DOT LITIGATION NEWS

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Office of the General Counsel Washington, D.C. 20590 Paul M. Geier Assistant General Counsel Telephone: (202) 366-4731 for Litigation Fax: (202) 493-0154

Peter J. Plocki Deputy Assistant General Counsel for Litigation

October 31, 2011 Volume No. 11 Issue No. 2

Highlights

Supreme Court grants review of Air carriers challenge most recent decision allowing non-pecuniary DOT airline passenger consumer damages for Privacy Act violations, protection rule, page 10 page 2 Aircraft owner groups challenge FAA Supreme Court grants review in case rule prohibiting blocking of flight data involving the preemptive scope of the without security basis, page 18 Locomotive Inspection Act, page 3 FMCSA sued over Mexican long-haul Court finds preemption in state law trucking pilot program, page 40 challenge to accessibility of airline ticket kiosks, plaintiffs appeal, page 8 D.C. Circuit upholds constitutionality of the “Murray Amendment,” page 43

Table of Contents

Supreme Court Litigation 2 Departmental Litigation in Other Federal Courts 5 Recent Litigation News from DOT Modal Administrations Federal Aviation Administration 11 Federal Highway Administration 21 Federal Motor Carrier Safety Administration 39 Federal Railroad Administration 41 Federal Transit Administration 43 Maritime Administration 46 Pipeline and Hazardous Materials Safety Administration 47 Saint Lawrence Seaway Development Corporation 48 Index of Cases Reported in this Issue 50

DOT Litigation News October 31, 2011 Page 2

Supreme Court Litigation

Supreme Court Grants Review of Mr. Cooper appealed, and the Ninth Circuit reversed. Cooper v. FAA, 622 F.3d 1016 Ninth Circuit Decision Allowing th Non-pecuniary Damages for (9 Cir. 2010). Although it noted a split in the circuits on the issue, the court concluded Violations of the Privacy Act that the intent of Congress in enacting the Privacy Act was “to extend recovery beyond On June 20, 2011, the Supreme Court pure economic loss.” The court came to this granted the United States’ petition for conclusion after considering the text of other certiorari in FAA v. Cooper (No. 10-1024). sections of the Privacy Act, the purposes of This case arose out of “Operation Safe the Act, and decisions interpreting the words Pilot,” an investigation by the DOT “actual damages” under the Fair Credit Inspector General and the Social Security Reporting Act, which Congress passed in a Administration (SSA) Inspector General that contemporaneous timeframe. The Ninth examined data on pilots in northern Circuit also rejected the argument that the California to determine whether any of them government’s waiver of sovereign immunity had reported medical issues to the SSA that through the Privacy Act should be narrowly had not been disclosed to the FAA on the construed, with damages limited to pilot’s medical application. The data economic loss. revealed that Stanmore Cooper was a pilot who had claimed disability from SSA based The United States petitioned for panel on his HIV status, but had failed to report rehearing or, in the alternative, rehearing en that condition to the FAA. Thus, Mr. banc, which were both denied. However, Cooper had falsified his pilot medical eight judges of the court joined in a written application on several occasions. dissent from the denial of en banc review. The United States petitioned for certiorari, Following his indictment, Mr. Cooper pled and the Supreme Court granted the petition guilty to a misdemeanor. He then sued on June 20, 2011. FAA, DOT, and SSA for the improper disclosure of information under the Privacy In its merits brief, the United States argues Act and sought damages for mental and that because the Act’s “actual damages” emotional distress. The U.S. District Court provision constitutes a limited waiver of the for the Northern District of California United States’ sovereign immunity, the dismissed the complaint, holding that the question is not whether the statutory text exchange and disclosure of Mr. Cooper’s could be read to authorize claims of mental information was a breach of the Privacy Act, or emotional distress, but instead whether but that Cooper had no "actual damages" as the statutory text clearly and unequivocally that term is used in the Act because it did compels that conclusion because sovereign- not cover compensation for pure mental immunity waivers must be narrowly anguish. Cooper v. FAA, No. 07-1383, construed in favor of the sovereign. That 2008 WL 8648952 (N.D. Cal. Aug. 22, rule applies with special force when the 2008). extent of the United States’ damages liability is at issue. In the government’s view, the Act’s text does not clearly and

DOT Litigation News October 31, 2011 Page 3 unequivocally compel a conclusion that it The Ninth Circuit opinion and the dissent to authorizes claims of mental or emotional its en banc denial are available at: distress, leaving “actual damages” open to http://www.ca9.uscourts.gov/datastore/opini interpretation. Because a narrow ons/2010/09/16/08-17074.pdf. construction of this term as including only pecuniary harm and excluding mental or Supreme Court Grants Certiorari emotional harm is reasonable, a court is in Case Involving the required to respect Congress’s exclusive Preemptive Scope of the authority over the public fisc by adopting that construction. The United States further Locomotive Inspection Act argues that that even setting the sovereign immunity analysis aside, there is no On June 6, 2011, the Supreme Court granted evidence that Congress intended to expose certiorari in Kurns v. Railroad Friction the U.S. Treasury to significant new liability Products (No. 10-879) to review a decision based on subjective and uncapped claims of of the U.S. Court of Appeals for the Third mental or emotional distress. Circuit holding that the Locomotive Inspection Act (LIA) operated to preempt a Respondent’s brief argues that traditional state common law claim by a former canons of statutory construction compel a railroad employee against manufacturers of reading of “actual damages” that includes locomotive parts. See Kurns v. A.W. damages for proven mental or emotional Chesterton, Inc., 620 F.3d 392 (3d Cir. distress. The brief contends that dictionary 2010). The state common law claim sought definitions of “actual damages” damages for asbestos exposure that contemporaneous with passage of the allegedly occurred in the railroad Privacy Act show that the term’s meaning maintenance shop environment. The encompasses compensation for such question before the Court is whether the LIA damages. That meaning, in respondent’s preempts state common law claims by view, is confirmed by the traditional legal individuals who allege to have been exposed usage of the term, by other provisions of the to asbestos-containing materials in the Act, including its statement of purpose, and course of repairing locomotives at railroad by the construction of the term in maintenance facilities. The case presents contemporaneous statutes and judicial the same issues as those raised in John opinions. Finally, respondent argues that Crane, Inc. v. Atwell (No. 10-272), in which because established principles of statutory the United States had urged the Court to construction show that Congress intended to grant review of a Pennsylvania Superior provide compensation for proven mental or Court decision holding that the LIA did not emotional distress, the sovereign immunity preempt state common law tort claims canon cannot be invoked to compel a seeking damages for alleged asbestos reading of the Act that precludes such exposure. Atwell v. John Crane, Inc., 986 damages. A.2d 888 (Pa. 2009).

The Court is scheduled to hear oral The LIA states that “[a] railroad carrier may argument in the case on November 30. The use or allow to be used a locomotive or merits briefs in the case are available at tender on its railroad line only when the http://www.americanbar.org/publications/pr locomotive or tender and its parts and eview_home/10-1024.html. appurtenances – (1) are in proper condition

DOT Litigation News October 31, 2011 Page 4 and safe to operate without unnecessary under the LIA. Petitioners are Mr. Corson’s danger of personal injury; (2) have been widow and the executor of his estate. inspected as required under this chapter and regulations prescribed by the Secretary of The petitioners’ brief on the merits argues Transportation under this chapter; and (3) that the field preempted by the LIA does not can withstand every test prescribed by the include state common law claims against Secretary under this chapter.” 49 U.S.C. § manufacturers of locomotives and 20701. In Napier v. Atlantic Coast Line locomotive parts by workers injured in R.R. Co., the Supreme Court determined railroad maintenance facilities. They assert that the LIA occupied the field of regulating that the text of the LIA makes clear that it locomotive equipment safety and extended only regulates the “use” of a locomotive “on to “the design, the construction, and the [a] railroad line” and locomotives are not in material of every part of the locomotive and “use” under the terms of the statute when tender and of all appurtenances.” 272 U.S. they are being serviced in railroad repair 605, 611 (1926). Since Napier, many courts facilities. Moreover, petitioners contend have held that the scope of the LIA that there is no basis for applying the LIA in encompasses state common law claims. this case because the events giving rise to Mr. Corson’s exposure happened prior to the The Kurns case arises out of asbestos-related time when manufacturers became subject to injuries allegedly suffered by locomotive the LIA. Prior to a series of amendments maintenance worker George Corson while beginning in 1988 that broadened the scope he was employed by the Chicago, of the LIA to include manufacturers of Milwaukee, St. Paul, & Pacific Railroad locomotives and locomotive parts, such from 1947 to 1994. His employment manufacturers were not covered by the required him to remove insulation from statute. locomotive boilers and to install brake shoes on locomotives. It was alleged that he was The United States filed an amicus brief in repeatedly exposed to asbestos in the support of the petitioners. The United States insulation and the brake shoes. He was takes the position in its brief that the LIA diagnosed with malignant mesothelioma, an establishes a nationwide standard of care asbestos-related disease, in 2007 and died in that preempts the field of safety for 2008. Prior to his death, he brought suit locomotives, tenders, and their parts and against his railroad employer under the appurtenances used on railroad lines. Federal Employers’ Liability Act, 45 U.S.C. However, Congress did not intend for the §§ 51-60, which included an allegation that LIA to apply to locomotives that are not the railroad had violated the LIA. operational, such as locomotives Additionally, he sued numerous undergoing repairs in a railroad manufacturers under state common law maintenance facility. Therefore, the alleging, among other things, that his United States’ amicus brief concludes that asbestos-related injuries were caused by the the Third Circuit incorrectly held that the negligence of various locomotive part preemptive scope of the LIA precludes all manufacturers. Respondents Railroad of petitioners’ claims whether the Friction Products and A.W. Chesterton, Inc. locomotives Mr. Corson was servicing are two manufacturers that successfully were in use or not in use. The United raised the defense of federal preemption States’ amicus brief also recognizes, however, that some of petitioners’ claims

DOT Litigation News October 31, 2011 Page 5 may be preempted under the principles of parts and appurtenances. As a result, the conflict preemption where the claims United States suggests that the case be stand as an obstacle to the LIA’s objective remanded to the Third Circuit to apply of uniform nationwide standards conflict preemption principles. governing the safe use of locomotives. For instance, petitioners have alleged as The Court is scheduled to hear oral part of their state common law claim that argument in the case on November 9. The locomotive parts containing asbestos are merits briefs in the case are available at unreasonably dangerous for any use. This http://www.americanbar.org/publications/pr type of claim would be preempted if it eview_home/10-879.html. could result in different states imposing different rules governing when a locomotive is safe for use. However, petitioners also assert that respondents negligently failed to warn Mr. Corson how to protect himself while working with asbestos-containing products in the maintenance repair shop environment. This type of claim likely would not be preempted under conflict preemption analysis because it does not speak to the safe use of locomotives, tenders, or their

Departmental Litigation in Other Courts

D.C. Circuit Sets Aside DOT constituted final agency action and was Cease and Desist Letter against thus subject to judicial review. Indirect Air Carrier Furthermore, the court found that the case was not mooted by the fact that a

rulemaking on this subject is On April 1, 2011, the U.S. Court of forthcoming and that DOT granted CSI a Appeals for the District of Columbia temporary exemption. It then held that Circuit granted the Petition for Review DOT failed to address and explain the in CSI Aviation Services, Inc. v. DOT, critical issue of why the Federal 637 F.3d 408 (D.C. Cir. 2011), in which Aviation Act requires a certificate of petitioner CSI Aviation Services, Inc.’s authority for air charter brokers, such as (CSI), an air charter broker, sought CSI, operating under GSA contracts. review of a letter issued by DOT’s

Office of Aviation Enforcement and The court relied upon Ciba-Geigy Corp. Proceedings warning CSI to cease and v. EPA, 801 F.2d 430, in finding that desist from further activity that would DOT’s cease and desist letter was result in it engaging in indirect air subject to judicial review without further transportation. The D.C. Circuit held factual development. In Ciba-Geigy, the that DOT’s cease and desist letter court noted three factors in determining

DOT Litigation News October 31, 2011 Page 6 whether an agency’s action is or property by aircraft as a common reviewable: 1) whether the agency had carrier for compensation.” 49 U.S.C. § taken a definitive legal position 41102(a) (25). The court then applied concerning its statutory authority, 2) the common law definition of “common whether the case presented a purely legal carrier,” which defines a common carrier question of statutory interpretation, and as commercial transportation that “holds 3) whether the agency’s action imposed itself out to the public.” 637 F.3d at 415. an immediate and significant practical Because CSI’s contract with the GSA is burden on the petitioner. Id. at 435, for charter service, and not open to the 437. In applying these factors to this public, the court reasoned that CSI is not case, the court found that DOT issued a a “common carrier” and thus falls definitive statement of the agency’s legal outside the scope of the Federal Aviation position in its letter to CSI. Act. Ultimately because the court Furthermore, the court noted that the “[could not] evaluate the challenged issue of whether an air charter broker is agency action on the basis of the record engaged in air transportation poses a before [it], the proper course…is to legal question of statutory interpretation, remand to the agency for additional and there are no disputed facts that investigation or explanation.” 637 F.3d would bear on this question. Finally, the at 416 (citing Fla. Power & Light Co. v. court found that DOT imposed an Lorion, 470 U.S. 729, 744 (1985)). immediate and significant burden on While the court remanded this case, the CSI. DOT’s letter “cast a cloud of court also noted that “[i]t appears to us uncertainty over the viability of CSI’s that the law cannot support DOT’s ongoing business” and caused the interpretation, but we leave open the company to choose between compliance possibility that the government may and the risk of future prosecution. 637 reasonably conclude otherwise in the F.3d at 413. future, after demonstrating a more adequate understanding of the statute.” In turning to the merits of the case, the Id. court found that “DOT failed to explain why the Federal Aviation Act requires a The D.C. Circuit’s opinion is available at certificate of authority for air charter http://www.cadc.uscourts.gov/internet/o brokers operating under GSA contract.” pinions.nsf/3F89D4F2B90EFD2285257 637 F.3d at 415. The court first turned 865004DF0E9/$file/09-1307- to the statutory language of the Federal 1301152.pdf. Aviation Act, which states that “an air carrier may provide air transportation Federal Circuit Denies only if the air carrier holds a certificate.” Government’s Petition for Panel 49 U.S.C. § 41101(a). In the court’s Rehearing or Rehearing En analysis of the statutory provision, the court looked to the definition of “air Banc in Federal Railbanking transportation,” which includes Program Takings Case “interstate air transportation.” Interstate air transportation is defined as the On May 26, 2011, the U.S. Court of interstate “transportation of passengers Appeals for the Federal Circuit denied

DOT Litigation News October 31, 2011 Page 7 the United States’ combined petition for occurred when the STB issued the panel rehearing and rehearing en banc of NITU. The court concluded that no the U.S. Court of Appeals for the taking had occurred and granted the Federal Circuit’s decision in Ladd v. government’s Motion for Summary United States, 630 F.3d 1015 (Fed. Cir. Judgment. In dismissing the case, the 2010). court concluded that “[a] physical taking cannot have occurred in these The Ladds are property owners along a circumstances, where neither the NITU 76.2 mile rail line in Arizona near the nor another aspect of the federal United States-Mexico border. Through abandonment process has resulted in federal and private conveyances, a rail construction of a trail for public use.” carrier acquired the right to use a 100 feet wide, 76.2 mile strip of land to build The Ladds appealed and a Federal and operate a railroad and had done so Circuit panel reversed the lower court’s since 1903. According to the Ladds, decision. The panel found that the they retained fee simple estates in the issuance of a NITU amounts to a taking portions of their land underlying the rail because the NITU is the government line. In October 2005, the rail carrier action that blocks the landowners’ state filed a petition with the STB to initiate law reversionary property interests. The abandonment proceedings for the 76.2 panel based its decision on Caldwell and mile rail line. The STB issued a Notice Barclay, in which the Federal Circuit of Interim Trail Use (NITU) after a trail held that a takings claim accrues for operator petitioned the STB and the rail purposes of the statute of limitations carrier indicated its willingness to enter when a NITU is issued. into trail use negotiations with the trail operator. The NITU suspended The United States filed a petition for abandonment proceedings and panel rehearing or, in the alternative, authorized a 180-day period for the two rehearing en banc and urged the Federal parties to negotiate a trail use agreement. Circuit to apply established Supreme However, the parties did not reach a trail Court takings jurisprudence and to use agreement and a recreational trail affirm the trial court’s judgment. The was not established. petition for panel rehearing was considered by the panel that heard the The Ladds filed a suit against the United appeal, and the petition for rehearing en States in the Court of Federal Claims banc, response, and brief amicus curiae alleging a violation of the Takings were referred to the circuit judges who Clause of the Fifth Amendment. They are authorized to request a poll of argued that the NITU had forestalled or whether to rehear the appeal en banc. taken their state law reversionary Ultimately, the Federal Circuit denied property interests, and pursuant to two both petitions. Three judges joined in a prior Federal Circuit railbanking cases, dissenting opinion. Senior Judge Robert Caldwell v. United States, 391 F.3d Hodges, Jr. stated that in denying the 1226 (Fed. Cir. 2004), and Barclay v. petition for rehearing en banc, the Court United States, 443 F.3d 1368 (Fed. Cir. “maintain[s] and perpetuate[s] an 2006), a taking of their property egregious legal error.” 646 F.3d 910,

