Seventh Circuit rules on doctrine of claim preclusion.

Byline: David Ziemer

The doctrine of claim preclusion bars subsequent litigation, even though the plaintiffs' legal theories in the second action differ from those in the first, the Seventh Circuit held on Aug. 2.

The County J/Highway 164 Project involves the expansion of an 18-mile segment of Wisconsin State Highway 164 from two to four lanes. Construction by the Wisconsin Department of Transportation has commenced on this project.

A second project, known as the Ackerville Bridge Project, involves construction of two overpass structures on Highway 164 in Washington County, at the northern end of the expansion project.

After a public hearing in 2000, the Federal Highway Administration (FHWA) concluded that the construction would not significantly affect the environment. Construction commenced in May 2002.

In July 2003, Highway J Citizens Group (Citizens), filed suit against the DOT and FHWA, alleging that approval of both projects violated the Administrative Procedure Act (APA), the National Environmental Policy Act of 1969 (NEPA), and the Wisconsin Environmental Policy Act (WEPA). The suit alleged the two projects were improperly segmented so that environmental damage from the Ackerville Project would not be considered when assessing the County J/Highway 164 Project.

The district court ruled against the Citizens, and the Seventh Circuit affirmed. Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003)(Citizens I). The Seventh Circuit held that the defendants sufficiently considered the environmental impact, and concluded there was no improper segmentation of the two projects.

In February 2005, Citizens, together with Waukesha County Environmental Action League (WEAL), filed suit in federal court again, arguing that the approval of the Highway 164 Project and the Army Corps' issuance of a Clean Water Act permit violates the APA, the Clean Water Act (CWA), the NEPA, and the Federal-Aid Highway Act (FAHA).

United States District Court Judge Lynn Adelman denied the plaintiff's request for an injunction enjoining further construction, holding that they could not show reasonable likelihood of success on the merits, because their challenges were barred by the doctrine of claim preclusion.

Although the previous challenge focused on the Ackerville Bridge Project, the court found that the suit also challenged the widening of Highway 164. Judge Adelman wrote, "A claim that one project was improperly segmented from...