Opinion
CIVIL ACTION NO: 00-544 SECTION: "R"(S).
December 6, 2000.
ORDER AND REASONS
Defendants, the United States of America through the Federal Highway Administration (FHWA), William Sussmann, in his official capacity as Division Administrator of the FHWA, Kam Movassaghi, in his official capacity as Secretary of the Louisiana Department of Transportation and Development, the State of Louisiana through the Department of Transportation and Development, the City of New Orleans, and Clifford Scineaux, in his official capacity as Director of the City of New Orleans Department of Public Works move the Court to dismiss this case pursuant to Rule 12(b)(1) and Rule 56 of the Federal Rules of Civil Procedure. Defendants assert that plaintiff lacks standing to sue and, if not, defendants complied with applicable federal rules and regulations in developing and building the roadway in issue. For the reasons stated below, the Court grants defendants' motion for summary judgment.
I. BACKGROUND
Plaintiff is the Riverfront Garden District Association, a group composed of owners and residents of "architecturally significant homes" in the vicinity of Religious Street between Euterpe and Felicity Streets in the Lower Garden District of New Orleans. Plaintiff alleges that defendants have impermissibly carved a federal segment out of the Tchoupitoulas Corridor Project (TCP) in order to avoid the application of federal law to the portion of the project that includes Religious Street. Plaintiff claims that if the TCP is completed utilizing Religious Street, the route will jeopardize several historic homes registered on or eligible for the National Register of Historical Places. plaintiff seeks declaratory and injunctive relief against defendants to prevent them from completing the TCP without first complying with the National Environmental Policy Act of 1969 (NEPA) by preparing an Environmental Impact Statement on the TCP, and complying with Section 4(f) of the Department of Transportation Act of 1966 (Section 4(f)), as well as with Section 106 of the National Historic Preservation Act (Section 106).
42 U.S.C.A. § 4321, et seq.
Section 4(f), formerly at 49 U.S.C. § 1653(f), was repealed in 1983 when it was codified without substantive change as 49 U.S.C. § 303. See also 23 U.S.C. § 138. The policies section 4(f) engendered, however, are still widely referred to as "section 4(f) matters." See e.g., 23 C.F.R. Part 771 (1991); therefore, the Court will also refer to these policies as "section 4(f)" for the purposes of simplicity.
16 U.S.C. § 470, et seq.
The Tchoupitoulas Corridor Project is a construction project that was initially undertaken by the Port of New Orleans and the City of New Orleans with financial assistance from the Louisiana Department of Transportation. originally, the participants planned to finance the project themselves without federal aid. The City and State developed the Tchoupitoulas Corridor Project in the 1980's to provide a direct link between the Port of New Orleans and U.S. Highway 90 (the Crescent City Connection), to divert large truck traffic visiting port wharves in uptown New Orleans from residential streets, and to make Tchoupitoulas Street a more attractive route for vehicular traffic between uptown New Orleans and the Central Business District. ( See Sewell Aff. at V.) As planned, the project would separate commercial traffic from local vehicular traffic by providing two roadways. One would be a private Port Road to be paid for by the Port Authority, which would handle port traffic exclusively. This road would be constructed inside the Mississippi River floodwall paralleling Tchoupitoulas Street for about five miles from about Henry Clay Avenue to the Felicity Street port entrance. The other road, Tchoupitoulas Street, would handle local vehicular traffic from Henry Clay to Felicity. The project envisioned that Tchoupitoulas Street would be reconstructed within its existing right-of-way because it was currently in a state of disrepair. Finally, the project proposed to modify traffic routes between Felicity Street and U.S. 90 and to reconstruct the roads that would re-route this traffic. (Id.) Specifically, the City planned to change the nature of Tchoupitoulas Street at Felicity Street by making it one-way in the direction toward downtown. The City also proposed to use six blocks of Religious Street — from Felicity Street almost to U.S. 90 — as a one-way truck route in the other direction. The anticipated cost of the project was $35 million, and it was expected to be completed by 1994.
