HIGHWAY J CITIZENS GROUP and WAUKESHA COUNTY ENVIRONMENTAL ACTION LEAGUE, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Maria Cino, Acting Secretary of Transportation, Federal Highway Administration, et al., Defendants-Appellees.
No. 05-2667.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 14, 2006. Decided Aug. 2, 2006.
456 F.3d 734
AFFIRMED.
Dennis M. Grzezinski, Milwaukee, WI, Shannon W. Fisk (argued), Environmental Law & Policy, Chicago, IL, for Plaintiffs-Appellants.
Tamara N. Rountree (argued), Department of Justice, Environment & Natural Resources Division, Washington, DC, Peggy A. Lautenschlager, Office of the Attorney General Wisconsin, Department of Justice, Madison, WI, for Defendants-Appellees.
Before BAUER, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
In 2005, the Highway J Citizens Group (“Citizens“) and the Waukesha County Environmental Action League (“WEAL“)
I
BACKGROUND
A. Facts
There are two construction projects at issue in this litigation; both are “major
The EIS for the project was made available to the public on April 9, 2001, and a public hearing was held on May 30, 2001. On December 11, 2001, the FHWA and WisDOT issued a revised EIS; this document addresses alternative proposals raised during the hearing, but concludes in favor of expanding the highway. The DOT and FHWA issued a Record of Decision (“ROD“) on March 6, 2002, marking
The second project, Project # 2748-01-00, is known as the “Ackerville Bridge/Lovers Lane Reconstruction Project” (“Ackerville Bridge Project“). It primarily involves the construction of two overpass structures on Highway 164 in Washington County, near the northern end of the highway expansion project. One overpass will cross railroad tracks, thus eliminating the need for existing at-grade crossings; the second overpass will facilitate passage over State Highway 175. Like the Highway 164 expansion project, the new overpass structures are designed to ease the flow of traffic.
The Ackerville Bridge Project commenced with the FHWA and WisDOT‘s preparation of an Environmental Assessment (“EA“).7 After a public hearing was held in March 2000, the FHWA issued a “Finding of No Significant Impact“; the FHWA concluded that the construction of the overpasses would not affect significantly the quality of the human environment. Construction on this project began in May 2002.
B. The Citizens I Litigation
Highway J Citizens Group (“Citizens“) is an unincorporated association representing citizens of Waukesha and Washington Counties in Wisconsin “who are concerned about the potential destruction of the region along [Highway] 164 and [County Highway] J.” R.1 at 6. According to the complaint in this case, Citizens’ mission includes “maintaining Highway 164 as a two-lane scenic road[,] [] maintaining the environmental resources and preserving the remaining rural character of the area.” Id.
In July 2003, Citizens filed suit in the United States District Court for the Eastern District of Wisconsin against the Secretary of Transportation in his official capacity; Frederick Wright in his official capacity as Executive Director of the FHWA; and Thomas E. Carlsen in his official capacity as Acting Secretary of the WisDOT. Citizens alleged that the defendants’ approval of the Highway 164 and Ackerville Bridge projects violated the
On June 12, 2003, the district court denied Citizens’ motion for a preliminary injunction and then ruled against Citizens on the merits. In pertinent part, the district court determined that the defendants’ environmental analysis was thorough and sufficient, as was their consideration of feasible alternatives. The district court further found that the defendants had made a “reasonable decision in establishing the project termini” and that the Ackerville Project had not been segmented improperly from the Highway 164 Project. Id. at 179.
Citizens appealed. We affirmed the judgment of the district court. See Citizens I, 349 F.3d 938. We agreed with the district court that the defendants’ environmental analysis and consideration of alternatives were sufficient. See id. at 952-62. We also affirmed the district court‘s holding on the segmentation issue:
In the [EA and Finding of No Significant Impact], the defendants explicitly considered the three criteria for segmentation set out in
23 C.F.R. § 771.111 , and gave a reasoned justifica-tion of how their segmentation fit each factor. As to logical termini, the defendants explained that “[s]ince the need to bridge the train tracks is the driving force behind this project,” the south termini for the Project was established just beyond the bridge touchdown point. ...
The second factor, independent utility, is the most important factor in highway cases such as this.... With respect to this factor, the [EA and Finding of No Significant Impact] pointed out that neither the bridge construction project, with its safety focus, or the County J/Highway 164 Project, with its expansion focus, require the construction of any other projects to be usable.
