united states district court southern district of...

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA ANDREW JOHN KNOTT, MICHAEL KNOTT, WILLIAM A. BOYD, JANICE ANN BOYD, RUTH ANN FLYNN, CITIZENS FOR APPROPRIATE RURAL ROADS; THE I-69 ACCOUNTABILITY PROJECT; THOMAS TOKARSKI; SANDRA TOKARSKI; THOMAS JOCHIM; KENDA JOCHIM; JERRY JOCHIM; and DARRELL BREEDEN, Plaintiffs, vs. MICHAEL B. CLINE, in his official capacity as the Commissioner of the INDIANA DEPARTMENT OF TRANSPORTATION; ROBERT F. TALLY, in his official capcacity as the Division Administrator – Indiana Division of the FEDERAL HIGHWAY ADMINISTRATION; VICTOR MENDEZ, in his official capacity as Administrator of the FEDERAL HIGHWAY ADMINISTRATION; and RAY LAHOOD, in his official capacity as Secretary of the UNITED STATES DEPARTMENT OF TRANSPORTATION; Defendants.

COMPLAINT FOR VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURES ACT

1. Plaintiffs seek declaratory and injunctive relief for Defendants’ violations of the

Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the National Environmental policy Act

(NEPA), 42 U.S.C. § 4332 et seq., in connection with the design and construction of, and certain

studies related to, the Defendants’ proposed Interstate 69 extension from Indianapolis to

Evansville (I-69).

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2. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question).

3. This Court also has jurisdiction pursuant to 28 U.S.C.§1346(a)(2) (United States as

defendant).

4. Venue is proper pursuant to 28 U.S.C. § 1391(b) because the proposed I-69 project at

issue here lies entirely within the Southern District of Indiana, and because all of the Plaintiffs

are located within the Southern District. The Defendants do business in the Southern District and

approved the actions described herein. A substantial portion of the events or omissions giving

rise to the claims stated herein occurred in the Southern District.

5. Plaintiffs have no adequate remedy at law. Unless this Court grants the requested

relief, the Defendants’ actions will cause irreparable harm to the environment, to Plaintiffs’ and

their members’ interests, and to the public in violation of federal law and contrary to the public

interest. No monetary damages or other legal remedy could adequately compensate Plaintiffs,

their members or the public for these harms.

6. If the Defendants’ actions are not enjoined and reversed, they will cause irreparable

harm to the region’s ecosystems, endangered species, natural resources and environmental

quality, the Plaintiff organizations and their members, and the public as described herein, in

violation of federal law, and contrary to the public interest. Plaintiffs seek declaratory and

injunctive relief, and their attorneys’ fees and costs.

7. Defendant Cline is responsible for the State of Indiana’s decisions and actions

regarding the proposed I-69 projects at issue in this action.

8. Defendants LaHood, Mendez, and Tally are responsible for the federal government’s

decisions and actions regarding the proposed I-69 projects at issue in this action.

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9. Plaintiffs Andrew Knott and Michael Knott, brothers, own property within the I-69

corridor which has already been damaged by Defendants’ actions in conducting I-69 Section 4

related survey and design work.

10. Plaintiffs William A. Boyd and his wife Janice Ann Boyd own property within the I-

69 corridor that is threatened with imminent harm from Defendants’ actions in conducting I-69

Section 4 related survey, design work, and construction work. The Boyd property has also

incurred some damage and loss from Defendants’ actions including the apparent theft (or

conversion) of one or more archeological artifacts. The Boyds reside at 8301 Forward Pass Road

in Perry Township (part of Indianapolis), Marion County, Indiana, and 6990 South Stone Road,

Bloomfield, IN, a working farm in Taylor Township, Greene County, Indiana. husband William.

They have owned their Perry Township property, which was built by Jan’s father, for

approximately 16 years, and have owned their Bloomfield property for nearly 25 years. Their

Bloomfield farm is approximately 47 ½ acres. The Boyds purchased our Bloomfield farm from

Jan’s Grandmother approximately 25 years ago. Her Grandparents had lived on the farm since

1918, having purchased it in 1919, the year after their marriage. Their farm includes forested

woodland, some wetlands, pastureland and grass. The farm’s buildings are historically

significant because they represent the area’s dominant architectural and lifestyle of the era. The

farmhouse is thought to be a pre-Civil War structure, along with the adjacent smokehouse/cellar.

Jan’s mother and all of her mother’s six brothers and sisters were born in the farmhouse and

were raised on the farm. The Boyd’s currently raise cattle on the farm, and grow hay in the

pastures. The forest includes mature oak and hickory stands, along with poplar and other species

as well. The proposed I-69 highway corridor, as identified in the Tier 2 Draft Environmental

Impact Statement (DEIS) for the highway, would cut through the upper one-third of their farm,

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and it would pass within approximately1500 feet of their Perry Township property (as proposed

in the Tier 1 EIS for I-69). If this highway were built, it would adversely impact their use and

enjoyment of their land and their environment at both homes. The Boyds use and enjoy their

Bloomfield farm and the environment around it extensively. They visit the farm religiously to

perform maintenance and for relaxation. Jan’s mother owns an adjacent 45 acres of forested

woodland, some wetlands and cropland that they help to maintain. The Boyds are deeply

concerned about the noise, air, water, and other significant impacts that the proposed I-69

highway would have on their land and on health and the environment at their Bloomfield farm.

The highway would take out a large section of their farm and come within about 100 feet of the

farm house, and would render the farm uninhabitable. The highway would thus adversely impact

the use and enjoyment of their environment at their farm. The Boyds have worked to improve

the timber stand in their forest, removed scrub brush, raised cattle, and otherwise work to

maintain and preserve the farm the same as when Jan’s grandparents lived there, thus

maintaining the historic appearance, setting and nature of the property. The Boyds enjoy

recreating on their farm with their children and grandchildren, walking the same soil as Jan’s

ancestors, taking their grandchildren on “nature hikes” and swinging on grapevines. They enjoy

the many creatures that inhabit the woods and pastures of the farm, including cattle, deer and

wild turkey. The proposed I-69 highway would destroy this environment, and thereby adversely

affect the use and enjoyment of their property. The Boyds obtain drinking water at the farm

from a deep well on the property. A spring on the property supplies some of the water for their

cattle. They are concerned that road runoff and other pollution from the highway would

contaminate their water supply and adversely affect their health and the health of their

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cattle. They are also concerned that the highway would change the drainage patterns on our farm

property and cause localized flooding.

11. Plaintiff Ruth Ann Flynn, and her husband Scott Flynn own property within the I-69

corridor that is threatened with imminent harm from Defendants’ actions in conducting I-69

Section 4 related survey, design work, and construction work.

12. Plaintiff Citizens For Appropriate Rural Roads (“CARR”) is a corporation that is

organized and existing as a not-for-profit corporation under the laws of the State of Indiana.

CARR’s mission is to protect the integrity of our farmlands, forestlands and rural communities

by supporting fiscally conservative and environmentally sound transportation policies. CARR is

opposed to any alternative for the I-69 Project that uses significant new terrain and places an

unacceptable financial burden on the citizens of Indiana and the Nation. CARR believes that

upgrading and repairing existing roads and bridges is the responsible way to meet Indiana’s

highway needs. CARR was founded in 1990 and has been incorporated in the state of Indiana as

a not-for-profit organization since 1992. CARR’s address is P.O. Box 54, Stanford, IN 47463.