By the time the City, the State and the Port had completed the construction planning and were well into the design and right-of- way acquisition phases, they realized that the project cost had escalated to about $50 million. At that point, some time in late 1992 or early 1993, the City approached the FHWA regarding the availability of federal aid funding. The City had already decided to use Religious Street before it approached the FHWA about the project and had eliminated the alternatives of using Front Street or of making Tchoupitoulas Street four lanes between Felicity Street and Highway 90. ( See Sewell Aff. at X XI; Sussmann Aff. at ¶ 7.) The FHWA determined that the Port Road was ineligible for funding because it was not a public road and that the portion between Felicity Street and U.S. 90 had progressed too far to be eligible for federal aid. ( See Sussmann Aff. at ¶ 5.) Further, the City did not seek federal aid for the portion between Felicity Street and U.S. Highway 90. ( Id.) The FHWA determined that the section of Tchoupitoulas Street between Henry Clay Avenue and Felicity Street could be eligible for federal aid because of the nature of the work. ( Id.) Accordingly, the FHWA funded the reconstruction of Tchoupitoulas Street from Henry Clay Avenue to Jackson Avenue and plans to fund the last 2,000 feet between Jackson Avenue and Felicity Street. The FHWA did so by approving a Categorical Exclusion for the portion of Tchoupitoulas between Henry Clay Avenue and Jackson Avenue on October 1, 1993 and by approving a Categorical Exclusion for the last 2,000 feet on November 15, 1999. ( Id. at ¶ 18 and EX. A.) A Categorical Exclusion is an action that does not involve significant environmental impact. See 40 C.F.R. § 1508.4; 23 C.F.R. § 771.117(a). The City informed the Court at the hearing on these motions that the total cost of the Tchoupitoulas Corridor Project is anticipated to be $88 million, with the federal government contributing $15.5 million for the reconstruction of Tchoupitoulas Street between Henry Clay Avenue and Felicity Street.
Plaintiff's complaint is not with any portion of the reconstruction of Tchoupitoulas Street funded by the federal government, but with the portion beyond Felicity Street, which will be constructed with local funds. Specifically, plaintiff complains that Religious Street will be used as a one-way truck route from Euterpe Street to Felicity Street. Plaintiff in essence argues that the federal government improperly excluded the Religious Street portion of the project from its purview and from consideration under the environmental laws and the laws governing the protection of historic places. Even though the City made its decision to use Religious Street well before October 1993, and the federal government approved the Categorical Exclusion for all but 2000 feet of its work more than seven years ago, plaintiff now seeks relief against completion of the Project.
II. DISCUSSION
A. Rule 12(b)(1) and Standing
Defendants move to dismiss this case under Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) governs challenges to a court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182. 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Furthermore, plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff's cause of action, the district court has substantial authority "to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Garcia v. Copenhaver, Bell Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997). See also Clark, 798 F.2d at 741. Accordingly, the court may consider matters outside the pleadings, such as testimony and affidavits. See Garcia, 104 F.3d at 1261. Moreover, a court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
Defendants contend that the plaintiff does not have standing to sue. The question of standing involves whether the litigant is entitled to have the court decide the merits of the dispute. Courts have recognized a limitation on the class of persons who may invoke federal subject matter jurisdiction. Individual standing in a private suit requires the person invoking the court's authority to show that he personally suffered actual or threatened injury, that the injury can be fairly traceable to the challenged action, and the court would be likely to address the injury by a favorable decision. See Save Our Community v. U.S. Envtl. Protection Agency, 971 F.2d 1155 (5th Cir. 1992). "Representational standing" is appropriate when the organization's members would have standing to sue in their own right; the interests the organization seeks to protect are germane to its purpose; and neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. See id. at 1159.
In order to sue the FHWA for its decisions under NEPA and Section 4(f), plaintiff must identify a final agency action and show that it has suffered legal wrong or is adversely affected because of the agency action. See Lujan v. National Wildlife Federation, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185 (1990). The Fifth Circuit has indicated that a private right of action exists under the NHPA. See Vieux Carre Property Owners, Residents Assoc., Inc. v. Brown, 875 F.2d 453 (5th Cir. 1989).
Plaintiff is an organization that represents residents in the vicinity of Religious Street. As residents, they would individually have standing to sue because each resident could show that he suffered personally from the threatened injury to his home from increasing truck traffic; he could trace the injury to the challenged action; and a court would likely address the injury by a favorable decision. In addition, the interests plaintiff seeks to protect are germane to the organization's purpose and the requested relief does not require individual participation. As the Fifth Circuit stated in Sabine River Authority v. U.S. Department of Interior, 951 F.2d 669, 674 (5th Cir. 1992):
The procedural injury implicit in agency failure to prepare an EIS-the creation of a risk that serious environmental impacts will be overlooked — is itself a sufficient "injury in fact" to support standing, provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project (such that they can] expect to suffer whatever environmental consequences the project may have.