Finally, as to the third factor, restriction of alternatives, the Ackerville Bridge Project contemplates, rather than restricts, future roadway projects, including the possibility of a four-lane project if found to be needed. Indeed, making space for future expansion was a “secondary purpose” for the Project in the first place.
In sum, the defendants analyzed the relevant factors set out in
23 C.F.R. § 771.111(f)(1)-(3) , and came to a reasoned conclusion. There is also no real evidence to support pretextual motive. Accordingly, we hold there was no improper segmentation in this case.
Id. at 963 (internal citations omitted).
C. The Present Litigation
On February 22, 2005, Citizens, together with WEAL, a Wisconsin non-profit corporation also dedicated to protecting Waukesha County‘s natural resources, filed the present lawsuit. They alleged that the DOT, FHWA and WisDOT‘s final approval of the Highway 164 Project and the Army Corps’ issuance of a Clean Water Act § 404 permit violates the APA,
In March 2005, the plaintiffs filed a motion for a temporary restraining order (“TRO“) and a preliminary injunction, requesting that the court enjoin the defendants from “proceeding with any further property acquisition, demolition, grading, construction or any other physical work on the highway 164 expansion project north of Swan Road in Waukesha County.” R.8 at 2-3.
On April 27, 2005, the district court denied the plaintiffs’ motion for a preliminary injunction. See R.46. It held that the plaintiffs had not established a “reasonable likelihood of success on the merits of [their] claims.” Id. at 11. In pertinent part, the court held that the plaintiffs’ current challenges to the Highway 164 Project were barred by claim preclusion because Citizens I: (a) culminated in a final decision on the merits, see id. at 13 n. 14; (b) involved the same parties as the present action, or their privies, see id. at 14-16; and (c) involved the same cause of action as the present litigation, see id. at 17-24. Concerning the last element, the court held that Citizens I, although focused on the Ackerville Bridge Project and the alleged errors in the EA prepared for that project, also challenged the EIS prepared for the widening of Highway 164, the same document that forms the basis of the plaintiffs’ present claims. Specifically:
[The] plaintiffs argue that they did not challenge the March 6, 2002 ROD in Citizens I.... However, although Citizens never mentioned the March 6, 2002 ROD in Citizens I, it is clear that it challenged that decision in that case when it argued that the County J/Highway 164 project was improperly segmented from the Ackerville Bridge project. A claim that one project was improperly segmented from another is necessarily a claim that the environmental review conducted for each project was inadequate because each review failed to consider the environmental effects of the other project.
Id. at 19-20 (emphasis in original).
In addition, the court held that the relief requested by the plaintiffs in Citizens I demonstrated that there was an identity between the cause of action in that litigation and the cause of action in the present suit. See id. at 20 (“Indeed, Citizens must have recognized that success on their segmentation claim in Citizens I entailed the invalidation of the ROD which approved the County J/Highway 164 project because, in that case, Citizens sought to enjoin the County J/Highway 164 project and compel FHWA and WisDOT to prepare an EIS governing both projects.“). The court concluded that, although the legal theories relied upon by the plaintiffs in the present litigation are not the same as those relied upon in Citizens I, there exists an identity of issues between them because both cases arise from the “same transaction” and involve “the same, or nearly the same[,] factual allegations.” Id. at 22 (internal quotation marks omitted).
The plaintiffs timely filed a notice of appeal, as well as a motion for an injunction pending appeal. See
DISCUSSION
We review de novo a district court‘s denial of a motion for a preliminary injunction on res judicata grounds.12
Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). “The three requirements for res judicata under federal law are: (1) an identity of the parties or their privies; (2) an identity of the causes of actions; and (3) a final judgment on the merits.” Cent. States, S.E. & S.W. Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir. 2002). If these requirements are fulfilled, res judicata “bars not only those issues which were actually decided in a prior suit, but also all issues which could have been raised in that action.” Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338 (7th Cir.1995). “Simply put, the doctrine of res judicata provides that, when a final-judgment has been entered on the merits of a case, it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983) (internal quotation marks omitted).