CARR’s current membership is approximately 800 households, the majority of whom are in

Southwestern Indiana, the portion of Indiana that would be most impacted by the proposed I-69

Project and the “Preferred Alternative Route 3C” corridor. The I-69 Project would adversely

affect many CARR members by impacting natural resources that those members use and enjoy

for recreational, aesthetic and educational interests. In addition, many CARR members live in or

near the Preferred Alternative Route 3C corridor and, as such, would be subjected to increased

noise, air pollution, and traffic from the I-69 Project. Some will have their property taken or

damaged for the I-69 Project. CARR has long been active in challenging the proposed I-69

Project and in promoting environmentally, socially and economically preferable alternatives

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including upgrading and improving existing roads. CARR’s activities have included filing

comments on the all the Draft Environmental Impact Statements for the proposed I-69 Project,

having members testify at public hearings on the I-69 project, commissioning studies regarding

the environmental and economic impact of the I-69 project, testifying before federal

congressional and state subcommittees and challenging Governor Daniels' effort to privatize the

Indiana Toll Road. CARR is a consulting party under Section 106 for the I-69 project and CARR

members have submitted detailed comments on some aspects of the historic preservation study,

despite being hampered by many meetings being scheduled in the middle of the day and the

segmenting of the project. Under the ISTEA in the 1990s, CARR participated in and submitted

comments on INDOT's public participation process, and throughout the I-69 study process

CARR has advocated for a fair, open and inclusive public process. CARR members have

participated in and commented at ALL public meetings held on I-69 since 1990 (except for the

meetings where public comment was prohibited). CARR has carefully reviewed the documents

from studies on I-69, beginning with the 1990 Donohue Study, which did not recommend

another interstate highway in Southwest Indiana (based on a low benefit-cost ratio), the 1992

Bloomington to Newberry DEIS (which was never released), the discredited 1996 DEIS, the

2002 Tier 1 DEIS, the 2003 Tier 1 FEIS and the Tier One Tolling Re-Evaluation. CARR

submitted comments on the DEISs for Tier 2, Sections 1, 2, 3, and 4. CARR has worked

diligently and carefully to tell the truth about I-69. CARR continues to educate its members,

Indiana citizens and elected officials about the environmental, social and fiscal costs of the

proposed I-69 by holding public meetings, sending newsletters, creating reports and educational

materials, including a video and a CD. CARR staffs informational booths at public events such

as county fairs and Earth Day. CARR is an all-volunteer organization with a limited budget.

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13. Plaintiff The I-69 Accountability Project has a mission to promote the responsible use

of public transportation funds, and the protection of public health and the environment. The I-69

Accountability Project achieves this mission by providing information to the public and elected

officials. The I-69 Accountability Project is especially concerned about: (1) INDOT, FHWA

and the governor of Indiana’s unwillingness to provide timely information regarding air

pollution impacts that are likely to result from the proposed I-69 extension between Indianapolis

and Evansville; (2) INDOT’s, FHWA and Governor’s push to start construction of this highway

when both state and federal transportation funds are unlikely to increase in the years to come, but

rather are projected to decrease; (3) INDOT’s, FHWA and the governor’s failure to inform the

public about a reliable and acceptable alternative source of funding that would ensure that

traditional transportation funds urgently needed to maintain and upgrade existing

infrastructure/public transit will not be diverted into I-69 construction; (4) local governments

lack the funds to maintain and repair existing road and bridge infrastructure and to expand public

transit, and (5) Governor, INDOT and FWHA pushing ahead with I -69 construction even

though there are serious unresolved karst, flooding, endangered species and financial issues that

could stop construction altogether, with funds already spent being completely wasted. The I-69

Accountability Project has members who live, work and recreate in areas close to the proposed I-

69 highway. Members are concerned that I-69 will bring increased noise and air pollution to their

neighborhoods and will impact their health and the enjoyment of their property, and will

negatively impact the market value of their property and that of their neighborhood in general.

Mary Ann Williams, a Project member resides at 3550 South McDougal Street, Bloomington IN,

47403, Tel. 812-323-0959, about 1 mile east of the proposed route (near the intersection of Rt 37

and Tapp Road, Rockport Road, Victor Pike). She is concerned that I-69 will negatively impact

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the quality of life and safety for the 426 homes in the neighborhood and four schools nearby

(Summit Elementary, Batchelor Middle School, Bloomington South High School, and

Lighthouse Christian Academy). If built, I-69 will bring increased traffic, noise and air pollution

and tax burden to the homeowners. She is concerned that these effects will impact her health,

the enjoyment of her property, and will negatively impact the market value of the property and

that of her neighborhood in general. She walks on the nearby Clear Creek Trail and is concerned

about the increased exposure to air pollution, for herself and many others, as a result if I-69 is

built.

14. Plaintiffs Thomas Tokarski and his wife Sandra Tokarski own property within the I-

69 corridor that is threatened with imminent harm from Defendants’ actions in conducting I-69

Section 4 related survey, design work, and construction work, and has been harmed to some

extent by Defendants’ actions on nearby properties. The Tokarskis reside at 8485 West Evans

Road in Monroe County, Indiana, near Stanford. They have lived on this property for more than

35 years. They own 35 acres of land that is within the corridor for the proposed I-69 highway as

identified in the Tier 1 Environmental Impact Statement (EIS), the Tier 1 Record of Decision for

the highway and in the Tier 2 Section 4 DEIS. They are founding members of Citizens for

Appropriate Rural Roads (CARR). CARR was founded in 1990 by the Tokarskis and other

citizens concerned about the environmental, social and economic impacts of a proposed all-new

four-lane highway through Southwestern Indiana. As proposed in the Tier 1 EIS, the highway

would take out a large section of the woodland on their property and come within about 200

yards of their home. If this highway were built, it would adversely impact their use and

enjoyment of their land and my environment. They have a deep and abiding respect and love for

the natural world. During their residence on this land they have planted over 1000 trees to

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reforest old agricultural fields, filled in and repaired eroding washes, and are allowing other worn

out agricultural plots to return to woodland. This land also contains several acres of mature

forest. Their life is built largely around the use and enjoyment of their home and land, and as

such they would be profoundly and negatively impacted by the state’s plan to site I-69 through

their property. They use and enjoy their land extensively. They have hiking trails throughout our

property and walk them frequently. Their property is the type of habitat where Indiana Bats live.

The Cerulean warbler, an at-risk species, nests in their woods. The proposed I-69 highway would

adversely impact these uses and their enjoyment of their land and its wildlife. They gather wild

foods and herbs from the woodland, including morel mushrooms, puffballs, sugar maple tree sap

for making maple syrup and wild leeks (ramps). The proposed highway would take a portion of

this woodland, preventing any future harvest of ginseng and yellowroot which grows there. Their

woodlands also contain many economically valuable hardwood trees that would be taken by I-

69. Their woodland also is covered with extensive colonies of wildflowers that they take great

pleasure in viewing every spring and summer. The highway would end their enjoyment of the

woodland in this regard. Their property and the surrounding area also rich in wildlife, including

numerous species of birds, mammals, salamanders and reptiles. The highway would destroy this

habitat along and near the right-of-way, and vehicles on the highway will kill many of these

animals. The highway would seriously compromise and impair their use and enjoyment of the

remaining flora and fauna. They are also concerned about the adverse health impacts of living

within 200 yards of a major highway from the toxic and chronic impacts of air pollution. They

plant an extensive garden and berry bushes near their home from which they get fresh food as

well as food for freezing and canning. Air pollution from the highway would harm the fruits and

vegetables in this garden and, in turn, their health. They have free-range chickens that supply

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eggs and meat. They are concerned that air pollution from the highway would contaminate the

chicken’s outdoor food supply and eventually contaminate their eggs and meat, and in turn harm

their health. They obtain drinking water from a deep well on their property. The quality of this

water, as tested, is now excellent. Since they live in a karst area and the proposed highway would

directly disrupt the karst drainage, they are concerned that road runoff and other pollution from

the highway would contaminate their water supply. They are also concerned that construction

activities in this karst area could destroy the underground water system that feeds their well.

Sandra is a potter. She obtains clay for many of her pots from a clay seam along an intermittent

stream on their property. This is a karst sinking stream and will be damaged or extensively

altered by highway construction. The construction of I-69 will deprive her of this source of

material for her art work. They have observed in April and May of 2011 the consequences of

InDOT contractors’ work on I-69 on property adjoining their property to the south including

trees knocked down and erosion damage.

15. Plaintiffs Thomas Jochim and his wife Kenda Jochim own property within the I-69

corridor that is threatened with imminent harm from Defendants’ actions in conducting I-69

Section 4 related survey, design work, and construction work.