Plaintiff is a group of residents who live in close proximity to the proposed construction of the TCP; thus it fulfills these standing requirements.
Defendants argue that the FHWA did not cause the alleged harm to plaintiff and therefore, plaintiff lacks standing. Defendants support this argument by claiming that plaintiff erroneously labels the TCP as a "federally funded roadway project." Defendants claim that FHWA only contributed funds to a portion of the project that does not contribute to plaintiff's alleged injury. This proposition attempts to resolve the ultimate issue in this case: whether the TCP could be segmented without violating federal law. Therefore, in evaluating standing, the Court considers whether the plaintiff is the proper party to request adjudication of this issue, and whether it has alleged a stake in the outcome of this controversy so that it is entitled to obtain a judicial resolution of this dispute. The Court finds that plaintiff satisfies both inquiries. Accordingly, the Court finds that plaintiff has proper standing to sue in this case and denies defendants' motion to dismiss under Rule 12(b)(1).
B. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996). In addition, an affidavit will not defeat summary judgment if it contains no more than a scintilla of evidence insufficient to create a genuine issue of fact. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
C. Review of Agency Action
The Administrative Procedures Act (APA), 5 U.S.C. § 704, governs judicial review of a challenged agency action. The APA applies to review of decisions under both NEPA and Section 4(f). See Acorn v. United States Army Corps of Engineers, 2000 WL 433332 (E.D. La. April 20, 2000). In addition, the APA standard of review applies to challenges to federal agency action brought under the NHPA. See, e.g., Yerger v. Robertson, 981 F.2d 460, 463-464 (9th Cir. 1992).
When, as in this case, an agency concludes that the preparation of an EIS is not required, an aggrieved party may challenge the decision in federal court under the APA. 5 U.S.C. § 706(2)(A). The Court reviews the agency's decision under the highly deferential "arbitrary and capricious standard." See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851 (1989); Sabine River Authority, 951 F.2d at 677 (adopting the arbitrary and capricious standard). Under this standard, a reviewing court has "the least latitude in finding grounds for reversal." See Sabine River Authority, 951 F.2d at 678 (quoting North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990). The Court may not substitute its judgment for the agency's, and it must carefully review the record to ensure that the agency made a reasoned decision based on the application of relevant principles. See Id.
D. NEPA
Under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321-4370(d), federally-aided highway projects are defined in three classifications (a) Class I actions, which require that agencies prepare an Environmental Impact Statement (EIS) for all "major federal actions significantly affecting the quality of the human environment;" (b) Class II actions, which do not significantly affect the environment individually or cumulatively and qualify as Categorical Exclusions; and (c) Class III actions, in which the significance of the environmental impact is not clearly established. See 23 C.F.R. § 771.115(a). An EIS is a detailed disclosure document aimed at aiding officials in understanding the environmental consequences of their decisions.
Plaintiff contends that the FEWA should have considered the TCP as a whole rather than only the Henry Clay-to-Felicity portion of Tchoupitoulas Street when it considered the environmental impact of the project and its compliance with federal law. Plaintiff claims that defendants impermissibly segmented the TCP to avoid complying with federal regulations. Defendants argue that summary judgment is proper because the project was not a "major federal action," that it was appropriately deemed a Categorical Exclusion, and that it was not improperly segmented in any event.
1. Major Federal Action
Defendants argue that the TCP was not a "major federal action," so that segmentation analysis is inapplicable. NEPA requires that federal agencies consider the environmental consequences of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The requirements of NEPA, which include among other things the submission of an EIS, apply only when the federal government's involvement in a project is sufficient to constitute "major federal action." See Save Barton Creek Assoc. v. FHWA, 950 F.2d 1129, 1133 n. 6 (explaining the statutory and regulatory criteria for federal highway funding). Thus, the Court must determine whether sufficient federal involvement exists in the TCP to constitute "major federal action" affecting the environment under NEPA.