The plaintiffs do not contest that Citizens I resulted in a final judgment. Nor do they dispute that, although WEAL was not a named plaintiff in the prior litigation, WEAL and Citizens are in privity. However, they do challenge whether the present cause of action is the same as, or has an “identity” with, the cause of action raised by Citizens in Citizens I. A claim has “identity with a previously litigated matter if it emerges from the same core of operative facts as that earlier action.” Brzostowski, 49 F.3d at 338-39 (internal quotation marks omitted). The district court, the plaintiffs submit, mischaracterized their contentions in Citizens I. According to the plaintiffs, the Citizens I litigation focused exclusively on the lawfulness of the Ackerville Bridge Project and simply did not “challenge the Highway 164 Project[].” See Reply Br. at 4-5 (citing the numerous “differentiating facts between the projects“).
We agree with the plaintiffs that the Ackerville Bridge and Highway 164 Projects are factually distinct.13 See Citizens I, 349 F.3d at 962-63. We nevertheless must conclude that Citizens I chal-
Notably, this previous contention arose from the same document that forms the factual basis of the plaintiffs’ current claims. In addition, the relief requested in the present action is similar in substantial ways to the relief requested in Citizens I—a consideration that our cases counsel ought to be given significant weight in determining whether there is an identity between the plaintiffs’ causes of action for res judicata purposes.15 In Citizens I, Citizens requested that the court “requir[e] the defendants to prepare a Final Environmental Impact Study for all of the County J/Highway 164 project” and “[p]reliminarily and permanently enjoin[] the defendants from widening County J/Highway 164.” Citizens I Complaint, Supp.App. at 193-94. Similarly, in this litigation, the plaintiffs request that the court “prohibit[] Defendants USDOT and FHWA from taking any other action that in any way supports or funds the design, property acquisition, construction or development of the [Highway 164 expansion] project until Defendants have remedied their violations of NEPA, the APA, and federal highway law,” as well as require the defendants to prepare a supplemental EIS for the Highway 164 Project. R.1 at 35 (also requesting that the FHWA vacate the original EIS and ROD for the Highway 164 Project). Accordingly, we must conclude that, in the course of arguing that the two projects had been improperly segmented, Citizens placed into dispute the validity of the environmental assessment for the Highway 164 Project.
In our consideration of this matter, we note Citizens’ view that the mere mention of Highway 164 in the complaint does not mean that Citizens necessarily challenged the overall validity of the environmental
To be sure, the plaintiffs in the present litigation do not pursue the precise legal theories that we addressed in Citizens I. In the prior litigation, Citizens’ only argument with regard to the Highway 164 Project was that the defendants’ failure to take into account the environmental effects of the contamination plume near the Ackerville bridges rendered the EIS on that project invalid. By contrast, in the present litigation, the plaintiffs claim that the Highway 164 EIS is inaccurate, fails to consider the cumulative environmental effects of the construction or reasonable alternatives to highway expansion, and suffers from the lack of a meaningful opportunity for public commentary. They also allege a violation of the FAHA on the ground that the defendants failed to consider, and attempt to remedy, hazardous air pollution stemming from the proposed construction.
However, the question is not whether the legal issues now presented were raised previously; rather, it is whether these matters “could have been raised in [the prior] action.” Brzostowski, 49 F.3d at 338 (emphasis added). To determine “whether the plaintiff could have raised the [current] issue[s] in the first suit,” we employ a “same transaction” test. Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 (7th Cir.1993). Under this test,
a cause of action consists of a single core of operative facts giving rise to a remedy.... Once a transaction has caused injury, all claims arising from that transaction must be brought in one suit or lost. A plaintiff may not avoid an earlier judgment on the merits by merely concocting a new legal theory.
Id. (internal citations and quotation marks omitted).
Here, although the legal elements of each claim may be different, the underlying factual transaction is identical: the preparation and finalization of the Highway 164 EIS.16 As in Brzostowski, the
In sum, because the plaintiffs challenged the approval of the Highway 164 Project in Citizens I, because the current claims stem from the same factual transaction as the legal claims addressed in that prior litigation and because the plaintiffs had a fair opportunity to raise their claims previously, we must conclude that res judicata bars the plaintiffs from further pursuing their challenges to the Highway 164 Project. As the Supreme Court noted emphatically in Baldwin v. Iowa State Traveling Men‘s Ass‘n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244 (1931), “[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered settled as between the parties.”
Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
RIPPLE
CIRCUIT JUDGE