Wade v. Lewis

No. 80 C 3072 (N.D. Ill. January 28, 1982)

The court rules that it has jurisdiction under the Administrative Procedure Act (APA) to review Department of Transportation Act, Federal-Aid Highway Act, and National Environmental Policy Act challenges to defendants' decision to build a bridge. The court notes that there is a general presumption in favor of review under statutes that do not expressly prohibit review. It rules that although the decision is within the discretion of the defendants, that discretion is not so broad as to qualify for exception to the APA's provision for judicial review. The court rejects defendants' argument that the statutes must also provide for an implied private cause of action for plaintiffs to seek judicial reivew. Where plaintiff is only seeking review under the APA, plaintiffs need no private cause of action. The court also rules that plaintiffs meet the zone of interest test for standing under the statutes since the interests addressed by the statutes include plaintiffs' endangered species and historic preservation claims. However, plaintiffs' claim under the Migratory Bird Treaty Act, which implements the treaty between the United States and Japan to protect migratory birds, must be dismissed because neither the Act nor the treaty create a private right of action and judicial reivew is not available under the APA since the decision was not made under the treaty.

Counsel for Plaintiffs
David Lincoln Ader
Ader & Ader
11 S. La Salle St., Chicago IL 60603
(312) 726-6611

Counsel for Defendants
Kenneth Anspach, Ass't Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-2491

Kevin J. Egan, Ass't U.S. Attorney
219 S. Dearborn St., Rm. 1500S, Chicago IL 60604
(312) 353-5300

Robert J. Bolger, Regional Counsel
Federal Highway Administration, 18209 Dixie Hwy., Homewood IL 60430
(312) 799-6300

[12 ELR 21151]

Will, J.:

Memorandum Opinion

In an eight-count complaint, the plaintiffs have challenged the location and funding of a federal-aid primary highway. The defendants have filed a motion to dismiss, arguing that we do not have jurisdiction to hear the case and that the plaintiffs do not have standing to bring the suit. For the reasons hereinafter stated, we grant the defendants' motion with respect to count VIII but deny the motion with respect to the other counts of the complaint.

The state intervening defendants plan to build a bridge and a section of federal-aid primary highway 408 from State Highway 100 in Scott County, Illinois, crossing the Illinois River into Pike County, Illinois, at a point approximately 1.5 miles south of Valley City, Illinois, and then proceeding from that point to Barry, Pike County, Illinois, through a small tributary valley to the Illinois River Valley Known as Napoleon Hollow. The federal defendants intent to fund that bridge with appropriations for highway bridge replacement and rehabilitation under 23 U.S.C. § 144.

The plaintiffs are residents of Pike County. They own farm-land adjoining the Pike County Conservation District. The proposed highway west of the western end of the bridge will be constructed on land near the plaintiffs' land and in the Pike County Conservation District.

In counts I and II of their complaint, the plaintiffs allege that funding the bridge under the Bridge Replacement and Rehabilitation Program violates 23 U.S.C. § 144 since the proposed new bridge will not be a replacement for any existing bridge. The existing bridge nearest the construction site is five miles away near Florence, Illinois. The complaint alleges that there are no plans to abandon the Florence bridge after the new bridge is completed; that, on the contrary, there are plans to repair the Florence bridge; that the proposed limited access bridge will not join and carry over the Illinois River any presently existing roadway which now physically joins and is presently carried over the river by the Florence bridge; and that the proposed limited access highway will not go through and directly serve the towns which are located directly on the roadway of those roads carried over the Illinois River by the Florence bridge.¹

The plaintiffs also allege that the bridge and proposed highway alignment will adversely affect several species of animals and plants which are found in or migrate through the Pike County Conservation District or the Plaintiffs' farm and which are on the Federal Endangered Species List and the Illinois List of Endangered and Threatened Species. They also allege that part of the plaintiffs' farm has been found to be so environmentally significant as to meet the quality standards of a national landmark.