DOT Litigation News October 31, 2011 Page 8

911 (Fed. Cir. 2011). Judge Hodges preempted because the ADA prevents acknowledged the precedent set in states from adopting a law or regulation Caldwell and Barclay, but stated that related to the price, route or service of an those cases “failed to consider the air carrier. DOT has responsibility for varying outcomes stemming from the issuing regulations to implement the issuance of an NITU, which could result ACAA and published a supplemental in either a permanent, physical taking or notice of proposed rulemaking a temporary, regulatory taking.” Id. (SNRPM) on September 19, 2011. The Judge Hodges noted that the Court’s SNPRM seeks comments regarding the reluctance to consider the issue en banc potential revision of DOT’s regulation may have been because neither party governing airport kiosks in light of directly challenged the holdings in advances in technology and the needs of Caldwell and Barclay. Id. passengers with disabilities such as the plaintiffs in this case. Court Finds Preemption in State Law Challenge to Accessibility On May 17, plaintiffs appealed the of Airline Ticket Kiosks, District Court’s decision to the U.S. Court of Appeals for the Ninth Circuit. Plaintiffs Appeal Plaintiffs filed their brief on August 25 and raised similar arguments to those On April 25, 2011, the U. S. District raised before the court below, mainly Court for the Northern District of that automated kiosks are not a “service” California issued a decision dismissing under the ADA and that the savings National Federation of the Blind, et al. v. clause in the Federal Aviation Act of United Airlines, 2011 WL 1544524 1958 prevents plaintiffs’ claims from (N.D. Cal. Apr. 25, 2011), a suit that ACAA preemption. United filed its challenged the accessibility of United response brief on October 11, and the Airlines’ ticket kiosks on the ground that United States filed an amicus brief they violated California disability law supporting United on October 18. Both because the kiosks were not accessible to briefs raised similar arguments the blind. At the Court’s request, the supporting preemption to those raised United States filed a Statement of before the court below. Interest brief arguing that the plaintiffs’ claims were preempted under the Air Court Dismisses Tenants' Carrier Access Act (ACAA) and the Airline Deregulation Act (ADA). The Challenge to FHWA and FTA court agreed with the views of the Los Angeles Projects United States and found field preemption under the ACAA because On August 30, 2011, a U.S. Magistrate DOT had adopted a regulation Judge issued a Report and addressing kiosk accessibility, thereby Recommendation in Gaxiola et al. v. pervasively regulating this area. Further, City of Los Angeles, et al. (C.D. Cal. the court ruled that airport ticket kiosks No. 10-06632) recommending that the are “services” under the ADA, and thus U.S. District Court issue an order the plaintiffs’ claims are expressly granting judgment on the pleadings in

DOT Litigation News October 31, 2011 Page 9 favor of defendants FHWA, FTA, argue that all of the claims leveled Federal Highway Administrator Mendez, against the United States should be and Federal Transit Administrator dismissed on sovereign immunity Rogoff and dismissing plaintiffs claims grounds. against them for lack of subject matter jurisdiction. This case was a pro se Republic Airlines Challenges lawsuit brought by several individuals DOT’s Reallocation of displaced from their residences in the Reagan National Airport "Pickle Works Building," which is in the footprint of the FHWA-funded First Slot Exemptions to another Street Viaduct Widening Project and the Air Carrier FTA-funded Los Angeles County Metropolitan Transportation Authority On January 25, 2011, Republic Airlines, East Side Light Rail project. Plaintiffs Inc. (Republic) filed a petition for did not file an opposition to the review in the U.S. Court of Appeals for Magistrate’s Report and the D.C. Circuit seeking review of Recommendation. Accordingly, on DOT’s determination that Republic’s September 30, the U.S. District Court acquisition of Midwest Airlines, Inc. Judge assigned to the case issued an (Midwest), a carrier to which DOT had Order and Judgment dismissing all awarded two slot exemptions Reagan claims against the federal defendants for National Airport, constituted a transfer lack of subject matter jurisdiction. The of slot exemptions prohibited by statute. Judge also dismissed all claims against The case is styled Republic Airlines, Inc. the City of Los Angeles, Caltrans and v. U.S. DOT (D.C. Cir. No. 11-1018). the other defendants in the case. At Reagan National, the total number of Plaintiffs had alleged violations of the flights and the allocation of those flights First, Fourth, Fifth, and Fourteenth among air carriers are determined by Amendments, the Fair Housing Act statute and regulation. Under the so- (FHA), the Uniform Relocation Act, the called “High Density Rule” (HDR), Civil Rights Statutes (42 U.S.C. §§ FAA has allocated “slots” to air carriers. 1981, 1982, 1983, and 1985), and the A “slot” is simply a takeoff or landing Administrative Procedure Act. Plaintiffs authority. Congress has also authorized sought injunctive and declaratory relief, DOT to issue a certain number of slot and compensatory damages. Federal “exemptions.” Slot exemptions are defendants filed a timely Answer in special authorities to land and takeoff, to November 2010, denying all of supplement the slots available under the plaintiff's claims. HDR. The statute directs the Secretary to distribute slot exemptions under In July 2011, the Magistrate had issued specified criteria. The statute also an Order to Show Cause why plaintiffs’ provides that no slot exemption “may be claims under the Civil Rights Statutes bought, sold, leased, or otherwise and the FHA should not be dismissed as transferred by the carrier to which it is untimely. Federal defendants used the granted.” opportunity afforded by the Order to

DOT Litigation News October 31, 2011 Page 10

After Republic acquired Midwest, the portion of the final rule in connection Midwest ceased all scheduled operations with full-fare advertising. The Court has under its DOT and FAA certificates, and consolidated the petitions in a case returned its aircraft to their lessor, the styled Spirit Airlines, Inc. v. U.S. DOT Boeing Company. DOT found that after (D.C. Cir. Nos. 11-1219, 11-1222). The Republic’s acquisition of Midwest, its Air Transport Association of America, proposed continued use of Midwest’s Inc. and International Air Transport slot exemptions with its own Republic Association will participate as amicus aircraft branded “Midwest” constituted curiae in support of the airlines. The an impermissible “transfer” under the American Society of Travel Agents, Inc. statute. DOT subsequently reallocated has intervened in support of DOT. The the slot exemptions to another air carrier, Interactive Travel Services Association Sun Country, following a competitive will also participate as amicus curiae in proceeding. support of DOT.

Republic contends that DOT’s decision DOT’s final rule, Enhancing Airline is arbitrary and capricious because it Passenger Protections, 76 Fed. Reg. conflicts with the agency’s own 23,110 (Apr. 25, 2011), contains many precedents, and because the agency’s new requirements to improve the air underlying decision did not discuss its travel environment for consumers, DOT’s earlier slot exemption transfer expanding upon the passenger rights precedents. Republic seeks an order included in its first consumer vacating DOT’s underlying decision. rulemaking. In their petition for review, Republic’s opening brief was filed June the airlines assert that the rule 30. The government filed its brief on unlawfully: (1) ends the practice of September 22, and the case is scheduled permitting sellers of air transportation to for oral argument on November 8. exclude government taxes and fees from the advertised price; (2) prohibits the Air Carriers Challenge Most sale of nonrefundable tickets by Recent DOT Airline Passenger requiring airlines to hold reservations at Consumer Protection Rule the quoted fare without payment or cancel without penalty for at least

twenty-four hours after the reservation is On June 15, 2011, Spirit Airlines (Spirit) made if the reservation is made one filed a petition for review in the U.S. week or more prior to a flight’s Court of Appeals for the D.C. Circuit departure; (3) prohibits post purchase seeking review of certain provisions of price increases, including increases in an April 2011 DOT final rule designed the price of ancillary products and to protect airline passengers from unfair services, after the initial ticket sale; (4) and deceptive practices. On June 16, requires baggage fees be disclosed on e- Allegiant Air (Allegiant) filed its own ticket confirmations; and (5) mandates petition, challenging the same notification of flight schedule changes. provisions. On July 8, Southwest The airlines contend that these Airlines filed an unopposed motion to provisions of DOT’s final rule are intervene in the case, challenging only arbitrary and capricious because they

DOT Litigation News October 31, 2011 Page 11 allegedly interfere with airline pricing will now take effect on January 24, and services, impermissibly re-regulate 2012. airline business practices, and are not supported by the administrative record. Following DOT’s stay request denial, on July 22, the airlines moved the Court to On July 6, Spirit and Allegiant sought an stay the challenged provisions of the administrative stay from DOT of the final rule pending judicial review, which effective date of the rule pending their the government opposed. On September petitions for review. On July 8, 19, the Court denied the airlines’ motion Southwest filed its own request with to stay, and subsequently entered a DOT to stay the rule’s full-fare briefing schedule. Opening briefing of advertising provision pending judicial the airlines and their various amici are review. On July 20, DOT denied the due in November 2011. The airlines’ respective stay requests, but government’s brief is due December 29, granted in part the request of other with briefs of parties supporting DOT as entities (who are not parties to the either an intervenor or amicus curiae due litigation) to extend the effective date of in January 2012. Oral argument has not certain provisions of the rule to allow yet been scheduled more orderly implementation. All of the rule provisions at issue in this matter

Recent Litigation News from DOT Modal Administrations

Federal Aviation Historic Preservation Act (NHPA) because of this activity. The FAA Administration evaluated Massport’s proposal to remove and replace the hangar using an First Circuit Upholds environmental assessment (EA) and FAA’s Decision to Allow concluded there were no significant Replacement of Hangar at impacts. Removal of the hangar is a Bedford-Hanscom Field direct effect under the National Historic Preservation Act; therefore, FAA consulted with the State Historic Local groups challenged the FAA’s Preservation Officer and executed a approval of an amendment to the Airport Memorandum of Agreement (MOA) Layout Plan that allowed Massport, the with appropriate parties. The MOA operator of Bedford-Hanscom Field in requires Massport to salvage some parts Massachusetts, to remove the airport’s of Hangar 24. Hangar 24 and replace it with a newer, larger hangar. Hangar 24 was last used On July 12, 2011, the U.S. Court of in 2001 by MIT for various testing. It is Appeals for the First Circuit upheld eligible for listing as a historic property FAA’s decision, finding that it complied under Section 106 of the National

DOT Litigation News October 31, 2011 Page 12 with Section 4(f) of the DOT Act, projects. Barnes v. DOT, 655 F.3d 1124 Section 106 of the NHPA, and NEPA. (9th Cir. 2011). The court in Safeguarding the Historic Hanscom Area’s Irreplaceable HIO, located in Hillsboro, Oregon, is the Resources v. FAA, 651 F.3d 202 (1st Cir. busiest general aviation airport in 2011), conducted an in depth analysis of Oregon, and relative to total aircraft the 4(f) claims. It found that the operations, is the second busiest airport governing standard for determining if an in the state behind Portland International agency complied with 4(f) remains Airport. A 2005 Master Plan was whether an alternative is prudent given prepared by the Port of Portland, sponsor the totality of the circumstances. In of HIO, that identified facility finding that the FAA properly rejected improvements to enable HIO to continue the other alternatives as “imprudent,” the serving as an effective general aviation Court concluded that “prudence is reliever airport as activity levels largely a matter of safety and efficiency; increased. An EA was prepared to and the FAA’s determination that none evaluate a third runway and associated of the three alternatives would be taxiways, the relocation of a helicopter prudent was, on the record before it, well pad, and associated infrastructure within the universe of reasonable improvements. The primary purpose of outcomes. When that is true, it is not the the project was to reduce congestion and place of a reviewing court to second- delay at HIO in accordance with guess the agency.” The court found that planning guidelines established by FAA. FAA had taken all steps to minimize harm, the second part of Section 4(f). FAA approved and issued the final EA Finally, the court found the FAA and a finding of no significant impact on complied with all necessary steps under January 8, 2010. Petitioners, three Section 106 and that the FAA’s noise citizens, filed a petition for review in the analysis was reasonable. 9th Circuit pursuant to 49 U.S.C. 46110 challenging the adequacy of the EA and Ninth Circuit Remands the public hearing that was offered.

FAA’s Decision Approving th Third Runway at Hillsboro In its August 25 opinion, the panel found that the hearing was adequate, the Airport to Consider Potential discussion of greenhouse gas emissions Growth Inducing Effects was adequate, and that a number of issues were either not properly raised in On August 25, 2011, a divided panel of the comment period or were without the U.S. Court of Appeals for the Ninth merit. However, the majority also found Circuit (Judges Betty Fletcher, Paez, and that FAA failed to consider the Ikuta (dissenting)) issued an opinion environmental impact of increased holding that FAA’s environmental demand resulting from the expansion at assessment (EA) for the Hillsboro HIO. The court reasoned that the agency Airport (HIO) expansion projects failed was aware that a new runway could to consider the environmental impact of induce growth based on two statements increased demand resulting from the in the Statement of Work for the EA and

DOT Litigation News October 31, 2011 Page 13 therefore that the failure to discuss the wind turbines off the coast of environmental impact was a flaw “so Massachusetts. The project is known as obvious” that there was no need for “Cape Wind,” and the petition for petitioners to point it out to preserve the review was filed by the Town of issue for judicial review. The court Barnstable, Massachusetts. The Alliance emphasized that the EA’s discussion of to Protect Nantucket Sound filed a growth inducing effects consisted of similar petition for review (D.C. Cir. No. three sentences, that no documents in the 10-1307), and the court consolidated the record actually discussed the impact of a cases. Cape Wind Associates, LLC, the third runway on aviation demand, and developer, filed a motion to intervene, that no distinction was made in any which was granted. documents between the use with the existing two runways and use with an On January 19, 2011, the petitioners additional runway. The court did not filed a joint brief, arguing that the actually find that there were growth- construction of the Cape Wind “wind inducing effects from this project, but farm” with 130 wind turbines, each 440 rather that FAA did not document or feet tall, would be a hazard because it clearly demonstrate that there were no would cause changes to both instrument such effects. The court found that and visual flight procedures; would previous decisions in the context of increase delays at nearby airports; and flight patterns and arrival paths were not would impair the capability of certain air controlling, granted the petition, and traffic radar facilities. The petitioners issued a remand to FAA with maintained that FAA had failed to instructions to consider those indirect follow its own order and the governing environmental impacts of the third statute by ignoring the issue of whether runway pursuant to Council on the wind turbines would interfere with Environmental Quality regulations. the navigable airspace, even if the structures were not deemed to be The 9th Circuit’s opinion can be found at “obstructions.” They also argued that http://www.ca9.uscourts.gov/datastore/o FAA’s requirements to mitigate any pinions/2011/08/25/10-70718.pdf. adverse impact on radar capability were arbitrary and capricious because they D.C. Circuit Vacates FAA “No were inadequate and were purportedly Hazard” Determination for based on unproven technology. Proposed Cape Cod In its responsive brief, filed on February Wind Turbines 18, 2011, FAA explained that, under the statute, if there were a determination that On October 28, 2011, the U.S. Court of the proposed construction may result in Appeals for the District of Columbia an obstruction in the navigable airspace Circuit in Town of Barnstable v. FAA or may result in interference with the (D.C. Cir. No. 10-1276) granted a navigable airspace, then the agency must petition for review challenging FAA’s conduct an aeronautical study, which it “no hazard” determination in connection did. The statute does not establish any with the proposed construction of 130 requirement concerning the issues that

