Robert Hall v. Regional Transportation Commis ( 2010 )

Menu:

                                                                           FILED
NOT FOR PUBLICATION                              JAN 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT W. HALL,                                  No. 08-16696
Plaintiff - Appellant,              D.C. No. 2:08-CV-00237-RLH-
RJJ
and
NEVADA ENVIRONMENTAL                             MEMORANDUM *
COALITION, INC.,
Plaintiff,
v.
REGIONAL TRANSPORTATION
COMMISSION OF SOUTHERN
NEVADA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Submitted January 13, 2010 **
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Plaintiff-Appellant Robert W. Hall (Hall) appeals pro se from the district
court’s order dismissing his claim that Defendants-Appellees failed to comply with
the National Environmental Policy Act (NEPA) and Federal Aid Highway Act
(FAHWA) 1 in connection with the construction of a Las Vegas area highway. Our
review of the district court’s determination that Hall’s suit is barred by the statute
of limitations is de novo. Sierra Club v. Penfold,

857 F.2d 1307

, 1315 (9th Cir.
1988). As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our decision.
All of Hall’s NEPA and FAHWA claims arise under the Administrative
Procedure Act (APA),

5 U.S.C. § 702

. The APA has a six-year statute of
limitations, Sierra Club,

857 F.2d at 1315

; see also Jersey Heights Neighborhood
Ass’n v. Glendening,

174 F.3d 180

, 186 (4th Cir. 1999), which begins to accrue at
the time of a final federal agency action, see

5 U.S.C. § 704

. At the latest, all of
Hall’s claims accrued on September 3, 1997, the date the Federal Highway
Administration published notice in the Federal Register that federal environmental
process related to the highway had been terminated because the highway
1
Hall also contends he raised a

42 U.S.C. § 1983

 claim, but no such claim
was ever pleaded.
2
construction project involved no “major federal action” requiring NEPA
compliance. See Shiny Rock Mining Corp. v. United States,

906 F.2d 1362

, 1364
(9th Cir. 1990). Further, none of Hall’s allegations suggest that any new “major
federal actions” related to the highway project occurred subsequent to the
September 3, 1997 notice. Because Hall waited to file suit until February 2008, he
was over four years too late.
All of Hall’s arguments concerning why the statute of limitations should not
apply lack merit.
First, Hall’s argument that he was entitled to actual notice is unfounded.
Constructive notice provided in the Federal Register is sufficient to trigger the
statute of limitations, Friends of Sierra R.R., Inc. v. Interstate Commerce Comm’n,

881 F.2d 663

, 667-68 (9th Cir. 1989), unless the case is among those unique
situations in which the agency is legally obligated to provide actual notice, Camp
v. Bureau of Land Mgmt.,

183 F.3d 1141

, 1145 (9th Cir. 1999). Hall may have
requested to be apprised of all decisions related to the highway project, but his own
requests are insufficient to give rise to a legal duty to give him actual notice.
Second, Hall’s argument that Clark County was required to comply with
NEPA even after termination of federal involvement runs contrary to law. See
Rattlesnake Coalition v. EPA,

509 F.3d 1095

, 1101 (9th Cir. 2007).
3
Third, Hall’s argument that there is a “continuing violation” fails because
the “continuing violations” doctrine “is not applicable in the context of an APA
claim for judicial review.” Gros Ventre Tribe v. United States,

344 F. Supp. 2d 1221

, 1229 n.3 (D. Mont. 2004), aff’d at

469 F.3d 801

 (9th Cir. 2006); see also
Preminger v. Sec’y of Veterans Affairs,

517 F.3d 1299

, 1307 (Fed. Cir. 2008).
Fourth, Hall’s arguments that the statute should be tolled because of
Defendants’ alleged misconduct, even if accepted, would not save Hall’s claims
from the time bar. Hall admits that he wrote to Defendants about the same
concerns raised in his complaint in April 1997. Whatever tolling may have been
justified, the tolling period would have lifted at the point he had actual notice of
the facts giving rise to his claims. Cf. Cedars-Sinai Med. Ctr. v. Shalala,

177 F.3d 1126

, 1130 (9th Cir. 1999); Suckow Borax Mines Consol. Inc. v. Borax Consol.,
Ltd.,

185 F.2d 196

 (9th Cir. 1950). Thus, the six-year statute would have still run
no later than 2003.
Finally, Hall’s allegations fail to identify any new “major federal actions”
that could have triggered NEPA compliance in the six-year period prior to his
filing of the complaint. Speculations about future federal funding, especially
where any federal funding would ultimately be only a small portion of the overall
4
project cost, are insufficient to trigger NEPA compliance requirements.
Rattlesnake,

509 F.3d at 1101