The complaint alleges that the failure of the Environmental Impact Statement to consider all the alternative routes or the presence of endangered and threatened species of wildlife in the area chosen for the proposed bridge and highway construction renders that statement deficient under the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., and its regulations (count III), the Federal-Aid Highway Act, 23 U.S.C. §§ 101, et seq., and its regulations (count IV), and the Department of Transportation Act, 49 U.S.C. §§ 1651, et seq., and its regulations (count VII).

The plaintiffs also allege that approval of the bridge and highway route violates the Department of Transportation Act (count IV) and the Federal-Aid Highway Act (count V) which prohibit approval of highway projects which require the use of publicly-owned land from a public park, recreation area, or wildlife or waterfowl refuge, or from any historic site where there is a feasible and prudent alternative. 49 U.S.C. § 1651(b)(2) and 23 U.S.C. § 138. Count VIII alleges that the bridge and construction route will violate the Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment.

II.

In challenges to administrative actions, a district court has subject matter jurisdiction if the court has authority to review the agency decision. Peoples Gas, Light & Coke Co. v. United States Postal Service, 628 F.2d 1182, 1188 and n.3 (7th Cir. 1981). Since none of the statutes involved in this case expressly prohibit judicial review, although none expressly provide for it, the general presumption in favor of review² negates the "assumption that statutory silence is an indication that no review is intended." Id. at 1190 n.4. Therefore, the plaintiff does not need "to demonstrate that judicial review was authorized under the relevant statutory scheme." Id. at 1190. Instead, the defendants need "to demonstrate that Congress intended to preclude judicial review . . . ." Id. at 1190.

The defendants do not attempt to meet that burden with respect to the plaintiffs' challenges under the NEPA, the Federal-Aid Highway Act, or the Department of Transportation Act. The Supreme Court has recognized the reviewability of decisions under the specific provisions of the statutes which are involved in this case. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-13 (1 ELR 20110 (1971) (section 4(f) of the Department of Transportation Act and § 138 of the Federal-Aid Highway Act); Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972) (NEPA).

Furthermore, the defendants' argument that the decision to fund the bridge construction with money designated for bridge replacement and rehabilitation is unreviewable because it is a matter within the Department of Transportation's discretion does not overcome the presumption of reviewability. Although the APA [12 ELR 21152] contains an exception to its provision of judicial review when "agency action is committed to agency discretion by law," 5 U.S.C. § 701(a)(2), that exception is very narrow and applies only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 410 [1 ELR 20110], quoting S. REP. NO. 752, 79th Cong., 1st Sess., at 26 (1945).

An exercise of discretion is presumptively reviewable for legal error, procedural defect, or abuse. It goes without saying that the [agency] may not act in contravention of the legal restrictions contained in its governing regulations . . . . "[Agency officials] can exercise discretion upon a broad range of issues confronting them; they may not, however, opt to act illegally. When the bounds of discretion give way to the stricter boundaries of law, administrative discretion gives way to judicial review."

Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d at 1192 quoting Scanwell Laboratories, Inc. v. Schaffer, 424 F.2d 859, 874 (D.C. Cir. 1970). Since under 23 U.S.C. § 144, the Secretary can only provide funds for replacing and rehabilitating bridges, the statute is not drawn "in such broad terms that in a given case there is no law to apply." The decision to fund the bridge over Napoleon Hollow, which the plaintiffs allege is not construction to which the act was intended to apply, is subject to judicial review.

III.

The defendants argue that, in order for this case to be brought, the statutes at issue not only must permit judicial review but must provide a private cause of action. Since the statutes do not expressly create a private cause of action, the defendants rely upon the test for implying private causes of action which was established in Cort v. Ash, 422 U.S. 66 (1975).

First, is the plaintiff "one of the class for whose especial benefits the statute was enacted" — that is, does the statute create a federal right in favor of the plaintiffs? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inapproprite to infer a cause of action based solely on federal law?

422 U.S. at 78 (cites omitted). The defendants argue that none of the acts involved in this suit impliedly provide a private cause of action.

