CITIZENS FOR APPROPRIATE RURAL ROADS, INC. et al v. LAHOOD et al

Filing 132

ORDER ON PENDING MOTIONS. The Court DENIES Plaintiffs' Motion for Preliminary Injunction 36 WITHOUT PREJUDICE and DENIES AS MOOT Federal Defendants' Motion to Strike and Motion in Limine 59 . The Court also GRANTS Federal Defendants� 39; Partial Motion to Dismiss Plaintiffs' Amended Complaint 62 WITH PREJUDICE. Accordingly, Counts III, IV, V, VI, and VIII of the Amended Complaint are dismissed with prejudice and may not be refiled in a subsequent pleading. (S.O.). Signed by Judge Sarah Evans Barker on 9/19/2012. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CITIZENS FOR APPROPRIATE RURAL )
ROADS, INC., et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
RAY LAHOOD, in his official capacity as )
Secretary of the United States Department of)
Transportation; MICHAEL B. CLINE, in his)
official capacity as Commissioner of the
)
Indiana Department of Transportation;
)
ROBERT F. TALLY, in his official capacity )
as Division Administrator – Indiana Division)
of the Federal Highway Administration; and )
VICTOR MENDEZ, in his official capacity )
as Administrator of the Federal Highway
)
Administration,
)
)
Defendants.
)

1:11-cv-01031-SEB-DML

ORDER ON PENDING MOTIONS
Presently before the Court are Plaintiffs’ Motion for Preliminary Injunction [Docket
No. 36], filed December 9, 2011; Federal Defendants’ Motion to Strike and Motion in
Limine [Docket No. 59], filed February 2, 2012; and Federal Defendants’ Partial Motion to
Dismiss [Docket No. 62], filed February 2, 2012. For the reasons noted in this entry, the
Court (1) DENIES the Motion for Preliminary Injunction WITHOUT PREJUDICE; (2)
DENIES the Motion to Strike and Motion in Limine as moot; and (3) GRANTS the Partial
Motion to Dismiss.
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I. Background
In lawsuits where preliminary injunctive relief is sought, the parties’ filings often
convey a palpable sense of urgency. Disputes concerning real property exemplify this
description, and courts “understand[] the intense feelings that . . . individual users have for
their land and their lifestyle.” Colorado v. New Mexico, 467 U.S. 310, 334 n.4 (1984). It
is therefore no surprise that the I-69 Expansion Project (“the Project”), termed the largest
contiguous construction project in the United States, has created certain levels of antipathy
in proximate communities. For purposes of this lawsuit, Plaintiffs are two such
concerned, if not outright opposed, groups—Citizens for Appropriate Rural Roads, Inc.
and the I-69 Accountability Project1—along with several individuals who own property or
reside in the proposed “I-69 Corridor.” Plaintiffs abjure the Project, alleging that the
efforts to extend the I-69 highway will directly impact their real property. Accordingly,
they filed an impassioned complaint in this court on August 1, 2011, requesting declaratory
relief and injunctive relief aimed at halting construction, and reimbursement of reasonable
attorneys’ fees and costs.
The resultant procedural path of this lawsuit has been anything but straightforward.
Following some minor hiccups (namely, extending Defendants’ deadlines to respond to the
Complaint2 and reassigning the matter to a second magistrate judge), the parties appeared
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Both of these plaintiffs are Indiana not-for-profit corporations.
It is noteworthy that Magistrate Judge Dinsmore held a hearing to allow Plaintiffs to
explain the prejudice they would suffer if Defendants’ request for enlargement of time were
granted. Because Plaintiffs failed to make the necessary showing of prejudice, the Court granted
Defendants’ motions. See Docket No. 25.
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for an initial pretrial conference on December 7, 2011. Plaintiffs’ Motion for Preliminary
Injunction followed on December 9, 2011 but with no supportive brief. Three days later,
Plaintiffs were ordered to file their supportive brief on or before December 19, 2011. See
Docket No. 37. They failed to do so and were subsequently directed to show cause, in
writing, by December 28, 2011, why their motion should not be summarily denied. See
Docket No. 39. With that prompting, Plaintiffs complied with the Court’s order by filing
their brief on December 31, 2011.
There followed a flurry of activity during the first months of 2012, including the
filing of an inaptly titled “Motion to Strike and Motion in Limine” by Defendants LaHood,
Mendez, and Tally (collectively, “Federal Defendants”) on February 2, 2012. The
Federal Defendants requested that the Court strike specific evidentiary
material—including evidence Plaintiffs ostensibly intended to submit at a hearing on
injunctive relief to take place February 14, 2012—from the record. See Docket No. 59 at
4. We responded in an order dated February 10, 2012, granting in part and denying in part
Federal Defendants’ motion, stating that, “[t]o the extent that Plaintiffs can show that their
proffered evidence is relevant under the applicable principles enunciated [in this ruling],
Federal Defendants’ Motion to Strike is DENIED in part.” Docket No. 89 at 10.
Consequently, we vacated the February 14, 2012 hearing on Plaintiffs’ Motion for
Preliminary Injunction. Docket No. 95.
A substantial portion of the parties’ docket activity throughout the pendency of this
lawsuit has related to Plaintiffs’ efforts to supplement the federal administrative record
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reflecting Executive Branch determinations that ultimately authorized construction of the
I-69 highway extension. Federal Defendants submitted the administrative record to the
Court on June 26, 2012 and certified that it contained all documents3 available to the
agencies that had made decisions regarding the Project. On July 27, 2012, the magistrate
judge issued an Entry on Case Management [Docket No. 129] addressing preliminary
injunctive and administrative record issues; “so that this case c[ould] be set on a course to
its resolution,” the magistrate judge also set an accelerated schedule for the parties,
pursuant to which, Plaintiffs were to file their motions regarding any alleged
insufficiencies in the administrative record with respect to claims in their original version
of the Complaint4 by August 17, 2012. Docket No. 129 at 3-4. The magistrate judge
advised Plaintiffs that such motion(s) must: (1) articulate the ways in which the
administrative record was deficient for purposes of judicial review; (2) describe what
additional evidence they believed was necessary for proper judicial review; and (3) “for
each such witness and documentary evidence explain why and how that evidence falls
within an exception allowing extra-record consideration, consistent with [the Court]’s
order of February 10, 2012.” Id. at 4.
II. Discussion
Today’s ruling addresses outstanding issues in the following pending motions: (1)
3

