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Save Our Dunes v. Pegues

Citation: 17 ELR 20092
No. No. 84-T-518 N, 642 F. Supp. 393/25 ERC 1592/(M.D. Ala., 12/17/1985) Injunction issued

The court holds that an environmental group challenging the construction of condominiums on the Alabama coast is entitled to an injunction to prohibit state officials and the developer from initiating the project until the National Oceanic and Atmospheric Administration (NOAA) decides whether a supplemental environmental impact statement (SEIS) is required for a proposed amendment to Alabama's coastal zone program that would establish a construction setback line for all beaches in the state. The court first holds that it has jurisdiction over plaintiffs' Coastal Zone Management Act (CZMA) and National Environmental Policy Act (NEPA) challenges to a 1982 amendment to Alabama's CZMA program that established a new construction setback line on Perdido Key. NOAA's decision not to require Alabama to submit the 1982 amendment for federal review under the CZMA and not to perform an SEIS on the amendment, on the understandi42 ll its beaches that would be submitted for federal review, constituted final agency action under the Administrative Procedure Act (APA). The court holds that it also has jurisdiction over plaintiffs' NEPA challenge to a 1985 amendment that would establish the comprehensive setback line. Although NOAA has not yet decided whether to prepare an SEIS for the 1985 amendment, the All Writs Act authorizes the court to issue injunctions to preserve the status quo while the administrative proceedings are in progress.

Reaching the merits, the court holds that CZMA § 312(d) does not warrant the reduction of federal funding to Alabama's program for the state's failure to submit the 1982 amendment for federal approval. NOAA's decision to allow Alabama to implement the 1982 amendment and to continue to receive funding while the state developed a more comprehensive amendment that would be subject to federal review was not arbitrary and capricious. Alabama's submittal of the 1985 amendment was essentially the state's attempt to remedy its noncompliance with the CZMA. Thus, the state did not refuse to remedy a deviation from its approved program within the meaning of § 312(d). The court holds that NOAA violated CZMA § 306(g) by continuing to award § 306 grants to Alabama after the unapproved 1982 program amendment. The court, however, refuses to require Alabama to refund any of these grants, since the 1985 amendment will bring the program into compliance with the CZMA and the state program would be crippled. The court holds that since plaintiffs are not entitled to relief against the federal officials on their CZMA claim, they are not entitled to any relief under the CZMA against the state officials and the private developer. The court holds that plaintiffs do not have an independent cause of action under 42 U.S.C. § 1983 against the state officials. Even if the CZMA grants substantive rights to plaintiffs, they could not obtain the relief they seek, to enjoin the state officials from issuing permits, since the CZMA limits sanctions to reduction or termination of federal funding.

The court holds that plaintiffs are not entitled to any relief on their NEPA challenge to the 1982 amendment, which has been fully superseded by the 1985 amendment. The court next holds that it lacks jurisdiction under the APA to consider plaintiff's claim that NOAA should prepare an SEIS for the 1985 amendment, since NOAA is still deciding whether to prepare an SEIS. The court, however, holds that plaintiffs are entitled to an injunction prohibiting the state officials from issuing construction permits on Perdido Key until NOAA decides whether an SEIS is required. The court rejects plaintiffs' theory that the any major action taken by state officials under state CZMA programs is in fact federal action and thus is subject to NEPA's requirements. The conclusion that a state program has been federalized through federal funding and control contradicts the CZMA's purpose of encouraging, but not requiring, state participation. The court also rejects plaintiffs' theory that they have an independent cause of action under § 1983 against the state officials for NEPA violations. Even if § 1983 provides a cause of action for NEPA violations, plaintiffs could not obtain any relief against the state officials since NEPA applies only to federal action. The court, however, holds that plaintiffs are entitled to an injunction against the state officials and the developer under the All Writs Act to preserve the status quo pending completion of federal review of the 1985 amendment. There is a substantial likelihood that plaintiffs will prevail on the merits of their claim that an SEIS is required, plaintiffs will suffer irreparable injury if construction is allowed to proceed before the SEIS is completed, the economic hardship to the developer created by the delay and uncertainty is outweighed by irreparable damage to the beaches and by the importance of compliance with NEPA's procedures, and the public interest would be served by the injunction.

The court holds that Alabama's failure to provide public notice of the permitting decisions of the state Department of Environmental Management violates due process. The court initially holds that plaintiffs have a protected property interest under state law, since Alabama's regulatory scheme creates an individual entitlement in the use of Alabama's natural coastline. The court then holds that Alabama's failure to provide notice to adversely affected parties, given the very brief period during which administrative appeals are available, violates due process. $80

Counsel for Plaintiffs

L. Gilbert Kendrick

Moore, Kendrick, Glassroth, Harris, Bush & White

410 S. Perry St., Montgomery AL 36104

(205) 264-9900

Counsel for Defendants

Kenneth E. Vines, Ass't U.S. Attorney

P.O. Box 197, Montgomery AL 36101

(205) 534-7280

Rodney Slusher

Peck, Slusher & Bunch

118 W. Dr. Hicks Blvd., Florence AL 35630

(205) 766-4490

David P. Broome

McDonough & Broome

1400 First National Bank Bldg., P.O. Box 1943, Mobile AL 36633

(205) 432-3296