The test for reviewability and the test for implying a private cause of action are not dissimilar. The zone of interest requirement for standing under the APA, see discussion, infra, is like the requirement of Cort v. Ash that that plaintiff be part of the "class for whose especial benefit the statute was enacted . . . ." 422 U.S. at 78. The examination of legislative intent to preclude or provide judicial review which is the basis for the analysis in, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe and Peoples Gas, Light & Coke Co. v. United States Postal Service, is like the examination of legislative intent to preclude or provide a private cause of action which forms the basis for the test in Cort v. Ash.

The test for judicial review, however, is less difficult for a plaintiff to meet than is the test for implying a private cause of action. When seeking judicial review, a plaintiff has the benefit of a presumption in favor of reviewability which a defendant has the heavy burden of overcoming. No similar presumption operates when a plaintiff is seeking to have a private right of action implied, and, in view of the small rate of success plaintiffs have had in establishing private causes of action, the burden of persuasion seems to be on the plaintiff and the burden seems to be a heavy one.

The differences between the two tests reflect "the practical differences the two approaches may engender for the nature and course of the litigation." Davis v. Ball Memorial Hospital Association, 640 F.2d 30, 47 (7th Cir. 1980). See also Carson v. Alvord, 487 F. Supp. 1049, 1053 [10 ELR 20566] (N.D. Ga. 1980).³ If there is an independent cause of action, a court's scope of review is not limited by the APA, and it can, e.g., try the case without reference to the administrative record; in all cases, can substitute its opinion for that of the agency; and can award damages to the plaintiff. The more difficult test of Cort v. Ash only applies when theplaintiff wants an independent cause of action; the difficulty of the test prevents the frequent circumvention of the APA and the frequent disruption of the administrative process that type of action entails.

Where, as here, the plaintiff is seeking only the limited remedy provided by the APA, however, application of the Cort v. Ash test is not necessary or appropriate, and the plaintiff is entitled to the presumption of reviewability the defendants here have not rebutted. Finding reviewability under the APA, therefore, eliminates the need for implying a private cause of action.⁴ Indeed, it would be anomalous to find that, although Congress intended that a particular agency decision be subject to judicial review, Congress precluded that review by failing to provide, expressly or impliedly, a private cause of action.

IV.

The question of standing "involves both constitutional limitations of federal court jurisdiction and prudential limitations on its exercise . . . ." Warth v. Seldin, 422 U.S. 490, 498 (1975). The constitutional test is "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness' which warrants the plaintiff's invocation of federal court jurisdiction and justifies the court's remedial powers on his behalf." Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d at 1193-94 quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976).

The plaintiffs meet the constitutional test for standing. They allege that the proposed bridge and highway across the Pike County Conservation Area and near the plaintiffs' farm will adversely affect their enjoyment of and the environment of those areas. Allegations of injury to "aesthetic, conservational, and recreational" values are sufficient to satisfy the constitutional test. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154 (1970).

The second, prudential test for standing is "whether the interest sought to be protected by the complainant is arguably within the zone of interest to be protected or regulated by the statute or constitutional guarantee." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. at 152. "The zone of interest test is a generous standard which nonetheless serves as a limitation, albeit loosely defined, on those who can use the federal courts to resolve complaints arising from agency action taken pursuant to a particular statutory mandate where there exists no specific congressional authorization of review." Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d at 1195. We have a nondiscretionary duty to apply the zone of interest test. Id. at 1195 n.10.

The plaintiffs meet the zone of interest test for all of the counts of their complaint. The "zone of interest to be protected or regulated" by the NEPA (count III) includes, inter alia, "important historical, cultural, and natural aspects of our national heritage . . . ." 42 U.S.C. § 4331(b). One of the policies of the Department of Transportation Act (counts IV and VII) and of the Federal-Aid Highways Act (counts V and VI) is "to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." 49 U.S.C. §§ 1651(2), 1653(f), and 23 U.S.C. § 138. The conservational "Interest sought to be protected" by the plaintiff in this case is within the zone of interest in the environment which those statutes protect.