16. Plaintiff Jerry Jochim owns property within the I-69 corridor that is threatened with

imminent harm from Defendants’ actions in conducting I-69 Section 4 related survey, design

work, and construction work.

17. Plaintiff Darrell Breeden owns property and resides in Section 3 of I-69. Mr. Breeden

lives, works, and recreates and enjoys the natural environment and historic properties in the area

where I-69 is proposed to be constructed.

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COUNT I: DEFENDANT INDOT’S PREMATURE LAND ACQUISITION ACTIVITIES FOR SECTION 4 OF I-69 VIOLATE THE ADMNISTRATIVE PROCEDURES ACT

AND THE NATIONAL ENVIRONMENTAL POLICY ACT

18. Section 102(2) of NEPA requires all federal agencies to include in every proposal for

major Federal actions significantly affecting the quality of the human environment, a detailed

statement known as an Environmental Impact Statement or “EIS” by the responsible official

on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects

which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed

action, (iv) the relationship between local short-term uses of man's environment and the

maintenance and enhancement of long-term productivity, and (v) any irreversible and

irretrievable commitments of resources which would be involved in the proposed action should it

be implemented. 42 U.S.C. § 4332(2)(C).

19. Federal regulations implementing Section 102(2) of NEPA are found at 40 C.F.R.

Parts 1500 through 1508. The regulations define “major federal action” to include non-federal

projects “entirely or partly financed ... by federal agencies.” 40 C.F.R. § 1508.18(a).

20. The I-69 project is a major federal action significantly affecting the quality of the

human environment subject to NEPA’s requirement of a preparation of an EIS.

21. The overall I-69 project NEPA analysis has been segmented by INDOT and FWHA

into six sections. Final environmental impact statements have been prepared by INDOT and

records of decision have been signed by FHWA for the first three sections.

22. The final EIS for Section 4 has just recently become publicly available.

23. FHWA has not signed a record of decision approving I-69 Section 4 or a specific

alignment for this Section.

24. The federal regulations implementing NEPA prohibit any federal agency from taking

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any action concerning a proposal for a major federal action prior to issuance of an FEIS and

ROD which would: (1) Have an adverse environmental impact; or (2) Limit the choice of

reasonable alternatives. 40 C.F.R. § 1506.1(a).

25. The Federal Highway Administration has issued its own regulations designed to

assure compliance with Section 102(2) of NEPA and 40 C.F.R. § 1506.1(a). One FHWA

regulation implementing NEPA, 23 C.F.R. § 771.113(a), provides, in part:

[F]inal design activities, property acquisition, purchase of construction materials or rolling stock, or project construction shall not proceed until the following have been completed, except as otherwise provided in law or in paragraph (d) of this section:

(1) ... (iii) A final EIS has been approved and available for the prescribed period of time and a record of decision has been signed.

26. Land acquisition includes “appraisal, appraisal review, establishing just

compensation, negotiations, administrative and legal settlements, and condemnation.” 23 C.F.R.

§ 710.309.

27. Land acquisition prior to completion of a final EIS and signing of a record of decision

is an action which limits the choice of reasonable alternatives in contravention of NEPA if it

results in a substantial commitment of a particular course of action. 52 F.R. 32649-32650

(August 28, 1987).

28. According to FHWA regulations, all State funded early land acquisition must comply

with 40 C.F.R. § 1506.1 even if the State does not intend to seek federal reimbursement or credit

for expenditures for land acquisition. 23 C.F.R. § 771.113(d)(4).

29. Pursuant to 23 C.F.R. § 710.309, State funded early land acquisition must also

comply with 49 C.F.R. Part 24. Pursuant to 49 C.F.R. § 24.8(d), land acquisition activities must

be carried out in compliance with NEPA.

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30. INDOT has announced plans to acquire at least 33 parcels of land in Segment 1 of

Section 4 of the I-69 project.

31. On April 26, 2011, INDOT offered to purchase real estate located in Greene County,

Indiana in Segment 1 of Section 4 of the I-69 project from Michael Patrick Knott and Andrew

John Knott.


Indiana in Segment 1 of Section 4 of the I-69 project from William A. and Janice Ann Boyd.


Indiana in Segment 1 of Section 4 of the I-69 project from William Scott Flynn and Ruth Ann

Flynn.

34. INDOT has threatened to institute involuntary condemnation actions against the

above referenced Plaintiffs if they do not accept INDOT’s offers to purchase.

35. INDOT has directed the preparation of appraisals on numerous other private

properties in the I-69 corridor for Section 4.

36. INDOT has directed the preparation of land purchase offers on numerous other

private properties in the I-69 corridor for Section 4.

37. The district court has the power to enjoin the commissioner of INDOT from

committing substantial resources to a particular course of action pending completion of the

federal EIS required by NEPA in order to prevent the state from presenting FHWA with a “fait

accompli. ”

38. The above referenced Plaintiffs for whose properties INDOT has initiated appraisals

and purchase offers and against whom INDOT has threatened to take their properties via an

eminent domain action, as well as other Plaintiffs such as the Tokarski’s and the Jochims who

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own property in the INDOT designated I-69 Section 4 corridor and who face the imminent

initiation by INDOT of such land acquisition actions, do not wish to sell their properties or

portions of their properties.

39. The above referenced Plaintiffs for whose properties INDOT has initiated appraisals

and purchase offers and against whom INDOT has threatened to take their properties via an

eminent domain action, as well as other Plaintiffs such as the Tokarski’s and the Jochims who

own property in the INDOT designated I-69 Section 4 corridor and who face the imminent

initiation by INDOT of such land acquisition actions, have used their properties as family homes

and farms for many years, in some cases for many generations.

40. INDOT’s offered cash payments could not adequately compensate Plaintiffs for the

historic, sentimental, cultural, and environmental value of Plaintiffs’ properties.

41. Plaintiffs will be irreparably harmed if INDOT is allowed to take their real estate in

contravention of NEPA and other federal laws.

42. This threatened harm is imminent.

43. Defendant INDOT continues to pursue land acquisition in Section 4 of I-69 prior to

the issuance of the ROD (and prior to public comment on the FEIS and ROD) in violation of

NEPA and the regulations implementing NEPA.

44. INDOT may currently contemplate issuance of a ROD for I-69 Section 4 within

approximately 60 days but, for reasons presented in the other counts of this Complaint, such a

ROD, like the Section 4 FEIS recently made publicly available by INDOT, will violate fderal

law and be invalid, resulting in INDOT and FHWA being required to engage in a new NEPA

EIS and/or SEIS and public comment process which could result in INDOT and FHWA

choosing or being required to choose the no action (no build) alternative or the no new terrain

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build alternative for I-69.

COUNT II: DEFENDANTS INDOT’S AND FHWA’S PREMATURE I-69 DESIGN AND

CONSTRUCTION ACTIVITIES VIOLATE THE NATIONAL ENVIRONMENTAL POLICY ACT, 40 C.F.R. § 1506.1, AND 23 C.F.R. § 771.113



statement known as an Environmental Impact Statement or “EIS.” 42 U.S.C. § 4332(2)(C).



47. The overall I-69 project NEPA analysis has been segmented by INDOT and FWHA

into six sections.

48. The final EIS for Section 4 has just recently been made publicly available by INDOT.

49. FHWA has not signed a record of decision approving I-69 Section 4 or a specific

alignment for this Section.

50. The federal regulations implementing NEPA at 40 C.F.R. § 1506.1(a) prohibit any

federal agency from taking any action concerning a proposal for a major federal action prior to

issuance of an FEIS and ROD if the action would: (1) Have an adverse environmental impact; or

(2) Limit the choice of reasonable alternatives.


assure compliance with Section 102(2) of NEPA and 40 C.F.R. § 1506.1(a). FHWA regulation’s

at 23 C.F.R. § 771.113(a) provides, in part:

[F]inal design activities, property acquisition, purchase of construction materials or rolling stock, or project construction shall not proceed until the following have been completed, except as otherwise provided in law or in paragraph (d) of this section:

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(1) ... (iii) A final EIS has been approved and available for the prescribed period of time and a record of decision has been signed.

