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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) GALE BLACK, et al., ) ) Plaintiffs, ) ) v. ) ) RAY LAHOOD, SECRETARY, U.S. ) DEPARTMENT OF TRANSPORTATION, et al., ) ) Defendants. ) __________________________________________)

Civil Action No. 11-1928 (RBW)

FEDERAL DEFENDANTS MOTION TO DISMISS The Federal Defendants, Secretary of the Department of Transportation Ray LaHood, United States Attorney General Eric Holder, U.S. Attorney for the District of Columbia Ronald C. Machen Jr., Administrator of the U.S. Highways Administration Victor Mendez (automatically substituted under Federal Rule of Civil Procedure 25(d) for his predecessor in office, Mary Peters), and Division Administrator for the Virginia Division of FHWA Roberto Fonseco-Martinez, respectfully move for dismissal of this case for lack of subject matter jurisdiction and failure to state a valid claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The grounds for this motion are explained in the accompanying Federal Defendants Memorandum in Support of Rule 12(b)(1) and 12(b)(6) Motion to Dismiss. In addition to the grounds cited in the motion, the Federal Defendants note that Plaintiffs have yet to file proof of service in this case as required by Rule 4(m) of the Federal Rules of Civil Procedure. See also General Order and Guidelines for Civil Cases (ECF) [ECF No. 8], 1. Should Plaintiffs fail to file the required proof prior to the expiration of 120 days from filing their

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Complaint, which has not yet run as of the filing of this motion, the Federal Defendants reserve the right to seek dismissal under Fed. R. Civ. P. 12(b)(5). Dated: February 13, 2012. Respectfully submitted, IGNACIA MORENO Assistant Attorney General

By:

/s/ Stacey Bosshardt STACEY BOSSHARDT, Trial Attorney D.C. Bar No. 458645 United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044 (202) 514-2912 [email protected] RONALD C. MACHEN JR. United States Attorney RUDOLPH CONTRERAS Chief, Civil Division

By:

/s/ Jane M. Lyons JANE M. LYONS, D.C. Bar #451737 Assistant United States Attorney 555 4th Street, N.W. Room E4104 Washington, D.C. 20530 (202) 514-7161 (phone) (202) 514-8780 (fax) [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) GALE BLACK, et al., ) ) Plaintiffs, ) Civil Action No. 11-1928 (RBW) ) v. ) FEDERAL DEFENDANTS ) MEMORANDUM IN SUPPORT OF RAY LAHOOD, SECRETARY, U.S. ) RULE 12(b)(1) AND 12(b)(6) MOTION DEPARTMENT OF TRANSPORTATION, et al., ) TO DISMISS ) Defendants. ) __________________________________________)

INTRODUCTION Plaintiffs, individual District of Columbia residents who claim to live near the area that will be affected by the Klingle Valley Trail Project (Project), bring this action to challenge the Environmental Assessment (EA)1 and Finding of No Significant Impact (FONSI)2 for the Project. The EA and FONSI were prepared jointly by the District of Columbia Department of Transportation (DDOT) and the Federal Highways Administration (FHWA) and signed by the FHWA Division Administrator for the District of Columbia Division. Plaintiffs allege that the agencies analysis and decision violate the National Environmental Policy Act (NEPA) and other

Klingle Valley Trail, Final Environmental Assessment, Dec. 2010 (EA) at 1; id. at S-2. The EA, which was attached in part to PlaintiffsComplaint (pp. S1-S7, Executive Summary), is available at http://www.klingletrail.com/EA.asp (Last visited Feb. 10, 2012). The Court may consider materials referenced in or attached to the Complaint. See Fed. R. Civ. P. 10(c) (A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.). Finding of No Significant Impact for Klingle Valley Trail, signed Feb. 12, 2011. The DN, attached in part to Plaintiffs Complaint, is available at http://www.klingletrail.com/main.asp, FONSI, (Last visited Feb. 13, 2012). 1
2

