Claim
Preclusion Case Analysis
August
9, 2006
The
plaintiffs cannot be faulted for thinking they could file a second lawsuit, despite
the dismissal of the first.
The
Seventh Circuit’s opinion in the first case states, “Citizens’
focus in this case is ... the Ackerville Bridge Project. ... [T]he County J/Highway
164 Project, is relevant to this litigation only because Citizens believes it
was improperly segmented from the Ackerville Bridge Project.” Highway J Citizens
Group v. Mineta, 349 F.3d 938, 942 (7th Cir. 2003).
The
Seventh Circuit in the case at bar does not even acknowledge its earlier statement.
However, the district court opinion does, but concludes, “by bringing in
the County J/Highway 164 project as part of its segmentation argument, Citizens
necessarily challenged the FHWA’s decision to approve the project. Thus,
although Citizens challenged the County J/Highway 164 project in Citizens I ‘only
because’ it believed that it was improperly segmented, id., that does not
mean that it did not, in fact, challenge such project.” Highway J Citizens
Group v. DOT, 2005 WL 1076071 (E.D.Wis., Apr. 27, 2005).
As
both the district court and Seventh Circuit found, however, permitting the suit
to go forward would fail to follow long-standing law that parties may not avoid
earlier judgments “by merely concocting a new legal theory.”
Arguably,
however, two of the plaintiffs claims are different, and warranted consideration
separate from the others — that the defendants failed to prepare a Supplemental
Environmental Impact Statement (SEIS) when new information, indicating that the
expansion of the highway could have a significantly greater impact on the surrounding
environment than previously believed, became available.
The
Fourth Circuit addressed such an argument in an unpublished case, and held that
such a claim was not barred by claim preclusion, even though it held other claims
were precluded. New River Valley Greens v. DOT, 161 F.3d 3 (Table), 1998 WL 633959
(4th Cir., Sept. 10, 1998)(unpublished).
New
River also involved a highway project, plus a project to use a two-mile stretch
of the highway for research as an Intelligent Transportations System (ITS). The
plaintiffs sued under NEPA, and lost.
They
then sued again, raising segmentation issues similar to those in the case at bar.
The Fourth Circuit held the claims were barred by claim preclusion: “The
final EIS described the ITS and considered its environmental consequences. It
may be argued, of course, that the EIS should have included more detail about
the ITS hardware. The time for that argument has passed. These plaintiffs filed
suit challenging the adequacy of the EIS and lost. The matter is res judicata.”
Nevertheless,
the court considered the plaintiffs’ arguments (although ultimately ruling
against them) that a SEIS should have been prepared.
The court
reasoned, “Notwithstanding the lack of illegal segmentation, NEPA compliance
is never really done until all major federal action is done. Hence, there is a
viable question presented by this suit: whether the details of the ITS hardware
compelled the preparation of a Supplemental EIS (‘SEIS’).”
The
court added, “It would be incongruous with [the government’s] approach
to environmental protection, and with the Act’s manifest concern with preventing
uninformed action, for the blinders to adverse environmental effects, once unequivocally
removed, to be restored prior to the completion of agency action simply because
the relevant proposal has received initial approval.”
Without
any separate discussion in the case at bar of the SEIS claims, it is not clear
whether the Seventh Circuit has rejected this reasoning, or if it found the SEIS
claims to be merely another legal theory “concocted” to avoid the first
judgment, but without a genuinely separate factual basis.
Accordingly,
in future cases, plaintiffs may be able to avoid the effect of claim preclusion
by alleging SEIS claims; however, they should be well-prepared to address the
case at bar, and show “significant new circumstances” since losing the
first case. 40 C.F.R. 1502.9(c)(1)(ii).
-
David Ziemer
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David
Ziemer can be reached by email.
