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Claim Preclusion Case Analysis

By: dmc-admin//August 9, 2006//

Claim Preclusion Case Analysis

By: dmc-admin//August 9, 2006//

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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The Fourth Circuit addressed such an argument in an unpublished case, and held that such a claim was not barred by claim preclusion, even though it held other claims were precluded. New River Valley Greens v. DOT, 161 F.3d 3 (Table), 1998 WL 633959 (4th Cir., Sept. 10, 1998)(unpublished).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.

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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.

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