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federal statutes. Asserting various causes of action under the Administrative Procedure Act, 5 U.S.C. 701-706, Plaintiffs seek declaratory and injunctive relief against the named Federal3 and District4 Defendants. The proposed action studied in the EA, and selected in the FONSI, is a project to construct a multi-use trail facility within a 0.7 mile barricaded portion of Klingle Road in the Rock Creek Park5 area of Washington, D.C.6 EA, S-1. The road, which lies within a DDOT right of way, has been closed to public motor vehicle use for two decades, and is also unsafe for use by pedestrians and cyclists in its current state. Id. In addition to providing safe non-motorized transportation and recreational opportunities to District of Columbia residents and visitors, the work authorized for the Project includes other environmentally restorative activities in the area, such as the removal of existing roadway pavement and debris from failed infrastructure within Klingle Valley; the installation of stormwater

Secretary of the Department of Transportation Ray LaHood, United States Attorney General Eric Holder, U.S. Attorney Ronald C. Machen Jr., Administrator of the U.S. Highways Administration Victor Mendez (substituted under Federal Rule of Civil Procedure 25(d) for Mary Peters), and Division Administrator for the Virginia Division of FHWA Roberto FonsecoMartinez are named as the Federal Defendants. For ease of reference, this Memorandum refers to the Federal Defendants collectively as FHWA. Acting Attorney General for the District of Columbia Irving Nathan and Director of the District of Columbia Department of Transportation Terry Bellamy are named as the District Defendants. For ease of reference, this Memorandum refers to the District Defendants collectively as DDOT. Rock Creek Park is a unit of the National Park Service, which was a cooperating agency during the NEPA process. The Project area is surrounded by the Cleveland Park and Woodley Park neighborhoods to the west and the Smithsonian Institution National Zoological Park to the south. Located nearby to the east are the neighborhoods of Crestwood and Mount Pleasant. 2
6 5 4

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management infrastructure to reduce the erosive effects of uncontrolled stormwater flows; and stream restoration of Klingle Creek, a tributary to Rock Creek. Id. Improvements within the barricaded segment of roadway would link the trail to existing bicycle and pedestrian systems on the east and west ends of the area. Id. The Court should dismiss Plaintiffs claims for lack of subject matter jurisdiction because the allegations in their Complaint fail to articulate any injury that is fairly traceable to the defendants allegedly unlawful conduct and likely to be redressed by the requested relief. Rather, as the allegations disclose, Plaintiffs alleged injuries began in 1991, when the District of Columbia Mayor ordered the road closed due to storm damage, and continued in 2008, when the District of Columbia Council enacted legislation (not challenged in this lawsuit) making the closure permanent. ALLEGATIONS IN PLAINTIFFS COMPLAINT7 The portion of Klingle Road at issue lies between Porter Street, Northwest and Cortland Place, Northwest. It is currently inaccessible, Compl. 2, having been closed to traffic in 1991 because the roadway, headwalls and underlying stormwater management systems had severely deteriorated. EA at 5; see also Compl. 27. The area is also unsafe for use by pedestrians. Id. at S1, S-3 (describing fences); FONSI at 3. The barricaded area is a health and human hazard that is
7

The allegations summarized in this Memorandum are assumed to be true solely for purposes of this motion under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), but Federal Defendants do not concede their truth for any other purposes. See Agrocomplect AD v. Republic of Iraq, 262 F.R.D. 18, 22 n.5 (D.D.C. 2009). In addition, the Court may consider matters outside of the pleadings in connection with a motion to dismiss for lack of subject matter jurisdiction. Jones v. La. State Bar Assn., 738 F.Supp. 2d 74, 78 (D.D.C. 2010). The Court may take judicial notice of findings in the EA under Federal Rule of Evidence 201(b)(2). United States ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972 (W. D. Mich. 2003) (collecting cases for the proposition that government documents are generally subject to judicial notice, includ[ing] public records and government documents available from reliable sources on the Internet). 3

