United States District Court, N.D. Illinois, Eastern Division
GEOFFREY J. PETZEL, Plaintiff,
KANE COUNTY DEPARTMENT OF TRANSPORTATION, et al., Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Judge.
Geoffrey J. Petzel filed a pro se First Amended
Complaint against various federal, state, and county agencies
and departments, alleging violations of the National
Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et
seq., the Department of Transportation Act of 1966, 49
U.S.C. § 1653 et seq., and Land and Water
Conservation Fund Act, 54 U.S.C. §§
200301-200310. Petzel's claims arise from
approval and facilitations of the Boltz Road/Longmeadow
Parkway Bridge and Highway Project (the “Longmeadow
Project”). Defendants have filed Motions to Dismiss
[40, 43, 44, 47, 87] pursuant to Rule 12(b)(1), (b)(5),
(b)(6) for untimeliness, ripeness, mootness, inadequate
service of process, and failure to state a claim. For the
reasons stated below, this Court grants the motions.
Geoffrey Petzel, is a land preservation advocate in Kane
County and a resident of Lake County, Illinois. (Dkt. 34 at
¶ 11). Defendant Kane County Department of
Transportation (“KDOT”) has been the primary
agency responsible for planning the Longmeadow Project.
(Id. at ¶ 12.) Defendant Kane County Forest
Preserve District (“Forest Preserve”) is a
primary landholder within the Longmeadow Project corridor and
has approved a land transfer. (Id. at ¶ 14.)
Defendant Dundee Township Park District
(“Dundee”) has transferred park land for the
Longmeadow Project. (Id. at ¶ 15.) Defendant
Randall Blankenhorn is being sued in his official capacity as
Secretary of the Illinois Department of Transportation
(“IDOT”). (Id. at ¶ 16.) IDOT has
provided financial support, planning, and approvals for the
Longmeadow Project. (Id.) Defendant Wayne Rosenthal
is being sued in his official capacity as Director of the
Illinois Department of Natural Resources
(“IDNR”). (Id. at ¶ 17.) IDNR is
the assigned agency for review on behalf of the United States
Department of Interior (the “Interior”) for
issues involving the Land and Water Conservation Act.
(Id.) Defendant Federal Highway Administration
(“Highway Administration”) is a division of the
United States Department of Transportation and has
participated in planning and approvals for the Longmeadow
Project. (Id. ¶ 18.) Defendant United States
Department of Transportation (“USDOT”) has
participated in planning and approvals for the Longmeadow
Project. (Id. ¶ 19.) Petzel is suing defendant
Elaine L. Chao, Secretary of USDOT, and Ryan Zinke, Secretary
of the Interior, in their official capacities. (Id.
¶¶ 20, 21.) Defendant National Parks Service
(“NPS”) is a division of the Interior.
(Id. ¶ 22.)
1991, Kane County, the State of Illinois, the Highway
Administration, and USDOT began a study of the Longmeadow
Project as authorized in the Intermodal Surface
Transportation Efficiency Act of 1991. (Id. ¶
47.) The purpose of this study was to plan and construct up
to eight bridges across the Fox River between Route 61 in
Algonquin, Illinois, and Route 47 in Yorkville, Illinois.
(Id.) The Fox River Bridge Advisory Committee
identified nine potential corridor crossings for the Fox
River. (Id. ¶ 48.) Those nine potential
crossings were advanced for study under NEPA. (Id.
¶ 52.) The Highway Administration determined that it
could provide federal funding because a collective evaluation
of this series of transportation improvements was necessary.
(Id. ¶ 49.) The Fox Bridge River Advisory Study
advanced five bridge-crossing options for evaluation through
the Environmental Impact Statement process. (Id.
¶ 53.) The study only examined roadway improvements.
(Id. ¶ 54.) The Longmeadow Project corridor was
the only option selected for study in the Northern Region.