DOT Litigation News October 31, 2011 Page 14 such a study must address. In any event, Sixth Circuit Denies Petition FAA’s aeronautical study did consider for Review Alleging Unjust the impact of the Cape Wind project on Discrimination by Sumner the navigable airspace. More significantly, FAA argued that the County Regional Airport petitioners lacked standing because, Authority regardless of FAA’s hazard/no hazard determination, FAA has no authority to On September 13, 2011, the U.S. Court either authorize or prevent construction. of Appeals for the Sixth Circuit denied Thus, were FAA to find a hazard present the petition for review in Gina Moore in this case, it would not necessarily d/b/a Warbird Sky Ventures, Inc. v. th have any impact on the approval of the FAA (6 Cir. No. 10-4117). This project by the Department of the Interior petition for review challenged FAA’s (DOI). Cape Wind had obtained a lease final agency decision and order in a for the project from DOI, and there was grant enforcement proceeding. no evidence that the lease was Petitioner alleged that the Sumner conditioned upon a no hazard County Regional Airport Authority, the determination from FAA. sponsor of the Sumner County Regional Airport in Gallatin, Tennessee, violated The court rejected FAA’s standing and its grant assurance agreement when it, merits arguments. On standing, the among other things, denied petitioner the court concluded that the record right to operate as a Commercial demonstrated that a hazard Aeronautical Service Provider (CASP) at determination likely would have a the airport. She argued that FAA significant impact on DOI’s decision to wrongly found that the airport sponsor approve the project, and that, therefore, had not unjustly discriminated against the granting of the petition for review her. FAA argued that Moore was not could redress petitioners’ alleged treated differently than other tenants injuries. On the merits, the court agreed similarly situated at the airport when the with petitioners that the FAA’s No airport would not renew her CASP Hazard determination was arbitrary and agreement. Moore did not qualify to be capricious because it departed from the a CASP because she neither had the agency’s own internal guidelines by requisite amount of insurance, nor the focusing only on the height of the wind minimum amount of space necessary to turbines and did not adequately explain conduct CASP operations, and she has why other circumstances, such as the been in constant violation of the airport's forced re-routing of aircraft under minimum standards. The court found certain weather conditions, would not that none of petitioners’ arguments with result in the creation of a hazard. respect to perceived errors in the administrative fact finding process, the The D.C. Circuit’s opinion is available at alleged lack of notification of complaints http://www.cadc.uscourts.gov/internet/o about her misuse of common areas, the pinions.nsf/4804795E91B8FA5F852579 demand for her to increase her level of 37004EDC66/$file/10-1276- insurance, and the requirement that she 1338470.pdf. operate with an executed lease

DOT Litigation News October 31, 2011 Page 15 demonstrated that the airport sponsor’s to this legislation, which was enacted in actions amounted to unjust December 2007, the age limit was 60. discrimination. Under FTEPA, pilots who turned 60 Voluntary Dismissal in before the effective date of the statute, Challenge to Categorical but who had not yet reached age 65, Exclusion of Proposed Fixed could still fly for the airline if they were rehired. In that instance, the statute Base Operator Development provided that they would be rehired Area at Palm Beach without any prior seniority or International Airport commensurate seniority benefits. Further, the statute expressly abrogated On May 11, 2010, the U.S. Court of the so-called “age 60 rule” and provided Appeals for the Eleventh Circuit granted protection from liability under any petitioners’ voluntary motion to dismiss employment law or regulation for Trump, et al. v. FAA (11th Cir. No. 10- employers that complied with its terms. 15543). In this case, Donald Trump and The plaintiffs in this case, and in a Mar-A-Lago, LLC, an exclusive Palm number of similar cases brought in other Beach club owned by Mr. Trump had courts, argued that these provisions were challenged the validity of FAA’s unconstitutional violations of the Due approval of a categorical exclusion Process Clause, the Equal Protection under NEPA for a proposed 7.5 acre Clause, the Takings Clause, and the Bill Fixed Base Operator development area of Attainder Clause. at Palm Beach International Airport, a commercial service airport in Palm The district court, citing decisions in Beach, Florida that has a strong general other cases, held that the plaintiffs had aviation component. no claim under any of these provisions. The court found that the non- Court Dismisses Constitutional retroactivity provisions were not a Challenge to Fair Treatment for violation of equal protection because it was rationally related to the desire of Experienced Pilots Act Congress to maintain calm in the labor market and to prevent the inevitable On July 11, 2011, the U.S. District Court disruption that would be caused if an for the District of Columbia granted the unemployed pilot were to return to work government’s motion to dismiss in with all of his or her seniority benefits Adams, et al. v. United States, et al., intact. The court also quickly rejected 2011 WL 2694552 (D.D.C. July 11, the other arguments. Because the age 60 2011). This action was brought by Grant rule had been in effect since 1959, the Adams and a number of former airline pilots had no expectation of being able pilots to challenge the Fair Treatment for to fly past age 60. Consequently, they Experienced Pilots Act (FTEPA), which had no “property interest” in flying until extended the age limit for pilots flying age 65 and no basis on which to assert for commercial airlines to age 65. Prior either a takings or a due process claim. Finally, the court rejected the claim that

DOT Litigation News October 31, 2011 Page 16 the FTEPA was a bill of attainder petitioners allege that FAA violated because it imposed no punishment. The NEPA because of certain alleged statute does not bar the plaintiffs from inadequacies in its air quality analysis. being pilots; indeed, it allows them to act The project is estimated to take 13 years as pilots beyond age 60—something that to construct, and FAA has demonstrated was previously denied. And, it serves a that construction emissions either will be legitimate, non-punitive, purpose of de minimus or will meet general preserving labor calm. conformity requirements under the Clean Air Act. Under the AAIA, petitioners The court dismissed the complaint in its allege that FAA failed to demonstrate entirety, and plaintiffs did not appeal. that the project was consistent with existing plans of public agencies for Tinicum Township development of areas surrounding the Files Opening Brief in Its airport under 49 U.S.C. § 47106(a)(1). Challenge to FAA’s Approval of In making this determination, FAA relied on existing policy and case law to the Capacity Enhancement determine that the project was Program at Philadelphia reasonably consistent with the plans set International Airport forth by the area’s Metropolitan Planning Organization. On September 9, 2011, a group of petitioners, including the Township of Second Circuit Challenges to Tinicum in Delaware County, Blue Ribbon Panel Study Pennsylvania, filed their opening brief challenging FAA’s December 30, 2010, of Enclosed Marine Trash Record of Decision (ROD) that Transfer Facility Adjacent to approved a plan (referred to as CEP) to LaGuardia Airport expand and re-configure Philadelphia International Airport (PHL) by adding a On April 6, 2011, the U.S. Court of third parallel runway, extending an Appeals for the Second Circuit denied existing runway, and making various the government’s motion to dismiss the terminal and airfield improvements, petition for review in Paskar and Friends including re-locating the air traffic of LaGuardia Airport, Inc. v. DOT (2d control tower. The plan challenged in Cir. No. 10-4612), in which petitioners Township of Tinicum, et al. v. DOT (3rd seek review of a September 2, 2010, Cir. No. 11-1472) requires the City of letter transmitting the “Evaluation of the Philadelphia to purchase 72 homes and North Shore Marine Transfer Station and 80 businesses, all located in Tinicum its Compatibility with Respect to Bird Township, in order to relocate a UPS Strikes and Safe Air Operations at facility. LaGuardia Airport.” The motion to dismiss argued that the court lacked Petitioners appear to allege that FAA jurisdiction to consider the petition for violated NEPA and the Airports Airway review because FAA’s letter was not an and Improvement Act (AAIA). Relying agency order. The Second Circuit held heavily on comments made by the EPA, that the September 2 letter is an order for

DOT Litigation News October 31, 2011 Page 17 purposes of 49 U.S.C. § 46110. The located in the Runway Protection Zone Court did however raise, sua sponte, the (RPZ). Petitioners requested that the question of whether it had jurisdiction matter be remanded back to FAA with under 46110(d) with respect to petitioner an order directing FAA to declare the Friends of LaGuardia. MTS incompatible with safe air operations or, in the alternative, be The Report at issue was prepared by a remanded back to FAA for blue-ribbon panel of bird hazard experts reconsideration of its determination and who examined the extent to which the a review of potential hazards to air Marine Transfer Station (MTS), a navigation and wildlife hazards to air proposed enclosed trash transfer facility, operations. if properly managed, would nonetheless constitute a wildlife attractant and would The United States filed its brief on therefore be incompatible with safe August 30. In its brief, the United States airport operations at LaGuardia. In again argued the September 2 FAA letter 2006, the City proposed refurbishing transmitting the Panel Report is not a four closed transfer stations; one of them final order subject to review. The is located in Queens, less than one mile United States noted that construction of from LaGuardia Airport. The project the facility has begun, and it is New garnered special attention after the York City, not FAA or the Port “miracle on the Hudson River,” during Authority, that is building the facility. which a bird strike caused a US Airways The government claimed FAA is without flight taking off from LaGuardia to make authority to prevent the facility from an emergency landing in January of last being built. The United States also year. The Report included asserted that the petitioners do not have recommendations for action by the NYC standing since the Panel Report and Department of Sanitation and concluded FAA’s letter did not cause petitioners’ that the MTS will be compatible with alleged injuries, nor could a court safe air operations so long as it is redress those alleged injuries through an constructed and operated in accordance order directed at FAA. If the court with the Report’s recommendations. deems FAA's letter is a final order, the Construction of the facility is well United States asserted that the petition underway. should be denied because FAA's letter is supported by substantial evidence. The Petitioners filed a memorandum of law United States argued that the MTS was regarding the court's jurisdiction on May fully enclosed and was not in the RPZ, 6 and their opening brief on May 31. and that FAA's action was consistent Petitioners argued that the Panel Report's with FAA guidance and studies conclusion, that the MTS was concerning enclosed trash facilities. compatible with safe air operations if Additionally, the United States negated properly mitigated, was arbitrary and the petitioners' claim that the Panel capricious and not supported by Report was a wildlife hazard assessment substantial evidence. Petitioners or a No Hazard Determination. The challenged the Report's view that the United States closed its brief with the MTS was fully-enclosed and was not view that the court could not direct FAA

DOT Litigation News October 31, 2011 Page 18 to declare that the MTS was respondent in the proceeding and incompatible with safe operations. dismissed the City as a party, dismissed with prejudice the claim made in the Petitioners filed their reply brief on complaint that the City is a properly September 13, asserting again that the named respondent, docketed the MTS is in the RPZ and is not a fully remaining portions of the complaint, and enclosed facility, and that it was directed the Port Authority of New York improper for FAA to conclude that the and New Jersey to file an answer to the facility was compatible with safe air complaint within 20 days. The Port operations, irrespective of any mitigating Authority answered the complaint, circumstances. Petitioners claimed that petitioners filed a reply and the Port the Panel failed to follow FAA guidance Authority filed a rebuttal. The Office of in researching and drafting the Panel Airports is proceeding with its Report, and that the decision to gather investigation of the Port Authority's two months of bird survey data was alleged noncompliance. On July 1, inadequate. Petitioners closed their brief petitioners filed a petition for review of with the assertion that the FAA failed to the partial dismissal, Paskar and Friends follow its statutory duty, its own of LaGuardia Airport, Inc. v. FAA, et al. regulations and guidance and failed to (2d Cir. No. 11-2720). provide support for its decision, and again requested a remand. Aircraft Owner Groups Challenge FAA Rule Prohibiting In a related matter, the same petitioners Blocking of Electronic filed an administrative complaint with FAA over the MTS against the Port Aircraft Flight Data without Authority of New York and New Jersey, Security Basis and the City of New York under 14 C.F.R. part 16, FAA’s Rules of Practice On June 22, 2011, the National Business for Federally-Assisted Airport Aviation Association (NBAA) and the Enforcement Proceedings. The Aircraft Owners and Pilots Association complaint was originally dismissed on (AOPA) filed a petition for review in the February 28, 2011, without prejudice to U.S. Court of Appeals for the District of refiling upon correction of certain Columbia Circuit, challenging FAA’s deficiencies, including improperly decision not to block the release of real naming the City of New York as a time, or near real time, aircraft flight respondent. The petitioners refiled the data unless there is a valid security- case on April 12, correcting some of the related basis to do so. The data at issue deficiencies, but again naming the City in National Business Aviation of New York as a respondent. The Association, et al. v. FAA (D.C. Cir. No. Director of the FAA Office of Airport 11-1241) is the Aircraft Situation Compliance and Management Analysis Display to Industry (ASDI), which the issued a Partial Dismissal Order and FAA provides to certain Direct Notice of Docketing on May 24. The Subscribers. This data shows the Director ordered that the City of New position, call sign, altitude, speed, and York was not properly named as a destination of aircraft flying under the

DOT Litigation News October 31, 2011 Page 19

Instrument Flight Rules and of aircraft transparent government embodied in his receiving flight following under the memorandum titled “Transparency and Visual Flight Rules. ASDI data is Open Government” and on the provided in either real time or near real implementing directive from the Office time (5 minute delay), depending on of Management and Budget, which whether the subscriber has a specific encouraged agencies to make need for real time data (such as an air discretionary disclosures of information. carrier dispatcher) or has only a more FAA also relied upon the decision in general need and the use of near real NBAA v. FAA, 686 F. Supp. 2d 80 time data is sufficient. (D.D.C. 2010), in which the court rejected a challenge to the FAA’s release For a number of years, FAA has blocked of a list of the registration numbers of flight data information in the ASDI feed the aircraft that had asked that their data upon request of the owner or operator of be filtered from the ASDI feed. In that the aircraft. Under this system, the decision, the court held there was neither NBAA collected blocking requests and a privacy interest nor commercial transmitted them to the FAA monthly. significance in the list of registration The NBAA also arranged for the Direct numbers. Subscribers to block the aircraft data, which allowed the owners and operators Petitioners contend that the FAA failed to track their own aircraft—something to provide an adequate explanation for that could not be done if FAA filtered its change in policy and that it is, the data before transmitting it to the therefore, arbitrary and capricious and ASDI subscribers. violates the standards of the Administrative Procedure Act. In March 2011, FAA proposed modifying the blocking program so that Briefing has been completed, and oral it would only filter the ASDI data for argument is scheduled for December 2, aircraft with a valid security concern 2011. demonstrated (a) by the certification of a verifiable threat to the safety or security Party in Dismissed of persons or property or (b) by Administrative Civil Penalty satisfying the elements for a bona fide Action Seeks EAJA Fees security concern under Treasury

Regulation 1.132-5(m). 76 Fed. Reg. On July 13, 2011, Green Aviation LLC 12,209 (Mar. 4, 2011). FAA advised (Green) filed a petition for review in the that it would no longer block aircraft U.S. Court of Appeals for the District of data “upon request.” Columbia Circuit challenging an order

of the FAA Administrator denying Following a comment period, FAA Green’s appeal of the denial of its published its final revised policy on June application for the award of attorney’s 3, 2011, with an effective date of August fees under the Equal Access to Justice 2, 2011. FAA explained that it was Act (EAJA). Following preliminary revising its policy because of the civil penalty enforcement proceedings President’s stated policy of open and

DOT Litigation News October 31, 2011 Page 20 before an Administrative Law Judge challenging an FAA order that granted (ALJ) and before any hearing on the American Aviation Interim Operating merits, FAA withdrew a civil penalty Authority (IOA) to conduct 462 complaint against Green. The ALJ then sightseeing flights over the Glen Canyon dismissed the case with prejudice as he Recreation Area (Glen Canyon). The was required to do under the FAA’s order was issued on July 14, 2010, regulations, 14 C.F.R. § 13.215. following a fact-finding hearing in Thereafter, Green sought attorney’s fees which American Aviation participated, under EAJA, arguing that it was the along with other businesses providing prevailing party because the dismissal sightseeing flights over Glen Canyon— was with prejudice. The ALJ denied the Grand Canyon Airlines (Grand Canyon) motion, and Green appealed to the and Westwind Aviation (Westwind). Administrator, who also denied the Purpose of the hearing was to develop award of attorney’s fees under EAJA. the facts related to qualifying IOA operations for National Park overflights In the decision that is under review in under 49 U.S.C. § 40128. The fact- Green Aviation LLC v. FAA (D.C. Cir. finding hearing was undertaken to No. 11-1260), the Administrator held investigate Grand Canyon’s complaint that Green was not the prevailing party that American Aviation had exceeded for the purposes of EAJA under the the number of flights authorized by its principles set forth in Buckhannon IOA. The FAA order issued after the Board and Care Home, Inc. v. West hearing confirmed that American Virginia Dept of Health and Human Aviation had 462 IOA and reduced Services, 532 U.S. 598 (2001). Grand Canyon’s IOA to 4,638 and Specifically, the Administrator held that Westwind’s to 2,446 IOA. where, as here, a dismissal with prejudice is obtained through the In its petition in American Aviation, Inc. nondiscretionary application of a et al. v. FAA (D.C. Cir. No. 10-72772), regulation, it lacks the “judicial petitioners contend that their award of imprimatur” that is the hallmark of a only 462 IOA was arbitrary and decision on the merits. Under the capricious and that the allocation set circumstances, the Administrator denied forth in the FAA order was contrary to the award of attorney’s fees. the statutory requirements. The particular part of the statute at issue is Sightseeing Flight Operator the “look-back” provision, which Challenges FAA Order Setting permits the award of IOA based on the Number of Glen Canyon number of operations in the year prior to the enactment of the statute. Both Grand Overflights Canyon and Westwind obtained IOA substantially in excess of their actual On September 10, 2010, American operations during the look-back period Aviation, Inc. and Larry Wright because they claim to have purchased (collectively, American Aviation) filed a the IOA of operators who went out of petition for review in the U.S. Court of business. FAA’s position is that, during Appeals for the Ninth Circuit the hearing, American Aviation

