Opinion
01-CV-0891E(Sc).
August 8, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
This action stems from defendants' proposed expansion and/or upgrade of U.S. Route 219 between Springville, N.Y. and Salamanca, N.Y. ("Route 219 Project"). Plaintiff brought this action asserting, inter alia, that the Federal Highway Administration ("FHWA") and the New York State Department of Transportation ("NYSDOT") are in violation of the National Environmental Policy Act, 43 U.S.C. § 4321 et seq. ("NEPA") and section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c) ("section 4(f)"). Plaintiff seeks, inter alia, (1) a declaration that the defendants violated NEPA by preparing a supplemental environmental impact statement ("SEIS") without first issuing a Notice of Intent to prepare an SEIS and (2) an order requiring NYSDOT to file a Notice of Intent to prepare an SEIS for the Route 219 Project and to prepare such SEIS. Defendants seek to dismiss this action and the plaintiff seeks leave to file an amended complaint and also moves for summary judgment. Defendants' motions to dismiss will be granted because this action is not yet ripe for judicial review and plaintiff's motions will be denied.
When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") — failure to state a claim —, this Court must "accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) — and cannot dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claim will ultimately be successful, but merely "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).
Plaintiff alleges that defendants circulated a draft environmental impact statement ("DEIS") with respect to the Route 219 Project for review and comment in May of 1998 (Compl., at ¶ 3), that the United States Environmental Protection Agency filed a "Notice Of Availability Of Draft Environment Impact Statement" in the Federal Register with respect to the Route 219 Project June 5, 1998 (id. at ¶ 33), that the DEIS contains three alternatives — viz., (1) a new four-lane highway from Springville to N.Y. Route 17 (the "freeway alternative"), (2) upgrading the existing two-lane highway to a four-lane highway (the "upgrade alternative") and (3) a no action alternative (id. at ¶ 41), that plaintiff has a proprietary interest in the Ira Norton Farmstead (the "Norton Farmstead") across which a highway would be constructed under the freeway alternative (id. at ¶ 42), that the DEIS identified twenty-two environmental and social factors that were considered in the selection of a preferred corridor for the freeway alternative (id. at ¶ 43), that these factors, however, "did not include the protection of properties eligible for inclusion on the National Register of Historic Places and afforded protection under Section 4(f) of the Department of Transportation Act" ("Historic Places") (id. at ¶ 44), that, in selecting the preferred corridor for the freeway alternative, the DEIS states that defendants evaluated the impacts of various corridors on wetlands and farmlands based upon a Freeway Alternatives Analysis ("FAA") prepared in 1995 (id. at ¶ 45), that neither the FAA nor the DEIS "evaluated the impacts of the various corridors on properties eligible for inclusion on the National Register of Historic Places" (id. at ¶ 46), that, based on the corridor selected for the freeway alternative, the DEIS assessed the impacts of all three alternatives on Historic Places (the "section 4(f) Evaluation") (id. at ¶ 47), that, in preparing the section 4(f) Evaluation, the defendants were required to identify all properties eligible for protection as Historic Places (id. at ¶ 48), that the section 4(f) Evaluation was based on incomplete information inasmuch as it failed to designate portions of the Norton Farmstead as eligible for protection as a Historic Place (id. at ¶¶ 49-50) and that, accordingly, the section 4(f) Evaluation did not evaluate the impact that the freeway alternative would have on such omitted portions of the Norton Farmstead (id. at ¶ 50).
Plaintiff filed his comments to the DEIS — in conjunction with comments filed by his sister — discussing the omission of parts of the Norton Farmstead from Historic Place protection under the DEIS. Id. at ¶¶ 51-53. After various administrative developments, the error by which portions of the Norton Farmstead were deemed ineligible as a Historic Place was corrected such that the Historic Place eligible portions of the Norton Farmstead — as determined by the Keeper of the National Register — "encompasses all contiguous acreage historically associated with the Norton Property pertaining to all its agricultural uses — cultivation, pasturing, sugaring, lumbering — through 1950 that retains its historic integrity." Id. at ¶¶ 54-74. On August 8, 2001 NYSDOT notified plaintiff that it would be "issuing a revised draft 4(f) Evaluation, which would evaluate the `adverse effects, and proposed plans to minimize harm should alternatives which would avoid harm, be not feasible or prudent.'" Id. at ¶ 75. NYSDOT further informed plaintiff that "technical studies of alternatives to avoid the Norton Farmstead are still underway." Id. at ¶ 77. Such "alternatives" were not included in the DEIS. Id. at ¶ 78.
Plaintiff essentially contends that defendants violated NEPA by preparing an SEIS without first issuing a Notice of Intent to prepare such. Compl., at ¶ 8. Consequently, plaintiff seeks an order requiring NYSDOT to (1) file a Notice of Intent to prepare an SEIS and (2) prepare an SEIS. Ibid. Specifically, the Complaint alleges that
"NEPA's implementing regulations require that a reevaluation be conducted to determine if [an SEIS] is required if a final EIS ("FEIS") is not submitted to the Administrator of FHWA within three years after the DEIS is prepared. 23 C.F.R. § 771.129." Compl., at ¶ 6 (emphasis added).
