Save Our Sound Obx, Inc., et al v. North Carolina Department of Transportation, et al

First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , First MOTION to Dismiss for Lack of Jurisdiction

E.D.N.C.March 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION No. 2:17-cv-00004-FL SAVE OUR SOUND OBX, INC., THOMAS ASCHMONEIT, RICHARD AYELLA, DAVID HADLEY, MARK HAINES, JER MEHTA, and GLENN STEVENS, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, DIVISION ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; and JAMES TROGDON, SECRETARY, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendants, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE REFUGE ASSOCIATION, Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MOTION FOR PARTIAL DISMISSAL Fed. R. Civ. Pro. 12(b)(1),(2) and (6) ) Pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6), Defenders of Wildlife (“Defenders”) and the National Wildlife Refuge Association (the “Refuge Association”) (collectively, the “Conservation Groups”) hereby move to dismiss a portion of Plaintiffs’ Claims. As set forth in more detail in Conservation Groups’ accompanying Memorandum in Support of Motion for Partial Dismissal, the Conservation Groups move to dismiss Count II of Plaintiffs’ complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), because Plaintiffs do not have individual or associational standing to bring claims pursuant to Section 4(f) Case 2:17-cv-00004-FL Document 27 Filed 03/07/17 Page 1 of 3 2 of the Department of Transportation Act. In addition, the Conservation Groups move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Count I of Plaintiffs’ complaint to the extent Plaintiffs attempt to make claims that are barred by the statute of limitations. 23 U.S.C. § 139(l)(1). Finally, the Conservation Groups join State Defendants in moving that Count III of Plaintiffs’ complaint, which was brought pursuant to the North Carolina Environmental Policy Act, is barred by the Eleventh Amendment and should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). The Conservation Groups respectfully request that the Court grant this motion to dismiss. Respectfully submitted, this 7th day of March. SOUTHERN ENVIRONMENTAL LAW CENTER By: /s/ Kimberley C. Hunter Kimberley C. Hunter N.C. State Bar No. 41333 Derb S. Carter N.C. State Bar No. 10644 Nicholas S. Torrey N.C. State Bar No. 43382 601 West Rosemary Street, Suite 220 Chapel Hill, N.C. 27516-2356 Telephone: (919) 967-1450 Facsimile: (919) 929-9421 khunter@selcnc.org dcarter@selcnc.org ntorrey@selcnc.org Attorneys for Defendant-Intervenors Case 2:17-cv-00004-FL Document 27 Filed 03/07/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of March, 2017, I have served the foregoing Motion for Partial Dismissal on the parties listed below by electronically filing it with the Clerk of Court on this date using the CM/ECF system, which will send notification of such filing to, and pursuant to Local Civil Rule 5.1(e) shall constitute service upon, the following: Michael K. Murphy GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Ave., N.W. Washington, D.C. 20036 Tel: (202) 955-8500 Fax: (202) 530-9657 MMurphy@gibsondunn.com D.C. Bar No. 468907 Counsel for Plaintiffs Zia C. Oatley OATLEY LAW 1710 Lake Valley Trail Chapel Hill, N.C. 27517 Tel: (202) 550-3332 Fax: (202) 530-9657 Ziacromer@gmail.com N.C. Bar No. 44664 Local Civil Rule 83.1 Counsel for Plaintiffs Colin Justice, Assistant Attorney General N.C. DEPARTMENT OF JUSTICE, TRANSPORTATION SECTION 1505 Mail Service Center Raleigh, N.C. 27699-1505 Phone: (919) 707-4480 Fax: (919) 733-9329 cjustice@ncdoj.gov N.C. State Bar No. 42965 Counsel for State Defendants John G. Batherson N.C. DEPARTMENT OF JUSTICE TRANSPORTATION SECTION 1505 Mail Service Center Raleigh, N.C. 27699-1505 Phone: (919) 707-4480 Fax: (919) 715-3870 jbatherson@ncdoj.gov N.C. Bar No. 48985 Counsel for State Defendants I further certify that on this 7th day of March, 2017, I have served the foregoing Motion for Partial Dismissal on the Federal Defendants by placing a copy in the United States mail, first- class postage prepaid, addressed as follows: Emily Meeker U.S. DEPARTMENT OF JUSTICE Environment and Natural Resources Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Counsel for Federal Defendants /s/ Kimberley C. Hunter________________ Kimberley C. Hunter Attorney for Defendant-Intervenors Case 2:17-cv-00004-FL Document 27 Filed 03/07/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NORTHERN DIVISION No. 2:17-cv-00004-FL SAVE OUR SOUND OBX, INC., THOMAS ASCHMONEIT, RICHARD AYELLA, DAVID HADLEY, MARK