Ware v. Fed Highway Admin , 255 F. App'x 838 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2007
No. 06-20637 Charles R. Fulbruge III
Clerk
WILLIAM WARE; CAROL CAUL
Plaintiffs - Appellants
v.
UNITED STATES FEDERAL HIGHWAY ADMINISTRATION; CURTIS
DAN REAGAN, In His Official Capacity as Division Administrator of the
Federal Highway Administration Texas Division; J. RICHARD CAPKA, In
His Official Capacity as Administrator of the Federal Highway
Administration; UNITED STATES DEPARTMENT OF TRANSPORTATION;
MARY E. PETERS, In Her Official Capacity as Secretary of Transportation of
the United States Department of Transportation; TEXAS
TRANSPORTATION COMMISSION; RICHARD F. WILLIAMSON, In His
Official Capacity as Chair Texas Transportation Commission
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
4:04-CV-2295
Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20637
William Ware and Carol Caul (“Appellants”), appeal the district court’s
dismissal, for failure to state a claim, of their Fifth Amendment claim, as well
as claims, brought under the Administrative Procedures Act (“APA”) against the
Texas Transportation Commission. Appellants also seek review of the district
court’s grant of summary judgment to the federal defendants on claims brought
under the APA. Appellants’s APA claim alleges violations of the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, and the Federal
Aid Highways Act (“FAHA”), 23 U.S.C. §§ 109 and 128. Appellants’ claims stem
from their dissatisfaction with the construction of a highway ramp for IH-610
near their neighborhood in Houston, specifically dissatisfaction with noise
generated by the new ramp. Construction on the project is now complete.
Prior to oral argument, we requested additional briefs from the parties
regarding whether completion of the highway construction mooted the case. In
analyzing mootness we ask whether the “requested relief would... ease or correct
the alleged wrong.” Bayou Liberty Ass’n v. U.S. Army Corps of Engineers, 217
F.3d 393, 397 (5th Cir. 2000). The wrong, according to Appellants, is a failed
noise analysis resulting in an excessively noisy highway. Appellants requested
relief from the district court in the form of a preliminary injunction to stop
construction and to have a new noise analysis done.1
Appellees point to a series of NEPA cases where we have found completion
of construction to moot an action. See, e.g., Bayou Liberty, 217 F.3d at 396
(mooting action which sought to enjoin construction, and sought declaratory
relief that permit approval process was arbitrary and capricious); Richland Park
Homeowners Ass’n, Inc. v. Pierce, 671 F.2d 935, 945 (5th Cir. 1982) (mooting case
to the extent it asked court to set aside preconstruction approval process for
1
Appellants asked the district court to require a new noise analysis conducted under court
supervision, with appellants’ participation. The district court properly noted that it could, at most,
remand to the agencies for further proceedings.
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No. 06-20637
housing development); Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th
Cir. 1981) (mooting case which sought to enjoin railroad construction). These
cases recognize that “the basic thrust of NEPA is to provide assistance for
evaluating proposals or prospective federal action in light of their future effect
upon environment factors, not to serve as a basis for after-the-fact critical
evaluation subsequent to substantial completion of construction.” Richland
Park, 671 F.2d at 940. However, the appellants seek injunctive relief for
violations of the FAHA which distinguishes this case from our NEPA-focused
precedent.
We often note that NEPA guarantees a process, not a particular result.
See Gulf Restoration Network v. U.S. Dept. of Transp., 452 F.3d 362, 367 (5th
Cir. 2006). NEPA’s pre-construction process offers little to a plaintiff after
completion of construction. While their goals overlap to a degree, in contrast to
NEPA, the FAHA does to a certain extent require a particular result. The FAHA
states that the FHWA “shall not approve plans or specifications for any proposed
project.... unless [the agency] determines that such plans and specifications
include adequate measures to implement the appropriate noise level standards.”
23 U.S.C. § 109(i). FAHA regulations provide detail to § 109(i)’s “noise level
standards.” See 23 C.F.R. Part 772. Prior to FHWA approval, the FAHA
regulations require a noise analysis conducted pursuant to specified FHWA
methods, along with the adoption of reasonable and feasible measures to
mitigate highway noise based on the analysis. See 23 C.F.R. § 772.17 (providing
FHWA-approved methods); 23 C.F.R. § 772.11 (requiring adoption of reasonable
and feasible mitigation measures).
Despite the fact that construction is complete, appellants ultimately seek
relief from noise brought on by the highway. Assuming the prior noise analyses
were deficient, completion of construction does not undermine the benefits of
further noise mitigation measures (e.g., noise barrier walls) that could be added
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No. 06-20637
based on a new, FAHA-compliant noise analysis. See Vieux Carre Prop. Owners,
Residents, and Assoc., Inc. v. Brown, 948 F.2d 1436, 1446-47 (5th Cir. 1991)
(finding that, despite near completion of construction, meaningful relief could be
granted based on new agency review, where agency had not previously carried
out review required by the National Historic Preservation Act). Therefore, the
appellants’ case is not moot.
Although their case is not moot, the Appellants do not present meritorious
grounds for appeal. As to the merits of Appellants’ case, we AFFIRM the
judgment of the district court, entered May 30, 2006, for essentially the reasons
given in its Memorandum and Order dated September 30, 2005, and its
Memorandum and Opinion dated March 15, 2006.
4