DOT Litigation News October 31, 2011 Page 21 expressly withdrew any claim to IOA in a 13.9-mile segment located about excess of the 462; consequently, it 25 miles west of downtown Houston and cannot raise the issue of its IOA is planned as a four-lane controlled allocation in this petition. With regard access toll facility connecting Interstate to the IOA allocations to Grand Canyon Highway 10 with U.S. Highway 290. and to Westwind, FAA argues that those allocations were reasonable and were Plaintiffs/appellants Sierra Club and adequately explained in its order. Houston Audubon (Sierra Club) alleged Further, FAA asserts that even if its that the proposed route of the Segment E allocation to Grand Canyon and tollway took it through the Katy Prairie, Westwind was flawed, American an area they asserted is environmentally Aviation does not have a sufficient stake sensitive. Specifically, Sierra Club’s in the outcome to give it standing to complaint alleged that the EIS for the raise the issue in a petition for review. project (1) contained an inadequate and unlawful alternatives analysis; (2) failed This matter has been fully briefed, and to assess properly the impacts of oral argument is scheduled for Segment E on hydrology, drainage, November 15. floodways, and floodplains; (3) failed to disclose significant impacts and indirect effects on wetlands; (4) failed to disclose Federal Highway significant air impacts, air toxics risks, and failed to consider greenhouse gas Administration emissions; (5) failed to properly disclose noise impacts; and 6) failed to consider Fifth Circuit Affirms Grant of the project's indirect, secondary, and Summary Judgment for FHWA cumulative impacts in an in Challenge to Houston Grand environmentally sensitive area. Sierra Parkway Project Club sought an order requiring FHWA to prepare a supplemental EIS. On August 2, 2011, the U.S. Court of Appeals for the Fifth Circuit affirmed In November 2007, FHWA had the grant of summary judgment for approved an FEIS for Segment E after FHWA by the U.S. District Court for the 15 years of public meetings, studies, and Southern District of Texas. This case, analysis. FHWA signed the original Sierra Club, v. FHWA, 2011 WL ROD in June 2008, selecting one of the 3281328 (5th Cir. 2011), involved a Build alternatives. Following receipt of challenge to a Record of Decision additional and new information (ROD) issued by FHWA on a highway regarding floodplains and wetlands project in Texas. The project was impacts, FHWA completed a Segment E of the Grand Parkway, which reevaluation and issued a revised ROD is located in Houston, Texas. The Grand in June 2009. The district court denied Parkway (State Highway 99) is Sierra Club’s motion for summary envisioned as a 180-mile-long loop judgment and granted the Defendants’ highway around Houston. Segment E is motions for summary judgment. Sierra Club v. FHWA, 715 F.Supp.2d 721

DOT Litigation News October 31, 2011 Page 22

(S.D. Tex. 2010). The court concluded was therefore not so narrow that it that, as required by NEPA, FHWA took foreclosed consideration of reasonable “a hard look at the environmental alternatives. Additionally, the court held consequences of the alternatives” and that the purpose and need statement in provided “an explanation of the the FEIS, as well as the data and analysis alternatives sufficient to permit a regarding traffic congestion, traffic reasoned choice among different courses safety, and induced development, was of action.” Id. at 732. sufficient to permit defendants to consider reasonable alternatives to On appeal, the Sierra Club asserted (1) Segment E and to make a reasoned the purpose and need statement was a choice among the considered post hoc justification for the construction alternatives. of Segment E and that the FEIS data showed that the primary reason for the The court then addressed Sierra Club’s construction of Segment E was to induce argument that the agencies failed to growth; (2) FHWA relied on inaccurate comply with NEPA as the FEIS data and outdated data in analyzing alternatives analysis relied on an impacts to floodplains and thus failed to allegedly inaccurate and outdated comply with both NEPA and Executive floodplain map that was subject to a Order 11998; (3) the wetlands analysis separate, ongoing legal challenge. The did not comply with NEPA court held that the FEIS’s floodplain requirements; and (4) the District Court analysis satisfied the requirements of erred when it denied Sierra Club’s NEPA because it clearly explained that it motion for leave to file an amended relied on a map that was effective as of complaint. In its appeal, Sierra Club did June, 2007 and because FHWA not challenge the District Court’s regulations require the use a National conclusions that the FEIS’s assessment Flood Insurance Program map, which of air and noise impacts was adequate. this map was, to determine whether a Nor did it challenge the conclusion that highway project will encroach on a the FEIS’s assessment of cumulative floodplain. The court allowed that the impacts was adequate. FEIS could have disclosed that the map was the subject of ongoing litigation and The Fifth Circuit’s opinion is possibly subject to revision, but the court noteworthy in its treatment of the EIS declined to hold that this fact rendered alternatives analysis and the EIS defendants’ reliance on the map arbitrary documentation and analysis of potential and capricious. floodplain impacts. On the issue of the project's alternatives analysis, the court The Fifth Circuit affirmed the District held that defendants thoroughly Court opinion on all other points. On considered the possibility of not building September 17, Sierra Club petitioned the Segment E and fully considered various Fifth Circuit for panel rehearing, and on alternative locations for the new October 3, the court denied the petition. highway, ultimately choosing one of the options with the least environmental impact. The purpose and need statement

DOT Litigation News October 31, 2011 Page 23

FHWA Wins Challenge to North small (1%) projected difference in Carolina Toll Road Project impervious surface between the build and no-build scenarios in the Indirect On October 24, 2011, the U.S. District and Cumulative Impacts Analysis. for the Eastern District of North Carolina Plaintiffs relied heavily on case law upheld FHWA’s decision to approve the containing general statements that Monroe Connector/Bypass, a new, whenever a road is built, additional twenty-mile toll road outside of traffic can reasonably be expected to Charlotte. The court in North Carolina follow. Wildlife Federation v. North Carolina Department of Transportation, 2011 WL FHWA submitted an administrative 5042075 (E.D.N.C. Oct. 24, 2011), record of more than 30,000 pages and found that FHWA and the North the parties each filed motions for Carolina Department of Transportation summary judgment. had fully complied with NEPA In their briefs, defendants acknowledged requirements in approving the $800 that a small portion of the million project. socioeconomic data for the no-build model presumed construction of the The project at issue was the Monroe project, but explained how prior to Connector/Bypass, a proposed new signing the ROD they responded to twenty-mile, controlled-access toll road commenters’ concerns about the no- extending from US 74 near I-485 in build model and determined through Mecklenburg County to US 74 between consultation with the local jurisdictions the towns of Wingate and Marshville in that provided the data that the no-build Union County. Plaintiffs sought to stop model remained reasonable. construction of the project.

Plaintiffs' complaint alleged that the The court rejected all of plaintiffs’ defendants violated the NEPA by (1) challenges to the project, observing that failing to analyze the environmental judicial review of NEPA compliance impacts of the Monroe does not include “fly-specking the Connector/Bypass; (2) conducting a agency’s decision-making process” but flawed analysis of alternatives; and (3) rather a determination that the data and presenting materially false and methodology used by the agency are misleading information to other agencies “simply…reasonable.” FHWA met that and the public. In support of these test here. Specifically, the court ruled allegations, plaintiffs argued that flawed that FHWA had thoroughly examined socioeconomic data undermined a the environmental impacts of the meaningful comparison of the build and proposed toll road, including growth- no-build alternatives and caused inducing and indirect environmental defendants to underestimate impacts. The court also concluded that environmental impacts of the project. the state and Federal defendants had Specifically, plaintiffs argued that developed a reasonable Statement of flawed data, and not ongoing projected Purpose and Need for the project and regional population growth explained the had considered a reasonable range of

DOT Litigation News October 31, 2011 Page 24 alternatives, including the no-build FONSI. Plaintiffs prevailed in that alternative, rejecting arguments to the initial suit when the Court found that the contrary made by the plaintiffs. Finally, initial EA was conclusory and did not the court rejected the plaintiffs’ claims take the required hard look at the that the defendants had failed to address project’s impacts on the surrounding concerns of the U.S. Fish and Wildlife area. Following additional studies and Service and had presented FWS with more coordination with the plaintiffs and materially false and misleading the public, the impacts were re-evaluated information relating to forecasts of in a new EA, and the FONSI was traffic volume and the anticipated reissued. Plaintiffs were not satisfied growth-inducing effects of the project. with the bridge design and wanted the entire crossing to be spanned with one FHWA Wins Challenge to South long bridge, which would double the Carolina Bridge Project project costs.

In this case, the court determined that On April 28, 2011, the U.S. District FHWA and the South Carolina Court for the District of South Carolina Department of Transportation (SCDOT) denied plaintiffs’ Motion for Summary fully complied with 49 U.S.C. § 303, Judgment and granted defendants’ “Section 4(f),” and the National Motion for Summary Judgment in Environmental Policy Act (NEPA) when Friends of Congaree Swamp v. FHWA, they analyzed the construction of bridges 786 F.Supp.2d 1054 (D.S.C. 2011). The and causeways on state highway 601 and court found that the Defendants fully issued a Revised Environmental complied with NEPA and Section 4(f) of Assessment (EA) and Finding of No the DOT Act. The court’s ruling cleared Significant Impact (FONSI). The court the way for completion of a much agreed with FHWA’s determination that needed bridge replacement project on impacts from the project were not State Highway 601 in rural South significant and thus did not require a full Carolina. Environmental Impact Statement as urged by the plaintiffs, despite the fact Plaintiffs, consisting of several South that the project traversed a national park. Carolina environmental groups, alleged 4(f) and NEPA violations against both Plaintiffs did not appeal the court’s SCDOT and FHWA in connection with decision, and construction of the project the 601 bridge construction project. The is now underway. original bridge was built in the 1940s and is in serious need of repair. The FHWA Wins Partial Dismissal bridge replacement project is within the Congaree River floodplain and near and of Challenge to Cleveland Inner adjacent to the authorized boundary of Belt Bridge Project the Congaree National Park. On March 31, 2011, the U.S. District In 2006, the plaintiffs sued the same Court for the Northern District of Ohio defendants over the initial EA and granted in part and denied in part the

DOT Litigation News October 31, 2011 Page 25 federal Defendants’ Motion to Dismiss Plaintiff’s final count alleged that in Cronin v. FHWA, 2011 WL 1297294 defendants violated the APA and re- (N.D. Ohio Mar. 31, 2011). The case alleged and incorporated Counts One was filed in 2009 by a Cleveland and Two for the purpose of alleging resident challenging the federal and state Count Three. The court ruled that defendants’ actions regarding the plaintiff’s claims for relief under 23 proposed Cleveland Inner Belt Bridge U.S.C. § 217(e) and (g) as well as 23 project. C.F.R. §§ 652.5 and 450.300(a) were not entitled to review under the APA. The Plaintiff raised three counts in his court reasoned that is was highly complaint. First, plaintiff alleged that unlikely that Congress intended to allow the defendants violated 23 U.S.C. § bicyclists to sue the DOT and dismissed 217(e) and (g) by not properly plaintiffs APA claims with respect to considering the bicycling public and these provisions. denying bridge access to bicyclists. The court ruled that sections 217 (e) and (g) Plaintiff’s NEPA claim under the APA do not guarantee a right to any was dismissed with respect to the state individual bicyclist. As such, the alleged defendants and upheld with respect to violations were not reviewable by the the federal defendants. The court ruled court, and the court dismissed plaintiffs that because FHWA issued the Record claim for lack of subject matter of Decision (ROD) from which plaintiff jurisdiction. Plaintiff also alleged that sought judicial review pursuant to the defendants’ conduct violated several APA, the state defendants could not be “federal transportation and held responsible for a violation of the environmental laws which required APA. With regard to FHWA, plaintiffs evaluating the interest of cyclist” under allege that because Ohio DOT failed to 23 C.F.R. §§ 652.5 and 450.300. Under provide pertinent information to FHWA, the same reasoning used to dismiss the the Agency was unable to accurately first claim, the court ruled that sections evaluate the impact of the Inner Belt 652.5 and 450.300 do not provide a project in violation of NEPA. The court private of action. The court indicated ruled that the plaintiff stated enough that while consultation with bicyclists facts to state a claim to relief and that he should be encouraged, such a policy is entitled to seek review of the ROD to does not create a private right of action, determine if the agency decision violated and the court thus dismissed this claim NEPA pursuant to the APA. as well. Finally, the court denied the plaintiff’s Plaintiff’s second count alleged that claim for monetary damages based on defendants violated NEPA. The court the doctrine of sovereign immunity. held that plaintiff was not entitled to a private right of action pursuant to NEPA and dismissed this Count. The court did note that plaintiff should have brought this claim via the Administrative Procedure Act (APA).

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Court Dismisses Challenge to sites and went out to contract in 2010 to Washington State Emergency fix the sites. The project involves Road Repair Project relocating two sections of the road away from the river. Minimal work was done

in 2010. On July 21, 2011, the U.S. District Court for the Western District of Washington On May 26, the government moved to granted FHWA’s motion to dismiss in dismiss the case as moot because FHWA North Cascades Conservation Council v. withdrew the CE that was the subject of FHWA, 2011 WL 2976913 (W.D. the challenge and plans to prepare an EA Wash. July 21, 2011). In this case, a that also will address additional group of plaintiffs challenged an damaged sites on the road. Emergency Repairs on Federally Owned Roads (ERFO) project on the Suiattle Court Dismisses River Road outside of Darrington, Washington. Plaintiffs in alleged that: Challenge against Pittsburgh (1) the project failed to comply with the Civil Arena Project, Mt. Baker-Snoqualmie Land and Plaintiff Appeals Resource Management Plan, as amended by the Northwest Forest Plan; (2) the On September 9, 2011, the U.S. District FHWA failed to disclose the Court for the Western District of environmental consequences of the Pennsylvania granted federal proposed action; (3) the Categorical defendant’s Motion to Dismiss for Lack Exclusion (CE) issued by FHWA was of Subject Matter Jurisdiction in arbitrary and capricious; (4) an Preservation Pittsburgh v. Conturo, 2011 Environmental Assessment (EA) or WL 4025731 (W.D. Pa. Sept. 9, 2011). Environmental Impact Statement (EIS) On July 6, 2011, plaintiff Preservation was required; and (5) ERFO funds were Pittsburgh had filed a complaint not authorized for use on the project. contending that the demolition of Besides the North Cascades Pittsburgh’s Civic Arena was an integral Conservation Council, the plaintiffs part of a plan to redevelop the site using include the Pilchuck Audubon Society federal-aid highway funds from FHWA. and William Lider, an individual. Plaintiff alleged that the demolition was, therefore, inextricably related to a FHWA issued a CE approving the ERFO transportation project requiring approval project on the Suiattle River Road of the FHWA in conformity with Section outside of Darrington, Washington. The 106 of the National Historic Preservation Project is to repair two sites: one site Act, 16 U.S.C. §§ 470f, Section 4(f) of washed out in 2003, and one in the DOT Act , 23 U.S.C. § 138, and 2006. The U.S. Forest Service (USFS) NEPA, 42 U.S.C. § 4332(2). Plaintiff originally issued an EA for the 2003 sought injunctive and declaratory relief damage and contracted in 2006 to repair arguing that the Sports and Exhibition that site. The 2006 event cut off access Authority’s premature demolition of the to the site and the USFS terminated the Civic Arena would evade the evaluations contract. FHWA executed a CE for both of alternatives to avoid or mitigate the