[12 ELR 21153]

The defendants argue that the plaintiffs are not within the zone of interest to be protected by the Highway Bridge Replacement and Rehabilitation Program. The purpose of 23 U.S.C. § 144, they contend, is to make the nation's highway bridges safe. The environmental concerns raised by the plaintiffs are unrelated to safety concerns.

The defendants, however, define the zone of interest too narrowly. The Bridge Replacement and Rehabilitation Program is not an isolated or independent act; it is part of the Federal-Aid Highways Act. 23 U.S.C. §§ 101, et seq. To determine which interests are arguably protected for the purpose of the zone of interest test, a court may look beyond the particular statutory section to other sections of the statute for evidence of arguable regulatory or protective intent. Stenographic Machines, Inc. v. Regional Administrator for Employment & Training, 577 F.2d 521, 528 (7th Cir. 1978).⁵ The interests protected by section 144, therefore, include the interests protected by the entire act; the interests of the entire act include environmental concerns such as those raised by the plaintiffs. See 23 U.S.C. § 138. The plaintiffs, therefore, have standing to assert that the funding of the new bridge with appropriations for replacing or rehabilitating bridges is illegal.

In count VIII of their complaint, the plaintiffs allege that the construction of the bridge and highway on the proposed route will violate the Convention Between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment. That agreement provided that "[e]ach Contracting Party agrees to take measures necessary to carry out the purposes of this Convention." The United States Congress fulfilled that requirement by enacting the Migratory Bird Treaty Act. 16 U.S.C. §§ 703-711. The Treaty, therefore, is part of the law of the United States.

The Migratory Bird Treaty Act, however, does not expressly create a private right of action; it is a criminal statute. Judicial review under the APA is not available since the action taken here was not taken under the Treaty. The question then is whether the Act impliedly creates a private cause of action.

[A] treaty may contain provisions conferring rights on subjects of the contracting parties which was of a nature to be enforced for the benefit of private parties in the courts and such provisions will be recognized and enforced by the courts. Absent this kind of provision, however, the courts can give no redress to a person who is injured by a failure to a government to observe the terms of a treaty; such is a political question and one claiming injury must look to this government for relief.

In other words, a federal court has no inherent power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation if the Government of the United States, as a sovereign power, chooses to disregard it. This is a political question for which there is a textually demonstrable constitutional commitment to the Executive and Legislative branches.

Canadian Transport Co. v. United States, 430 F. Supp. 1168, 1172 (D.D.C. 1977) (cites omitted). Although that case involved a citizen of a contracting party other than the United States, the rationale of the case also applies when the person attempting to enforce the treaty is a citizen of the United States. The intent of Congress in enacting a treaty is not to provide enforceable private rights against the United States for its citizens but to gobern the relation of the nations which are parties to the treaty. Court VIII of the plaintiffs' complaint must, therefore, be dismissed.

VI.

For the reasons stated above, the defendants' motion to dismiss count VIII is granted. The defendants' motions to dismiss the other counts of the complaint are denied.

1. Our findings of fact made at the time we issued a preliminary injunction to prevent construction of the bridge were essentially identical to these allegations of the complaint, and the defendants have never strenuously disputed the accuracy of these allegations.

2. See generally Dunlop v. Bachowski, 421 U.S. 560 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971); Barlow v. Collins, 397 U.S. 159 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).

3. Judicial review is a type of cause of action. See Davis v. Ball Memorial Hospital Ass'n, 640 F.2d at 47; id. (Fairchild, J., dissenting); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1286 n.29 (7th Cir. 1977); Carson v. Alvord, 487 F. Supp. at 1053 [10 ELR 20566]

4. When the government raised the same question about a private cause of action in Peoples Gas, Light & Coke Co. v. United States Postal Service that it raises here, the court answered it not be reference to Cort v. Ash but by applying the analysis of judicial reviewability discussed above. 658 F.2d at 1190.

5. Cf. Tax Analysts & Advocates v. Blumenthal, 566 F.2d 130, 140-41 (D.C. Cir. 1977) ("[A]s a general rule we believe that the particular statutory section should be the focus of analysis when applying the zone test.")