52. Defendants INDOT and FHWA have engaged in and continue to engage in final

design activities, geotechnical borings, tree clearing for survey work and other actions in Section

4, including on one or more of individual Plaintiffs’ properties and on one or more Plaintiff

groups’ members’ properties, prior to issuance of the ROD for Section 4. Many of these INDOT

and FHWA activities also occurred prior to the issuance of the FEIS for Section 4.

53. In addition to the direct adverse impacts of INDOT’s and FHWA’s actions such as

tree clearing and borings, the secondary effects of such premature actions including erosion,

runoff, and sedimentation also have adversely impacted and continue to adversely impact some

of the Plaintiffs’ properties.

54. These activities of INDOT and FWHA are destructive of Indiana Bat habitat, cause

adverse impacts to surface and ground water, cause erosion and sedimentation, harm and harass

bats and migratory birds, adversely impact karst features including springs and streams, and

create dangers to children and wildlife.

55. Soil boring activities on private property have occurred prior to completion of the

final Section 4 EIS and ROD for I-69. These activities include clearing paths needed to transport

equipment to soil boring locations. Clearing paths has included destruction of trees and

disturbance of soil. Boreholes have been drilled up to 8” wide and some 60 or more feet deep,

some of which have been left unfilled, some in Karst areas. Such boring activities have already

occurred on the properties of some individual Plaintiffs and/or of some members of Plaintiff

groups and/or are imminently threatened to occur on such properties.

56. 40 C.F.R. § 1506.1(a) requires that in the absence of a final environmental impact

statement (“FEIS”) having been approved and a record of decision (“ROD”) having been issued,

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in this case for Section 4 of I-69, any action is prohibited which would either have an adverse

environmental impact, or limit the choice of alternatives.

57. INDOT’s soil boring, tree clearing, and path/road making activities have a permanent

adverse environmental impact in contravention of 40 C.F.R. § 1506.1(a)(1).

58. The soil boring which is already taking place is not being done to inform the EIS, but

rather is for final design and construction purposes. Final design is explicitly prohibited by 23

CFR § 771.113(a).

59. The Plaintiffs will be irreparably harmed if their properties are subjected to further

adverse environmental impacts including geotechnical borings and tree clearing taken

prematurely in contravention of NEPA.

60. This threatened harm is imminent.

61. Defendant INDOT continues to engage in the above referenced harmful actions in

Section 4 of I-69 prior to the issuance of the ROD (and prior to public comment on the FEIS and

ROD) in violation of NEPA and the regulations implementing NEPA.

COUNT III: DEFENDANTS FHWA’S AND INDOT’S APPROVALS OF I-69 SECTION 4 AND ISSUANCE OF A CLEAN AIR ACT CONFORMITY DETERMINATION FOR GREENE COUNTY IN SECTION 4 IN RELIANCE ON OUTDATED MOTOR VEHICEL EMISSIONS DATA ARE ARBITRARY AND CAPRICIOUS AND VIOLATE THE ADMINISTRATIVE PROCEDURES ACT

62. The federal CAA Transportation Conformity Rules (40 C.F.R. Part 93) require, as

does Section 176 of the CAA itself (42 U.S.C. § 7506), that any transportation plan and program

and any federal highway project proposed for a CAA non-attainment or maintenance area be

reviewed and determined to be in compliance with the CAA State Implementation Plan (SIP),

and that no federal agency approve a new transportation project (such as I-69) if the project and

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the transportation plan and program in which it is included does not conform to the state CAA

SIP using the latest data and planning assumptions. The CAA states:

(1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 of this title. No metropolitan planning organization designated under section 134 of Title 23, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of this title. The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. …

(2) Any transportation plan or program developed pursuant to Title 23 or

chapter 53 of Title 49 shall implement the transportation provisions of any applicable implementation plan approved under this chapter applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in effect under this chapter. …

42 U.S.C. § 7506(c).

63. A purported CAA Indiana SIP conformity analysis for I-69 Section 4 was completed

in December 2010 for Greene County by an INDOT contractor, although not publicly released

until July 2011 with the FEIS for Section 4.

64. INDOT and FHWA appear to have just made a CAA Indiana SIP conformity

determination for I-69 Section 4 in the FEIS recently made publicly available in July 2011. Prior

to this purported CAA SIP conformity determination, INDOT and FHWA approved I-69 Section

4’s inclusion in State transportation plans and programs, and have approved and funded various

preconstruction activities for I-69 Section 4.

65. As reflected in documents prepared by or for the Terre Haute Metropolitan Planning

Organization (MPO), the most recent available (2009) motor vehicle data available to INDOT

indicates that air pollution from motor vehicles is and will be significantly greater than expected.

19

66. The most recent motor vehicle emissions data support the conclusion that cities and

counties along the I-69 route (as well as some cities and counties not on the I-69 route) in areas

that have been in non-attainment with the CAA and are now required to implement and comply

with a “maintenance” plan will have vehicle emissions greater than allowed in the Indiana CAA

State Implementation Plan, and will therefore be in non-conformity with that SIP.

67. The CAA, 42 U.S.C. § 7506 prohibits the U.S. Department of Transportation and

FHWA Defendants, and INDOT, from approving, funding, and constructing new transportation

projects such as I-69 in such areas until the transportation plans for those areas, with I-69

included, can be demonstrated to be in conformity with the SIP.

68. The rationale for such a prohibition on new transportation projects in the absence of a

conformity demonstration is the obvious one. New projects such as Interstate 69 would

exacerbate the air pollution problem in CAA non-attainment and maintenance areas by

increasing traffic and air pollution in the area, making it more difficult for the area to come back

into or maintain compliance with the CAA. Given that the CAA air quality standards are

established with the purpose of protecting public health, such compliance and conformity is

significant from a public health and welfare standpoint.

69. A portion of I-69 Section 4 is in Greene County. Greene County is one of those areas

in the State that was classified as a CAA non-attainment area and then classified as attainment

subject to the requirement to implement and comply with a “maintenance” plan (i.e. is now a

“maintenance area”).

70. Under the CAA, I-69 cannot be approved in Greene County, and therefore cannot be

approved for Section 4, until the transportation plans and programs for Greene County with I-69

included can be shown to be in conformity with the Indiana CAA SIP.

20

71. The Indiana CAA SIP sets emissions “budgets” or limitations for air pollutants

including Nitrogen Oxides (NOx) and Volatile Organic Compounds (VOCs) (both ozone

precursors) for each county and Metropolitan Planning Organization in non-attainment and

maintenance areas.

72. The 2009 motor vehicle data is such that virtually all of the CAA “non-attainment”

and “maintenance areas” in the State, including Greene County, will be unable to demonstrate

conformity with the Indiana CAA SIP due to the greater than expected motor vehicle emissions.

73. Defendants Department of Transportation, Secretary of Transportation LaHood, and

Federal Highway Administration and Administrator Mendez and Division Administrator Tally,

and INDOT, acted arbitrarily and in violation of the Administrative Procedures Act by failing to

use the most current and accurate motor vehicle data in performing their conformity analysis and

in deciding to not implement a conformity freeze (a ban on all new non-exempt projects) in

Greene County (as would be required by the Clean Air Act, 42 U.S.C. § 7506 upon a finding of

non-conformity). That is, these Defendants acted arbitrarily by approving and funding the I-69

Section 4 transportation project notwithstanding that Greene County, INDOT, and FHWA have

not validly demonstrated conformity of transportation plans and programs for Greene County

with the Indiana CAA SIP, with or without I-69 included. Although INDOT and its agents have

purported to demonstrate such conformity for Greene County, they have done so using outdated

2004 data that are now known to underestimate vehicle emissions even though they had and have

possession of the more current and accurate 2009 data which accurately reflect Greene County’s

non-conformity.

74. These Defendants by proceeding with I-69 transportation plan and program approvals

and preconstruction activities including geotechnical work and right of way acquisition in

21

Section 4 (including in Greene County), notwithstanding their failure to validly demonstrate

CAA SIP conformity in Greene County using the most recent and most accurate data, are in

violation of the Administrative Procedures Act.