DOT Litigation News October 31, 2011 Page 27 destruction of historic properties (D.D.C. Sept. 14, 2011). Pro se plaintiff mandated by the aforementioned statues. Arthur West, a resident of the State of Washington and an occasional visitor to The court held that: (1) there was no the Washington, D.C., metropolitan area, evidence of federal involvement by filed his initial Complaint on August 18, FHWA and that the mere possibility of 2009. In the Complaint, Plaintiff federal funding in the future is too claimed that the federal and state tenuous to convert a local project into officials who approved the I-95/395 federal action; (2) there was no evidence High Occupancy Toll Lanes Project that, even if there is future federal failed to comply with NEPA by funding, the redevelopment will be a improperly issuing a Categorical “major federal action”; (3) Section 4(f) Exclusion (CE) and not preparing an of the DOT Act does not provide a Environmental Impact Statement or an private right of action; (4) a district Environmental Assessment with a court’s review of an agency action or finding of no significant impact. He also inaction under NEPA is available only asserted that the federal defendants through the APA; and (5) without a improperly delegated NEPA authority in statutory duty requiring federal action, conducting their environmental review. there is no “failure to act” sufficient to invoke “final agency action” review The Court found that FHWA has under the APA. rescinded its approval and CE document for construction work on the Project and On September 9, 2011 plaintiff filed an that the Virginia Department of Emergency Motion for an Injunction Transportation (VDOT) has withdrawn Pending Appeal, which the court denied. its proposal for the Project. Therefore, Plaintiff then filed a similar motion and the court held, there is no longer a live an appeal with the U.S. Court of Appeals controversy for which the Court can for the Third Circuit. The Third Circuit grant any relief. The Court further denied the stay motion, substantially for opined that although plaintiff’s claims the reasons stated in the district court's regarding the Project are now moot, his opinion. On September 29, the federal proposed new claims regarding VDOT’s defendants filed a Motion for Summary new project suffer from the opposite Affirmance. problem: a lack of finality of the challenged action. FHWA Wins Dismissal of Challenge to Virginia’s I-95 FHWA Wins Oregon HOT Lanes Contract Case

On September 14, 2011, the U.S. District On September 7, 2011, the U.S. Court of Court for the District of Columbia Federal Claims found that the granted federal defendants’ Motion to government did not act in bad faith in Dismiss and dismissed plaintiff’s terminating plaintiff’s contract and Complaint with prejudice in West v. awarded the exact amount recommended Horner, et al., 2011 WL 4071854 by the government in White Buffalo

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Construction, Inc. v. United States, 2011 program on its face and as applied by US WL 4402355 (Fed. Cl. Sept. 7, 2011). DOT, FHWA, and IDOT. Essentially, Plaintiff, the prime contractor on the plaintiff claims that the statute repair of 16 intermittent sites in the authorizing the DBE program is an Siskiyou National Forest in southern unconstitutional delegation by Congress Oregon under the Emergency Relief for of legislative authority to the Secretary Federally Owned Roads program was to establish and determine substantive originally terminated for default in 1998. rights based on race, ethnicity, and This default was converted to a gender, in violation of the separation of termination for convenience in 2004. powers clause and that it fails to Plaintiff sought nearly $1.1million in articulate a compelling need for a race- damages under the Contract Disputes based affirmative action program in Act based on allegations that the violation of the equal protection government terminated its contract in guarantees in the Fifth and Fourteenth bad faith and had not awarded it enough amendments. In addition, plaintiff costs under the Contracting Officer’s claims the DBE regulations exceed the Decision for the termination for authority conferred by Congress in the convenience. An eleven-day bench trail authorizing statute, are not narrowly was held in Portland, Oregon in the tailored because of the undue burden summer of 2009, during which the focus placed on non-DBE subcontractors, fail of the evidence and testimony was to tailor the preference accorded DBEs primarily on the plaintiff’s allegations based on the relative degree of that the government acted in bad faith discrimination individual groups may throughout the performance of the have endured, encourages contract. implementation of a quota program through vague good faith efforts Court Denies Motion to Dismiss standards, and improperly delegates in Illinois DBE Federal authority to State departments of Program Challenge transportation. The complaint also challenges the constitutionality of the

State’s local DBE program implemented On June 27, 2011, the U.S. District on wholly state funded contracts. Court for the Northern District of Illinois denied FHWA’s motion to dismiss a The government moved to dismiss this Chicago guardrail and fencing case, arguing that plaintiff lacked company’s constitutional challenge to standing and had failed to state a claim FHWA’s Disadvantaged Business upon which relief could be granted. As Enterprise (DBE) Program. Plaintiff in to standing, the government argued that Midwest Fence Corp. v. LaHood, et al, even if plaintiff successfully challenged 2011 WL 2551179 (N.D. Ill. June 27, the race-conscious presumptions that are 2011) is a non-DBE contractor for the afforded DBEs under the program, its Illinois Department of Transportation alleged injuries from the program would (IDOT). The lawsuit challenges the not be redressed because the program constitutionality of the Federal could continue to operate without those disadvantaged business enterprise (DBE) presumptions and plaintiff had not

DOT Litigation News October 31, 2011 Page 29 demonstrated that it was a sufficiently DOT Intervenes in small business to qualify for Constitutional Challenge to its participation in the modified program. DBE Regulations and Their Thus, any injury caused by plaintiff’s alleged inability to compete with Implementation in Federal-Aid program participants would persist. The Highway Contracting in court rejected this argument, refusing to Minnesota follow courts in other circuits that have adopted this standing analysis. Instead, On May 11, 2011, the U.S. District the court expressed doubt that Congress Court for the District of Minnesota envisioned that the program could granted DOT’s motion to intervene as a operate without its race-conscious defendant in a lawsuit challenging the presumptions and concluded that even if constitutionality of the Department’s the program did operate under such Disadvantaged Business Enterprise circumstances, the elimination of the (DBE) regulations and their presumptions would so reduce the implementation by the Minnesota number of firms qualifying for the Department of Transportation in federal- program that firms like plaintiff’s aid highway contracting. The case, outside the program would likely be Geyer Signal, Inc., et al. v. Minnesota better able to compete for subcontracts. DOT, et al. (D. Minn. 11-0321), was brought by a non-DBE highway The government also argued that construction subcontractor. Plaintiff plaintiff failed to state a claim upon alleges, among other things, that the which relief could be granted because federal DBE regulations are courts have consistently affirmed the unconstitutional because they are not facial validity of DOT’s DBE program sufficiently supported by the legislative in numerous constitutional challenges, record and they cause an and Congress, in renewing the program, overconcentration of subcontract awards has repeatedly found evidence of to DBEs in landscaping and traffic discrimination in highway contracting control work, plaintiff’s areas of sufficient to establish a compelling specialty. Plaintiff claims that but for interest in continuing the program. The the race and gender-conscious provisions court acknowledged the case law and of the DBE program, plaintiff would be evidence of a compelling interest cited able to compete for and win more by the government, and expressed subcontracts. In support of its motion to serious doubt that plaintiff could prevail intervene, which was unopposed, the in its facial challenge to the federal Department argued that it has an interest program. However, the court concluded in the federal regulations at issue in the that plaintiff should have the opportunity case, that its interest could be impaired to challenge the evidence of compelling by the outcome of the case, and that its interest that Congress relied upon. interest is not adequately represented by the current parties.

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Alaska Bridge Project Suit required by 23 C.F.R. §§ 771.125 and Is Settled 771.109; (3) the FEIS/ROD’s selected alternative is inconsistent with the On July 5, 2011, the City of Anchorage, project’s purpose and need; and (4) by and through the Port of Anchorage, FHWA failed to adequately coordinate challenged a new bridge project in with the Maritime Administration. Anchorage in City of Anchorage v. FHWA (D. Alaska No. 11-00138). Suit over Ohio Railroad After months of negotiations between Crossing Project Settles plaintiff and the project proponent, the Alaska Department of Transportation & On October 6, 2011, the U.S. District Public Facilities, regarding the project’s Court for the Northern District of Ohio selected alignment and right-of-way over issued an order approving plaintiff’s plaintiff’s property, a settlement Notice of Voluntary Dismissal in agreement was reached on October 19, Schneider v. U.S. DOT, et al. (N.D. and the litigation was voluntarily Ohio No. 10-02297). This litigation dismissed with prejudice. involved a challenge to the Highland Road Grade Separation Project in The Knik Arm Bridge and Toll Macedonia, Ohio. Plaintiff alleged that Authority (a legislatively created entity defendants violated NEPA, Section 4(f) under the Alaska Department of of the DOT Act, and the Federal Aid Transportation) worked jointly with Highway Act. Plaintiff, a local business FHWA in the development and owner, agreed to dismiss his complaint evaluation of this project, which is based upon a settlement agreement proposed to be constructed through a which provided that the state defendants public-private partnership. The purpose would re-design an access road to the of the project is to further development plaintiff’s business. The complaint was of transportation systems in the upper dismissed with prejudice, and no Cook Inlet region by providing attorneys’ fees are being sought. improved vehicular access and surface transportation connectivity between Court Denies Preliminary Anchorage and the Matanuska-Susitna Injunction against Texas Borough through the Port MacKenzie Interchange Project District.

On April 22, 2011, the U.S. District The City challenged FHWA’s Record of Court for the Western District of Texas Decision (ROD) and alleges that: (1) the denied the preliminary injunction sought Final Environmental Impact Statement in the case of Aquifer Guardian in Urban (FEIS) for the project failed to take a Areas v. FHWA, 779 F.Supp.2d 542 hard look at the financial impacts to the (W.D. Tex. 2011). The Alamo Regional Port of Anchorage’s operations; (2) Mobility Authority (ARMA) and the FHWA violated the Administrative Texas Department of Transportation Procedure Act by not describing the (TxDOT) proposed a project to upgrade mitigation measures for the project as an existing three level interchange at US

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281 and Loop 1604 in the northern part In September, 2010, AGUA requested of San Antonio, Texas, to a five level that the lawsuit be amended to allow interchange to provide four non-toll challenge of the 281/1604 interchange direct connectors. In addition to project. The court, over defendants’ interchange construction, some nine objections, allowed the amendment. An miles of auxiliary lanes would be added administrative record was prepared and to Loop 1604 and US 281 to facilitate filed with the court on December 7, traffic movements. Plaintiffs challenge 2010. Then, on December 20, 2010, whether the project’s Categorical Plaintiff sought a preliminary injunction. Exclusion (CE) was properly authorized The request included four declarations, and approved, whether it adequately from several experts and a local Mayor, evaluated environmental impacts, and asserting that the CE documentation is whether the project was illegally both improper and inadequate. The court segmented from the US 281project. initially issued an advisory opinion noting plaintiff’s request but stating that In 2008, a lawsuit was filed by the the press of business was such that no Aquifer Guardians in Urban Areas immediate ruling would be forthcoming. (AGUA) on another toll project located ARMA then began construction in early in the north part of San Antonio. This March of 2011. earlier project was to expand and upgrade an 8.0 mile portion of US 281 On April 22, 2011, the court issued its northward from the intersection with opinion denying Plaintiff’s request for a Loop 1604. The US 281 toll project was preliminary injunction. The court found approved with an EA/FONSI. In late that FHWA, under its regulations, 2008, FHWA withdrew its FONSI as it properly utilized a CE for the project was discovered that the TxDOT evaluation. Specifically, the court noted employee overseeing the environmental from its review of the administrative documentation had directly employed record that FHWA “rationally her husband and his firm to complete a determined” that the project would not portion of the ESA analysis. The court have any significant impacts and that the refused to grant FHWA’s request to project qualified as a CE based upon the dismiss the lawsuit after the agency “extensive analysis and documents in the withdrew the prior approval. Instead, record.” Further, the court found that finding that issues still remained plaintiff failed to meet any of the four unresolved, the court stayed the case. prerequisites for a preliminary injunction and that FHWA’s actions were not In 2009, ARMA started developing a arbitrary and capricious. The merits of project to construct several direct the case are still pending before the connectors on the existing interchange at court. US 281 and Loop 1604. FHWA approved the project with a documented CE in February 2010. The project construction start was set for late February 2011.

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New Appeal in Florida Bridge showing that the FEIS and ROD were Project Case arbitrary or capricious agency actions, or were in any way contrary to law. The On March 8, 2011, the Plaintiffs in State also argued that there was no Citizens for Smart Growth v. FHWA jurisdiction over Florida DOT under the (11th Cir. No. 11-11056) filed a new Administrative Procedure Act because Notice of Appeal and a Motion to the Act does not provide for a private Expedite following the district court’s right of action against a non-federal grant of defendants’ Motion for agency. Summary Judgment in this challenge to the Indian Street Bridge project in The case has been set for oral argument Martin County, Florida. The case had in Miami, Florida on December 6. previously been dismissed on appeal by the U.S. Court of Appeals for the United States Moves to Dismiss Eleventh Circuit on procedural grounds. Suit against Construction of Detroit River International The case was a challenge to FHWA’s Crossing after Court Denies U.S. decision to approve construction of the Motion to Transfer Indian Street Bridge Project in Martin

County, Florida. Plaintiffs are On May 31, 2011, the U.S. District landowners and citizens groups seeking Court for the District of Columbia to halt construction of the bridge, denied the United States’ motion to alleging violations of NEPA and section transfer Detroit International Bridge Co., 4(f) of the DOT Act. The U.S. District et al. v. The Government of Canada, et Court for the Southern District of Florida al. (D.D.C. 10-00476), to the U.S. denied plaintiffs’ motion for a District Court for the Eastern District of preliminary injunction and granted Michigan. Detroit International Bridge FHWA’s motion for summary judgment. Company (DIBC) and its Canadian Plaintiffs filed their opening brief on affiliate, owners and operators of the April 15, and defendants filed their only bridge connecting Detroit to response brief on May 18. Plaintiffs Windsor, Canada, brought suit against argue in their opening brief that FHWA the Departments of Transportation and wrongfully “phased“ the construction of Homeland Security, FHWA, the Coast the project and improperly incorporated Guard, and the Government of Canada, a Florida DOT feasibility and corridor alleging that various actions taken by the study into the Final EIS Additionally, defendants had deprived DIBC of its plaintiffs contend that the purpose and right to build a new bridge adjacent to its need, study area, alternatives, and exiting span, in violation of DIBC’s Section 4(f) analyses in the FEIS failed rights under the U.S. Constitution, the to comport with applicable law. Boundary Waters Treaty, and various statutes. The relief requested in the suit Defendants’ response briefs argue that includes declaratory judgments plaintiffs did not meet their burden regarding DIBC’s right to build its new bridge and an injunction against the

DOT Litigation News October 31, 2011 Page 33 construction the Detroit River by law. Additionally, plaintiffs claim International Crossing (DRIC), a that FHWA’s decisions to support planned new bridge between Detroit and construction of the DRIC and the Coast Windsor downriver from DIBC’s bridge. Guard’s return of DIBC’s application for (FHWA has issued the environmental a navigation permit to allow construction approval for the DRIC, and DIBC is a of DIBC’s proposed new bridge plaintiff in a separate suit challenging constitute final agency action. Finally, that approval and seeking to stop the plaintiffs argue that even if the Coast DRIC’s construction.) action was not final agency action, the Coast Guard’s delay in issuing the In denying the transfer motion, the court navigation permit is subject to judicial held that the U.S. defendants had not review. met their burden of showing that plaintiffs could have originally filed suit The court has scheduled oral argument in the Eastern District of Michigan on all on the government’s motion to dismiss claims and as to all defendants and that, for November 30. in any event, transfer was not warranted under the applicable statutory standard: Cross Motions for Summary for “the convenience of the parties and Judgment Filed in Kentucky witnesses, in the interest of justice.” 28 Environmental Case U.S.C. § 1404(a).