HAINES, JER MEHTA, and GLENN STEVENS, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, DIVISION ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; and JAMES TROGDON, SECRETARY, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendants, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE REFUGE ASSOCIATION, Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORDANUM IN SUPPORT OF DEFENDANT-INTERVENORS’ MOTION FOR PARTIAL DISMISSAL Fed. R. Civ. Pro. 12(b)(1),(2), and (6) ) Defenders of Wildlife (“Defenders”) and the National Wildlife Refuge Association (the “Refuge Association”) (collectively the “Conservation Groups”) file this memorandum in support of their motion for partial dismissal of Plaintiffs’ claims. Specifically, the Conservation Groups move to dismiss Count II of Plaintiffs’ complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) because Plaintiffs do not have standing to bring claims under Section 4(f) of the Department of Transportation Act. In addition, the Conservation Groups move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 1 of 13 2 Count I of Plaintiffs’ complaint to the extent Plaintiffs attempt to make claims that are barred by the statute of limitations. 23 U.S.C. § 139(l)(1). Finally, the Conservation Groups join State Defendants in moving that Plaintiffs’ claims brought pursuant to the North Carolina Environmental Policy Act (“NCEPA”) are barred by the Eleventh Amendment and should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). NATURE OF THE CASE On February 2, 2017, a group of property owners, Save Our Sound (“SOS”), and several individual members of the group, Thomas Aschmoneit, Richard Ayella, David Hadley, Mark Haines, Jer Mehta, and Glenn Stevens (“Plaintiffs”), filed suit against the North Carolina Department of Transportation (“NCDOT”) and James Trogdon, Secretary of NCDOT (collectively “State Defendants”); and the Federal Highway Administration (“FHWA”) and John F. Sullivan, III, Division Administrator (collectively “Federal Defendants”) (NCDOT and FHWA are referred to collectively as “the Transportation Agencies”). Plaintiffs bring claims pursuant to the National Environmental Policy Act (“NEPA”), Section 4(f) of the Department of Transportation Act (“Section 4(f)”), and the NCEPA and seek, among other things, to enjoin Defendants from constructing a bridge along the Pamlico Sound north of Rodanthe in the Outer Banks of North Carolina that was selected in the challenged Record of Decision (the “Sound Bridge”). No defendant has filed an Answer; on February 16, 2017, State Defendants moved to dismiss Plaintiffs’ claims brought pursuant to NCEPA. On February 17, 2017, State Defendants moved for an extension of time to Answer Plaintiffs’ complaint, and on February 21, 2017, the Court granted State Defendants an extension of time to Answer Plaintiffs’ Complaint up to and including April 10, 2017. Concurrent with this motion, the Conservation Groups have filed a motion to intervene in this matter as Defendant-Intervenors Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 2 of 13 3 and a proposed answer to those portions of the complaint not included in this motion for partial dismissal. STATEMENT OF THE FACTS In 2008, the Transportation Agencies completed a Final Environmental Impact Statement (“FEIS”) for the Bonner Bridge Project. Compl. ¶ 3 (ECF 1). The FEIS proposed not only a replacement of the Bonner Bridge over the Oregon Inlet, but also options for NC-12 through the Pea Island National Wildlife Refuge. Compl. ¶¶ 3-4. These options included a bridge in the Pamlico Sound to avoid the Rodanthe S-Curves area. Compl. ¶ 50. The FEIS considered seven different alternatives for the corridor, including a variety of beach nourishment options. Compl. ¶¶ 50-51. A Revised Final Section 4(f) Evaluation analyzing this range of alternatives was approved on October 9, 2009, and a Supplemental Environmental Assessment (“EA”) was approved on May 7, 2010. See 76 Fed. Reg. 1663-2 (January 11, 2011) (announcing Record of Decision and summarizing previous NEPA documents). The Supplemental EA identified the replacement of the Bonner Bridge and a Transportation Management Plan-which included a variety of options for the stretch of NC 12 between the Bonner Bridge and Rodanthe-as the preferred alternative for the project. Id. On December 20, 2010, FHWA finalized its decision to select the Bonner Bridge Replacement with Transportation Management Plan as its preferred alternative in a Record of Decision. Id. A notice was published in the Federal Register on January 11, 2011, noting that any “claim seeking judicial review of the final Federal agency actions on the highway project will be barred unless the claim is filed on or before July 10, 2011” pursuant to 23 U.S.C. § 139(l)(1). Id. Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 3 of 13 4 Subsequently, the Transportation Agencies began to re-study options to improve or replace the section of NC-12 at the Rodanthe S-Curves, Phase II(b) of the Bonner Bridge Replacement Project. Compl. ¶ 57. On December 3, 2013, the agencies published an EA analyzing a range of solutions for Phase IIb, including those studied in the earlier Bonner Bridge NEPA documents. Id; see 82 Fed. Reg. 4452 (Jan. 13, 2017). The Transportation Agencies concluded that there had been no substantial change to the project or significant new information since that earlier NEPA process sufficient to warrant publication of a Supplemental EIS. Compl. ¶ 72; 82 Fed. Reg. 4452 (Jan. 13, 2017). A Revised EA in May 2016 reached the same conclusion and identified the Sound Bridge as the Transportation Agencies’ preferred alternative. Compl. ¶ 67. On December 15, 2016, the Transportation Agencies published a Record of Decision selecting the Sound Bridge for Phase IIb. Compl. ¶ 69. Plaintiffs in this case are a group of property owners who own beach houses near the proposed Sound Bridge. Compl. ¶ 11. The Complaint alleges that SOS is a non-profit organization with a mission “to preserve the Pamlico Sound and its surrounding areas.” Id. None of the plaintiffs alleges any interest in the Pea Island National Wildlife Refuge (“Refuge”) or in any other resource protected by Section 4(f) of the Department of Transportation Act. Plaintiffs do not allege that they participated in any of the environmental review process that led to the adoption of the Bonner Bridge replacement and Transportation Management Plan alternative for the project corridor in 2010, nor do Plaintiffs allege that they filed any action in federal court challenging the ROD issued for the project prior to July 10, 2011-the date on which the statute of limitations ran for challenging the ROD. Id. Furthermore, none of the plaintiffs sought to intervene in Conservation Groups’ NEPA and Section 4(f) litigation over the Bonner Bridge replacement project, Defenders of Wildlife v. North Carolina Department of Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 4 of 13 5 Transportation, No. 2:11-CV-35-FL. Notably, the Conservation Groups and Defendants were parties to that matter, and a local utility was allowed to intervene as a defendant. Defenders of Wildlife v. N.C. Dep’t of Transp., 281 F.R.D. 264, 269 (E.D.N.C. 2012). Plaintiffs allege that they did participate in the environmental review process that was focused specifically on the Phase II(b) project by timely submitting comments raising objections to the Transportation Agencies’ identification of the Sound Bridge as the preferred alternative. Compl. ¶ 67. Plaintiffs do not allege that they submitted any concerns about impacts to the Refuge. Id. Nor do Plaintiffs allege that they raised any concerns about violations of Section 4(f) of the Department of Transportation Act. Id. Plaintiffs filed their complaint in this matter on February 2, 2017, and alleged three separate counts. Under Count I, Plaintiffs allege violations of NEPA, including the claim that Defendants failed to “[r]igorously explore and objectively evaluate all reasonable alternatives,” pursuant to 40 C.F.R. § 1502.14(a). Compl. ¶ 77. Under Count II, Plaintiffs allege violations of Section 4(f). Compl. ¶ 81. Under Count III, Plaintiffs allege violations of the North Carolina Environmental Policy Act of 1971 (“NCEPA”). Compl. ¶ 85. On February 17, 2017, State Defendants filed a motion to dismiss Plaintiffs’ NCEPA claim, citing Eleventh Amendment immunity. ECF 15. STANDARD OF REVIEW A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While Plaintiffs’ factual allegations must be taken as true when ruling on a motion to dismiss, the Supreme Court has made it clear that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 5 of 13 6 statements, do not suffice. . . . Only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 678-79. Plaintiffs have the burden of proving subject matter jurisdiction. Richmond, Fred. & Pot. R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Defendants may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. Lansing v. McHugh, 2011 U.S. Dist. LEXIS 23041, *3-4 (E.D. Va. 2011) (citations omitted); see also Fed. R. Civ. Pro. 12(b)(6)( “failure to state a claim upon which relief can be granted”). In such instances, all