Metropolitan News-Enterprise


Wednesday, June 6, 2001


Page: 3


Caltrans Immune From Suit Over 710 Freeway Project, Lawyer Argues


By a MetNews Staff Writer


An attorney for the California Department of Transportation yesterday urged a Ninth U.S. Circuit Court of Appeals panel to throw out a suit seeking to bar completion of the I-710 Gap Closure Project.

Citing the U.S. Supreme Court’s recent series of rulings interpreting the Eleventh Amendment to the U.S. Constitution as broadly barring suits against states based on federal law, Caltrans attorney Glen Mueller said a decades-long challenge to the project should be brought to an end.

The City of South Pasadena, the Sierra Club, and others brought suit in 1973 challenging the proposed completion of the Long Beach Freeway through the Los Angeles neighborhood of El Sereno and the cities of Alhambra South Pasadena, Pasadena and La Canada Flintridge.

The plaintiffs claimed that environmental reviews were required under the National Environmental Policy Act and the California Environmental Quality Act. The defendants agreed to an injunction barring completion of the project pending those reviews.

That preliminary injunction remained in effect for 25 years, “longer than most permanent injunctions,” Judge Alex Kozinski noted yesterday. Senior U.S. District Judge William Rea, of the Central District of California dissolved the injunction in 1998 on the ground that the reviews had been completed.

Rea, at the same time, denied a motion by the plaintiffs to file a supplemental complaint raising new issues. The parties then stipulated to the dismissal of that suit.

South Pasadena, the Sierra Club, and some who were not parties to the dismissed suit, then brought a new federal action, as well as a Sacramento Superior Court action—on hold pending the outcome of the federal suit—raising their new arguments. Caltrans’ motion to dismiss was denied by Rea, who ruled the department had “constructively waived” any Eleventh Amendment immunity during its long-running participation in the prior litigation.

But Mueller argued that there was no such waiver, and that any waiver which had occurred was no longer binding because the stipulated dismissal rendered any action taken in the previous litigation a nullity.

That argument appeared to score with Kozinski, who suggested to plaintiffs’ attorney Antonio Rossman that he had “blow[n] it” by stipulating to the dismissal.