(Id. ¶ 55.) Of the five bridge-crossing
options, only three were selected to be built, including the
Longmeadow Project. (Id. ¶ 57.) A Record of
Decision was issued in April 2002, approving the
Environmental Impact Statement (“EIS”) for the
Longmeadow Project. (Id. ¶ 58.)
to the EIS, the Longmeadow Project would have two,
twelve-foot lanes in each direction separated by an
eighteen-foot median and would be approximately 5.6 miles
long. (Id. ¶ 60.) The EIS provided for two
variation of the Longmeadow Project route. One variation
crosses Brunner Farm, which is comprised of 751 acres along
west bank of the Fox River and is the largest single
landholding in the corridor. (Id. ¶ 62.) On
October 1, 2008, the Kane County Forest Preserve District
acquired the Brunner Farm. (Id. ¶ 87.) The
Longmeadow Project would also run through Hickory Hills Park,
which Dundee acquired in 1970 with federal funds dispersed
through Land and Water Conservation Act. (Id. ¶
64.) Hickory Hills Park contains a small baseball field, a
small playground, and mature oak trees. (Id.) The
park is adjacent to a local elementary school and would be
separated from the school by the Longmeadow Project.
(Id.) On June 21, 2000, Dundee and KDOT entered into
an agreement to transfer a portion of Hickory Hills Park for
highway use in exchange for land adjacent to the remaining
park and land at the Brunner Farm. (Id. ¶ 65.)
County was unable to secure funding for the Longmeadow
Project and decided to examine the possibility of turning the
Longmeadow Project into a tollway project. (Id.
¶ 73.) In October 2007, Kane County convened a task
force to investigate the possibility of a tollway project.
(Id. ¶ 74.) Kane County is finalizing funding
options before selling bonds and building a tollway project
in the Longmeadow Project. (Id. ¶ 75.) In 2009,
KDOT and IDOT completed a written re-evaluation of the 2002
EIS and submitted those documents to the Highway
Administration. (Id. ¶ 77.) The Highway
Administration determined that no supplemental EIS was
necessary. (Id. ¶ 78.) During the preparation
of the 2002 EIS and the analysis under the Department of
Transportation Act, and at the time of the Record of
Decision, the Brunner property was under private ownership.
(Id. ¶ 85.) Kane County officials have approved
contracts to begin Phase 1 of construction. In 2014, IDOT
allocated almost $63 million for the construction of the
Longmeadow Project. (Id. ¶ 94.)
this law suit was pending, the Highway Administration, KDOT,
and IDOT began a reevaluation to determine whether the Record
of Decision remains valid and whether NEPA required them to
issue a Supplemental EIS prior to approval of federal
funding. (Dkt. 48-1, Fuller Decl. ¶¶ 3, 5-6.) A
copy of the Reevaluation/Environmental Assessment the
Longmeadow Project was made publicly available on July 29,
2016, a public hearing was held on August 30, 2016, and
public comments were accepted until September 6, 2016.
(Id. ¶ 7.) Plaintiff spoke at the public
hearing and provided 676 pages of written comments.
(Id. ¶ 8.) Other members of the public also
spoke and provided written comments. (Id.) On
November 22, 2016, the Highway Administration made a Finding
of No Significant Impact and determined that a Supplemental
Environmental Impact Statement was not
Court will liberally construe Petzel's pro se
pleadings. Parker v. Four Seasons Hotels, Ltd., 845
F.3d 807 (7th Cir. 2017). When a party moves to dismiss based
on lack of subject matter jurisdiction pursuant to Rule
12(b)(1), the district court must accept all well-pleaded
facts within the complaint as true but may also consider
evidence outside of the pleadings to ensure jurisdiction is
proper. Evers v. Astrue, 536 F.3d 651, 656-57 (7th
Cir. 2008) (citing St. John's United Church of Christ
v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007)).
defendant may move to dismiss due to insufficient service of
process. Fed.R.Civ.P. 12(b)(5). “The plaintiff bears
the burden to demonstrate that the district court has
jurisdiction over each defendant through effective
service.” Cardenas v. City of Chicago, 646
F.3d 1001, 1005 (7th Cir. 2011) (citing Homer v.
Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005)).
12(b)(6) permits a defendant to move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a complaint must allege “enough facts to state
a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). The
complaint must provide a defendant “with ‘fair
notice' of the claim and its basis.” Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)
(quoting Fed.R.Civ.P. 8(a)(2) and Twombly, 550 U.S.
at 555). When evaluating a Rule 12(b)(6) motion, the court
accepts the complaint's well-pleaded factual allegations
as true and draws all reasonable inferences in the
plaintiff's favor. Twombly, 550 U.S. at 555-56.