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Brandon v. Pierce

Citation: 14 ELR 20185
No. No. 82-2019, 725 F.2d 555/20 ERC 1446/(10th Cir., 01/12/1984)

The Tenth Circuit affirms a judgment for defendants in a National Environmental Policy Act (NEPA) suit challenging the issuance of an urban development action grant. In 1979 appellee city sought from the Department of Housing and Urban Development (HUD) a grant for the expansion of its sewage treatment facilities, and assumed responsibility for preparing an environmental impact assessment pursuant to § 104 of the Housing and Community Development Act (HCDA). Appellants, who own property which was slated for condemnation because it lies adjacent to the sewage treatment facilities, but resided in another state, successfully challenged the city's condemnation efforts and then filed this NEPA action. Rejecting appellants' argument that HUD improperly delegated its NEPA responsibilities to the city, the court rules that the agency complied with its internal regulations, and that those regulations are consistent with NEPA and the HCDA. In summary fashion the court dismisses appellants' claim that the city's assessment gave inadequate attention to the environmental impacts of the action. Further, the court determines that the city furnished adequate public notice of the action and the completion of its environmental review. Because appellants, who resided in a different state, successfully resisted the city's attempts to condemn their land in connection with the action, they do not constitute persons "known to be interested" in the action and thus were not entitled to direct mail notice. The city was under a discretionary, not a mandatory duty to provide notice to nearby landowners generally. The court also rejects appellants' claim that the city violated HUD's public participation and hearing requirements.

With respect to appellants' argument that an environmental impact statement (EIS) was required for the action, the court determines that an EIS was not required by HUD regulations, and agrees with the district court that the environmental effects of the action would be insignificant. Thus, the decision not to prepare an EIS was reasonable.

Counsel for Appellants
Victor Law Ellis
Ellis & Insabella
Suite 400, Int'l Twr., 5200 Yale Ave. S., Tulsa OK 74135
(918) 496-3122

Counsel for Appellees
Maria A. Iizulka, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Gary L. Richardson, U.S. Attorney; Mark F. Green
P.O. Box 1009, Muskogee OK 74401
(918) 687-2543

Carolyn B. Lieberman, Ass't General Counsel; Edward G. Weil
Dep't of Housing & Urban Development, Washington DC 20410
(202) 755-1300

Jack E. Rider
221 W. Division, Stilwell OK 74960
(918) 696-7071

Joined by Logan and Arraj,* JJ.