In Barton Creek, the Fifth Circuit recognized that "[t]he purpose of NEPA is to require that federal decision-makers consider the environmental consequences of their actions before deciding to proceed." Id. at 1134 (quoting Swain v. Brinegar, 542 F.2d 364, 369 (7th Cir. 1976) (en banc)). The Fifth Circuit found no litmus test to determine what constitutes "major Federal action" and recognized that "[f]ederal courts have not agreed on the amount of federal involvement necessary to trigger the applicability of NEPA." Barton Creek, 950 F.2d at 1134 (citing Village of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1480 (10th Cir. 1990)).
The Council on Environmental Quality (CEQ) has issued regulations defining "major federal action," which are entitled to substantial deference. See Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341 (1979). They provide that "major federal action" encompasses not only actions by the federal government, but also actions by nonfederal actors "with effects that may be major and which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18 (1991). In Barton Creek, the Fifth Circuit acknowledged that major federal action can exist when the primary actors are not federal agencies, but stressed that "the distinguishing feature" of federal involvement is "the ability to influence or control the outcome in material respects." See Barton Creek, 950 F.2d at 1134. The Court emphasized that the federal decisionmaker must have discretion to exercise before the matter in issue will be a major federal action: "The EIS process is supposed to inform the decision-maker. This presupposes [that the decision-maker] has judgment to exercise." Id.
In Barton Creek, plaintiffs challenged two. segments of what was to be an 82-mile Outer Loop around Austin, Texas. The entire Outer Loop was to be built in five segments. Plaintiffs claimed that the defendants had improperly segmented the two projects at issue and constructed them with state funds in order to exempt them from NEPA. Like the plaintiff here, plaintiffs in Barton Creek asserted that the entire Austin Outer Loop, including the two challenged segments, was a major federal action requiring an Environmental Impact Statement on the whole project. Plaintiffs claimed that the state had carved out the environmentally sensitive segment to avoid NEPA consequences. Plaintiffs claimed that NEPA applied because one of the segments was tied into a federally-built freeway and because the FHWA had been involved in planning the construction of the Austin Outer Loop, which was likely to receive federal funds. Plaintiffs asserted that the FHWA had allowed the illegal segmentation of the Outer Loop to occur. The lower court found that the Austin Outer Loop was a "major federal action" and that the two challenged sections had been illegally segmented.
On appeal, the Fifth Circuit examined whether there was sufficient federal involvement in the Austin Outer Loop to constitute major federal action. The Court held that the Austin Outer Loop, including the two challenged segments, was not a major federal action, even though other portions of the Outer Loop may have been headed for federal funding. No federal funds had yet been requested for other parts of the Loop, and the two contested segments had progressed through right-of-way acquisition to construction with no federal approvals or funding. Significantly, the Court found that the two challenged portions could never be reimbursed with federal funds because the state did not obtain prior authorization of the Federal Highway Works Administration. The Court concluded that the state simply built the two roads for its own use. This was true even though the FHWA. had suggested how to segment the Austin Outer Loop and had participated in early coordination activities with the state authorities, which included giving advice that if federal funds were sought for one of the challenged segments, an Environmental Impact Statement would be required.
In reaching its decision, the Court stressed that the state had planned the location and design of the two projects in issue without federal overview and approval and that the federal government had not expended any money for planning, design or right-of-way acquisition or construction of either portion.