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unsafe for public use because of uncontrolled erosion, which has undermined Klingle Road making it unstable along stretches of the roadway. EA at 75. Those who opt to disobey the signs posted for visitor safety and use the barricaded portion of Klingle Road might encounter potholes, broken pavement, and pavement that either has collapsed or is near collapse as a result of erosion. EA at 1-2, 75 & Fig. 22. In June 2008, the District of Columbia Council passed legislation called the Klingle Road Sustainable Development Amendment Act of 2008 (the 2008 Act or the Act). Fiscal Year 2009 Budget Support Act of 2008 (D.C. Law 17-219, 6016-6019; D.C. Code 9-115.11 (2012). The 2008 Act prohibits reopening the barricaded portion of Klingle Road to the public for motor vehicle traffic. EA at S2. The relevant provision, entitled Re-Opening of Klingle Road, provides as follows: Notwithstanding any other law, the portion of Klingle Road, NW, between Porter Street, N.W., on the east, to Cortland Place, NW, on the west, which portion is currently closed to motor vehicle traffic, shall not be re-opened to the public for motor vehicle traffic. No funding, District, federal, or otherwise, shall be expended or accepted for the planning, design, construction, or reconstruction of this portion of Klingle Road for motor vehicle traffic. Compl. 46 (emphasis added) (citing D.C. Code 9-115.11 (2012).8 Plaintiffs allege that the 2008

An accompanying provision specifies that DDOT shall allocate and use $2 million from federal aid highway funds available to the District in fiscal year 2009 for the environmental remediation of Klingle Valley and construction of a pedestrian and bicycle trail. D.C. Law 17219, 6018. The allocation is subject to the following restrictions: (1) Existing pavement on Klingle Road, N.W., along the portion between Porter Street, N.W., on the east, to Cortland Place, N.W., on the west, which portion is currently closed to motor vehicle traffic, shall be removed; (2) Existing storm water and sewage pipes shall be repaired, if necessary, to reduce or eliminate the runoff or discharge of storm water or sewage water into Klingle Valley; (3) The pedestrian and bicycle trail shall be constructed along the portion of Klingle Road, N.W., between Porter Street, N.W., on the east, to Cortland Place, 4

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Act was passed without a public hearing, see Compl. 47, but notably, do not assert any claims challenging the Act. The Complaint sets forth a litany of alleged environmental harms to Plaintiffs, but as the allegations disclose, they are not ones expected to occur from the Project. Instead, they are occurring now despite the fact that the Project has not yet been implemented as a result of the Mayors 1991 order to close the road and Plaintiffs inability to drive on it since then. Compl. 4 (The barricading of the right of way is adding to traffic congestion nearby, water pollution with attendant impacts on public health.) (emphasis added); id. 14 (Plaintiffs believe they will suffer adverse health impacts as a result of the increased vehicular pollution that they now have to breathe as a result of the unavailability of the road) (emphasis added); id. 15 (Plaintiffs ability to use Porter Street and Connecticut Avenue has been impaired by the additional cars using that intersection due to the unavailability of Klingle Road.) (emphasis added); id. 76 (EA failed to review whether proposed action would adequately resolve the storm-water management and pollution issues that remain unabated.) (emphasis added); id. 77 (project area in present state remains an environmental hazard) (emphasis added); id. 137 (environmental justice claim based on proposed projects failure to properly abate the storm-water overflow issues) (emphasis added).

N.W., on the west; (4) The right-of-way shall remain closed to motor vehicle traffic; (5) The pedestrian and bicycle trail shall not exceed 10 feet in width; and (6) The pedestrian and bicycle trail shall be surfaced with a water-permeable material. Id. 5

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ARGUMENT I. THE ALLEGATIONS IN PLAINTIFFS COMPLAINT FAIL TO ESTABLISH STANDING TO CHALLENGE THE FEDERAL DEFENDANTS DECISION TO AUTHORIZE THE KLINGLE VALLEY TRAIL PROJECT. A partys standing under Article III of the Constitution is a threshold jurisdictional question that a court must decide before it may consider the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998); Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C. Cir. 2004). Because federal courts are courts of limited jurisdiction, the presumption is that a party lacks jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The party seeking to invoke jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To establish Article III standing, a plaintiff must show that: (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is caused by, or fairly traceable to the defendant's challenged action; and (3) that it is likely, as opposed to merely speculative, that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); Fla. Audubon Socy. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) . [W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish. Defenders of Wildlife, 504 U.S. at 562 (citations omitted). A plaintiff seeking to challenge an agencys failure to abide by a procedural requirement may show standing only if the requirement was designed to protect some threatened concrete interest of the plaintiff. Id. at 573 n. 8; Fla. Audubon Soc'y, 94 F.3d at 664-65. To demonstrate standing in such cases, it is not enough to show that the

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agency omitted some procedural requirement; to establish a so-called procedural injury, the plaintiff must also show that it is substantially probable that the procedural breach will cause . . . injury to the plaintiff's own interest. Id. at 665. Here, Plaintiffs Complaint fails to allege facts sufficient to demonstrate their standing to pursue their claims. To the contrary, the Complaints allegations actually demonstrate that Plaintiffs lack standing, because their alleged injuries all stem from the independent act of a third party the District of Columbia Council that is not named as a defendant in this action. A. Plaintiffs Allegations Fail to Establish Any Alleged Injury That Is Fairly Traceable to the Challenged Federal Agency Decision.

