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Petzel v. Kane County Department of Transportation

United States District Court, N.D. Illinois, Eastern Division

July 6, 2017

GEOFFREY J. PETZEL, Plaintiff,
v.
KANE COUNTY DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Judge.

         Plaintiff 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.

         Background

         Plaintiff, 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.[1] (Id. ¶¶ 20, 21.) Defendant National Parks Service (“NPS”) is a division of the Interior. (Id. ¶ 22.)

         In 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.)

         According 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.)

         Kane 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.)

         While 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 required.[2]

         Legal Standard

         This 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)).

         A 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)).

         Rule 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.

         Discussion

         1. ...


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