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Mitskovski v. Buffalo and Fort Erie Public Bridge Authority

January 22, 2010


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge


In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #38.

Currently before the Court is Respondent's motion for summary judgment (Dkt. #44), and Petitioners' cross-motion for summary judgment. Dkt. #52. For the following reasons, Respondent's motion is granted and Petitioners' motion is denied.


Petitioners are residents in the neighborhood of the Peace Bridge. Dkt. #1-2, ¶ ¶ 1-3. They commenced this action by Notice of Petition filed May 28, 2004 in the New York State Supreme Court, County of Erie, seeking a declaration that the Buffalo and Fort Erie Public Bridge Authority ("Public Bridge Authority"): (1) is a state agency and public body subject to the New York State Environmental Quality Review Act ("SEQRA"), New York State Freedom of Information Law ("FOIL"), and New York State Open Meeting Law; (2) that it violated SEQRA by segmenting the Border Infrastructure Improvement Project ("BIIP"), from the Capacity Expansion Project ("CEP"), and failing to conduct an adequate environmental review of the BIIP; and (3) that it violated an Order of the Hon. Eugene M. Fahey, J.S.C., in the consolidated cases of City of Buffalo v. New York State Dep't of Envtl. Conservation and Buffalo Olmsted Parks Conservancy v. The Buffalo and Fort Erie Pub. Bridge Auth., Index No. 1999/4309. Dkt. #1-2.

The Public Bridge Authority removed the action to this Court pursuant to 28 U.S.C. § 1331. Dkt. #1. Petitioners moved to remand on the ground, inter alia, that the complaint alleged only state claims and did not invoke federal question jurisdiction. Dkt. #4. By Decision and Order entered October 5, 2004, the Hon. John T. Elfvin granted the motion to remand because Respondent failed to comply with a local rule requiring an index of documents filed in state court be filed in this Court upon removal. Dkt. #17. On appeal, the Court of Appeals for the Second Circuit determined that remand was "too drastic a remedy for such a minor noncompliance." Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 133 (2d Cir. 2005).

The Court of Appeals also determined that it had jurisdiction to determine subject matter jurisdiction even though Judge Elfvin had not reached that question. Id. at 133-34. Addressing the existence of subject matter jurisdiction, the Court of Appeals stated:

The construction of an interstate or international compact approved by Congress under the Compact Clause of the Constitution, see U.S. Const. art. I, § 10, cl. 3,*fn1 presents a federal question. See Cuyler v. Adams, 449 U.S. 433, 438... (1981); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 278... (1959). The Authority is the product of a compact between New York and Canada, approved by Congress. In 1934, Congress gave its consent to the State of New York to enter into the agreement or compact with the Dominion of Canada set forth in chapter 824 of the Laws of New York, 1933, and an act respecting the Buffalo and Fort Erie Public Bridge Authority passed at the fifth session, Seventeenth Parliament, Dominion of Canada (24 George V 1934), assented to March 28, 1934, for the establishment of the Buffalo and Fort Erie Public Bridge Authority... H.R.J. Res. 315, 73rd Cong., 2d sess. (May 3, 1934). In 1957, Congress gave approval to a reconstituted compact authorizing the Authority. See H.R.J. Res. 342, 85th Cong., 1st sess. (Aug. 14, 1957).

Id. at 134-35. Because petitioners sought a declaration that the Respondent is a New York State agency, and resolution of that claim would "inevitably require construction of the compact," the Court of Appeals determined that the "federal question jurisdiction of the District Court has been properly invoked." Id. at 135.


In the early 1990's, the Public Bridge Authority contemplated a number of construction projects, including the CEP, the Commercial Vehicle Processing Center Project in Canada, the Canadian Plaza/Gateway Project and the U.S. Plaza/Connecting Roadways Project. City of Buffalo v. New York State Dep't of Env. Cons., 184 Misc.2d 243, 246 (Erie Cty 2000). The New York State Department of Environmental Conservation ("NYSDEC"), assumed the lead agency role for the environmental review of the CEP and determined that the construction of a second international bridge south of the existing bridge would have no significant adverse impact on the environment. Id. at 246-247. Before reaching that conclusion, the NYSDEC considered "whether the second Bridge proposal would be improperly segmented from the review of any possible future and related inland development (improvement to the Peace Bridge Plaza in the City of Buffalo)," and determined that segmentation of the CEP from the U.S. Plaza/Connecting Roadways Project was permissible. Id. at 247-248. As a result, the environmental review "did not address the bridge and bridge construction relating to traffic flow into (1) the current plaza, (2) construction of a new plaza in the current location, or (3) construction of a new plaza in a new location." Id. at 248-49.

The City of Buffalo, Buffalo Olmsted Parks Conservancy, Inc., and the Episcopal Church Home, among others, commenced an article 78 proceeding in New York State Supreme Court challenging the NYSDEC's issuance of a permit for the construction of a second bridge on the ground that the NYSDEC failed to comply with SEQRA by improperly segmenting the environmental review. See 04-CV-693 at Dkt. #4. The petition also sought to enjoin the Public Bridge Authority from performing any actions in furtherance of the development of a second bridge until environmental concerns had been addressed. See 04-CV-693 at Dkt. #4.

In an opinion dated April 7, 2000, Justice Fahey determined that the NYSDEC's declaration of no adverse environmental effect was fundamentally flawed because it improperly segmented consideration of the environmental impact of the proposed bridge construction from the proposed plaza construction, stating:

In this instant case, in terms of traffic flow, the bridge and the adjoining plaza with the connecting roadways are a single, inseparable development entity. The effects of their construction must be reviewed together. A final environmental impact statement considering the potential environmental effects of the proposed bridge, proposed plaza and alternative is required.

Id. at 255. Justice Fahey concluded:

The failure by Respondent DEC to consider the cumulative impact of bridge and plaza construction constituted a violation of the Department's obligation to take "a hard look" under SEQRA. Therefore, the determination of nonsignificance was arbitrary and capricious. The issuance of the permit by Respondent DEC is annulled. The Negative Declaration of Respondent DEC is annulled. The Respondent PBA is permanently enjoined from going forward with bridge construction until it has complied with SEQRA. The matter is remitted to Respondents PBA and DEC for reconsideration of the cumulative impact of the proposed bridge construction ...

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