The full administrative record lodged before the Court includes both pre- and
post-decisional documents. See Docket No. 125 at 1.
4
Most of the causes of action stated in the original Complaint are National Environmental
Policy Act (“NEPA”) claims brought pursuant to the Administrative Procedures Act (“APA”).
Plaintiffs’ Amended Complaint [Docket No. 109], filed March 27, 2012, added several additional
claims that are not relevant to the motions discussed in this entry.
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Plaintiffs’ Motion for Preliminary Injunction; (2) Federal Defendants’ Motion to Strike
and Motion in Limine, to the extent that the Court’s February 10, 2012 order left matters
unresolved; and (3) Federal Defendants’ Partial Motion to Dismiss several counts set forth
in the original Complaint. We address each of these motions in turn.
A. Plaintiffs’ Motion for Preliminary Injunction
Plaintiffs’ indignation at the outset of this action was unmistakable. Their original
Complaint was a 63-page document replete with allegations detailing how they expected
the Project to “cause irreparable harm to the region’s ecosystems, endangered species,
natural resources and environmental quality, and . . . the public.” Compl. ¶ 6. Given the
number of people and claims involved as well as the intensity of their efforts to supplement
the administrative record, we surmised that Plaintiffs sought immediate resolution of the
issues discussed in their motion. At the very least, we expected that Plaintiffs would
respond to our orders with all due speed in order to advance the claims for which they
sought our expedited attention. That has not been the case, and for this reason, their
motion for preliminary injunctive relief must now be denied.
Preliminary injunctive relief cannot issue if the party seeking such redress is
unprepared or appears to have lost interest in securing such relief. To that end, the Court’s
February 12, 2012 order was premised on our determination that the matter was not
properly “teed up” for a hearing. At that point, the onus was on Plaintiffs to advise the
Court when they were ready to proceed with a hearing, or, alternatively, to address the
related pre-hearing issues. Plaintiffs notified the magistrate judge on June 21, 2012 that
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they would propose a schedule for setting a hearing within two business days. See Docket
No. 124 at 3. In the same filing, they also advised: “Plaintiffs will request that this
hearing be set two weeks after, or as soon thereafter as possible, the date Defendants file
their complete administrative record.” Id. They failed to deliver on either assurance.
Many business days—indeed, months—elapsed between Plaintiffs’ June 21, 2012
response and today’s ruling. The same is true concerning updates as to Plaintiffs’
intentions in responding to the administrative record, which, as previously noted, was
lodged with the Court on June 26, 2012. Defendants’ filing of the administrative record
obligated Plaintiffs to notify the Court of their readiness for a hearing or, if nothing else, to
suggest further steps that they believe should precede a hearing. Plaintiffs’ inaction in
these respects has made clear the fact that they are unprepared to argue their motion for
injunctive relief, assuming they have actually retained an interest in doing so. Their
silence and their unresponsiveness to court-imposed deadlines operate as a concession that
they are not ready to proceed. It is not incumbent on this court to try to move Plaintiffs
beyond their apparent apathy. As Magistrate Judge Lynch noted in her Entry Regarding
Case Management, “[O]n at least two separate occasions this court has directed the
plaintiffs to notify the court when they are ready . . . [for] a hearing on their motion for
preliminary injunction. They have not done so.” Docket No. 129 at 2 (citing docket
entries of March 27, 2012 and May 14, 2012).
August 17, 2012 was Plaintiffs’ third opportunity to apprise the Court of their
readiness for a hearing on their request for injunctive relief. This deadline came and went,
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again without any indication either of their intentions or their readiness. Plaintiffs have
now exhausted the Court’s efforts to accommodate them by continuing to leave open the
possibility of a hearing on injunctive relief. Plaintiffs’ Motion for Preliminary Injunction
will not prove itself. Lacking any reciprocal interest on their part in resolving the issues
raised in that context, Plaintiffs’ Motion for Preliminary Injunction is hereby DENIED
WITHOUT PREJUDICE.
B. Federal Defendants’ Motion to Strike and Motion in Limine
On February 10, 2012, the Court ruled on Federal Defendants’ Motion to Strike and
Motion in Limine, granting the motion in part and denying it in part, thereby affording
Plaintiffs an opportunity to establish the relevance of extra-record evidence in subsequent
briefing. We made it clear to Plaintiffs that final resolution of this motion would require
them to act. That ruling preceded Magistrate Judge Lynch’s Entry Regarding Case
Management. Thus, the briefing ordered on July 27, 2012 supersedes any prior
instructions. Accordingly, we hereby DENY Federal Defendants’ Motion to Strike and
Motion in Limine as moot.
C. Federal Defendants’ Partial Motion to Dismiss
Federal Defendants filed their Partial Motion to Dismiss contemporaneously with
the aforementioned Motion to Strike and Motion in Limine, asking the Court to dismiss
Counts III, IV, V, VI, and VIII of Plaintiffs’ Amended Complaint.5 For motions other