75. The same analysis applies to Section 3 of I-69 which goes through Greene County.

As reflected in other counts in this Complaint, the original NEPA process was invalid for Tier 1

and for Tier 2 Section 3.

76. The original NEPA process leading to the Section 3 I-69 ROD was invalid due to the

fact that significant material information was concealed from the public by INDOT and FHWA

during the Tier 1 draft EIS and public comment period (including Karst data), and material

information was also concealed during the Section 3 Tier 2 NEPA process, including regarding

historically significant sites including bridges in Section 3, at least one of which would be

destroyed by I-69 as proposed.

77. In addition, even if the original Section 3 NEPA process was not found invalid, a

Supplemental EIS (SEIS) for Section 3 (and for Tier 1) would be required to be prepared with a

new ROD for Section 3 as a result of significant new information showing increased adverse

environmental impacts including the new motor vehicle data reflecting increased air pollution

and lowered air quality from both existing traffic and I-69 related new traffic in Greene County

(and at other locations along the proposed I-69 corridor).

78. Likewise, because of other significant new information at the NEPA Tier 1 level,

including new karst impacts information and information regarding the endangered species the

Indiana Bat, such as the outbreak in Indiana of the devastating fungal infection known as the

White Nose Syndrome which has wiped out entire bat populations in Eastern states, a new Tier 1

EIS and ROD will be required for I-69.

22

79. Consequently, a new Draft EIS and Final EIS, and/or a new Draft Supplemental EIS

and Final Supplemental EIS with notice and public comment period and ROD must be prepared

and issued for Tier 1 and for Tier 2 Section 3. This process will constitute the (new) legally

recognized decision point for approval of I-69 Section 3 (and the same will also be true of

Section 4) and will require a new CAA conformity analysis and determination. This new CAA

conformity determination must be based on the most recent motor vehicle and emissions data

available, which is the 2009 data.

80. A new CAA conformity analysis and determination will be required for any new

ROD approving I-69 Section 3 or 4, and/or for any State transportation plan or program approval

that adds any new non-exempt transportation project, including I-69, in those Sections. This

includes any amendment to the existing Indiana State Long Range Transportation Plan or any

new SLRTP, as well as any amendment to a State TIP (STIP) or any new STIP.

81. In August 2010 a purported “administrative modification,” which was actually an

amendment, of the SLRTP was submitted by INDOT and approved by FHWA which reclassified

I-69 Section 4 as being in the 2011-2015 planning period of the existing 2007 SLRTP and

reclassified I-69 Section 4 as being in the traditional funding category (rather than the previously

designated “innovative” category). This is an example of another decision point that triggers a

new CAA conformity analysis.

82. The INDOT contractor conformity study for Greene County that was recently

released with the FEIS for Section 4 was prepared by analyzing motor vehicle emissions based

on older 2004, rather than the most current 2009, Greene County motor vehicle data. This report

acknowledged that INDOT had obtained the 2009 updated motor vehicle data nut chose to not

use that data.

23

83. There was and is no legitimate reason for the Greene County CAA conformity

analysis (for Section 3 as well as for Section 4) to not be completed using the most recent 2009

data rather than the outdated 2004 data.

84. Any such new CAA conformity analysis and determination will with virtual certainty

result in a finding of non-conformity with the Indiana CAA SIP if the determination is made with

the most recent motor vehicle data available (the 2009 data), as required by the CAA. Such a

non-conformity finding will preclude approval of I-69 Section 3 as well as Section 4.

85. The INDOT and FHWA decisions to use the outdated 2004 motor vehicle data in

conducting the Greene County CAA Indiana SIP conformity analysis and their decision to issue

a conformity finding based on that outdated data was and is arbitrary and capricious and a

violation of the Administrative Procedures Act, and constitutes agency action unreasonably

delayed, in violation of the Administrative Procedures Act.

COUNT IV: DEFENDANTS INDOT AND FHWA HAVE VIOLATED NEPA BY FAILING TO PREPARE A SUPPLEMENTAL EIS BASED ON SIGNIFICANT NEW

INFORMATION BEARING ON THE ENVIRONMENTAL AND ECONOMIC IMPACTS OF THEIR PROPOSED I-69 EXTENSION ACTION






88. The federal regulations implementing NEPA at 40 C.F.R. § 1502.9(c) require an

agency to supplement its EIS under certain circumstances. This regulation provides:

(c) Agencies:

24

(1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.


assure compliance with Section 102(2) of NEPA and these agency rules also address when the

agency should prepare a supplement to an EIS. The FHWA regulations at 23 C.F.R. § 771.130

provide, in relevant part:

Sec. 771.130 Supplemental environmental impact statements. (a) A draft EIS, final EIS, or supplemental EIS may be supplemented at any time. An EIS shall be supplemented whenever the Administration determines that: (1) Changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or (2) New information or circumstances relevant to environmental concerns and bearing on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS. … (c) Where the Administration is uncertain of the significance of the new impacts, the applicant will develop appropriate environmental studies or, if the Administration deems appropriate, an EA to assess the impacts of the changes, new information, or new circumstances. If, based upon the studies, the Administration determines that a supplemental EIS is not necessary, the Administration shall so indicate in the project file. …

90. The I-69 overall project and its six NEPA segmented sections have changed

significantly since the Tier 1 EIS was prepared. This requires an SEIS. These significant

changes in the I-69 project include:

a. On August 10, 2010 INDOT submitted to the FHWA and FHWA apparently approved

an “administrative modification” to the State Long Range Transportation Plan (SLRTP) which

reclassified the funding for I-69 Section 4 as “traditional” from the previous category of

(unspecified) “innovative.” The “administrative modification” moved the planning/

25

implementation time period for I-69 Section 4 from the year 2016-2020 to the period of 2010-

2013. The consequence of this change, plus the INDOT announcement in the 2010 draft SLRTP

to the effect that Sections 5 and 6 will be at least partially funded from traditional sources, is to

re-allocate more than one billion dollars of gas tax revenues away from other transportation

projects in Indiana and allocate these funds to I-69 instead. These changes inevitably result in

more than one billion dollars in other transportation projects within the State that would have

been funded by these gas tax revenues being either abandoned entirely or delayed. If the original

planned project is delayed rather than abandoned then some other project that otherwise would

have been funded will be abandoned. The direct and indirect economic and transportation

related consequences to the communities affected by these now abandoned or delayed projects

were not even identified let alone analyzed and subjected to public comment and review in an

EIS.

b. Since Tier 1, INDOT has moved away from the originally-planned high quality road

construction to “cost savings” options of lower-quality less-expensive construction options.

INDOT has made other significant cost cutting changes, starting with Section 2 in Tier 2,

including reducing the span of bridges over wetlands, eliminating interchanges (in the guise of

“deferring” interchanges), narrowing the median, eliminating grade separations that allow other

roads to cross over or under the interstate, increasing the grade of certain interstate stretches, and

use of asphalt rather than concrete.

c. Since the Tier 1 EIS, the Bloomington Monroe County Metropolitan Planning

Organization (MPO) disapproved I-69 Section 4 by voting to remove I-69 Section 4 from its

Transportation Improvement Plan (TIP), which should constitute a legal barrier to proceeding

with INDOT’s currently selected route.

26

d. As explained in Count 6 of this Complaint, Section 4 of I-69 goes through Greene

County which is a Clean Air Act (CAA) maintenance area requiring a CAA conformity

determination to ensure any new transportation project complies with the emissions limits set in

the CAA State Implementation Plan. As noted in Count 6, the latest motor vehicle data and

resulting emissions data show that Greene County will not be in conformity with the CAA SIP.

Therefore, pursuant to the CAA (42 U.S.C. § 7506), INDOT and FHWA are prohibited from

approving I-69 in Greene County (i.e. cannot approve I-69 Section 4). Thus, the legal status of

Section 4 of I-69 has changed.