Plaintiffs do not have standing because they have not asserted any particularized injury that was caused by, or is fairly traceable to, FHWAs approval of the Klingle Valley Trail Project. Defenders of Wildlife, 504 U.S. at 560. To satisfy the causation requirement, a plaintiff must allege an injury fairly traceable to the defendants allegedly unlawful conduct . . . Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added).9 An allegation of injury resulting from the independent action of some third party not before the court is insufficient. Id. at 757 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42 (1976)); Fla. Audubon Socy., 94 F.3d at 663 (causation examines whether it is substantially probable . . . that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff).

The law of this Circuit clearly establishes that the courts may look to precedents such as Allen v. Wright, and other non-NEPA cases, in order to resolve issues relating to causation and redressability in NEPA cases. Appalachian Voices v. Bodman, 587 F. Supp. 2d 79, 89 (D.D.C. 2008) (pointing out that Florida Audubon Society. relied on non-NEPA Supreme Court cases discussing requirements with respect to independent acts of third parties). 7

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Plaintiffs cannot show that their alleged injuries - the general environmental harms from the unavailability of Klingle Road that, as the Complaint concedes, are a product of the status quo - were caused by Defendants decision to create a multi-use trail in the area of the defunct road, or the environmental analysis performed as part of the decision-making process. Rather, it is undisputed that the subject portion of the road has been closed to public motorized use since 1991, and by operation of law since 2008. Any alleged effects of its unavailability to the plaintiffs have been occurring for twenty years. Cf. Citizens Alert Regarding the Envt v. Leavitt, 355 F. Supp. 2d 366, 373 (D.D.C. 2005) (Where local sewer project was proceeding apace regardless of outcome of agencys environmental analysis, plaintiffs would have sustained their alleged injuries e.g., anticipated increased development in the [affected area] notwithstanding the Agencys purported noncompliance with NEPA.). Thus, Plaintiffs injuries are not traceable to the actions by FHWA and DDOT challenged in their complaint. Cnty. of Delaware v. Dept of Transp., 554 F.3d 143, 149 (D.C. Cir. 2009) (alleged air quality impacts to plaintiffs from airspace alterations did not support standing where agencys approval would still stand regardless of cases outcome); Cal. Assn of the Physically Handicapped v. FCC, 778 F.2d 823, 827 (D.C. Cir. 1985) (plaintiff lacked standing where alleged injury occurred before, existed at the time of, and continued unchanged after challenged agency action); Nuclear Info. and Res. Serv. v. Nuclear Regulatory Commn., 457 F.3d 941, 955 (9th Cir. 2006) (plaintiffs lacked standing to challenge rule under NEPA where same standards would apply, under rule of separate agency not before the court, even if the NRC rule were wiped off the books); Gordon v. Haas, No. 11-0003 (RCL), 2011 WL 6046450, at * 3 (D.D.C. Nov. 23, 2011) (no standing in action against Clerk of Court where plaintiffs alleged that five states not party to the action disenfranchised them and diluted their votes); Reaves v. U.S. Dept of Justice,

