7th Circuit Rejects Group’s I-69 Challenges
Scott Olsen for www.theindianalawyer.com
The 7th Circuit Court of Appeals affirmed a federal judge’s ruling granting a motion to dismiss some charges and grant summary judgment on others to the United States Department of Transportation after a group opposing I-69 construction in southern Indiana, Citizens for Appropriate Rural Roads, filed a lawsuit.
CARR challenged several environmental aspects to the construction, alleging 18 counts of wrongdoing. The trial court found counts 9, and 13 through 18 were unripe, and that summary judgment on count 7 was appropriate. CARR appealed judgment on those counts.
In count 7, CARR said defendants violated the National Environmental Policy Act by not filing a Supplemental Environmental Impact Statement. They argued one was needed to address 2009 fleet vehicle data, the impact of the project on the endangered Indiana bat, and the impact of the project on certain historic sites. They argued the defendants arbitrarily used 2004 data instead of available 2009 data but Colin Bruce, District judge in the Central District of Illinois sitting by designation and writing the decision, said the defendants used 2004 data because 2009 data was not quality verified. Also, the plaintiffs did not show that using the 2009 data would have resulted in noncompliance.
Bruce found there was no basis that the plight of the endangered Indiana bat required an SEIS, and the plaintiffs did not include enough evidence to justify the use of an SEIS to gauge the impact of certain historic sites.
In count 13, plaintiffs alleged defendants violated the Clean Air Act and Administrative Procedure Act by not using the 2009 data, but Bruce said the law did not require defendants to use the 2009 data because it was not finalized until 2011. Also, the defendants knew about the 2009 data and chose not to use it.
In counts 17 and 18, the plaintiffs said the defendants concealed certain information in violation of the NEPA, but did not provide sufficient evidence to back up their claims. Bruce said the defendants proved they considered all relevant factors when they decided on a route, and that’s all that was required.
In counts 9, 14, 15 and 16, the plaintiffs did not respond to defendants’ request for summary judgment. They did not include any statement of material facts, and by failing to respond, the defendants’ facts were taken as represented in their motions, meaning they were granted summary judgment.
Bruce said the trial court made an error in its dismissal of all of count 8, but that error was harmless. All of count 8 would have been judged in the defendants’ favor through summary judgment at trial anyway.
The plaintiffs also claimed fraud on the court, but the only evidence of the fraud was “hearsay upon hearsay,†Bruce wrote, so that charge was not granted.
The plaintiffs argued the District Court erred on a number of evidentiary issues, but the 7th Circuit thought otherwise there as well. The plaintiffs’ affidavit was hearsay, the subpoenas were quashed with reason and they were not entitled to an evidentiary hearing.
Finally, the plaintiffs claimed there should have been additional discovery in the case, but again Bruce said the plaintiffs failed to show a need for it.
The case is Citizens for Appropriate Rural Roads, et al. v Anthony Foxx, in his official capacity as Secretary of the United States of Transportation, et al., No. 15-1554.
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