91. In addition to the changes in the project, significant new information and

circumstances relevant to environmental concerns and bearing on the proposed I-69 action and

its impacts that have developed since the I-69 Tier 1 EIS was prepared demonstrate that the

construction and operation of I-69, as proposed by INDOT and FHWA, will result in significant

environmental impacts not evaluated in the Tier 1 EIS. The significant impacts not evaluated in

the Tier 1 EIS include:

a. Substantial new detailed information regarding Karst features impacted by I-69

including in Section 4 has become available since the Tier 1 EIS. This new information shows

more than 1400 Karst features impacted by Section 4 of I-69 alone. This information became

available after the Tier 1 EIS for two reasons. The first reason is that the exhibits to the 1994

Karst study that had been omitted (text and exhibits) from the Tier 1 draft EIS and comment

period were only recently made available to the public in response to a FOIA request from

Plaintiffs to FHWA. These exhibits show many of the Karst features not disclosed in the Tier 1

EIS. The second reason that the details of these Karst impacts are now available is that FHWA

and INDOT contracted for a detailed study of Karst features in Tier 2. The Tier 1 EIS did not

27

disclose the extent or nature of all the Karst features that would be impacted by INDOT’s

selected alternative.

b. Since the Tier 1 EIS, substantial new information has become available regarding the

endangered Indiana Bat as discussed in Count 1 of this Complaint, including the new threat

posed to the Indiana Bat called the White Nose Syndrome. However, even though FHWA and

FWS consulted formally on this issue, and FHWA prepared several biological assessment reports

on the Indiana Bat issues, and FWS prepared several biological opinions on the I-69 impacts on

the Indiana Bat, FHWA and INDOT did not make these reports available for public review and

comment through the NEPA EIS process in Tier 1 or Tier 2 of the NEPA process.

c. The new air pollution data referenced above as creating a CAA conformity problem for

I-69 Section 4 also represents significant new information regarding the public health risks posed

by the air pollution to be created by I-69. This new data has not been made available for public

review and comment nor have the new air pollution impacts been analyzed in an EIS.

d. Substantial new information regarding archaeological sites has become available since

the Tier 1 EIS as a result of INDOT and its contractors delaying required archaeological studies

not only until Tier 2 but even post-Tier 2 to final design.

92. The Plaintiffs will be irreparably harmed if the Defendants are allowed to proceed

with their proposed I-69 action without first preparing the SEIS required by law which, once

prepared, should inform and persuade the FHWA and INDOT to select a less environmentally

harmful alternative.

93. The harm threatened by INDOT and FHWA proceeding with the I-69 project in the

corridor selected in the original review Tier 1 NEPA process without performing the SEIS

required by law is imminent.

28

94. Defendant INDOT and FHWA continue to engage in actions to implement the I-69

corridor selected in the original Tier 1 NEPA process without performing the SEIS required by

law, without any analysis of the significant new information bearing on environmental concerns

and reflecting changes in the agency action, and without any public comment on these project

changes and new information in violation of NEPA and the regulations implementing NEPA.

COUNT V: DEFENDANTS INDOT AND FHWA HAVE VIOLATED NEPA BY

FAILING TO PREPARE AN EIS FOR TIER 1 IN GOOD FAITH AND KKNOWINGLY IGNORING RELEVANT INFORMATION






97. NEPA does not permit agencies to falsify data or to ignore available information that

undermines their environmental impact conclusions. 40 C.F.R. § 1502.24 requires agencies to

ensure the professional and scientific integrity of their environmental impact statements. NEPA

does not allow an agency to conduct cursory research nor to sweep negative evidence under the

rug.

98. INDOT and FHWA have violated NEPA and the Administrative Procedures Act by

engaging in a bad faith pattern of conduct and knowingly failing to comply with NEPA’s

requirements, as reflected by the following (non-exhaustive) list:

a. Plaintiffs learned within the last 6 months that in August 2010 INDOT submitted to the

FHWA and FHWA apparently approved an “administrative modification” to the State Long

Range Transportation Plan (SLRTP) which reclassified the funding for I-69 Section 4 as

29

“traditional” from the previous category of (unspecified) “innovative” and moved the

planning/implementation time period for I-69 Section 4 from the 2016-2020 period forward to

the period of 2010-2013. These changes should have been submitted for public review and

comment as an “amendment” to the State Plan and should have been included in a NEPA EIS or

SEIS for public review and comment but were not. The consequences of these changes are

significant because the change involves re-allocating more than one billion dollars of gas tax

revenues away from other transportation projects in Indiana and allocating these funds to I-69

instead. This change inevitably results in more than one billion dollars in other transportation

projects in the State that would have been funded being abandoned. The direct and indirect

economic and transportation related consequences to the communities affected by these

abandoned projects were not even identified let alone analyzed and subjected to public comment

and review in an EIS.

b. The Bloomington Monroe County Metropolitan Planning Organization (MPO)

disapproved I-69 Section 4 in voting to remove I-69 Section 4 from its Transportation

Improvement Plan (TIP). This MPO decision should constitute a legal barrier to proceeding with

INDOT’s currently selected I-69 route. However, instead of respecting the MPO vote and

subjecting this change to a NEPA SEIS and public review process, INDOT instead within the

last 60 days submitted to FHWA, and FHWA apparently accepted, the MPO's TIP decision of

November 2010 which had included I-69 (even though outdated and rescinded in regard to I-69)

and failed to submit the May 2011 MPO vote disapproving and excluding I-69. INDOT and

FHWA had initially obtained the November 2010 (now rescinded) MPO vote approving I-69

only by threatening to withhold funding from Bloomington and Monroe County.

c. Section 4 of I-69 goes through Greene County which is a Clean Air Act (CAA)

30

maintenance area requiring a CAA conformity determination to ensure any new transportation

project complies with the emissions limits set in the CAA State Implementation Plan. Plaintiffs

recently learned within the past six months that the latest motor vehicle data and resulting

emissions data shows that Greene County will not be in conformity with the CAA SIP and

therefore, pursuant to the CAA (42 U.S.C. § 7506), INDOT and FHWA are prohibited from

approving I-69 in Greene County (i.e. cannot approve I-69 Section 4 or Section 3). Thus, the

legal status of Section 4 and Section 3 of I-69 have changed. However, instead of using this

most current and accurate motor vehicle and emissions data to perform the conformity analysis

for Greene County INDOT and its contractor, with the approval of FHWA, knowingly used

outdated and inaccurate data for the conformity study in order to avoid a CAA non-conformity

finding, which would have precluded INDOT and FHWA from approving I-69 sections 3 and 4.

The new data and its implications for CAA conformity, air pollution and public health, and the

ability of I-69 to be approved in Greene County were knowingly concealed from the public and

knowingly excluded from the NEPA process.

d. Substantial new detailed information regarding Karst features impacted by I-69

including in Section 4 has recently become available -- within the last 6 months via a FOIA

request submitted by Plaintiffs to FHWA, and via the I-69 Section 4 Draft EIS. This new

information shows more than 1400 Karst features impacted by Section 4 of I-69 alone. Much of

this Karst information was known to INDOT and FHWA when the Tier 1 NEPA process was

conducted but the text of the 1994 study disclosing this Karst information was excluded from the

Tier 1 DEIS and public comment process and the exhibits to the 1994 Karst study were never

released to the public until Plaintiffs just obtained them via a FOIA request of FHWA. These

exhibits show many Karst features not disclosed in the Tier 1 EIS. The Tier 1 EIS did not

31

disclose but could have disclosed the extent and nature of the extensive Karst features (e.g. sink

holes, caves, springs) that would be impacted by INDOT and FHWA’s selected I-69 route.

e. Although FHWA and FWS repeatedly consulted formally under the ESA on the issues

related to the endangered Indiana Bat including regarding the White Nose Syndrome, and

FHWA prepared several biological assessment reports on the Indiana Bat issues and FWS

prepared several biological opinions on the I-69 impacts on the Indiana Bat, FHWA and INDOT

did not make these reports or the substance of the information contained therein available for

timely public review and comment as part of the corresponding steps in the NEPA EIS process

either in Tier 1 or Tier 2. These reports were only presented in the NEPA process after the

corresponding NEPA public comment period was completed.

f. INDOT and FHWA have engaged in a pattern of delaying the collection of information

regarding archeologic sites until after the NEPA decisions that might be impacted by them have

been made and the public comment periods are completed. Several key studies required to be

conducted on archeological sites were postponed not only until after the Tier 1 EIS but also until

after the Tier 2 site specific EISs and public comment periods.

g. INDOT and FHWA engaged in bad faith in submitting the Dowden Farm historic

property to the Keeper of the National Register of Historic Places for a determination that the site

was not eligible without providing notice to or allowing participation by the owners of that

property, the Boyd family.

h. During the Tier 2 Section 3 NEPA process INDOT and FHWA discovered that one or

more bridges in Section 3 in the I-69 corridor had been determined by experts and their

colleagues to be eligible to be listed as historic sites under federal law. Rather than reporting this

fact in the public review process for the Draft EIS and analyzing the impacts on this historic

32

bridge, INDOT and FHWA worked out of the public view to convince State and federal officials

to change the eligibility determination on this bridge and declare it not eligible as a historic site.