facts alleged in the complaint are presumed to be true. Id. The question of standing “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To adequately allege facts sufficient to demonstrate standing, a party seeking review of an agency determination under the Administrative Procedure Act must show that it has “suffer[ed] a legal wrong” or been “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. To be “adversely affected or aggrieved ... within the meaning of a relevant statute” for purposes of Section 702, a plaintiff “must establish that the injury he complains of (his aggrievement, or the adverse effect upon him ) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U.S. 871, 883, (1990). A defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed.R.Civ.P. 8(c), and the burden of establishing the affirmative defense rests on the defendant. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). The defense may be reached by a motion to dismiss filed under Rule 12(b)(6) where all facts Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 6 of 13 7 necessary to the affirmative defense “clearly appear[ ] on the face of the complaint.” Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993). ARGUMENT I. Count II of Plaintiffs’ Complaint Should Be Dismissed Because Plaintiffs Lack Standing Count II of Plaintiffs’ complaint should be dismissed because Plaintiffs lack standing to bring claims under Section 4(f). None of the Plaintiffs have alleged facts sufficient to demonstrate that they have suffered an injury that falls within the zone of interests protected by Section 4(f). The purpose of Section 4(f) is to “preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites.” 49 U.S.C. § 303(a). To achieve this, the statute prohibits federal funding of transportation projects that go through such sites unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. Id. § 303(c). Unlike other environmental statutes, Section 4(f) does not include a requirement that the agencies balance the economic impact of their choices. See Bennett v. Spear, 520 U.S. 154, 177 (1997) (noting that “economic consequences are an explicit concern of the [Endangered Species Act]”). The only property subject to Section 4(f) that is at issue in the Complaint is the Pea Island National Wildlife Refuge. Plaintiffs, however, have alleged no facts to demonstrate that they have any interest in the Refuge. Indeed, Plaintiffs have not even made a conclusory assertion that they have an interest in the Refuge. The sole injuries alleged by SOS are a diminution of the property values of its individual members and a reduction in the “enjoyment of their property Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 7 of 13 8 and surrounding areas.” Compl. ¶ 11. Plaintiffs allege no injury involving the Refuge or any other property protected by Section 4(f). Moreover, for an association to have standing to sue on behalf of its members, it must demonstrate that “the interests it seeks to protect are germane to the organization’s purpose.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003) (citation and quotation omitted). The complaint alleges that Plaintiff SOS’s mission is to “preserve the Pamlico Sound and its surrounding areas,” not the Refuge. Compl. ¶ 11. And while the complaint mentions “permanent use of Pamlico Sound waters within the boundaries of the Refuge,” in fact, the Refuge does not extend into the Pamlico Sound. Executive Order 7864, 3 Fed. Reg. 863 (April 12, 1938) (creating Refuge and establishing its boundaries). SOS has therefore failed to allege that the Section 4(f) claims are germane to its organizational purpose. Similarly, the complaint does not allege any interest in the Refuge on behalf of any of the individual plaintiffs, who, again, complain only of effects to their property values and use and enjoyment thereof, with no connection to the Refuge. Compl. ¶ 12-17. Plaintiffs’ lack of interest in the Refuge is further underscored by the fact that they do not allege that they raised any concerns in their comments to the Transportation Agencies about impacts to Refuge lands or any inadequacies in the Transportation Agencies’ Section 4(f) evaluation. See ¶ 68. As such, Plaintiffs do not allege any participation in the administrative process that would have put the Transportation Agencies on notice about any concerns related to the violations of Section 4(f) Plaintiffs attempt to raise in their complaint. Cf. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978) (comments to agency must “alert[] the agency to the intervenors’ position and contentions”). Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 8 of 13 9 Plaintiffs’ Complaint thus fails to allege facts sufficient to show that preservation of the Refuge pursuant to Section 4(f) falls within the zone of interests of any plaintiff. See Colorado Rail Passenger Ass’n v. Fed. Transit Admin., 843 F. Supp. 2d 1150, 1170-71 (D. Colo. 2011) (holding that an organization that was focused on providing multi-modal transportation solutions but had no organizational focus on the preservation of historic train stations did not have standing to bring claims pursuant to section 4(f) to protect the historic nature of Denver’s Union Station). In addition, the complaint fails to allege that SOS has associational standing sufficient to bring suit with regard to the 4(f) claims. Am. Canoe Ass’n, 326 F.3d 505 at 517. Accordingly, Count II of the complaint should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(1) for lack of subject matter jurisdiction and pursuant to12(b)(6) for failure to state a claim upon which relief can be granted. II. Count I of Plaintiffs’ Complaint Should Be Dismissed to the Extent it Seeks Relief Barred by the Statute of Limitations Count I of Plaintiffs’ complaint should be dismissed to the extent it attempts to raise claims that are time barred by the statute of limitations established by 23 U.S.C. § 139(l)(1). The Final Environmental Impact Statement for the Bonner Bridge Project and Transportation Management Plan was finalized in 2010 by the publication of the Record of Decision (“ROD”). A notice in the Federal Register alerted the public to the fact that any claims arising from that Final Agency Action must be brought by July 10, 2011, pursuant to 23 U.S.C. § 139(l)(1). Plaintiffs do not allege that they brought any claims during this time period, 1 nor did they intervene in the matter of Defendants of Wildlife v. NCDOT, No. 2:11-CV-35-FL, which did 1 Indeed, Plaintiffs do not allege even that they submitted any public comment at this stage in the process. See 42 U.S.C. §4370m-6(a)(1)(B) (barring claims brought under NEPA where the party failed to submit a comment during the environmental review process, or failed to file a “sufficiently detailed comment so as to put the lead agency on notice of the issue on which the party seeks judicial review”). Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 9 of 13 10 involve a challenge to the 2010 ROD. Since the publication of the 2010 ROD, the Transportation Agencies have only published EAs for the various phases of the Bonner Bridge Project-this is true for both Phases IIa and IIb. Plaintiffs specifically note that the Transportation Agencies did not issue any Supplemental EIS. Compl. ¶¶ 7, 72, 78. Despite the clear time bar to any claims challenging the EIS, Plaintiffs attempt to include such claims in their complaint. In Count I of the complaint, Plaintiffs cite 40 C.F.R. § 1502.14(a) for the proposition that Defendants must “[r]igorously explore and objectively evaluate all reasonable alternatives.” Compl. ¶ 77. This regulation, however, relates specifically to Defendants’ responsibilities when preparing an EIS, not an EA. The Transportation Agencies’ responsibilities with regard to the study of alternatives in an EA are more limited. Regulations from the Council on Environmental Quality (“CEQ”) note that an EA “[s]hall include brief discussions of the need for the proposal, of alternatives as required by of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” See 40 C.F.R. § 1508.9(b). These relevant legal citations are not included at any point in the complaint. In short, Plaintiffs are attempting to allege a violation of requirements that do not apply to the NEPA documents they are challenging. In fact, an EIS has already been prepared for this project, and the Fourth Circuit Court of Appeals has already determined that it satisfies the requirements of NEPA. Defenders of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 398 (4th Cir. 2014). This EIS included a detailed analysis of the Sound Bridge, which was then referred to as the “Bridge South” alternative. See Phase IIb ROD at 21 (Fig. 5) (showing nearly identical alignments of “Bridge South” and the Sound Bridge). The Fourth Circuit ruled that “Defendants have fully analyzed Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 10 of 13 11 and disclosed the environmental impacts” of the alternatives in the EIS, which includes the Bridge South / Sound Bridge. Defenders of Wildlife, 762 F.3d at 398. By contrast, the purpose of an EA is to determine whether it is necessary for the agency to “prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R, § 1508.9. For situations like this one, where an Environmental Impact Statement has already been prepared and finalized for a project, the EA determines whether a “Supplemental” EIS is necessary. Regulations provide that a Supplemental EIS is required when (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (2) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c)(1). In the case of the two EAs prepared for Phase IIb, the Transportation Agencies determined that there were no substantial changes or significant new changes since the 2008 EIS sufficient to warrant preparation of a Supplemental EIS. Plaintiffs may properly challenge this legal conclusion, but are time barred from challenging the contents of that earlier document. As such, to the extent Plaintiffs are attempting to challenge anything beyond the sufficiency of the Environmental Assessments issued for Phase IIb, they are barred by the statute of limitations and their claims should be dismissed pursuant to Fed. R. Civ. Pro 12(b)(6) for failure to state a claim upon which relief can be granted. III. Count III of Plaintiffs’ Complaint Should Be Dismissed Because It Is Barred by the Principles of Sovereign Immunity On February 17, 2017, State Defendants filed a motion to dismiss Defendants’ NCEPA claims pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6), arguing that the state is immune from such claims brought in federal court. See (ECF 16), citing Nat’l R.R. Passenger Corp. v. Turner, No. 4:15-CV-68-BO, 2016 WL 3078740 at *2 (E.D.N.C. May 23, 2016). The Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 11 of 13 12 Conservation Groups adopt the reasoning set out by the State Defendants in their motion and accompanying memorandum. Moreover, because Federal Defendants are not subject to NCEPA, N.C. Gen. Stat. § 113A, the Conservation Groups ask that Count III of Plaintiffs’ complaint be stricken in its entirety. CONCLUSION The Conservation Groups respectfully request that the Court dismiss Counts II and III of Plaintiffs’ complaint and dismiss Count I except as it relates to the sufficiency of the Environmental Assessments for Phase IIb under NEPA. Respectfully submitted, this 7th day of March, 2017. SOUTHERN ENVIRONMENTAL LAW CENTER By: /s/ Kimberley C. Hunter Kimberley C. Hunter N.C. State Bar No. 41333 Derb S. Carter N.C. State Bar No. 10644 Nicholas S. Torrey N.C. State Bar No. 43382 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 Telephone: (919) 967-1450 Facsimile: (919) 929-9421 khunter@selcnc.org dcarter@selcnc.org ntorrey@selcnc.org Attorneys for Defendant-Intervenors Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 12 of 13 13 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of March, 2017, I have served the foregoing Memorandum in Support of Defendant-Intervenors’ Partial Motion to Dismiss on the parties listed below by electronically filing it with the Clerk of Court on this date using the CM/ECF system, which will send notification of such filing to, and pursuant to Local Civil Rule 5.1(e) shall constitute service upon, the following counsel of record: Michael K. Murphy GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Ave., N.W. Washington, D.C. 20036 Tel: (202) 955-8500 Fax: (202) 530-9657 MMurphy@gibsondunn.com D.C. Bar No. 468907 Counsel for Plaintiffs Zia C. Oatley OATLEY LAW 1710 Lake Valley Trail Chapel Hill, NC 27517 Tel: (202) 550-3332 Fax: (202) 530-9657 Ziacromer@gmail.com NC Bar No. 44664 Local Civil Rule 83.1 Counsel for Plaintiffs Colin Justice, Assistant Attorney General NC DEPARTMENT OF JUSTICE, TRANSPORTATION SECTION 1505 Mail Service Center Raleigh, NC 27699-1505 Phone: (919) 707-4480 Fax: (919) 733-9329 cjustice@ncdoj.gov N.C. State Bar No. 42965 Counsel for State Defendants John G. Batherson N.C. DEPARTMENT OF JUSTICE TRANSPORTATION SECTION 1505 Mail Service Center Raleigh, N.C. 27699-1505 Phone: (919) 707-4480 Fax: (919) 715-3870 jbatherson@ncdoj.gov N.C. Bar No. 48985 Counsel for State Defendants I further certify that on this 7th day of March, 2017, I have served the foregoing Memorandum in Support of Defendant-Intervenors’ Partial Motion to Dismiss on the Federal Defendants by placing a copy in the United States mail, first-class postage prepaid, addressed as follows: Emily Meeker U.S. DEPARTMENT OF JUSTICE Environment and Natural Resources Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 Counsel for Federal Defendants /s/ Kimberley C. Hunter________________ Kimberley C. Hunter Attorney for Defendant-Intervenors Case 2:17-cv-00004-FL Document 27-1 Filed 03/07/17 Page 13 of 13