Here, the parties dispute whether the entire TCP, including the nonfederally funded portions, constitutes "major federal action" requiring compliance with NEPA. The Court holds that it does not. The Court in Barton Creek found that the distinguishing feature of a major federal action was federal ability to control the outcome in major respects. When the City and State approached the FHWA for funding, the TCP project was well underway. ( See Sussmann Aff. at ¶ 5.) The City and State had studied the project, announced public decision alternatives, and commenced design work. ( See Sewell Aff. at V. X, XI.) They had also begun right-of-way acquisition. ( See Sussmann Aff. at ¶¶ 5, 7.) A significant part of the project was the private Port Road, which was ineligible for federal funding. ( Id. at ¶ 5.) Further, the challenged decision to use Religious Street was a done deal. ( See id. at ¶ 7; Sewell Aff. at X XI.) The City had chosen this alternative and had eliminated other alternatives because of planned development. Indeed, the City never requested federal funding for the portion of the TCP between U.S. 90 and Felicity Street. ( See Sewell Aff. at VI.) The City had also already decided to reconstruct Tchoupitoulas Street within its existing right-of-way between Henry Clay Avenue and Felicity Street. Federal ability to control the project and to decide among alternatives was therefore lacking. ( See Sussmann Aff. at ¶¶ 5 12.) The federal government determined that because of the nature of the work, the resurfacing of Tchoupitoulas Street within its existing right-of-way from Henry Clay Avenue to Felicity Street could be classified as a Categorical Exclusion from NEPA. ( Id. at ¶¶ 6 18-20; see discussion infra.) The federal government will reimburse a total $15 million out of an expected $88 million to be expended on the entire TCP. While the amount of federal money is not insignificant, the Fifth Circuit's focus on the ability to influence or control the outcome in material respects in determining whether a major federal action exists convinces this Court that the TCP is not a "major federal action." See Barton Creek, 950 F.2d at 1134. The federal government could not exercise discretion and control over the design, location or choice of alternatives for the nonfederally funded portions. Further, both the private road and the section from U.S. 90 to Felicity Street would always be ineligible for federal funds. The federal government's reimbursement of the cost of reconstructing Tchoupitoulas Street did not convert the entire TCP into major federal action.
2. Categorical Exclusions
Under NEPA, if a project qualifies as a Categorical Exclusion, the agency need not perform an EIS. A Categorical Exclusion is a category of actions that, based on past experience, does not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. § 1508.4; 23 C.F.R. § 771.117. They are actions that "do not induce significant impacts to planned growth or land use for the area; do not require the relocation of a significant number of people; do not have a significant impact on any natural, cultural, recreational, historic, or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impact on travel patterns; or do not otherwise either individually or cumulatively, have any significant environmental impacts." 23 C.F.R. § 771.117(a). The FHWA regulations include as a possible Categorical Exclusion "[m]odernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or additional auxiliary lanes . . . ." 23 C.F.R. § 771.117(d)(1). However, for action of this type to be deemed a Categorical Exclusion, the FHWA must approve the classification after receiving appropriate documentation that the criteria for a Categorical Exclusion have been met. Id. § 771.117(d).
Here, the FHWA agreed to fund the reconstruction of Tchoupitoulas Street in two Categorical Exclusions issued under 23 C.F.R. § 771.117(d)(1) for the modernization of an existing roadway through resurfacing or reconstruction. In determining the scope of the project for the purposes of preparing an environmental evaluation, the FHWA was required to frame the project so that (1) it connected logical termini and was of sufficient length to address environmental matters on a broad scope; (2) it had independent utility or independent significance, and (3) it did not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. 23 C.F.R. § 771.111(f). The record reveals that the FHWA followed these regulations in approving the reconstruction project as a Categorical Exclusion. As to the scope of the project, the FHWA determined that the reconstruction of the existing street within its right-of-way represented a project with independent utility or need. ( See Sussmann Aff. ¶ 19.) The FHWA determined that Tchoupitoulas Street from Henry Clay Avenue to Felicity Street was badly deteriorated and did not meet current road design standards. ( See id.) The FHWA recognized that Tchoupitoulas Street needed reconstruction, regardless of whether any other improvements were made in the City, and that it was therefore a reasonable expenditure. ( See id.) The FHWA also found that the project had logical termini, that is, rational end points. ( See Id.) The federally funded project logically begins near one end of Tchoupitoulas Street and ends at the Felicity Street entrance to the private Port Road. The City had already decided to change the use of Tchoupitoulas Street beyond Felicity Street to make it a one-way connection to U.S. 90 for both truck and vehicular traffic. ( See Id.) Further, the scope of the project did not restrict alternatives elsewhere. ( Id.) Once the scope of the project was determined, the FHWA conducted an environmental study, which found no environmental impacts under NEPA and no taking of historic property under Section 4(f). ( Id. Ex. A.) The Court finds that the FHWA's actions in approving the project as Categorical Exclusions to NEPA were not arbitrary and capricious.
3. Segmentation
Segmentation analysis usually involves determining whether the federal government has improperly piecemealed a major federal action to avoid the application of NEPA. Barton Creek, 950 F.2d at 1139. In Barton Creek, the Fifth, Circuit stated that there is "strong authority" that segmentation does not become an issue unless a "major federal action" is established. Id. Defendants argue that segmentation analysis is inapplicable here because there is no major federal action to segment. Because the Court recognizes, as the Barton Creek court did, that a state could improperly segment out critical portions of a proposed project before it developed into a major federal action, the Court will visit the segmentation issue.