On April 29, 2011, plaintiff filed a Following the court’s ruling on the Motion for Summary Judgment, and on transfer motion, the United States moved June 4, federal defendants filed a Cross- to dismiss the suit. The government Motion for Summary Judgment in Karst argued that neither the Boundary Waters Environmental Education & Protection, Treaty nor any of the statutes that Inc. v FHWA (W.D. Ky. No. 10-00154). plaintiffs cite in their complaint are a The complaint alleges a violation of source of law that provides them a NEPA in the issuance of the Record of private right of action to pursue their Decision for the I-65 interchange and claims. Additionally, the government connector road between US 68 and US contended that the court lacks 31 near Bowling Green, Kentucky. Both jurisdiction over plaintiffs’ due process Motions for Summary Judgment are still claims and that, in any event, plaintiffs pending. Plaintiff’s Motion for failed to identify a property interest that Summary Judgment contended that the the United States had abridged. Finally, ROD approval was an arbitrary and the government argued that plaintiffs capricious decision based upon an FEIS had failed to challenge any final agency that failed to take the “hard look” at the action. In their opposition to the United project’s environmental impacts that is States’ Motion to Dismiss, plaintiffs required by NEPA. Federal defendants argued that they have private rights of Cross-Motion for Summary Judgment action at common law, by statute and demonstrated through the administrative treaty, and under the Constitution, and record that the FEIS and ROD complied that DIBC has a property interest in a with all NEPA requirements. bridge franchise allegedly granted to it

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Highway Widening Project filed a third motion for TRO, and on Challenged in Wisconsin July 18, defendants filed a response to that motion. On August 1 and 8, 2011, On June 6, 2011, in 1000 Friends of state defendants and federal defendants, Wisconsin, Inc. v. USDOT (E.D. Wis. respectively, moved to dismiss No. 11-0545), a citizens group plaintiff’s claim. The parties are challenged FHWA’s approval of the currently awaiting a decision from the Wisconsin 23 Corridor Project. The court on the pending motions. Project would widen Wisconsin Route 23 from Fond Du Lac to Plymouth. The New Environmental Challenge complaint seeks declaratory and to Seattle Area Bridge injunctive relief and alleges a violation Replacement and HOV Project of NEPA regarding the alternatives analysis, impacts analysis, and the 4(f) On September 2, 2011, a citizen’s group evaluation. Plaintiffs also allege that the filed a lawsuit, Coalition for a Wisconsin DOT violated State statutes, Sustainable 520 v. DOT (W.D. Wash. including their little NEPA, WEPA. Of No. 11-01461) challenging the decision interest is the allegation that the public of FHWA and the State to approve the hearing was an “open house” type, SR 520 project. The SR 520 project implying that only a “town hall” type extends 5.2 miles from I-5 in Seattle to hearing satisfies the public hearing the east bank of Lake Washington in requirement, a claim that has found Medina, Washington. The proposed favor in this district before. This $3.5B project would replace structurally allegation is against both the state and deficient bridges and widen SR 520 from USDOT. four lanes to six lanes to accommodate HOV lanes and managed shoulders in Federal Defendants File Motion the Seattle project area. to Dismiss in Tennessee Megasite Project Case Plaintiffs allege that the FEIS fails to comply with the requirements of NEPA On April 8, 2011, plaintiff in this case and that the Washington State filed a complaint and Motion for Environmental Policy Act (SEPA). Temporary Restraining Order (TRO) in Specifically, plaintiffs allege that the Bullwinkel v. FHWA (W.D. Tenn. No. FEIS failed to: (1) “consider all 11-1082). The pro se complaint alleges reasonable alternatives in detail”; (2) that FHWA’s approval of a parking area “adequately describe the existing associated with Department of Energy’s environment”; (3) “adequately describe West Tennessee megasite project the significant adverse environmental violated NEPA. On April 12, the court impacts of the project”; (4) “adequately denied the Motion for a TRO. On April analyze measures to mitigate significant 19, plaintiff filed an amended complaint project impacts”; and (5) “describe the with a renewed motion for TRO and project’s unavoidable significant adverse Preliminary Injunction, which the judge impacts.” denied on April 26. On July 5, plaintiff

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Environmental Challenge to various plans for a 2.5 mile long North Carolina Bridge Project replacement bridge to be built parallel to the current Bonner Bridge (Parallel On July 1, 2011, Defenders of Wildlife Bridge Alternatives) and various plans to and the National Wildlife Refuge build a 17.5 mile long replacement Association filed a complaint against the bridge that would bypass the Refuge and North Carolina Department of erosion hot spots entirely (Pamlico Transportation (NCDOT) and FHWA Sound Alternatives). seeking preliminary and permanent injunctive relief enjoining actions to The federal and state environmental build the Herbert C. Bonner Bridge (the resource and regulatory agencies that Project). The majority of the proposed have an interest in the Project formed a Project lies within the Pea Island NEPA/Section 404 Merger Team (the National Wildlife Refuge (the Refuge). Merger Team). By the time the FEIS Plaintiffs’ in Defenders of Wildlife v. was issued in 2008, cost estimates for NCDOT (E.D.N.C. No. 11-00035) the Parallel Bridge Alternatives ranged allege that defendants violated NEPA between $602 million and $1.524 billion and Section 4(f) of the DOT Act in (in 2006 dollars) and cost estimates for approving the Project. the Pamlico Sound Alternatives ranged between $942.9 million and $1.441 The Bonner Bridge, constructed in 1962, billion. The FEIS identified one of the is now reaching the end of its reasonable Parallel Bridge Alternatives – the service life. It runs north-south for “Phased Approach/Rodanthe Bridge approximately two miles and spans Alternative” – as the Preferred Oregon Inlet, the waterway that Alternative. separates Bodie Island and Hatteras Island. In 1990, NCDOT began the Plaintiffs filed substantial comments process of investigating alternatives for during the public comment periods for replacing the current Bonner Bridge. the DEIS, SDEIS, and FEIS, NCDOT and FHWA issued a Draft highlighting the legal and environmental Environmental Impact Statement (DEIS) problems associated with the Parallel in 1993, a Supplemental DEIS (SDEIS) Bridge Alternatives and specifically the in 2005, and the Final Environmental Preferred Alternative. NCDOT and Impact Statement (FEIS) in September FHWA subsequently abandoned the 2008. The Project’s purpose is to Preferred Alternative and identified a provide a new means of access from new preferred alternative in a “Revised Bodie Island to Hatteras Island for its Final Section 4(f) Evaluation” issued in residents, businesses, services, and 2009 and an Environmental Assessment tourists prior to the end of Bonner (EA) issued in May 2010. Both Bridge’s service life and to provide a documents identified the new preferred replacement crossing that takes into alternative as the “Parallel Bridge account natural channel migration and Corridor with NC-12 Transportation shoreline movement through year 2050. Management Plan,” which involved Among the alternatives considered were building a parallel replacement bridge. Plaintiffs filed comments opposing this

DOT Litigation News October 31, 2011 Page 36 new preferred alternative in November pounds), for transport along U.S. 2009 and June 2010, highlighting the Highway 12 (US 12). Approval by alleged legal and environmental FHWA is not required for this use of US problems associated with the new 12. preferred alternative and asserting that it would violate several federal laws, Plaintiff alleges that FHWA (1) including NEPA, Section 4(f), and the breached its duty to enforce the terms of National Wildlife Refuge System the highway easement deed for US 12, Improvement Act of 1997. NCDOT and which was conveyed to ITD by USFS FHWA issued a Record of Decision via Federal Land Transfer; (2) violated (ROD) in December 2010 that selected its mandatory duties to ensure federal and approved for implementation the projects are properly maintained under new preferred alternative. 23 U.S.C. § 116(a)(c); and (3) violated a mandatory duty to enforce the Northwest In their complaint, plaintiffs allege that Passage Scenic Byway Corridor defendants failed to assess and disclose Management Plan funded by an FHWA environmental impacts adequately in the grant pursuant to 23 U.S.C. §162. FEIS and EA, unlawfully segmented the Plaintiff seeks to stop the transfer of the Project, failed to rigorously examine megaloads along US 12. reasonable alternatives, and failed to prepare a supplement to the FEIS after On August 18, 2011, the government substantial changes to the proposal and moved to dismiss FHWA from the case in light of new information in violation on the following grounds: (1) FHWA of NEPA. Plaintiffs also allege has no duty to enforce the highway defendants violated Section 4(f). easement deed for US 12; (2) FHWA has no duty to “maintain” federally On September 6, 2011, defendants filed funded projects; and (3) FHWA has no answers to the complaint. duty to implement Corridor Management Plans. FHWA Sued over Idaho’s Approval of Oversize Loads Challenge Filed against Kentucky Ring Road On June 15, 2011, a regional Extension Project conservation organization filed an amended complaint adding FHWA as a On March 15, 2011, Patricia McGehee defendant in Idaho Rivers United v. and Richard McGehee jointly filed a FHWA (D. Idaho No. 11-095), Complaint and Motion for a Temporary originally brought against the U.S. Restraining Order (TRO) against the Forest Service (USFS). This case arises FHWA, the U.S. Army Corps of from the Idaho Transportation Engineers (COE), and the Department’s (ITD) permitting of Commonwealth of Kentucky approximately 200 oversized loads, Transportation Cabinet and Department labeled “megaloads” due to extreme size of Highways (KYTC) in McGehee v. and weight (in excess of 500,000 U.S. Army Corps Corps of Engineers, et

DOT Litigation News October 31, 2011 Page 37 al. (W.D. Ky. No. 11-00160). Plaintiffs On April 6, 2011, FHWA and COE filed are residents and owners of Fannie a motion to dismiss based on the lack of Harrison Farm in Hardin County, federal funding in the project. Kentucky, who seek to halt the construction of two bridges and three FHWA Sued over Approval culverts forming a part of the State’s of Highway in Iowa Ring Road Extension Project. Nature Preserve

The Ring Road Extension Project is a On June 1, 2011, the Sierra Club Iowa 1.78-mile highway project that extends Chapter and two individuals challenged the Ring Road from Hwy 62 to the the proposed new Highway 100 project, Western Kentucky Parkway. According west of Cedar Rapids, Iowa, which to the complaint, on June 29, 2006, the would travel through the Rock Island KY Transportation Cabinet sought and County Preserve and be adjacent to the obtained a Section 404 Clean Water Act Rock Island State Preserve. Plaintiffs in (CWA) permit from COE for the Sierra Club v. LaHood (S.D. Iowa No. construction of three culverts and two 11-00258) allege that defendants failed bridges to extend Ring Road. The first to comply with NEPA and complete a segment of the project was opened to valid Section 4(f) evaluation in traffic on August 6, 2009, and plaintiffs approving a Final Supplemental EIS now challenge the incomplete second (FSEIS) for the project. Plaintiffs seek segment of the project. Initial an injunction prohibiting construction investigations indicate that there are no until the defendants have prepared a new Federal-Aid Highway funds in the EIS and complied with the requirements project, and the only COE involvement of Section 4(f). is the issuance of the CWA permit.

Plaintiffs allege that the FSEIS violates In their complaint, plaintiffs allege that NEPA on grounds that: (1) the purpose the defendants abused their discretion and need for the project has not been and acted in bad faith in connection with justified; (2) no alternatives other than the Ring Road by condemning plaintiffs’ very minor variations of the preferred home, farm buildings, and a portion of route were seriously considered; (3) the road frontage of their property, which is FSEIS did not adequately evaluate the listed on the Register of National no-build alternative, the environmental Historic Places. They claim this action impacts, mitigation, traffic patterns and violates Section 106 of the National traffic volume, energy resources, climate Historic Preservation Act, Section 404 of change, fragmentation of the ecosystem the CWA, the Safe Drinking Water Act, or urban sprawl; (4) the FSEIS has no and NEPA. Plaintiffs also allege comments from the public; and, (5) violations of the Uniform Relocation because more than six years elapsed Assistance and Real Properties between the Draft and the Final SEIS, a Acquisition Act. new Draft was required.

DOT Litigation News October 31, 2011 Page 38

With regard to the Section 4(f) the Texas Department of Transportation evaluation, Plaintiffs allege that: (1) no to perform improper and insufficient serious efforts were made to avoid noise studies along the projects route. impacting the Rock Island Preserves; (2) the 4(f) evaluation does not adequately FHWA’s Three-Cable Barrier address the ecosystem of the Preserves Policy Challenged in Arizona as a whole; (3) noise impacts were not Tort Cases adequately evaluated; (4) mitigation measures are inadequate; and, (5) the On May 5, 2011, plaintiff filed a document does not discuss the effect of complaint in June v. United States (D. fragmentation of the ecosystem. Ariz. No. 11-00901) challenging

FHWA’s administrative denial of Noise Studies Challenged on plaintiff’s FTCA claim for wrongful Texas Tollway Project death. Plaintiff alleges that FHWA negligence -- failing to comply with On March 7, 2011, six residents and NCHRP Report 350 Crash Testing landowners of Harris County, Texas, policies for the 3-cable median barrier -- jointly filed the complaint in Ware v. resulted in the death of plaintiff’s father. FHWA (S.D. Tex. No. 11-00848) seeking to halt the construction of the The case arises from a February 19, US 290 Project until such time as 2005, Arizona highway crossover 3- FHWA completes a Supplemental EIS to cable median barrier fatal accident on I- take into account the noise regulations in 10. Plaintiff’s father died as a result of 23 C.F.R. § 772. the accident; however, plaintiff did not file a FTCA administrative claim for The US 290 Project entails the wrongful death until December 16, reconstruction of US 290 and the 2010. FHWA administratively denied Hempstead Tollway. The Project covers plaintiff’s FTCA claim based on the 2- a corridor of varying width that is year FTCA Statute of Limitations approximately 38 miles long in Harris (SOL). An alternate reason for denial County. The overall vision for the US was based on the discretionary function 290 Project includes freeway capacity exception. reconstruction and widening. The Project will also provide improvements Plaintiff claims that the 2-year SOL does along the Hempstead Tollway and not apply because FHWA’s denial of bicycle and pedestrian improvements. counsel’s request for FHWA witness FHWA issued a Record of Decision for testimony in a prior state court claim the project on August 25, 2010. constituted “concealment of material facts.” Accordingly, plaintiff claims that In their complaint, plaintiffs allege that the SOL should be tolled until April defendants approved the Project in 2009, the date plaintiff’s counsel violation of 23 U.S.C. § 109(i), 23 obtained deposition testimony from C.F.R. §772, and NEPA. Plaintiffs FHWA employees as part of U.S. essentially claim that FHWA allowed District Court litigation in Melvin v.

DOT Litigation News October 31, 2011 Page 39

United States. Defendants’ Motion to vehicle operators.” 49 U.S.C. § Dismiss based on the 2-year SOL is 31137(a). The court found that the currently pending before the court. EOBR rule could not be upheld because FMCSA “said nothing” about this Three additional cases have been requirement. In reaching its decision, the recently filed in the same court based on court found “a single conclusory the same tort allegations of wrongful sentence in the final rulemaking to the death presented in the June case: Keller effect that the Agency ‘has taken the [] v. United States (D. Ariz. No. 11- statutory requirement [] into account 00536), Dunlap v. United States (D. throughout the final rule…’” to be Ariz. No. 11-01350), and DeVries v. insufficient to meet Congress’s United States (D. Ariz. No. 11-01822). mandate. The court also pointed out that the word “harass” appears only once in the “entire rulemaking.” Finally, the Federal Motor Carrier Seventh Circuit rejected the Agency’s contention that its consideration of Safety Administration privacy issues in the rulemaking meant it considered driver harassment. The court Seventh Circuit Vacates vacated the rule without any qualifying EOBR Rule language, merely remanding it to the Agency “for proceedings consistent with On August 26, 2011, the U.S. Court of this opinion.” Appeals for the Seventh Circuit issued a decision in Owner-Operator Independent In addition to considering the merits of Drivers Association, et al. v. FMCSA, the case, the court rejected FMCSA’s 656 F.3d 580 (7th Cir. 2011), vacating ripeness and standing arguments. The FMCSA’s 2010 Final Rule on Electronic agency had argued that, because none of On-Board Recorders (EOBRs) (75 Fed. the petitioners were subject to an Reg. 17,208 (Apr. 5, 2010)). This rule FMCSA remedial directive to install would have required certain motor EOBRs – and in fact the rule would not carriers with poor hours of service be enforced until June 2012 – the case (HOS) compliance records to install was not ripe, and petitioners thus lacked EOBRs starting in June 2012. The rule standing. The court rejected the also established performance standing argument because the existence specifications for EOBRs. The EOBRs of the rule established a “punitive stick” required by the rule would create an to increase HOS compliance now in electronic record of a driver’s duty status order to avoid a remedial directive in the time accessible by the driver’s employer future. Hence, the petitioners suffered and by enforcement personnel. “injury” and had standing to sue. As for ripeness, the court rejected FMCSA’s Pursuant to statute, if FMCSA adopts a arguments, relying on Abbott Labs. v. regulation pertaining to monitoring Gardner, 387 U.S. 136, 149 (1967), devices in order to increase HOS “which permits pre-enforcement compliance, the agency “shall ensure challenges of final agency rules so long that the devices are not used to harass as the claim is fit for judicial decision

DOT Litigation News October 31, 2011 Page 40 and delay will cause some hardship to In its statement of issues filed with the the parties.” court, OOIDA has raised the following issues concerning the pilot program: (1) FMCSA Sued over Mexican whether the United States is offering Long-Haul Trucking special treatment to Mexico-domiciled Pilot Program motor carriers that exceeds its obligations under the NAFTA; (2)

whether FMCSA may permit Mexico- On July 6, 2011, the Owner-Operator domiciled carriers to comply with Independent Drivers Association Mexican safety regulations governing (OOIDA) filed a petition for review of drug testing, medical examination, and the United States-Mexico Cross-Border commercial driver’s licenses in lieu of Long-Haul Trucking Pilot Program in compliance with U.S. safety laws; (3) the U.S. District Court for the District of whether FMCSA should be complying Columbia. The pilot program with statutory provisions concerning challenged in Owner-Operator exemptions before allowing Mexican Independent Drivers Association v. U.S. carriers to operate in the United States; DOT, et al. (D.C. Cir. No. 11-1251) is a (4) whether FMCSA’s exemption step toward full implementation of the authority allows FMCSA to grant provisions of the North American Free exemptions to various statutory Trade Agreement (NAFTA), which requirements; (5) whether 49 C.F.R. would allow Mexico-domiciled motor § 40.7 precludes FMCSA from granting carriers to operate beyond the border an exemption to DOT regulations area commercial zones in the United governing collection of drug testing States. FMCSA had outlined the specimens; and (6) whether FMCSA has parameters of a proposed United States- complied with the provisions of DOT Mexico long-haul trucking pilot program appropriations acts that impose and sought public comment in a Federal requirements for granting operating Register notice published on April 13, authority to Mexico-domiciled motor 2011 (76 Fed. Reg. 20,807). On July 6, carriers. FMCSA announced its intent to proceed with the pilot program. The Agency’s On September 2, 2011, the International decision was subsequently published in a Brotherhood of Teamsters and Public July 8 Federal Register notice (76 Fed. Citizen filed a similar petition for review Reg. 40420) that also responded to the of the Mexican trucking pilot program in public comments that had been filed. the U.S. Court of Appeals for the Ninth

Circuit Court. On September 8, the On July 26, OOIDA petitioned the court government filed an unopposed motion to stay implementation of the pilot to transfer the case, International program pending review. OOIDA Brotherhood of Teamsters, et al. v. U.S. asserted, inter alia, that FMCSA did not DOT, et al. (9th Cir. No. 11-72606), to comply with the statutory requirements the D.C. Circuit for consolidation with for establishing a pilot program. On the OOIDA petition. The D.C. Circuit September 8, the D.C. Circuit denied has suspended the briefing schedule in OOIDA’s motion to stay. the case pending that transfer.