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355 F. Supp. 2d 510, 515 (D.D.C. 2005) (dismissing Voting Rights Act claims against federal defendants based on States actions regarding special election where court could grant no relief vis a vis the federal defendants that would redress plaintiffs alleged injury). Rather, they are traceable to the actions of a party not before the Court the District of Columbia Council. Cf. Jones, 738 F. Supp. 2d at 79 (plaintiff lacked standing where injury flowed from the acts of third parties that is, Congress, which enacted the legislation complained of). Obviously, FHWA does not have the authority to approve any action that contravenes a duly enacted state or local law. Unless and until the 2008 Act is repealed, any alleged injuries to Plaintiffs caused by the unavailability of Klingle Road will continue. The allegations concerning the acts of FHWA with respect to the Project therefore fail even to meet the minimal requirements of but-for causation. See United Transp. Union v. ICC, 891 F.2d 908, 915 (D.C. Cir. 1989) (no standing where challenged exemption was not but-for cause of alleged injuries); Cal. Assn of the Physically Handicapped, 778 F.2d at n.13 (same). Stated differently, for Plaintiffs to establish causation, this Court would have to accept the proposition that setting aside the EA and FONSI for the Klingle Valley Trail Project would cause the District of Columbia Council to repeal the 2008 Act. Nothing alleged in the Complaint supports this implausible prediction. Cf. Adams v. Clinton, 90 F. Supp. 2d 27, 33 (D.D.C. 2000) (District of Columbia residents lacked standing to sue Senate officials based on denial of their right to Senate representation because before either of the Senate defendants would be called upon to take any of the actions the plaintiffs seek to enjoin, a law would have to be passed . . . the Board of Elections would have to hold such an election, and the Senate would have to refuse to recognize the individual . . . as a Senator.). Plaintiffs injuries are in no way attributable to the agency decision challenged here, and are insufficient to show standing.

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B.

Plaintiffs Allegations Fail to Establish Any Alleged Injury That Is Redressable By An Order Setting Aside the EA/FONSI.

The allegations in Plaintiffs Complaint also fail to demonstrate Article III standing because [Plaintiffs are] unable to show that their injury will be redressed by a favorable decision of this court. Cal. Forestry Ass'n v. Thomas, 936 F. Supp. 13, 18 (D.D.C. 1996); Allen, 468 U.S. at 751 (relief from the injury must be likely to follow from a favorable decision) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 41 (1976); see also Renal Physicians v. HHS, 489 F.3d 1267, 12778 (D.C. Cir. 2007) ([A] bald allegation of standing is not enough to survive even a motion to dismiss where neither the factual allegations nor their logic establish redressability.). An order by this Court setting aside the agencies decision to create a multi-use trail would not alleviate Plaintiffs injuries because they and other District of Columbia residents still would not be able to drive on the section of Klingle Road that is now barricaded. The 2008 Act bars such use, declaring in no uncertain terms that the road shall not be re-opened to the public for motor vehicle traffic. D.C. CODE 9-115.11 (2012). A decision to set aside the EA and FONSI therefore would not redress Plaintiffs alleged harms, and they lack standing to seek such relief. Cnty. of Delaware, 554 F.3d at149-50 (overturning challenged agency action would not redress alleged harms to air quality where airspace alterations were based on independent decisions not before the Court); Helstotsky v. EPA, No. 01-1069, 2001 WL 799950, at *1 (D.C. Cir. June 29, 2001) (plaintiffs lacked standing where agency was free to request voluntary testing regardless of whether challenged testing guideline was upheld); Physicians Educ. Network, Inc. v. Dept of Health, Education & Welfare, 653 F.2d 621, 623 (D.C. Cir. 1981) (plaintiff lacked standing where injuries could be redressed only by repeal of statute not challenged in lawsuit); Tex. Alliance for Home Care Servs. v. Sebelius, No. 10-cv-747 (RCL), 2011 WL 4005295, at *6 (D.D.C. Sept. 9, 2011) (Where, as here, overturning a particular 10

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agency action would not alter the final outcome, redressability remains unsatisfied.); Neighbors of Casino San Pablo v. Salazar, 773 F. Supp. 2d 141, 150 (D.D.C. 2011) (redressability absent where Secretary of Interiors 2003 decision to take land into trust, not challenged 2004 proclamation that land was part of reservation, was cause of local residents injuries from tribes operation of casino); In Def. of Animals v. Salazar, 713 F. Supp. 2d 20, 28 (D.D.C. 2010) (plaintiffs lacked standing to challenge NEPA decision to place gathered horses in long-term holding facilities where alleged injury (separation from horses) was caused by horses gather and removal from public lands, and would not be redressed by favorable decision); Fund for Animals v. Babbitt, 2 F. Supp. 2d 570, 575 (D. Vt. 1997) (where any injuries the plaintiffs have suffered are attributable to the state's decision to organize the moose hunt, not to the failure of federal officials to comply with NEPA . . . this Court cannot afford the plaintiffs the primary relief they apparently seek, i.e., to stop the moose hunt.). The only conceivable judicial relief that would enable Plaintiffs to escape the effects of that legislation would require a challenge, not to the federal decision-making process for the Klingle Valley Trail Project, but to the District of Columbia statute. Physicians Educ. Network, 653 F.2d at 624 (plaintiff that lacked standing to challenge report to Congress because subsequently enacted legislation was independent basis for its injuries must address its complaint to Congress); Cnty. of Delaware, 554 F.3d at 150 (petitioners redress must be by direct challenge to decisions that formed independent basis for airspace alterations). For reasons known only to them, Plaintiffs have chosen not to pursue or are foreclosed from pursuing such a lawsuit. They cannot use this action as an end run around any obstacles to such a suit because they have failed to demonstrate a case or