See also Compl., at ¶ 7 ("The FHWA's and the Council on Environmental Quality's regulations implementing NEPA provide that an agency must issue a Notice of Intent to prepare [an] SEIS as soon as practicable after an agency makes a determination that `new information or circumstances relevant to environmental concerns bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS.' 23 C.F.R. § 771130(a)(2); 40 C.F.R. § 1502.9(c)(1)(ii)) and (4); 40 C.F.R. § 1508.22." (emphasis added).
This action, however, is not yet ripe for judicial attention because the relevant regulations do not require an SEIS to be filed within three years of DEIS circulation; rather, defendants are merely required to prepare a written evaluation of the DEIS to determine whether an SEIS or a new DEIS is required. See 23 C.F.R. § 771.129(a). Accordingly, defendants' failure to either publish a Notice of Intent to prepare an SEIS or prepare an SEIS does not violate NEPA because — according to the plain terms of the regulation cited by plaintiff — the defendants have no duty to do either at this time. Ibid. Indeed, defendants are currently in the process of incorporating the new information concerning the Norton Farmstead into the administrative process. See Conlan Aff., at ¶ 6; Gottlieb Aff., at ¶¶ 13-18. Inasmuch as defendants have no duty, at this time, to either publish a Notice of Intent to prepare an SEIS or to prepare an SEIS — this action is not yet ripe for judicial review because there presently is no violation of NEPA or of its related regulations. Ohio Forestry Assoc., Inc., v. Sierra Club, 523 U.S. 726, 737 (1998) (construing the National Forest Management Act and stating in dicta that "a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.") (emphasis added). Although an SEIS may be required — that determination is properly within the discretion of the FHWA rather than this Court. See 23 C.F.R. § 771.129(a); 23 C.F.R. § 771.130; Kickapoo Valley Stewardship v. United States Dep't of Transp., No. 01-3576, 2002 WL 1357218, at *1-3 (7th Cir. June 20, 2002) (construing 29 C.F.R. § 771.129(a) and finding that agency was within its discretion in determining that no SEIS was required — notably, the reevaluation issued six years after the DEIS was circulated); Town of Fairview, at 71-75 (rejecting plaintiff's contention that "a court should intervene before a final decision is rendered and before an agency has had the opportunity to assess environmental effects of a project during the course of its normal administrative review.").
This regulation states that "[a] written evaluation of the draft EIS shall be prepared by the applicant in cooperation with the Administration if an acceptable final EIS is not submitted to the Administration within 3 years from the date of the draft EIS circulation. The purpose of this evaluation is to determine whether or not a supplement to the draft EIS is needed."
See FHWA's Mem. Of Law, at 7 ("As a result of this new information regarding the historic properties, FHWA is in consultation with NYSDOT as to the method of integrating this information into the environmental process in accordance with requirements for DEIS reevaluation in the regulations, 23 C.F.R. § 771.129 and 771.130. Future steps may include preparation of a supplement to the DEIS, environmental assessment to examine the impacts, a written reevaluation of the DEIS and 4(f) statement, or any combination of these options. There has been no final decision regarding these matters and the plaintiffs have been advised that they will be kept informed as the process continues.") (citations omitted).
Inasmuch as defendants have not to date violated NEPA or its related regulations, this Court need not address the impact, if any, that Ohio Foresty had on case law holding that NEPA claims were not ripe until there was a final agency decision within the meaning of the Administrative Procedures Act, 5 U.S.C. § 706 ("APA") because there is no private right of action under NEPA. Public Citizen v. Office of the U.S. Trade Representative, 970 F.2d 916, 919-921 (D.C. Cir. 1992) (finding NEPA action not ripe where there was no final agency decision under the APA). Indeed, several post-Ohio Foresty decisions have retained the final agency decision standard despite awareness of Ohio Foresty. See Town of Fairview v. United States Dep't of Transp., 201 F. Supp.2d 64, 71-75 (D.D.C. 2002) (discussing Ohio Foresty and dismissing NEPA claim on ripeness grounds because there was no final agency decision under the APA); Tulare Cty. v. Bush, 185 F. Supp.2d 18, 29-30 (D.D.C. 2001) (same); Hawaii Cty. Green Party v. Clinton, 124 F. Supp.2d 1173, 1195-1196 (D.Hawaii 2000) (same); but see Hanson v. United States Forest Service, 138 F. Supp.2d 1295, 1299 (W.D.Wash. 2001) (noting that "the Ninth Circuit interpreted Ohio Forestry as creating an exception to the final agency action requirement for NEPA").
The DEIS for the Route 219 Project was circulated four years ago — which appears to be a reasonable period to wait for a re-evaluation in light of Kickapoo.
See footnote 5, supra.
Moreover, although leave to amend "`shall be freely given when justice so requires,' [FRCvP 15(a)] such leave will be denied when an amendment is offered in bad faith, would cause undue delay or prejudice, or would be futile." Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1198 (2d Cir. 1989) (citation omitted). Plaintiff's proposed amended complaint would be futile inasmuch as this action would nonetheless still be prematurely brought and thus not yet ripe for judicial review.
Accordingly, it is hereby ORDERED that defendants' motions to dismiss are granted, that NYSDOT's motion for summary judgment is denied as moot, that plaintiff's motions are denied and that the Clerk of this Court shall close this action.