DOT Litigation News October 31, 2011 Page 41

FMCSA Files Petition to Enforce Massachusetts filed a petition for an Administrative Subpoena order to enforce the administrative subpoena in United States v. Dr. Dr. On June 3, 2011, FMCSA issued an Xiangping Chen a/k/a Jimmy Chen, administrative subpoena to Dr. President and Chief Executive Officer of Xiangping Chen a/k/a Jimmy Chen, Ivy Media Corporation/ GotoBus.com President and Chief Executive Officer of (D. Mass. No. 11-91151). At a hearing Ivy Media Corporation and on July 7, the U.S. District Court granted GotoBus.com. Dr. Chen operates a the petition for an order enforcing the website called GotoBus.com that is a administrative subpoena, narrowing marketplace for sales of bus tickets on some of the subpoena requests, largely low-cost motorcoach carriers that based on limitations that had already conduct passenger operations on the East been offered to Dr. Chen, and ordering Coast of the United States. production of the documents within 45 days. Dr. Chen produced a number of FMCSA issued the subpoena as part of responsive documents pursuant to the an ongoing investigation related to a bus court’s order, but has failed to produce crash that occurred on May 31, 2011, on critical documents related to financial I-95, near Richmond, Virginia. The transactions between GotoBus.com and crash involved a Sky Express various motorcoach customers. The motorcoach that was transporting 59 U.S. Attorney’s Office has notified Dr. passengers from Greensboro, North Chen of the agency’s position that he is Carolina to Chinatown in New York in violation of the court order and that it City. The bus ran off the road and rolled will be filing a motion seeking a court over. Four passengers were killed, and order finding Dr. Chen in contempt. 50 passengers were injured. The driver of the bus acknowledged that he had fallen asleep while driving. The Federal Railroad administrative subpoena sought to Administration identify entities, persons, and transactions affiliated with a number of Fifth Circuit Upholds FRA’s passenger carriers that utilized Dr. Chen’s online ticket selling website. Determination of Its Safety The subpoena sought materials relevant Jurisdiction over the Port of to the relationship between Sky Express Shreveport-Bossier and other companies engaged in the business of transporting passengers in On April 4, 2011, the U.S. Court of interstate commerce. Appeals for the Fifth Circuit issued a decision in FRA’s favor in Port of On June 9, Dr. Chen by counsel objected Shreveport-Bossier v. FRA, 2011 WL to the subpoena, arguing that it was 1228767 (5th Cir. Apr. 4, 2011), a case vague, overbroad, and not relevant to the involving a challenge to FRA’s Sky Express investigation. On June 17, determination that the Port of the U.S. Attorney for the District of Shreveport-Bossier (the Port) is subject

DOT Litigation News October 31, 2011 Page 42 to FRA’s safety jurisdiction. The Port’s Association of American petition for review contested a February Railroads Challenges 22, 2010, determination in which FRA Constitutionality of Metrics and determined that the Port is a railroad carrier within the meaning of the railroad Standards Statute safety laws and regulations and is therefore subject to FRA’s safety On August 19, 2011, the Association of jurisdiction. The court held that FRA’s American Railroads (AAR) filed a interpretation of the “plant railroad” complaint in the U.S. District Court for exception in FRA’s safety regulations is the District of Columbia challenging the not plainly erroneous or inconsistent constitutionality of Section 207 of the with those regulations. Passenger Rail Investment and Improvement Act of 2008 (PRIIA). The Although FRA’s statutory jurisdiction complaint in Association of American extends to all railroad carriers, FRA has Railroads v. DOT, et al. (D.D.C. No. 11- chosen as a matter of policy not to 01499) alleges that PRIIA is impose its regulations on certain unconstitutional because it improperly categories of operations, such as “plant delegates rulemaking authority to railroads.” “Plant railroads” are Amtrak. The complaint further alleges railroads whose entire operations are that PRIIA is unconstitutional because it confined to an industrial installation that violates the due process rights of the is not part of the general railroad system freight railroads by allowing Amtrak to of transportation (general system). use legislative and rulemaking authority to enhance its commercial position at the During the litigation, the Port asserted expense of the freight railroads. that its rail operation is a plant railroad and that FRA’s jurisdiction Section 207 of PRIIA charged FRA and determination is contrary to FRA’s Amtrak jointly, in consultation with regulations and an improper attempt to other parties, with developing new or expand its jurisdiction outside of the improving existing metrics and rulemaking process. FRA argued that minimum standards for measuring the the Port provides railroad transportation performance and service quality of because it switches rail cars in service intercity passenger train operations. On for fourteen different tenants, rather than March 13, 2009, FRA posted a draft for its own purposes or industrial document, entitled "Proposed Metrics processes, which characterizes operation and Standards for Intercity Passenger on the general system. Rail Service," on FRA's website and published a notice in the Federal The Port petitioned for a panel Register (74 Fed. Reg. 10,983) rehearing, but on June 9, the court requesting comments on the proposed denied the Port’s petition. metrics and standards. FRA posted the final version of the metrics and standards on FRA's website and published a notice of the final version in the Federal

DOT Litigation News October 31, 2011 Page 43

Register on May 12, 2010 (75 Fed. Reg. Senator Patty Murray of Washington 26,839). State sponsored an amendment to the Consolidated Appropriations Act of 2010 that prohibited the expenditure of Federal Transit funds on the enforcement of the regulations against any transit system Administration that “during fiscal year 2008 was both initially granted a 60-day period to come D.C. Circuit Upholds the into compliance with part 604, and then Constitutionality of the was subsequently granted an exception “Murray Amendment” from said part.” KCM was the only transit system in the nation fitting this On June 14, 2011, the U.S. Court of description. Appeals for the District of Columbia Circuit issued its decision in American The American Bus Association and the Bus Association, et al. v. Rogoff, 649 United Motorcoach Association F.3d 734 (D.C. Cir 2011), upholding the challenged the amendment in the U.S. constitutionality of the “Murray District Court for the District of Amendment,” which was included in Columbia, claiming that it singled out DOT’s fiscal year 2010 appropriations private charter bus operators in King act and prevents any funds from being County as the only such operators that used to enforce FTA’s charter cannot request FTA to enforce the regulations, 49 C.F.R. part 604, against charter rule against a competitor and King County Metro (KCM) in Seattle. therefore violated the First The charter regulations, among other Amendment’s Petition Clause and the things, prohibit federally-funded transit Fifth Amendment right to equal systems from operating irregularly protection. They also alleged that the scheduled bus service to special events Murray Amendment violated their such as baseball games and set forth members’ right to procedural due procedures under which interested process under the Fifth Amendment and parties may file complaints with FTA was inconsistent with separation of over services that they believe violate powers principles. The district court the regulations. held the Murray Amendment unconstitutional on Petition Clause and KCM had been providing such bus equal protection grounds and ordered transportation to Seattle Mariners games FTA to enforce the charter regulations since the late 1990s, but in 2008, FTA with respect to KCM. Am. Bus Ass’n v. advised KCM that the service violated Rogoff, 717 F. Supp. 2d 73 (D.D.C. the regulations. FTA granted KCM an 2010). The court did not reach the due exception to the regulations for that process or separation of powers claims. baseball season, but declined to extend that exception to the 2009 season. When The government appealed the district no private charter bus company provided court’s decision, and the D.C. Circuit the service during the 2009 season, reversed. The court found that the Murray Amendment did not prevent

DOT Litigation News October 31, 2011 Page 44 interested parties from filing a complaint Summary Judgment for with FTA about KCM, nor did it prevent FTA in Challenge to Second FTA from responding to such a Avenue Subway Project, complaint. This was enough to defeat plaintiffs’ Petition Clause claim. It did Plaintiff Appeals not matter that under the Amendment, FTA would have to deny such a On June 6, 2011, the U.S. District Court complaint. Indeed, the court noted, for the Southern District of New York under controlling precedent, the Petition granted summary judgment for FTA in Clause does not even compel the 233 East 69th Street Owners Corp. v. government to respond to a complaint, DOT et al., 2011 WL 2436889 or even give it consideration. After (S.D.N.Y. June 6, 2011), a challenge to disposing of the Petition Claus claim, the the design of an ancillary facility on the court rejected the equal protection claim. Second Avenue Subway project, an The court held that because the undertaking by the New York Amendment is rationally related to the Metropolitan Transportation Authority legitimate governmental purposes of (MTA) and the New York City Transit accommodating handicapped fans, Authority (NYCTA) to construct an restoring more affordable bus service, approximately 8.5-mile two-track rail and reducing traffic congestion on game line extending the length of Manhattan’s days, it readily passed constitutional East Side Corridor. The District Court muster under the rational-basis test. The agreed with FTA that a supplemental court also rejected plaintiffs’ Fifth environmental impact statement on the Amendment procedural due process design of the ancillary facility, which is claims, finding that the legislative planned to be located next to plaintiff’s process had afforded plaintiffs all the residential building, was not process they were due, and their required. On August 1, 2011, plaintiff separation of powers arguments, holding filed notice that it would appeal the that Congress had the right to withdraw decision to the U.S. Court of Appeals for enforcement authority that it had itself the Second Circuit. previously conferred on the agency. Court Denies Emergency The D.C. Circuit’s opinion is available at Request for an Injunction to http://www.cadc.uscourts.gov/internet/o Halt Construction on the Second pinions.nsf/0B91F0642F3B5964852578 Avenue Subway AF004FA40F/$file/10-5213- 1313036.pdf. On September 26, 2011, the U.S. District Court for the Southern District of New York denied plaintiff Yorkshire Towers’ request for an emergency injunction to halt the commencement of construction of the Second Avenue Subway’s 86th Street entrance. In the denial of the injunction in Yorkshire Towers Co. LP

DOT Litigation News October 31, 2011 Page 45 and Yorkshire Towers Tenants Ass’n v. (HOT) lanes over rapid rail as a FTA, et al. (S.D.N.Y. No. 10-8973) and principal means to address freeway Yorkshire Towers Co. LP and Yorkshire congestion on Oahu, another group that Towers Tenants Ass’n v. DOT, et al. favors bus rapid transit, a former (S.D.N.Y. No. 11-01058), the court governor who favors light rail, and an reasoned that significant construction of assortment of environmentalists and the 86th Street entrance will not begin native Hawaiians seeking to protect their until October 24, 2011. own interests in disparate natural, aesthetic, historic, and cultural Two of the defendants – the resources. Metropolitan Transportation Authority (MTA) and MTA’s Capital Construction FTA issued the Record of Decision for Company – moved to dismiss the case this project in January 2011, but the based on the fact that Yorkshire Towers project has not yet been approved for filed its complaint nearly eight months entry into Final Design under the New beyond the 180-day statute of limitations Starts project development process (49 for the Finding of No Significant Impact U.S.C. § 5309(d). The City is seeking it challenges. FTA subsequently joined $1.55 billion in Section 5309 New Starts that motion. The court has scheduled funds to help finance the estimated $5.34 oral arguments on the motion to dismiss billion in total project costs. for November 2. Interestingly, all of the judges in the U.S. Honolulu Transit Project District Court of Honolulu have recused Opponents File Suit against FTA themselves from this case “to avoid even and DOT the appearance of impropriety.” Previously, all but one of the judges and

the local United States Marshall had Opponents of the Honolulu High- written a letter to the City objecting to Capacity Transit Corridor Project, a the fact that the rapid rail alignment will project proposed for FTA New Starts run within 45 feet of the United States funding, filed suit on May 13, 2011, Courthouse. Given the recusal, the case against FTA, the U.S. Department of has been assigned to Judge Wallace Transportation, and the City and County Tashima of the U.S. Court of Appeals of Honolulu, alleging that the defendants for the Ninth Circuit. Defendants failed to comply with NEPA, Section recently filed a partial motion for 4(f) of the DOT Act, and Section 106 of judgment on the pleadings, seeking to the National Historic Preservation Act. have most Section 4(f) claims dismissed, The proposed project is a twenty-mile, as well as all claims by several of the steel on steel, elevated rapid rail system plaintiffs. running between downtown Honolulu and the western suburb of Kapolei.

Plaintiffs in the case,

Honolulutraffic.com, et al. v. FTA, et al.

(D. Haw. No. 11-00307), include a group that favors High Occupant/Toll

DOT Litigation News October 31, 2011 Page 46

Maritime Administration Title XI Foreclosure

FOIA Suit Settled MarAd foreclosed on the DOWNING, a vessel that had defaulted on its Title XI In February, 2009, Potomac Navigation guaranteed financing, in a U.S. District filed a FOIA suit against MarAd and the Court for the Eastern District of Texas EPA for failing to provide documents in proceeding in Admiralty, United States response to a request regarding the v. SS CAPTAIN H.A. DOWNING (E.D. removal of polychlorinated biphenyls Tex. No. 10-00240). The vessel was (PCBs) from the Liberty Ship ARTHUR sold for $3.3 million in an interlocutory M. HUDDELL. The Maritime Marshal’s sale. MarAd will be receiving Administration had begun work on a compensation of about $487,000 for its FOIA response prior to the suit being expenses as substitute custodian of the filed, but was unable to provide its vessel during the foreclosure proceeding. response until after the suit has been At issue regarding the remaining filed. After providing its response to the proceeds are two claims against the FOIA request, MarAd filed a Motion to vessel that arose while the vessel was Dismiss the matter, Potomac Navigation operated by the former owner, AHL v. Maritime Administration (D. Md. Shipping Co. Certain maritime claims No. 09-217), as moot. The court denied takes precedence over MarAd’s first MarAd’s motion and granted plaintiff preferred mortgage. One claim is for a the unusual right to conduct discovery, crewmember injury, where a member of ordering both the MarAd and the EPA to the steward’s department fell and injured submit to discovery and depositions himself while cleaning up his own regarding the adequacy of the search for grease spill. The claim is being documents. Upon further internal defended on the basis that the vessel was review of MarAd’s original production, seaworthy and the crewmember the agency found that the original contributed to his injury. Another claim production was deficient, although not is for contributions that were not made knowingly or intentionally so, and by the former owner into the union produced additional documents in vacation fund. This claim is being response to the FOIA request. defended on the basis that such contributions do not constitute a wage After the supplemental document claim and, therefore, do not trump rights production, the agency entered into under a first preferred mortgage. settlement negotiations with plaintiff for the payment of the attorney fees associated with the case. Plaintiff provided documentation supporting a total of approximately $39,000 in fees. As a result of the settlement negotiations, MarAd and plaintiff agreed to settle the matter for $33,000.

