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March 30, 2004.

CITIZENS ADVOCATE TEAM, and HOWARD and NEVINA ZARBOCK Plaintiff's; NORMAN MINETA, Secretary, United States Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; MARY PETERS, Director, Federal Highway Administration; NORMAN STONER, Division Administrator, Federal Highway Administration; ILLINOIS DEPARTMENT OF TRANSPORTATION; KIRK BROWN, Secretary, Illinois Department of Transportation; KANE COUNTY DIVISION OF TRANSPORTATION; JEFFREY DAILEY, Director, Kane County Division of Transportation; KANE COUNTY BOARD, Defendants

The opinion of the court was delivered by: CHARLES NORGLE, District Judge


The Parties have filed Cross-Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Plaintiff's' motion is denied; Defendants' motions are granted. Page 2


  On August 21, 2002, Plaintiff's, Citizens Advocate Team ("CAT"), Howard Zarbock and Nevina Zarbock (collectively "Plaintiff's"), filed a Complaint under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, against various governmental Defendants in connection with the proposed construction of three new bridges across the Fox River in Kane County, Illinois. In essence, Plaintiff's allege that the Final Environmental Impact Statement prepared by Defendants, with respect to this project, fails to meet the requirements of both the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-47, and Section 4(f) of the Federal Transportation Act, 49 U.S.C. § 303(c). Plaintiff's Complaint seeks, inter alia: (1) a declaratory judgment that the Federal Highway Administration's approval of the project was unlawful and (2) an injunction prohibiting Defendants from taking any further action toward the construction of the project until they have complied with all of the requirements of NEPA and Section 4(f) of the Transportation Act.

  There are numerous parties to this litigation. Plaintiff CAT is a regional conservation organization which seeks to protect the public trust and is organized as a non-profit corporation under the laws of the State of Illinois. Plaintiff's Howard and Nevina Zarbock are members of CAT and residents of Kane County, Illinois. The Zarbocks allege that they own property located adjacent to one of the proposed construction sites. The named Defendants are the United States Department of Transportation ("USDOT"); Norman Mineta, in his official capacity as Secretary of USDOT; the Federal Highway Administration ("FHWA"); Mary Peters, in her official capacity as the Director of FHWA; Norman Stoner, in his official capacity as Division Administrator of FHWA; the Illinois Department of Transportation ("IDOT"); Kirk Brown, in his official capacity as Secretary of IDOT; the Kane County Division of Transportation Page 3 ("KDOT"); Jeffrey Dailey, in his official capacity as Director of KDOT; and the Kane County Board (collectively "Defendants").


  In 1989, to relieve traffic congestion on existing bridges, KDOT initiated procedures to develop and construct alternative bridge crossings over the Fox River. In February 1990, the Fox River Bridge Advisory Committee ("Advisory Committee") was formed consisting of representatives from townships, municipalities and counties located near the Fox River. The Advisory Committee was charged with reducing the myriad of bridge proposals made within the prior ten year period, thereby allowing for a reasonable number of site and engineer feasibility studies to be conducted. In April 1991, the Chicago Area Transportation Study published two studies: (1) the 1990 Kane County Transportation Study ("Transportation Study) and (2) the 1990 Fox River Bridge Traffic Study ("Traffic Study"). After evaluating the Traffic Study, the Advisory Committee selected four sites for further investigation. The Advisory Committee then directed KDOT to conduct a site engineering feasibility study for each of the four sites. KDOT hired Alfred Benesch & Company to conduct these studies. In 1993, Alfred Beneshch & Company published the Feasibility Studies of Four New Bridges Crossing the Fox River ("Feasibility Studies").

  After reviewing the Transportation Study, the Traffic Study and the Feasibility Studies, the FHWA determined that under NEPA, the development of one Environmental Impact Statement ("EIS") was necessary for evaluating environmental impacts arising out of the proposed Fox River Bridge crossings. FHWA's determination that the projects were related was Page 4 based on several factors, including that the common goal was to provide for projected significant increases in east-west traffic volumes across the Fox River. These increases were due to residential expansion into western Kane County and economic growth in eastern DuPage County. Upon making this determination, FHWA directed KDOT to evaluate twelve roadway-bridge corridors as part of the EIS for the bridge project. KDOT eventually reduced their evaluation from twelve corridors to five.

