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November 16, 2005.

ST. JOHN'S UNITED CHURCH OF CHRIST, an Illinois not-for-profit corporation; HELEN RUNGE; SHIRLEY STEELE; REST HAVEN CEMETERY ASSOCIATION, an Illinois not-for-profit corporation; ROBERT PLACEK; LEROY H. HEINRICH; VILLAGE OF BENSENVILLE, ILLINOIS, an Illinois municipal corporation; ROXANNE MITCHELL; and the VILLAGE OF ELK GROVE, ILLINOIS, an Illinois municipal corporation, Plaintiffs,
THE CITY OF CHICAGO, an Illinois municipal corporation; RICHARD M. DALEY, Mayor of the City of Chicago; FEDERAL AVIATION ADMINISTRATION; MARION C. BLAKEY, Administrator of the Federal Aviation Administration; the STATE OF ILLINOIS; and ROD R. BLAGOJEVICH, Governor of the State of Illinois. Defendant.

The opinion of the court was delivered by: DAVID COAR, District Judge


Before this Court is a host of motions filed by Plaintiffs and Defendants in this case, as well as their responses to this Court's rule to show cause.

Plaintiffs' motion to file a proposed second Amended Complaint is DENIED with respect to Counts I through X but GRANTED with respect to Count XI. Given that no unique counts remain in the first Amended Complaint that overcome the problems raised by this Court in its show cause order and in this opinion, Plaintiffs' first Amended Complaint is DISMISSED. The TRO is VACATED. Based on the actions in this opinion, Plaintiff's motion for a preliminary injunction is DENIED as MOOT.

  Factual and Procedural Background*fn1

  This case is one skirmish in a series of battles between those who support the expansion of O'Hare International Airport and those who do not. At the inception of this litigation, plaintiffs included the villages of Elk Grove and Bensenville ("the Municipal Plaintiffs"); St. John's United Church of Christ and two parishioners named Shirley Steele and Helen Runge ("the St. John's Plaintiffs"); and Rest Haven Cemetery Association and two members of its board of directors Leroy Heinrich and Robert Placed ("the Rest Haven Plaintiffs"). These plaintiffs sued the City of Chicago ("City" or "Chicago") and Mayor Richard M. Daley; the State of Illinois and Governor Rod R. Blagojevich; and the Federal Aviation Administration and Administrator Marion Blakey (collectively referred to as "FAA") based on allegations arising from the Defendant's involvement in plans to expand O'Hare. Plaintiffs alleged that the City planned to build runways on land currently located in Bensenville and Elk Grove, including land currently used by St. Johannes Cemetery, the cemetery affiliated with St. John's, and land used by Rest Haven Cemetery.

  This is not, of course, the first time that critics have opposed expansion of O'Hare. Nor is this the first time that Bensenville and Elk Grove Village have filed suit to ward off expansion. In 1974, for example, the two municipalities were part of a group called the Suburban O'Hare Commission ("Suburban") that intervened in litigation alleging that the FAA had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq. by adopting a policy of unlimited growth at O'Hare. See Suburban O'Hare Comm'n et al. v. Dole, 787 F.2d 186, 188-89 (7th Cir. 1986) (citing State of Illinois ex rel. Scott v. Butterfield, No. 74-2440 (N.D. Ill. 1974). The litigation ended on October 15, 1982, when the FAA, the City, and Suburban entered into a consent decree that governed the future growth of O'Hare. Id.

  Roughly two years later, Suburban filed a separate suit against the FAA and the City in district court, alleging that the approval of a proposed airport layout plan (or "ALP") violated the consent decree; NEPA; the Airway and Airport Improvement Act ("AAIA"), and the Clean Air Act, 42 U.S.C. §§ 7401 et seq. Id. at 192. Prior to the district court's dismissal of the suit, Suburban filed a petition for review in the Seventh Circuit. Suburban argued at the time that the FAA's order approving the ALP could only be reviewed in district court. The Seventh Circuit disagreed, finding exclusive jurisdiction in the courts of appeals. See id. at 195.

  The current litigation stems from Chicago's most recent efforts to expand O'Hare; efforts that compose what Mayor Daley termed the "O'Hare Modernization Project" ("OMP"). The OMP, made public in July 2001, includes plans for building new runways. In a attempt to garner support for the OMP, Chicago claimed that by building new runways, it could more than double O'Hare's capacity for boarding passengers and reduce flight delays by 79% overall. These and other claims regarding the OMP were based on material affirmative misstatements and knowing omissions or concealment of facts. When he announced his plans for O'Hare expansion, the Mayor noted that it would be necessary for the City to acquire land in Elk Grove Village and Bensenville — including St. Johannes Cemetery land and Rest Haven Cemetery land — so that the new runways could be constructed. In June 2002, Chicago announced that it would begin efforts to acquire several parcels of land in Elk Grove and Bensenville, including homes, businesses, park land, and St. Johannes and Resthaven. In response, the municipalities filed suit in state court. They requested an injunction barring Chicago from proceeding with the acquisition before obtaining a "certificate of approval" from the Illinois Department of Transportation ("IDOT") pursuant to 620 ILCS 5/47. In support of their request, they argued that any ultimate decision to protect parcels of land from acquisition would be meaningless if acquisition and demolition had already occurred. On July 9, 2002, an Illinois Circuit Court enjoined Chicago from taking any steps to acquire any property in the two municipalities unless it first obtained a certificate of approval from IDOT. The decision was affirmed by the Illinois Appellate Court in Philip v. Daley, 790 N.E.2d 961 (Ill.App.Ct. 2003).

