DocketNumber： 95-2373
Filed Date： 4/3/1997
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2373
VINCENT F. ZARRILLI,
Plaintiff, Appellant,
v.
WILLIAM WELD, GOVERNOR, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Selya, Boudin and Lynch,
Circuit Judges. ______________
____________________
Vincent F. Zarrilli on brief pro se. ___________________
Donald K. Stern, United States Attorney, George B. Henderson, II, _______________ _______________________
Assistant United States Attorney, Scott Harshbarger, Attorney General, _________________
and Rosemary Gale, Assistant Attorney General, on brief for appellee _____________
Governor William Weld.
Merita A. Hopkins, Corporation Counsel, and Elizabeth R. ____________________ _____________
O'Donnell, Assistant Corporation Counsel, City of Boston Law _________
Department, on brief for appellees City of Boston, Mayor Thomas M.
Menino, Commissioner Paul Evans, Commissioner Martin Pierce,
Commissioner Joseph Casazza, Former Commissioner Lawrence Dwyer,
Former Mayor Raymond L. Flynn, and the Boston Transportation
Department.
____________________
APRIL 2, 1997
____________________
Per Curiam. Pro se appellant Vincent Zarrilli ___________
appeals from the district court's grant of summary judgment
for various state and federal defendants and from its denial
of his motion to reconsider.1 The primary thrust of 1
Zarrilli's suit was that the defendants had violated the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4331 et seq., and pertinent regulations by not studying his
proposal for a bypass bridge around Boston as an alternative
to depressing the Central Artery. Among other things, he
sought an order halting Artery construction and directing
detailed review of his proposal. After careful review of the
record, we affirm essentially for the reasons given by the
district court in its well reasoned decisions granting
summary judgment. We add only the following comments.
____________________
1The district court granted summary judgment for 1
defendants on Zarrilli's original complaint in Zarrilli v. ________
Weld, 875 F. Supp. 68 (D. Mass. 1995). Among other things, ____
the court ruled that certain of Zarrilli's claims were
untimely and it dismissed state agencies from the suit under
the Eleventh Amendment. The court granted Zarrilli leave to
amend his complaint to state any timely claims against the
remaining defendants. Zarrilli then filed an amended
complaint. In an unpublished order dated October 25, 1995,
the court granted the defendants' motion for summary
judgment, dismissing the amended complaint on the ground that
the complaint did not state a claim for relief and stated
untimely claims. The court subsequently denied Zarrilli's
motion to reconsider.
The amended complaint asserted only one federal
claim against the state defendants.2 Zarrilli has not 2
challenged the district court's ruling limiting his 42 U.S.C.
1983 claims against the state defendants to claims arising
after August 12, 1991. See Zarrilli v. Weld, 875 F. Supp. ___ ________ ____
68, 72 (D. Mass. 1995). Four of the Environmental Impact
Statements listed by Zarrilli in Count 1 of the amended
complaint were published subsequent to August 12, 1991. But
Zarrilli makes no mention of these statements on appeal and
thus would appear to have abandoned these claims. None of
the other allegations in the amended complaint forms the
basis for a timely complaint against the state defendants.
At bottom, Zarrilli objected to the defendants' assessment of
his Bypass proposal as of November 1990 or earlier, a clearly
barred claim. His reassertion of that claim in letters
written to state defendants within the limitations period
does not make the claim timely.3 3
Nor has Zarrilli challenged the district court's
application of the six-year limitations period set forth in
____________________
2Zarrilli also brought pendent state law claims against 2
the state defendants, but has not pressed those claims on
appeal. In addition, he alleged that the state defendants
had violated his rights by not publishing a draft of the
November 1990 Final Environmental Impact Statement/Report,
but now concedes that they had no obligation to do so.
3We do not consider his claim that the defendants' 3
fraudulent concealment of material information tolled the
limitations period, which is the subject of a separate
appeal.
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28 U.S.C. 2401(a) for civil actions against the United
States, which would only bar claims that accrued prior to
August of 1988. Indeed, the federal defendants have conceded
that the amended complaint stated non-barred claims against
them. Zarrilli asserted that the defendants should have
published a Supplemental Environmental Impact Statement on
his Bypass proposal as part of the 1990-91 Final Supplemental
Environmental Impact Statement/Report. However, even
assuming that defendants had an obligation to evaluate his
Bypass proposal, Zarrilli has not shown that, in relevant
respects, his proposal contained "significant new
circumstances or information" about the environmental impact
of the Artery project or that it was a reasonable alternative
to the Central Artery project. Consequently, defendants had
no obligation to give the proposal any more serious
consideration than they did. See 40 C.F.R. ___
1502.9(c)(1)(ii) (an agency must prepare a supplemental
environmental impact statement if there are "significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts");
Forty Most Asked Questions Concerning CEQ's NEPA Regulations,
46 Fed. Reg. 18026, # 29b (1981) (requiring the issuance of
supplemental or draft supplemental environmental statements
on new alternatives which are "reasonable").
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Zarrilli made several other complaints as well. He
asserted that the 1990-91 Final Supplemental Environmental
Impact Statement/Report was inadequate because it did not
contain a "worst case analysis." But such an analysis is
only required when there are gaps in the available
information, and Zarrilli has shown no such uncertainty here.
Zarrilli argued that the 1990-91 Final Supplemental
Environmental Impact Statement/Report violated federal
regulations because it was not specific enough. But the
applicable regulations do not require agencies to evaluate
all comments exhaustively. Another acceptable agency
response is the one the defendants chose to make -- providing
valid reasons for why Zarrilli's proposal did not warrant a
detailed response. Finally, Zarrilli complained that the
defendants failed to publish his full proposal in the 1990-91
Final Supplemental Environmental Impact Statement/Report in
violation of NEPA Reg. 1503.4(b). However, the regulation
explicitly permits summaries of exceptionally voluminous
comments, and Zarrilli's proposal certainly falls into this
category.
Affirmed. ________
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