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controversy based on the decision challenged in their Complaint.10 II. THE ALLEGATIONS IN PLAINTIFFS COMPLAINT FAIL TO STATE A CLAIM AS TO WHICH RELIEF MAY BE GRANTED WITH RESPECT TO FEDERAL DEFENDANTS RONALD C. MACHEN, JR., ERIC HOLDER, AND ROBERTO FONSECO-MARTINEZ. A court must dismiss a complaint for failure to state a claim when the allegations in a complaint, however true, could not raise a claim of entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). Although the court is obligated to assume as true all of plaintiffs factual allegations and draw all reasonable inferences in plaintiffs favor, it need not assume the truth of legal conclusions; [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the Complaint recognizes that the Administrator of FHWAs District of Columbia Division, Joseph C. Lawson, was the signatory for the FONSI, Complaint 21, it inexplicably and conclusorily alleges that the Administrator for the FHWA Virginia Division, Roberto FonsecaMartinez, was responsible for the decision. Id. at 22. Because none of the facts alleged in the Complaint links Mr. Fonseca-Martinez to any challenged decision, Federal Defendants also move to dismiss Plaintiffs claims as to him under Federal Rule of Civil Procedure 12(b)(6). For the same reason, Federal Defendants move to dismiss United States Attorney General Eric Holder and United States Attorney Ronald C. Machen Jr. Neither is alleged to have performed any act or omission with respect to the challenged decision.

Even if Plaintiffs chose to raise such a claim, it would not implicate any of the Federal Defendants, so dismissal of the federal parties would still be required. 12

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CONCLUSION For the foregoing reasons, Plaintiffs Complaint should be dismissed for lack of subject matter jurisdiction. In addition, the Complaint fails to state a claim for which relief may be granted with respect to Federal Defendants Machen, Holder, and Fonseca-Martinez. Respectfully submitted, IGNACIA MORENO Assistant Attorney General By: /s/ Stacey Bosshardt STACEY BOSSHARDT, Trial Attorney D.C. Bar No. 458645 United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044 (202) 514-2912 [email protected] RONALD C. MACHEN JR. United States Attorney RUDOLPH CONTRERAS Chief, Civil Division By: /s/ Jane M. Lyons JANE M. LYONS, D.C. Bar #451737 Assistant United States Attorney 555 4th Street, N.W. Room E4104 Washington, D.C. 20530 (202) 514-7161 (phone) (202) 514-8780 (fax) [email protected]

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CERTIFICATE OF SERVICE Because plaintiffs are not represented by counsel in this matter and do not have appeared to have requested permission to register to use the Courts Electronic Case Filing system, I certify that on February 13, 2012, I deposited a copy of the FEDERAL DEFENDANTS MOTION TO DISMISS AND FEDERAL DEFENDANTS MEMORANDUM IN SUPPORT OF RULE 12(b)(1) AND 12(b)(6) MOTION TO DISMISS in the first class United States mail, postage prepaid, addressed to the following:

GALE BLACK 1761 Crestwood Drive, NW Washington, D.C. 20011-5333 STEPHEN A. WHATLEY 1315 Fern Street, NW Washington, D.C. 20012-2331 LEWIS BASKERVILLE 1812 Allison Street, NW Washington, DC 20011-3736

ELEANOR OLIVER 3429 34th Place NW Washington, DC 20016-3135 PATRICIA HAHN 3516 30th Street, NW Washington, DC 20008-3250

/s/_______________________________ JANE M. LYONS Assistant United States Attorney

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