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Federal Motion to Dismiss

Federal Motion to Dismiss

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Published by Lydia DePillis

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Published by: Lydia DePillis on Mar 08, 2012
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03/08/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
 __________________________________________ )GALE BLACK, et al.,))Plaintiffs,) Civil Action No. 11-1928 (RBW))v.))RAY LAHOOD, SECRETARY, U.S.)DEPARTMENT OF TRANSPORTATION, et al.,))Defendants.) __________________________________________)
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 RonaldC. Machen Jr., Administrator of the U.S. Highways Administration Victor Mendez(automatically substituted under Federal Rule of Civil Procedure 25(d) for his predecessor inoffice, Mary Peters), and Division Administrator for the Virginia Division of FHWA RobertoFonseco-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 FederalRules of Civil Procedure. The grounds for this motion are explained in the accompanyingFederal 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 Plaintiffshave 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 
Case 1:11-cv-01928-JEB Document 9 Filed 02/13/12 Page 1 of 16
 
Complaint, which has not yet run as of the filing of this motion, the Federal Defendants reservethe right to seek dismissal under Fed. R. Civ. P. 12(b)(5).Dated: February 13, 2012.Respectfully submitted,IGNACIA MORENOAssistant Attorney GeneralBy: /s/ Stacey BosshardtSTACEY BOSSHARDT, Trial AttorneyD.C. Bar No. 458645United States Department of JusticeEnvironment & Natural Resources Division Natural Resources SectionP.O. Box 663Washington, D.C. 20044(202) 514-2912stacey.bosshardt@usdoj.govRONALD C. MACHEN JR.United States AttorneyRUDOLPH CONTRERASChief, Civil DivisionBy: /s/
 Jane M. Lyons
JANE M. LYONS, D.C. Bar #451737Assistant United States Attorney555 4 Street, N.W. – Room E4104
th
Washington, D.C. 20530(202) 514-7161 (phone)(202) 514-8780 (fax)Jane.Lyons@usdoj.gov
Case 1:11-cv-01928-JEB Document 9 Filed 02/13/12 Page 2 of 16
 
IN THE UNITED STATES DISTRICT COURTFOR 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 theEnvironmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the
12
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 theFHWA Division Administrator for the District of Columbia Division. Plaintiffs allege that theagencies’ 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.
1
The EA, which was attached in part to Plaintiffs’Complaint (pp. S1-S7, Executive Summary), isavailable athttp://www.klingletrail.com/EA.asp(Last visited Feb. 10, 2012). The Court mayconsider materials referenced in or attached to the Complaint. See Fed. R. Civ. P. 10(c) (“A copyof 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
2
DN, attached in part to Plaintiffs’ Complaint, is available athttp://www.klingletrail.com/main.asp, FONSI, (Last visited Feb. 13, 2012).1
Case 1:11-cv-01928-JEB Document 9 Filed 02/13/12 Page 3 of 16

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