Segmentation analysis functions "to weed out projects which are pretextually segmented and for which there is no independent reason to exist." Id. The propriety of segmehtation is determined by evaluating whether the proposed segment (1) has logical termini, (2) has substantial independent utility, (3) does not foreclose the opportunity to consider alternatives, and (4) does not irretrievably commit federal funds for closely related projects. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 439 (5th Cir. 1981). When, as here, the roadway in issue lies within a metropolitan area, rather than between two cities, the pivotal factor is whether the projects have independent utility. Id. at 440; Barton Creek, at 1140.
In both Piedmont Heights and Barton Creek, the segments at issue had independent utility. In Barton Creek, the Fifth Circuit found that the challenged segments served a highly useful urban traffic purpose even if the other segments of the Outer Loop were never constructed. Similarly, in Piedmont Heights, the Court found that each highway segment at issue could serve its transportation purpose by relieving congestion at specific points whether or not the other projects were built. The same is true here. Tchoupitoulas Street is a major thoroughfare between uptown and downtown New Orleans, and the FHWA found that Tchoupitoulas Street above Felicity Street required resurfacing, regardless of whether the Port Road was built or the City rerouted traffic below Felicity. As the Court has already determined, the FHWA properly found that this project had logical termini, because it began near the beginning of Tchoupitoulas Street and ended at the Felicity Street port entrance, at which point traffic patterns were to change.
Further, the other portions of the TCP have independent utility. The Port Road serves a separate purpose of handling truck traffic to the wharves along the Mississippi River. The section of the TCP between Highway 90 and Felicity Street will provide direct access to and from the Port and Highway 90 and will relieve congestion into and out of downtown by providing four lanes to handle traffic between Highway 90 and the port entrance at Felicity Street. Although undeniably a part of an overall transportation plan, these sections will independently contribute to alleviating traffic problems in New Orleans and are therefore not illegally segmented. See Piedmont Heights, 639 F.2d 430 at 441 (even though interrelated parts of an overall plan, no improper segmentation when projects individually contribute to alleviating traffic problems). Compare Named Individual Members of the San Antonio Conservation Society, et al. v. Texas Highway Dept. ("San Antonio I"), 446 F.2d 1013 (5th Cir. 1971) (improper segmentation when federal government was to fund two end segments with no logical termini or independent utility and the state would fund the middle segment through a park). Therefore, the Court finds that the FHWA's decision to fund the reconstruction of Tchoupitoulas Street from Jackson Avenue to Felicity Street was not arbitrary and capricious. Plaintiff's NEPA claims are therefore dismissed.
E. Section 4(f)
Section 4(f) of the Department of Transportation Act of 1966 bars federal approval of a transportation project that will use a public park, recreational area, or historic site unless there is no prudent and feasible alternative to use such land, and the agency takes all measures to minimize the harm. Section 4(f) applies to historical sites that are currently on, or eligible for, the National Register of Historic Places. Plaintiff contends that the TCP will affect many historic homes and properties on and eligible for the National Register. Plaintiff specifically challenges only that segment of the TCP that runs from Highway 90 to Felicity Street. The FHWA reasonably determined that the reconstruction of Tchoupitoulas Street from Henry Clay Avenue to Felicity Street did not involve takings of any historic property under Section 4(f). ( See Sussmann Aff. at ¶ 20.) The Court has already found that the federal government did not illegally restrict the scope of its project to exclude the portion challenged by plaintiffs. Accordingly, the Court finds that the federally funded project will not affect any property on the National Register and that the agency's action in so finding was not arbitrary and capricious. The locally funded portion is not covered by the Act. Plaintiff's Section 4(f) claims are therefore dismissed.
F. Section 106
Section 106 of the National Historic Preservation Act requires federal agencies to perform an analysis of any federal action, taking into account the effect it has on any district, site, building, or object that is included in the National Register. The head of such federal agency must then allow the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on the undertaking. Plaintiff alleges that the ACHP expressed concern that the FHWA did not afford the ACHP an opportunity to comment on the TCP. Again, plaintiff challenges only that segment of the TCP that runs from Highway 90 to Felicity Street. As the Court has found that the challenged segment is not part of a federal project, and as the Court finds that no part of the federally funded project contained any historic sites, there is no violation of Section 106. Accordingly, plaintiff's Section 106 claims are dismissed.