  According to Plaintiffs, Chicago "clearly did not like" the state laws that enabled Plaintiffs to receive an injunction. It requested that the Illinois General Assembly pass the O'Hare Modernization Act (the "OMA"), which amended the Illinois Religious Freedom Restoration Act to state that "[n]othing in this act limits the authority of the City of Chicago to exercise its powers under the O'Hare Modernization Act for the purposes of relocation of cemeteries or the graves located therein." The legislature complied with the request and passed the OMA in May 2003.*fn2 The City of Chicago also requested FAA approval of its proposed "airport layout plan" ("ALP"), pursuant to 49 U.S.C. § 47107(a)(16).*fn3

  In response to the enactment of the OMA, the Municipal Plaintiffs, the St. John's Plaintiffs, and the Rest Haven Plaintiffs filed suit in this Court on May 30, 2003. They originally filed suit against the City and Mayor Daley, the state and Governor Rod Blagojevich, and the FAA and administrator Marion Blakey. Plaintiffs then filed an amended 21-count amended complaint on June 19, 2003. Many of their claims hinged on the fact that Chicago was proposing to acquire the land before the FAA had issued an Environmental Impact Statement or a Record of Decision.

  In the amended complaint, all the named plaintiffs alleged that Chicago and Mayor Daley had violated NEPA and its implementing regulations; the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. and its implementing regulations; and § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). They also claimed that by allowing violations of those statutes, the FAA and Blakey had violated the Administrative Procedures Act, 5 U.S.C. § 706.

  In addition to those claims, the St. John's and Rest Haven Plaintiffs filed several claims based on religion. Against the City and Mayor Daley, they alleged violations of the Free Exercise Clause of the First Amendment of the United States Constitution (both for targeting Plaintiffs and for placing a substantial burden on Plaintiffs' religious beliefs and practices — see Counts IV and XII); violations of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution (both for discriminating against Plaintiffs and for hiding data that had been shared with other parties — see Counts XVIII and XXI); violations of the Fifth Amendment Takings Clause of the United States Constitution (see Count XX); and violations of the Due Process Clause (see Count XXI). These plaintiffs also alleged that Chicago and Mayor Daley violated RLUIPA (see Count VIII).

  As for the FAA and Blakey, the St. John's and Rest Haven Plaintiffs alleged that the federal defendants violated the Free Exercise Clause (see count XVI); the Due Process Clause and the Equal Protection Clause (see Count XXI); and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. (Count XVI).

  The St. John's and Rest Haven Plaintiffs also alleged that the State of Illinois and Governor Blagojevich violated the Free Exercise Clause (see Counts VI and XII); the Equal Protection Clause (see Count XIX); and RLUIPA, 42 U.S.C. § 2000cc et seq. (see Count X).

  On July 10, 2003, the parties entered into an agreed order stating that "The City of Chicago agrees that City voluntarily agrees that it will not acquire property in the Village of Bensenville and Elk Grove Village for the OMP, or acquire Rest Haven or St. Johannes Cemeteries, unless and until the FAA has issued a Record of Decision following completion of an EIS [environmental impact statement] for the OMP."

  Sometime after December 2003, Chicago sought FAA approval and authorization for over $1.3 billion in federal funding for the portion of the OMP termed "Phase One," including approximately $300 million in "airport improvement program" ("AIP") discretionary funds, $63 million in entitlement funds, and an excess of $1 billion in Passenger Facility Charge ("PFC") funds.

  In January 2005, the FAA announced that it would prepare a single environmental impact statement — a document required by NEPA — to accompany both the request for ALP approval and the request for funding. The EIS serves as a basis for the FAA's eventual "Record of Decision" ("ROD") on a specific topic.

  In late July 2005, the FAA issued its final EIS. In that document, the FAA compared the environmental impact of Chicago's proposal with other alternatives. The FAA concluded that the alternative proposed by Chicago — with some refinement — was the preferred alternative. The EIS included a comprehensive review of the legal issues raised by the St. John's Plaintiffs and Rest Haven Plaintiffs. The FAA noted that if the preferred alternative and refinements were approved in the ROD and the City decided to implement the revised proposal with the aid of federal funding, St. Johannes would be relocated while Rest Haven would not.

  On September 30, 2005, the FAA issued a ROD granting Chicago's request for ALP approval. In the ROD, the FAA went through an extensive analysis of the claims related to religion filed by the St. John's Plaintiffs and the Rest Haven Plaintiffs. The agency noted that it had hoped at the beginning its review of the ALP that the "difficult and sensitive issues involving potential cemetery relocation could be resolved in a collaborative and consensual manner," but after "extensive correspondence, a succession of meetings, and pending litigation, the FAA clearly understands that there remains strong opposition by the religious objectors to relocation of graves from St. Johannes Cemetery and preservation of Rest Haven Cemetery as proposed in the Final EIS." ROD at 91. The FAA reviewed the RFRA claims and concluded that while the acquisition and relocation of St. Johannes Cemetery was likely to substantially burden the exercise of religion, there was a compelling government interest in taking immediate federal action to addresses the aviation needs of the Chicago region by reducing delays at O'Hare.*fn4

  That same day, the Municipal Plaintiffs and the St. John's Plaintiffs filed suit in the District of Columbia Court of Appeals, pursuant to 49 U.S.C. § 46110. As part of that litigation, Plaintiffs filed a Petition for Review of the FAA's July 25, 2005 EIS and the FAA's September 30, 2005 ROD. In that petition, Plaintiffs alleged that the FAA's approval of the ALP violated, inter alia, the First and Fifth Amendments and Article III of the Constitution; RFRA.; NEPA; Chapter 471 of Title 49 of the U.S. Code, Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c); Section 6(f) of the Interior Land and ...

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