DOT Litigation News October 31, 2011 Page 47

Pipeline and Hazardous Petitioner presented two issues on appeal before the 11th Circuit: whether the ALJ Materials Safety abused his discretion in disallowing its Administration late-filed post hearing brief and whether the violations found and the civil Briefing Completed in Hazmat penalties assessed by the agency were Packaging Supplier’s Challenge proven by competent substantial evidence. Petitioner’s primary argument to Civil Penalty in the abuse of discretion issue focused on the petitioner’s pro se status and its The parties have completed briefing in th misunderstanding of the administrative Air Sea Containers, Inc. v. PHMSA (11 adjudicative rules and procedures. Cir. No. 11-10142), in which petitioner Petitioner asserted that its failure to meet seeks review of an order of the PHMSA the filing deadline was merely excusable Administrator that imposed civil neglect, and contrary to the ALJ’s penalties against Air Sea Containers, decision, acceptance of its brief should Inc. (ASCI) totaling $30,170 for four have been allowed and was not in any violations of the packaging testing way prejudicial to the government. requirements of the Hazardous Materials Next, petitioner argued that the Regulations (HMR). The matter arose violations were not supported by the from a customer complaint about the evidence presented by the agency at the hazmat packaging testing and hearing. Petitioner characterized the certification activities of ASCI. During agency’s evidence as circumstantial, and the course of the investigation and on- based on false assumptions, and further site inspections of ASCI, the PHMSA argued that the Administrator’s finding investigators determined that ASCI’s that much of the petitioner’s fact testing facility lacked certain testing witness’ testimony was unreliable was equipment and other resources that arbitrary and capricious. would likely render ASCI incapable of performing the required testing in PHMSA countered petitioner’s accordance with the applicable challenge to the ALJ’s decision on its regulations. As such, PHMSA late-filed brief on procedural grounds by purchased samples of ASCI’s packaging pointing out that the agency’s statute and designs and sent them to an independent regulations require pertinent information testing lab for design validation testing. and arguments for issues raised on The designs tested failed the meet the appeal. PHMSA argued that the court regulatory packaging testing was barred from considering the issue requirements. Based on the evidence because the Petitioner failed to properly gathered and the lab results, PHMSA raise the issue before the Administrator initiated a civil enforcement proceeding. as required. Alternatively, PHMSA ASCI requested an adjudicatory hearing argued that the ALJ’s denial of the before an ALJ. The ALJ issued a split petitioner’s extension request was not an decision that was appealed by both abuse of discretion, and in any event was parties to the PHMSA Administrator. harmless, because the ALJ followed clearly communicated procedures and

DOT Litigation News October 31, 2011 Page 48 the Administrator subsequently was incurably premature and, conducted a de novo review. PHMSA accordingly, should be dismissed. addressed petitioner’s attacks on the agency’s conclusion that it committed four violations of the HMR by noting Saint Lawrence Seaway that the agency presented reasoned explanations based on substantial Development Corporation evidence for each of the violations. PHMSA argued that petitioner’s Court Grants Summary characterization of the evidence was not Judgment for Government in correct and its arguments on this issue Bid Protest Case Regarding were without merit. Electrical Upgrade to Seaway Locks Court Dismisses Petition for Review of PHMSA Rule On June 2, 2011, the U.S. Court of Prohibiting Butane Fuel Cells in Federal Claims granted the Checked Baggage government’s February 11, 2011 Cross- Motion For Judgment on the On May 24, 2011, U.S. Court of Appeals Administrative Record in Dow Electric, for the District of Columbia Circuit Inc. v. United States, 98 Fed. Cl. 688 granted voluntary dismissal petitioner (Fed. Cl. 2011). This case arose from a Liliputian Systems’ petition for review sealed bid procurement in which the of a portion of a January 19, 2011, solicitation required specific or PHMSA rule entitled “Harmonization equivalent materials. Although plaintiff with the United Nations was the low bidder, the materials Recommendations, International submitted in plaintiff’s bid were not Maritime Dangerous Goods Code, and deemed equivalent, and its bid was thus the International Civil Aviation nonresponsive. Organization Technical Instructions for the Safe Transport of Dangerous Goods Shortly after filing its complaint, by Air.” Petitioner described the plaintiff sought a TRO to enjoin the specific provision challenged in SLSDC from proceeding with any Liliputian Systems, Inc. v. PHMSA further activity on the project, which had (D.C. Cir. No. 11-1085) as revising the been ongoing since September 30, 2010. hazardous materials regulations to Following a status conference on prohibit air passengers from placing January 6, 2011, the Court issued an spare butane fuel cell cartridges in order denying the motion, based on checked baggage. Petitioner agreed to plaintiff’s failure to show a likelihood of dismiss the case after the government success on the merits and the fact that filed a motion to dismiss arguing that construction was already underway on because Lilliputian Systems filed its the project. instant petition for review while it had a request for reconsideration pending In its briefs on the merits, plaintiff before PHMSA, its petition for review alleged that the court has authority to

DOT Litigation News October 31, 2011 Page 49 award it the contract based either on its agency is required to evaluate bids original submittal or based on a without discussions. Therefore, SLSDC subsequent offer to provide the materials was not obligated to participate in any specified in the solicitation. The discussions with plaintiff once plaintiff’s government argued that the materials bid was submitted or to allow plaintiff to proposed by plaintiff were not equal to submit a modified bid once the SLSDC the materials specified in the solicitation. determined that plaintiff’s initial bid was nonresponsive. The court found that the Administrative Record (AR) did not contain evidence that plaintiff offered to substitute the specified materials at any time and that even assuming that the AR did contain such evidence, the claim would still fail given that in a sealed bid solicitation, the

DOT Litigation News October 31, 2011 Page 50

Index of Cases Reported in this Issue

233 East 69th Street Owners Corp. v. Association of American Railroads v. DOT, et al., 2011 WL 2436889 DOT, et al. (D.D.C. No. 11-01499) (S.D.N.Y. June 6, 2011) (summary (Association of American Railroads judgment for FTA in challenge to challenges constitutionality of metrics Second Avenue Subway project, and standards statute), page 42 plaintiff appeals), page 44 Barnes v. DOT, 655 F.3d 1124 (9th Cir. 1000 Friends of Wisconsin, Inc. v. 2011) (Ninth Circuit remands FAA’s USDOT (E.D. Wis. No. 11-0545) decision approving third runway at (highway widening project challenged in Hillsboro Airport to consider potential Wisconsin), page 34 growth inducing effects), page 12

Adams, et al. v. United States, et al., Bullwinkel v. FHWA (W.D. Tenn. No. 2011 WL 2694552 (D.D.C. July 11, 11-1082) (federal defendants file motion 2011) (court dismisses constitutional to dismiss in Tennessee megasite project challenge to Fair Treatment for case), page 34 Experienced Pilots Act), page 15 Citizens for Smart Growth, et al v. th Air Sea Containers, Inc. v. PHMSA (11th FHWA et al. (11 Cir. No. 11-11056) Cir. No. 11-10142) (briefing completed (new appeal in Florida bridge project in hazmat packaging supplier’s case), page 32 challenge to civil penalty), page 47 City of Anchorage v. FHWA (D. Alaska American Aviation, Inc. et al. v. FAA No. 11-00138) (Alaska bridge project (D.C. Cir. No. 10-72772) (sightseeing suit is settled), page 30 flight operator challenges FAA order setting number of Glen Canyon Coalition for a Sustainable 520 v. DOT overflights), page 19 (W.D. Wash. No. 11-01461) (new environmental challenge to Seattle area American Bus Association, et al. v. bridge replacement and HOV project), Rogoff, 649 F.3d 734 (D.C. Cir 2011) page 34 (D.C. Circuit upholds the constitutionality of the “Murray Cronin v. FHWA, 2011 WL 1297294 Amendment”), page 43 (N.D. Ohio Mar. 31, 2011) (FHWA wins partial dismissal of challenge to Aquifer Guardian in Urban Areas v. Cleveland inner belt bridge project), FHWA, 779 F.Supp.2d 542 (W.D. Tex. page 24 2011) (court denies preliminary injunction against Texas interchange CSI Aviation Services, Inc. v. DOT, 637 project), page 30 F.3d 408 (D.C. Cir. 2011) (D.C. Circuit sets aside DOT cease and desist letter against indirect air carrier), page 5

DOT Litigation News October 31, 2011 Page 51

Defenders of Wildlife v. NCDOT Gina Moore d/b/a Warbird SkyVentures, (E.D.N.C. No. 11-00035) Inc. v FAA (6th Cir. No. 10-4117) (S ixth (environmental challenge to North Circuit denies petition for review Carolina bridge project), page 35 alleging unjust discrimination by Sumner County Regional Airport Detroit International Bridge Co., et al. v. Authority), page 14 The Government of Canada, et al. (D.D.C. 10-00476) (United States moves Green Aviation LLC v. FAA (D.C. Cir. to dismiss suit against construction of No. 11-1260) (party in dismissed Detroit River International Crossing administrative civil penalty action seeks after court denies U.S. motion to EAJA fees), page 19 transfer), page 32 Honolulutraffic.com, et al. v. FTA, et al. Dow Electric, Inc. v. United States, (D. Haw. No. 11-00307) (Honolulu 98 Fed. Cl. 688 (Fed. Cl. 2011) (court transit project opponents file suit against grants summary judgment for FTA and DOT), page 45 government in bid protest case regarding electrical upgrade to Seaway locks), Idaho Rivers United v. FHWA (D. Idaho page 48 No. 11-095) (FHWA sued over Idaho’s approval of oversize loads), page 36 FAA. v. Cooper (No. 10-1024) (Supreme Court grants review of Ninth June v. United States (D. Ariz. No. 11- Circuit decision allowing non-pecuniary 00901) (FHWA’s three-cable barrier damages for violations of the Privacy policy challenged in Arizona tort cases), Act), page 2 page 38

Friends of Congaree Swamp v. FHWA, Karst Environmental Education and 786 F.Supp.2d 1054 (D.S.C. 2011) Protection, Inc. v. FHWA (W.D. Ky. (FHWA wins challenge to South No. 10-00154) (cross motions for Carolina bridge project), page 24 summary judgment filed in Kentucky environmental case), page 33 Gaxiola et al. v. City of Los Angeles, et al. (C.D. Cal. No. 10-06632) (court Kurns v. Railroad Friction Products (No. dismisses tenants' challenge to FHWA 10-879) (Supreme Court grants certiorari and FTA Los Angeles projects), page 8 in case involving the preemptive scope of the Locomotive Inspection Act), Geyer Signal, Inc, et al.. v. Minnesota page 3 DOT, et al. (D. Minn. 11-0321) (DOT intervenes in constitutional challenge to Ladd v. United States, 646 F.3d 910 its DBE regulations and their (Fed. Cir. 2011) (Federal Circuit denies implementation in federal-aid highway government’s petition for panel contracting in Minnesota), page 29 rehearing or rehearing en banc in federal railbanking program takings case), page 6

DOT Litigation News October 31, 2011 Page 52

Liliputian Systems, Inc. v. PHMSA Owner-Operator Indep. Drivers Ass’n v. (D.C. Cir. No. 11-1085) (court dismisses U.S. DOT, et al. (D.C. Cir. No. 11- petition for review of PHMSA rule 1251); International Brotherhood of prohibiting butane fuel cells in checked Teamsters, et al. v. U.S. DOT, et al. (9th baggage), page 48 Cir. No. 11-72606) (FMCSA sued over Mexican long-haul trucking pilot McGehee v. U.S. Army Corps of program), page 40 Engineers, et al. (W.D. Ky. No. 11- 00160) (challenge filed against Owner-Operator Independent Drivers Kentucky ring road extension project), Ass’n, Inc., et al. v. U.S. DOT, et al., page 36 656 F.3d 580 (7th Cir. 2011) (Seventh Circuit vacates EOBR rule), page 39 Midwest Fence Corporation v. LaHood, et al, 2011 WL 2551179 (N.D. Ill. June Paskar and Friends of LaGuardia 27, 2011) (court denies motion to Airport, Inc. v. DOT (2d Cir. No. 10- dismiss in Illinois DBE program 4612); Paskar and Friends of LaGuardia challenge), page 28 Airport, Inc. v. FAA, et al. (2d Cir. No. 11-2720) (Second Circuit challenges to National Business Aviation Association, blue ribbon panel study of enclosed et al. v. FAA (D.C. Cir. No. 11-1241) marine trash transfer facility adjacent to (aircraft owner groups challenge FAA LaGuardia Airport), page 16 rule prohibiting blocking of electronic aircraft flight data without security Port of Shreveport-Bossier v. FRA, 2011 basis), page 18 WL 1228767 (5th Cir. Apr. 4, 2011) (Fifth Circuit upholds FRA’s National Federation of the Blind, et al. v. determination of its safety jurisdiction United Airlines, 2011 WL 1544524 over the Port of Shreveport-Bossier), (N.D. Cal. Apr. 25, 2011) (court finds page 41 preemption in state law challenge to accessibility of airline ticket kiosks, Potomac Navigation v. Maritime plaintiffs appeal), page 8 Administration (D. Md. No. 09-217) (FOIA suit settled), page 46 North Carolina Wildlife Federation v. North Carolina Department of Preservation Pittsburgh v. Conturo, 2011 Transportation, 2011 WL 5042075 WL 4025731 (W.D. Pa. Sept. 9, 2011) (E.D.N.C. Oct. 24, 2011) (FHWA wins (court dismisses challenge against challenge to North Carolina toll road Pittsburgh civil arena project, project), page 23 plaintiff appeals), page 26

North Cascades Conservation Council v. Republic Airlines, Inc. v. U.S. DOT FHWA, 2011 WL 2976913 (W.D. (D.C. Cir. No. 11-1018) (Republic Wash. July 21, 2011) (court dismisses Airlines challenges DOT’s reallocation challenge to Washington state of Reagan National Airport slot emergency road repair project), page 26 exemptions to another air carrier), page 9

DOT Litigation News October 31, 2011 Page 53

Safeguarding the Historic Hanscom Trump, et al. v. FAA (11th Cir. No. 10- Area’s Irreplaceable Resources v. FAA, 15543) (voluntary dismissal in challenge 651 F.3d 202 (1st Cir. 2011) (First to categorical exclusion of proposed Circuit upholds FAA’s decision to allow fixed base operator development area at replacement of hangar at Bedford- Palm Beach International Airport), Hanscom field), page 11 page 15

Schneider v. U.S. DOT, et al. (N.D. United States v. Dr. Dr. Xiangping Chen Ohio No. 10-02297) (suit over Ohio a/k/a Jimmy Chen, President and Chief railroad crossing project settles), page 30 Executive Officer of Ivy Media Corporation/ GotoBus.com (D. Mass. Sierra Club v. FHWA, 2011 WL No. 11-91151) (FMCSA files petition to 3281328 (5th Cir. 2011) (Fifth Circuit enforce administrative subpoena), affirms grant of summary judgment for Page 41 FHWA in challenge to Houston Grand Parkway project), page 21 United States v. SS CAPTAIN H.A. DOWNING (E.D. Tex. No. 10-00240) Sierra Club v. LaHood (S.D. Iowa No. (Title XI foreclosure), page 46 11-00258) (FHWA sued over approval of highway in Iowa nature preserve), Ware v. FHWA (S.D. Tex. No. 11- page 37 00848) (noise studies challenged on Texas tollway project), page 38 Spirit Airlines, Inc. v. U.S. DOT (D.C. Cir. Nos. 11-1219, 11-1222) (air carriers West v. Horner, et al., 2011 WL challenge most recent DOT airline 4071854 (D.D.C. Sept. 14, 2011) passenger consumer protection rule), (FHWA wins dismissal of challenge to page 10 Virginia’s I-95 Hot Lanes), page 27

Town of Barnstable v. FAA (D.C. Cir. White Buffalo Construction, Inc. v. No. 10-1276) (D.C. Circuit vacates FAA United States, 2011 WL 4402355 (Fed. “no hazard” determination for proposed Cl. Sept. 7, 2011) (FHWA wins Oregon Cape Cod wind turbines), page 13 contract case), page 27

Township of Tinicum, et al. v. DOT (3rd Yorkshire Towers Co. LP and Yorkshire Cir. No. 11-1472) (Tinicum Township Towers Tenants Ass’n v. FTA, et al. files opening brief in its challenge to (S.D.N.Y. No. 10-8973) & Yorkshire FAA’s approval of the capacity Towers Co. LP and Yorkshire Towers enhancement program at Philadelphia Tenants Ass’n v. DOT, et al. (court International Airport), page 16 denies emergency request for an injunction to halt construction on the Second Avenue Subway), page 44