G. Article 667
Plaintiff also asserts a cause of action pursuant to Article 667 of the Louisiana Civil Code. Plaintiff appears to assert this claim against all defendants, yet it specifically alleges that "the state and its political subdivisions and agencies are within the purview of Article 667." Article 667 provides:
Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
See Complaint ¶ 9.7.
The FHWA claims that plaintiff cannot sue the federal defendants under Article 667 because the federal government has not waived sovereign immunity. The Court agrees. First, although the Federal Tort Claims Act (FTCA) allows persons to sue the United States for injury, only actions for money damages fall within its scope. See Hatahley v. U.S., 351 U.S. 173, 76 S.Ct. 745 (1956). In this case, plaintiff does not seek monetary relief. Second, plaintiff notes that Article 667 does not require a showing of fault. The FTCA only waives sovereign immunity for negligent or wrongful conduct, not strict liability; therefore, the FTCA cannot apply to Article 667. See 28 U.S.C. § 1346(b), Dahlehite v. U.S., 346 U.S. 15, 45, 73 S.Ct. 956, 972-73 (1953), reh'g denied, 346 U.S. 841, 74 S.Ct. 13 (1953).
In any event, the FHWA's actions are also covered by the discretionary function exception to the FTCA. See 28 U.S.C. § 2680. The discretionary function exception provides:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680(a). The exception thus eliminates any waiver of immunity from suit for acts that "involv[e] an element of judgment or choice[,]" which is grounded in economic, political or social policy. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273 (1991), quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958 (1988). An inquiry into what falls under the discretionary function exception must focus on the nature of the act, rather than the status of the actor. See United States v. Varig Airlines, 467 U.S. 797, 813, 104 S. Ct. 2755, 2764 (1984). The requirement of judgment or choice is not satisfied, however, if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because the employee has no choice but to follow the course of action. Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59. The Court must therefore employ a two-step inquiry to determine whether conduct falls within the discretionary function exception. The Court determines (1) whether the challenged conduct involves an element of judgment or choice; and, (2) whether the judgment at issue is the kind the discretionary function exception was designed to shield, that is, whether it is grounded in social, economic or political public policy. See id.; Varig, 467 U.S. at 813, 104 S.Ct. at 2764; ALX El Dorado, Inc. v. Southwest Savings Loan Ass'n, 36 F.3d 409, 411 (5th Cir. 1994) (laying out judgment and policy prongs of discretionary function inquiry). When a governmental policy such as a statute, guideline, or regulation allows an agent to exercise discretion, courts may presume that the agent's acts are grounded in policy in the exercise of that discretion. See Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274. Congress created the discretionary function exception to protect those judgments based on public policy, because its purpose is to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig, 467 U.S. at 814, 104 S.Ct. at 2765; see Berkovitz, 486 U.S. at 537, 108 S. Ct. at 1959.
Plaintiff sues defendants under Article 667 for causing a nuisance. The actions of the FHWA constituted choices that were discretionary in nature. The applicable statutes and regulations provide guidelines for making environmental decisions. The FHWA exercised its discretion when it determined how to comply with these guidelines; therefore, it is not subject to suit under the FTCA because its actions fall within the discretionary function exception of the FTCA. Accordingly, the Court dismisses the Article 667 claims against the FHWA. The Court also dismisses the Article 667 claims against the State and City defendants under 28 U.S.C. § 1367(c)(3). See 28 U.S.C. § 1367(c)(3) (court may dismiss supplemental claims once court dismisses all claims over which it has original jurisdiction); Noble v. White, 996 F.2d 797 (5th Cir. 1993).
In any event, the Court does not see how the federal government could be a "proprietor" of an "estate" under Article 667 when it does not own Religious Street and will not finance any operations on it.
III. Conclusion
For the foregoing reasons, the Court grants summary judgment dismissing plaintiff's NEPA, Section 4(f), and Section 106 claims against all defendants. The Court also grants the federal defendants' motion for summary judgment against plaintiff's claim under Louisiana Civil Code Article 667. Plaintiff's Article 667 claims against the City and State defendants are dismissed without prejudice for lack of subject matter jurisdiction.