This entire process of reclassifying this historic site was not disclosed to the public during the

Section 3 NEPA process and INDOT and FHWA completed the final EIS and ROD for Section 3

of I-69 without mention of these actions.

i. INDOT and FHWA and their contractors have engaged in a pattern of entering onto

private property without permission or knowledge of the landowners for archeological

investigations and removing artifacts from those private properties without consent from or the

knowledge of the landowners, in violations of State and federal law.

j. INDOT and FHWA has also engaged in a pattern of entering private properties for

noise impact studies at times when the owners are absent.

99. The Plaintiffs will be irreparably harmed if the Defendants are allowed to proceed

with their proposed I-69 action without first preparing the a valid Tier 1 EIS prepared in good

faith as required by law. Such a valid Tier 1 EIS, once prepared, should inform and persuade the

FHWA and INDOT to select a less environmentally harmful alternative.

100. The harm threatened -- by INDOT and FHWA proceeding with the I-69 project in

the corridor selected in the original review Tier 1 NEPA process without preforming a good faith

Tier 1 EIS as required by law -- is imminent.

101. Defendant INDOT continues to engage in bad faith actions to implement NEPA for

the I-69 project.

COUNT VI: DEFENDANTS INDOT’S AND FHWA’S I-69 CONSTRUCTION ACTIVITIES AND OTHER IRREVERSIBLE AND IRRETRIEVABLE COMMITMENT OF RESOURCES MADE WHILE RE-INITIATION OF CONSULTATION UNDER THE ENDANGERED SPECIES ACT IS IMMINENT ARE ARBITRARY AND CAPRICIOUS AND VIOLATE THE ADMINISTRATIVE PROCEDURES ACT

33

102. The Endangered Species Act of 1973 (“ESA”) is codified at 16 U.S.C. § 1531 et

seq.

103. ESA Section 7(a)(2) provides: “Each Federal agency shall, in consultation

with and with the assistance of the Secretary, insure that any action authorized,

funded, or carried out by such agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened species or result in the destruction or adverse

modification of habitat of such species which is determined . . . to be critical . . . .” 16 U.S.C. §

1536(a)(2).

104. “Jeopardize” means to “reduce appreciably the likelihood of both the survival and

recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of

that species.” 50 C.F.R. § 402.02.

105. The ESA defines agency “action” under Section 7 as encompassing all activities or

programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies

in the United States or upon the high seas,” including “the granting of licenses, contracts, leases,

easements, rights-of-way, permits, or grants-in-aid.” Id. “Section 7 and the requirements of this

Part apply to all actions in which there is discretionary Federal involvement or control.” 50

C.F.R. § 402.03.

106. Section 7(a) ensures the agency meets its substantive ESA duties by imposing a

procedural consultation duty whenever a federal action may affect a listed species or critical

habitat. 50 C.F.R. § 402.14.

107. Section 7(d) of the ESA states:

After initiation of consultation required under subsection (a)(2) the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which

34

has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.

16 U.S.C. § 1536(d).

108. Formal consultation results in the issuance of a biological opinion determining

whether the proposed action will jeopardize the continued existence of the species or result in the

destruction or adverse modification of its critical habitat. 16 U.S.C. § 1536(b).

109. If the biological opinion concludes that the proposed action will place the survival of

the species in jeopardy or destroy critical habitat, then the project cannot go forward as planned.

110. If the biological opinion concludes that the proposed action will adversely affect the

species but that the continued existence of species will not be jeopardized, then the biological

opinion includes an “incidental take statement” setting forth reasonable and prudent measures

considered necessary or appropriate to minimize the adverse impact on the species and

specifying the terms and conditions with which the federal agency or other applicant must

comply. 16 U.S.C. § 1536(b).

111. The Indiana Bat (Myotis sodalis) is listed as an endangered species under the ESA.

112. The I-69 project is an “action” under Section 7 of the ESA and 50 C.F.R. § 402.03

because FHWA retains discretionary Federal involvement or control over the project.

113. The “action area” is defined by the ESA implementing regulations as “all areas to be

affected directly or indirectly by the Federal action and not merely the immediate area involved

in the action.” 50 C.F.R. § 402.02.

114. The I-69 project is an “action” under the ESA which may affect the endangered

Indiana Bat.

115. On July 21, 2003 FHWA requested formal consultation with USFWS under Section

35

7(a)(2) of the ESA. USFWS has subsequently identified 13 maternity colonies and 15

hibernacula of Indiana Bats in the I-69 Project action area. Indiana contains roughly half

(206,610) of the 2005 range-wide population (457,374) of Indiana Bats.

116. According to the 2005/2006 winter census of hibernating Indiana Bats, 74,042

Indiana Bats were counted in the 15 hibernacula located within the I-69 project action area.

These bats represent 16% of all known Indiana Bats.

117. The largest single hibernacula within the I-69 project action area is Ray Cave in

Greene County, Indiana. Ray Cave has been designated as a critical habitat of the Indiana Bat.

Ray Cave is within five miles of the I-69 corridor and within the “action area” of Section 4 of the

I-69 project.

118. According to the 2005 census of Indiana Bats, 54,325 Indiana Bats were found

hibernating in Ray Cave. The total population of Indiana Bats counted in the 2005 winter census

was 457,374. Thus, approximately 12% of known population of Indiana Bats hibernate in this

single critical habitat located within the I-69 action area.

119. USFWS submitted the purported “Tier 1” Revised Programmatic Biological

Opinion (“RPBO”) to FHWA on August 24, 2006. The “Tier 1” RPBO covers all six sections of

the I-69 project from Evansville to Indianapolis.

120. Although the “Tier 1” RPBO did not result in a determination that the continued

existence of the Indiana Bat species was placed in jeopardy by the I-69 project, the opinion did

conclude that incidental taking of the Indiana Bat would occur as a result of the I-69 project.

121. An Incidental Take Statement (ITS) was issued by USFWS in conjunction with the

“Tier 1” RPBO.

122. The “Tier 1” RPBO and its call for additional purported “Tier 2” formal consultation

36

and biological opinions with regard to the six sections of the overall I-69 project.

123. Supplemental “Tier 2” biological assessments and biological opinions have been

previously completed for Sections 1, 2 and 3. A “Tier 2” biological assessment for Section 4 was

submitted by FHWA to USFWS on November 1, 2010. USFWS recently issued a supplemental

“Tier 2” biological opinion for Section 4 on July 6, 2011.

124. On January 23, 2011, researchers performing winter bat census discovered two little

brown bats exhibiting symptoms of White Nose Syndrome (“WNS”) at Endless Cave in

Washington County, Indiana. The presence of WNS-associated fungus, Geomyces destructans,

was later confirmed. Bats in other Indiana caves have also been discovered with WNS

symptoms. [http://www.fws.gov/whitenosesyndrome/pdf/IndianaWNS.pdf] WNS has now been

confirmed in Indiana Bat hibernacula in Section 4 near the I-69 corridor.

