Prior suit bars subsequent action

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The doctrine of claim preclusion bars subsequent litigation, even though the plaintiffs’ legal theories in the second action differ from those in the first, the Seventh Circuit held on Aug. 2.

The County J/Highway 164 Project involves the expansion of an 18-mile segment of Wisconsin State Highway 164 from two to four lanes. Construction by the Wisconsin Department of Transportation has commenced on this project.

A second project, known as the Ackerville Bridge Project, involves construction of two overpass structures on Highway 164 in Washington County, at the northern end of the expansion project.

After a public hearing in 2000, the Federal Highway Administration (FHWA) concluded that the construction would not significantly affect the environment. Construction commenced in May 2002.

In July 2003, Highway J Citizens Group (Citizens), filed suit against the DOT and FHWA, alleging that approval of both projects violated the Administrative Procedure Act (APA), the National Environmental Policy Act of 1969 (NEPA), and the Wisconsin Environmen-tal Policy Act (WEPA). The suit alleged the two projects were improperly segmented so that environmental damage from the Ackerville Project would not be considered when assessing the County J/Highway 164 Project.

The district court ruled against the Citizens, and the Seventh Circuit affirmed. Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003)(Citizens I). The Seventh Circuit held that the defendants sufficiently considered the environmental impact, and concluded there was no improper segmentation of the two projects.

In February 2005, Citizens, together with Waukesha County Environmental Action League (WEAL), filed suit in federal court again, arguing that the approval of the Highway 164 Project and the Army Corps’ issuance of a Clean Water Act permit violates the APA, the Clean Water Act (CWA), the NEPA, and the Federal-Aid Highway Act (FAHA).

United States District Court Judge Lynn Adelman denied the plaintiff’s request for an injunction enjoining further construction, holding that they could not show reasonable likelihood of success on the merits, because their challenges were barred by the doctrine of claim preclusion.

Although the previous challenge focused on the Ackerville Bridge Project, the court found that the suit also challenged the widening of Highway 164. Judge Adelman wrote, “A claim that one project was improperly segmented from another is necessarily a claim that the environmental review conducted for each project was inadequate because each review failed to consider the environmental effects of the other project.”

Because each suit arose from the same transaction and involve nearly the same factual allegations, the court held that claim preclusion applied, notwithstanding the difference in legal theories.

The plaintiffs appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

The three elements of claim preclusion are: an identity of the parties or their privies; an identity of the causes of actions; and a final judgment on the merits. If the requirements are met, suit is barred not just on the issues actually decided, but all issues that could have been raised. Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir. 1995).

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The plaintiffs did not contest that the first suit resulted in a final judgment, or that the parties were in privity. However, they challenged whether the cause of action is identical. The plaintiffs contended that the Highway 164 Project and the Ackerville Bridge Project are factually distinct.

The court agreed the projects were distinct, but nevertheless found that claim preclusion applies, because the first lawsuit did challenge the validity of both projects.

The court noted that the relief sought in the two cases — an EIS for the entire project, and an injunction against widening the highway — are identical.

The court wrote, “although the legal elements of each claim may be different, the underlying factual transaction is identical: the preparation and finalization of the Highway 164 EIS. As in Brzostowski, the resolution of both of the plaintiffs’ complaints are grounded in the adequacy of the environmental analysis for the Highway 164 Project.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.