  On November 1, 2001, Defendants issued the Final Environmental Impact Statement and Section 4(f) Evaluation ("Final EIS"). The Final EIS divided the analysis of the five proposed corridors into three regions-North, Central and South. Of the five proposed corridors, the Final EIS recommended the construction of three. At issue in this case is the corridor recommended for construction in the North Region, defined as bounded by McHenry County on the North and Interstate 90 on the south. This project is commonly referred to as the Bolz Road corridor (hereinafter "The Bolz Bridge Project").*fn2

  On May 13, 2002, the Division Administrator of the FHWA issued its Record of Decision ("ROD") approving the Final EIS. The ROD states that the "build alternatives" for the three bridge crossings recommended in the EIS: (1) best satisfied the purpose and need developed for the study; (2) posed the least impact to the natural and human environment; (3) had been selected based on processes in compliance with NEPA and other applicable requirements; and (4) remained eligible for Federal Highway funding. As a result, FHWA determined that Kane County, as project sponsor, could advance each crossing through the project development process. Page 5

  On August 21, 2002, Plaintiff's filed this lawsuit challenging the FHWA's decision to issue the ROD and the sufficiency of the Final EIS. All parties have filed cross-motions for summary judgment, which are now before the court.


 A. Summary Judgment

  Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The non-moving patty cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High Sch. Dist. No. 230. 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services. Inc., 176 F.3d 934, 936 (7th Cir. 1999). In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers. Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the party opposing the motion. Fed.R.Civ.P. 56(c); see also Perdomo v. Browner. 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold. Inc., 369 U.S. 654, 655 (1962); see also First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986).

  In this case, there are no genuine issues of material fact presented. The FHWA's decision to issue the ROD was based on a voluminous administrative record which contains the Page 6 EIS and the Section 4(f) evaluation of impacts arising out of the construction of the proposed bridge projects. The parties do not dispute the nature of the documents in the administrative record. The parties only dispute whether the FHWA's decision to issue the ROD complies with the standards set forth under the APA. Therefore, the standard of review is that provided by the APA.

 B. Standard of Review under the Administrative Procedures Act

  Review of an agency action under NEPA and the Federal Transportation Act is governed by the APA. Highway J Citizens Group v. Mineta, 349 F.3d 938, 952 (7th Cir. 2003). Under the APA, the court will set aside the agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). Although the overall standard is narrow in scope, it still requires the court to conduct a "searching and careful" inquiry. Highway J Citizens Group, 349 F.3d at 952 (citations omitted). To determine whether the agency action falls within this standard, the court "must consider `whether the decision was based on consideration of the relevant factors and whether there has been clear error of judgment.'" Indiana Forest Alliance. Inc. v. United States Forest Service, 325 F.3d 851, 858-59 (7th Cir. 2003) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). "If an agency considers the proper factors and makes a factual determination on whether the environmental impacts are significant or not, that decision implicates substantial agency expertise and is entitled to deference." Indiana Forest Alliance, 325 F.3d at 859. This deferential standard requires that the court not substitute its judgment for that of the agency. Id.: Heartwood. Inc. v. United States Forest Service, 230 F.3d 947, 953 (7th Cir. 2000), As long as the "federal agency has heard all of the objections to a plan and considered all of the sensible options before it, the agency has fulfilled its duty." Simmons v. U.S. Army Corps. Of Engineers, Page 7 120 F.3d 664, 667 (7th Cir. 1997). In other words, in applying the arbitrary and capricious standard under the APA, the court's only obligation is to ensure that the agency has taken a "`hard look' at the environmental consequences." Highway Citizens Group, 349 F.3d at 953 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).

  In this case, Plaintiff's' argue that the FHWA's decision to issue the ROD was arbitrary and capricious because it was based on an inadequate Final EIS. Plaintiff's contend that the Final EJS is insufficient for several reasons. Specifically, Plaintiff's argue that the Final EIS: (1) fails to address the consequences of growth-inducing and traffic-inducing impacts associated with the Bolz Bridge Project; (2) fails to measure the impact of the proposed bridges upon projected ozone and carbon monoxide levels; (3) does not support the dismissal of the socioeconomic effect of the Bolz Bridge project on the neighboring lower-income areas; (4) does not consider a sufficient range of alternatives to the Bolz Bridge Project; and (5) does not justify the use of property ...

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