125. During the course of preparing the “Tier 2” Biological Assessment for Section 4 of

the I-69 project, a previously unidentified Indiana Bat primary roost was discovered within the

proposed right-of-way. The presence of this primary roost resulted in the formal establishment of

a previously unknown Indiana Bat maternity colony designated as the Little Clifty Branch

Maternity Colony. The new maternity colony is southwest of State Road 45. [April 11, 2011

letter from FHWA requesting reinitiation of formal Section 7 consultation].

126. The discovery of WNS in bats in southern Indiana and the discovery of an Indiana

Bat maternity colony within the right-of-way resulted on April 11, 2011 in FHWA requesting

USFWS to reinitiate formal consultation under Section 7 of the ESA and 50 C.F.R. § 402.16

with regard to the project-wide programmatic “Tier 1” RPBO.

127. On April 12, 2011, USFWS agreed to reinitiate formal consultation with FHWA.

128. FHWA also requested and USFWS agreed to extend the period of “Tier 2” formal

37

consultation regarding Section 4.

129. USFWS recently issued a supplemental “Tier 2” biological opinion for Section 4 on

July 6, 2011.

130. The ESA implementing regulations make it clear that the prohibition against

commitment of resources pending formal consultation contained in ESA Section 7(d) applies to

formal consultation resulting from a reinitiation of consultation as well as during the initial

formal consultation period.

After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied.

50 C.F.R. § 402.09. (Emphasis added). 131. The April 11, 2011 letter from FHWA to USFWS requesting reinitiation of formal

Section 7 consultation contains the following statement:

While this re-initiation of formal consultation will address the Revised Tier 1 BO, which addresses all Sections of I-69 from Evansville to Indianapolis, FHWA believes, as further demonstrated below, that the ongoing construction activities in Sections 1, 2 and 3 do not constitute an irretrievable or irreversible commitment of resources relative to the Indiana Bat under 50 CFR 402.09.

132. The foregoing statement by FHWA is apparently an expression of FHWA’s

determination that continuing construction activities in Sections 1, 2 and 3 (and soon for Section

4) during the period of formal consultation does not violate Section 7(d) of the ESA.

133. FHWA justifies its conclusion that ongoing construction activities do not constitute

an “irretrievable or irreversible commitment of resources with respect to the agency action which

has the effect of foreclosing the formulation or implementation of any reasonable and prudent

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alternative measures which would not violate subsection (a)(2) of [Section 7]” by asserting that

nearly all the trees in the right-of-way of Sections 1, 2 and 3 of the project have already been cut.

134. The purpose of the prohibition against commitment of resources contained in

Section 7(d) is not merely to limit activities which would directly contribute to taking of

endangered species. Rather, the limitation includes a limitation on expenditure of resources that

would create momentum toward completion of a project which would make it more difficult to

consider alternatives to the project.

135. FHWA’s conclusion that spending millions of dollars on construction of Sections 1,

2, 3, and 4 while an ESA consultation between FWS and FHWA regarding I-69 and its impacts

on the endangered Indiana Bat was on-going does not amount to an irretrievable or irreversible

commitment of resources is arbitrary and capricious.

136. The Administrative Procedures Act provides that a reviewing court shall “hold

unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

706(2)(A).

137. It has recently been discovered by Plaintiffs and reported to FWS that tree clearing

activities have been occurring in and near the I-69 corridor (in the Summer and Winter I-69

Action Areas) during the summer months (April through July, 2011 to date).

138. Such tree clearing activities are prohibited by the terms of the FWS ITS during

certain months. In the I-69 Summer Action Area (SAA) for Sections 1-4, tree clearing is

forbidden during the period of April 1 to September 30. For the areas near Indiana Bat

hibernacula (caves), the Winter Action Area (WAA), tree clearing is forbidden during the period

of April 1 to November 15 for Sections 1-4.

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139. Such tree clearing activities constitute an increased level of “take” of the Indiana

Bat.

140. The July 6, 2011 biological opinion issued by FWS for Section 4 does not address

this recently discovered tree clearing in and near the I-69 corridor during the SAA restricted

months and the resulting increased level of “take” of the Indiana Bat.

141. The FWS Revised “Tier 1” Biological Opinion and the FWS “Tier 2” Biological

Opinion for Section 4 require re-initiation of consultation between the FHWA and the FWS

when new information discloses that the levels of take of the endangered Indiana Bat will be

greater than anticipated in these BOs or if the FHWA and INDOT do not comply with the

conditions imposed in the ITS (which includes the seasonal tree clearing restrictions).

142. The ESA implementing regulations make it clear that the prohibition against

commitment of resources pending formal consultation contained in ESA Section 7(d) applies to

formal consultation resulting from a reinitiation of consultation as well as during the initial

formal consultation period.

After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied.

50 C.F.R. § 402.09. (Emphasis added). 143. In light of these requirements in the BOs and ITS, which also reflect requirements of

the ESA and its implementing regulations, the FWS and FHWA should and are expected to re-

initiate consultation on the Indiana Bat in regard to I-69 in light of this new information.

144. As presented in other counts of this Complaint, the NEPA Tier 1 process of

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evaluating alternative routes and the no action/no build alternative (as distinguished from the

Tier 2 NEPA process of merely comparing alternative alignments within the selected route) must

be re-opened, as contemplated in the decision of the United States District Court for the Southern

District of Indiana in the prior I-69 litigation. This is true in part because of material information

concealed in the Tier 1 NEPA process by INDOT and FHWA and in part because of the new

information on substantial adverse impacts to karst features, new information on increased air

pollution and violations of the CAA, new information on the severity of the WNS threat to the

already endangered Indiana Bat, and new information on the economic and transportation

impacts of more than a billion dollars in gas tax revenues originally intended for use on other

transportation projects in Indiana recently being reallocated by INDOT to pay for I-69, impacts

never analyzed in a NEPA study subjected to public review and comment as required under

NEPA. When that re-opened Tier 1 NEPA process is completed, the alternative selected in the

new Tier 1 ROD should not be, and is likely to not be, the current INDOT and FHWA selected

preferred alternative route to which INDOT and FHWA are making the above referenced

millions of dollars of irretrievable commitments.

145. In the meantime, pending re-initiation of such required consultation, the INDOT and

FHWA decisions to continue to make irretrievable commitments of resources for the I-69

projects, including in Section 4, are arbitrary and capricious in light of their statutory obligation

to re-initiate consultation, and in light of the statutory prohibition that “the Federal agency and

the permit or license applicant shall not make any irreversible or irretrievable commitment of

resources with respect to the agency action which has the effect of foreclosing the formulation

or implementation of any reasonable and prudent alternative measures which would not violate

subsection (a)(2) of this section,” and are in violation of the Administrative Procedures Act.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court order the following relief:

A. That Defendants be enjoined from engaging in any actions to design or construct I-69;

B. That Defendants be enjoined from making any expenditures of funds towards design

or construction of I-69;

C. That Defendants be ordered to prepare in good faith using the latest scientific data and

information available a new Tier 1 Draft and Final EIS including a new analysis of alternatives

and after completion of all appropriate studies of Karst and historic and archeological sites, with

proper public review and comment periods;

D. That Defendants be ordered to prepare a new ROD after completion of the Draft and

Final Tier 1 EISs and public review and comment;

E. In the alternative, that Defendants be ordered to prepare a new Tier 2 EIS and ROD for

Section 3 and a new Tier 2 EIS for Section 4 in good faith using the latest scientific data and

information available;

F. That Defendants be ordered to return all artifacts taken from private property and cease

any work on private property in the absence of the landowners; and

G. That Defendants be ordered to pay Plaintiffs’ reasonable attorney fees and expenses of

this litigation.

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Respectfully submitted, ______________________________ Mick G. Harrison 205 North College Avenue, Suite 311 Bloomington, Indiana phone: (812) 361-6220 fax: (812) 336-7268 email: [email protected] Attorney for Plaintiffs Date: July 26, 2011

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