.
Rule 17(b) of the Federal Rules of Civil Procedure provides that "The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized." Because the plaintiff is pursuing a purely federal cause of action, any limitations that Illinois law might place on the right of a foreign corporation to maintain a lawsuit in Illinois are inapplicable to this case. 3A J. Moore & J. Lucas, Moore's Federal Practice ¶ 17.21 (2d ed. 1985). Under Rule 17(b), we look solely to Wisconsin law, which provides unequivocally for the right of a corporation in the shoes of the Eagle Foundation to sue. See Wis.Stat. § 181.04(2) (). Accordingly, the plaintiff has legal capacity.
The question remains whether the plaintiff has standing. Standing "involves both constitutional limitations of federal court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The constitutional test focuses on whether the plaintiff has suffered "some actual or threatened injury" that "fairly can be traced to the challenged action" of the defendant. Valley Forge Christian College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The prudential test asks "whether the interest sought to be protected by the complainant is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). This latter test is "a generous standard which nonetheless serves as a limitation, albeit loosely defined, on those who can use the federal courts to resolve complaints arising from agency action taken pursuant to a particular statutory mandate where there exists no specific congressional authorization of review." Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d 1182, 1195 (7th Cir.1981).
The defendants concede, as they must, that the Eagle Foundation has standing to challenge the proposed use of the PCCA. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Benton Franklin Riverfront Trailway and Bridge Committee v. Lewis, 701 F.2d 784, 787 (9th Cir.1983). As to the Wade property, however, they contend that the plaintiff lacks standing because it has not alleged and cannot prove "some...
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