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We note that the operative version of this document is the Amended Complaint [Docket
No. 109], which was deemed filed as of March 27, 2012. When Federal Defendants filed their
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than summary judgment motions, response briefs must be filed within fourteen days after
service of the brief associated with the original motion. See S.D. Ind. Local R.
7-1(c)(2)(A). This deadline may be extended, but only upon a showing of good cause.
Id. 7-1(c)(3). Because Federal Defendants electronically served all other parties with
their supporting brief [Docket No. 64] on February 2, 2012, Plaintiffs were allowed
through February 16, 2012 to file a brief in response. See Fed. R. Civ. P. 6(a); S.D. Ind.
Local R. 7-1(c)(4). Plaintiffs again failed to do so, nor did they ask the Court to extend
this response deadline over the course of the ensuing months. Accordingly, Local Rule
7-1(c)(5) permits the Court to rule summarily on Federal Defendants’ motion, and we shall
so rule.
One factor uniformly affects each of the challenged counts in Defendants’ Partial
Motion to Dismiss: timing. Title 23, Section 139(l) of the United States Code imposes a
filing deadline for any claim seeking judicial review of a federal project. Such claims
“shall be barred unless [they are] filed within 150 days after publication of a notice in the
Federal Register announcing that the permit, license, or approval is final pursuant to the
law under which the agency action is taken.” 23 U.S.C. § 139(l)(1) (as amended July 3,
2012). The statute sets the same deadline for “new information received after the close of
a comment period.” Id. § 139(l)(2) (as amended July 3, 2012). Plaintiffs first sought
judicial review of the Project on August 1, 2011, which postdates all statutory deadlines by
Partial Motion to Dismiss, we had not yet granted Plaintiffs leave to amend the original version of
the Complaint. Because the disputed counts follow the same numbering pattern in both versions
of the document, we see no reason to draw further distinctions between the Complaint and the
Amended Complaint.
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at least one year. See Fed. Defs.’ Br. ¶ 4. No further analysis by us is required;6 clearly,
the applicable limitations period for each disputed count has run, making the claims stated
therein time-barred and subject to dismissal.
III. Conclusion
For the reasons detailed above, the Court DENIES Plaintiffs’ Motion for
Preliminary Injunction WITHOUT PREJUDICE and DENIES AS MOOT Federal
Defendants’ Motion to Strike and Motion in Limine. The Court also GRANTS Federal
Defendants’ Partial Motion to Dismiss Plaintiffs’ Amended Complaint WITH
PREJUDICE. Accordingly, Counts III, IV, V, VI, and VIII of the Amended Complaint
are dismissed with prejudice and may not be refiled in a subsequent pleading.
IT IS SO ORDERED.
09/19/2012

Date:

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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The Court’s determination that these counts are time-barred forecloses the need to address
Federal Defendants’ argument that Plaintiffs’ claims related to changes in financing, asserted in
Count IV, fail to state a claim for which relief can be granted. See Fed. R. Civ. Pro. 12(b)(6).
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Copies to:
Mick G. Harrison
[e-mail]
Daniel W. Pinkston
U.S. DEPARTMENT OF JUSTICE
[e-mail]
Jared S. Pettinato
U.S. DEPARTMENT OF JUSTICE
[e-mail]
John Brett Grosko
U.S. DEPARTMENT OF JUSTICE
[e-mail]
Shelese M. Woods
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
Albert M. Ferlo
PERKINS COIE LLP
[e-mail]
Elisabeth C. Frost
PERKINS COIE LLP
[e-mail]
Timothy J. Junk
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
William G. Malley
PERKINS COIE LLP
[e-mail]
Jean Marie Blanton
ZIEMER STAYMAN WEITZEL & SHOULDERS LLP
[e-mail]

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Daniel P. King
FROST BROWN TODD LLC
[e-mail]

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