Friends of the Earth, Inc. v. Brinegar

No. 74-3490 (9th Cir. March 17, 1975)

The Ninth Circuit Court of Appeals reduces from $4,500,000 to $1,000 the bond which plaintiffs must post in order for a previously granted injunction pending appeal to take effect in an action to compel preparation of a NEPA impact statement prior to expansion of the San Francisco International Airport. The fact that the court has already granted the injunction implies that plaintiff-appellants are likely to succeed on the merits, and this circumstance, along with the recognition that in NEPA Congress sacrificed some efficiency and economy in order to further a strong policy of environmental protection, leads the court to conclude that the $4,500,000 bond imposed by the district court is unreasonable. The court notes that in this case a private organization and several citizens, with limited resources, obtained an interlocutory injunction against construction by a governmental entity, a situation which is materially different from cases where a state, with ample resources to post a large bond, obtains an interlocutory injunction against construction by a private party.

Counsel for Plaintiffs
John D. Leshy
Natural Resources Defense Council, Inc.
664 Hamilton Avenue
Palo Alto, Cal. 94301

William P. Hoffman
Ferguson, Hoffman, Henn & Mandel
1365 Columbus Avenue
San Francisco, Cal. 94133

Counsel for Defendants
Thomas M. O'Connor City Attorney
206 City Hall
San Francisco, Cal. 94102

[5 ELR 20223]

Per Curiam

Appellants are a non-profit environmental organization and thirteen individuals who live near the San Francisco International Airport. They seek to compel preparation of an environmental impact statement for the airport's expansion program, contending that such a statement is required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. Specifically, appellants seek to enjoin certain federal officials from committing any more funds to the airport's expansion program and the City of San Francisco from further constructing a parking garage and a new terminal until an impact statement is prepared. The district court issued a preliminary injunction against the federal officials but declined to enjoin construction of the new terminal and garage, concluding that these projects were not part of the overall expansion program and would not have a substantial environmental impact.

Appellants appealed from the denial of a preliminary injunction against the city. On January 22, 1975, we granted appellants' motion for an injunction pending appeal. However, we remanded the case to the district court to determine whether appellants should be required to post bond or provide indemnity as a condition of the injunction and, if so, to fix the amounts and terms. The injunction pending appeal was to take effect only after the district court made that determination and appellants complied with any bond or indemnity requirements imposed.

On remand, the district court determined that a $4,500,000 bond was required to protect the City of San Francisco against losses in the form of increased construction costs due to inflation, lost rental income and temporary construction that might be necessary because of the delay. Appellants now move for an order reducing the bond and we grant the motion.

Appellants assert that environmental interest groups and individual plaintiffs usually have limited resources. They contend that [5 ELR 20224] if public interest groups and citizens are required to post substantial bonds in NEPA cases in order to secure preliminary injunctions or injunctions pending appeal, plaintiffs in many NEPA cases would be precluded from effective and meaningful appellate review. More importantly, they argue, such bonds would seriously undermine the mechanism in NEPA for private enforcement. Cf. National Resources Defense Council, Inc. v. Morton, 337 F. Supp. 167, 168-69 (D.D.C. 1971).

We recognize that in NEPA, Congress sacrificed some officiency and economy in order to further a strong policy of environmental protection. However, we need not reach the question of whether no more than a nominal bond may be required in any NEPA case in which environmental groups or individuals procure an injunction pending appeal. Here, we are impressed that another panel of this court has already granted an injunction and thus implicitly concluded that appellants have a likelihood of success. Balancing the conflicting interests, we are persuaded that a $4,500,000 bond is unreasonable. A bond in the amount of $1,000 is reasonable and we order that such bond be imposed. All other terms of the bonds set by the district court will remain in effect.

True, in pending appeals in People of the State of California v. Tahoe Regional Planning Agency we adopted a district court's order requiring an appeal bond of $3,500,000. However, these are not NEPA cases. Moreover, there, the State of California, which has ample resources to post bond, obtained an interlocutory injunction against construction by private developers. Here, the situation is materially different: a private organization and citizens, with limited resources, obtained an interlocutory injunction against construction by a governmental entity.