Gibson v. Ruckelshaus

Civ.Ac.No. 5255 (E.D. Tex. March 1, 1971)

Plaintiff landowners granted a preliminary injunction barring further court condemnation proceedings in which their land is sought for use as the site for a sewage disposal plant for the City of Lufkin, Texas. Defendant Ruckelshaus is enjoined, pending the outcome of the suit, from committing federal funds to the sewage disposal plant project. The federal defendants have failed to satisfy the requirements of the Federal Water Pollution Control Act, as amended, and the National Environmental Policy Act of 1969. The state's acquisition of the land for the project and the ultimate validity of the federal grant are so integrated that irreparable damage will be incurred by plaintiffs unless condemnation of the land is halted pending the outcome of this suit.

Counsel for Plaintiffs:
Donald Carroll
Ramey, bulsford, Flack, Devereux & Hutchins
Citizens First National Bank Bldg.
Tyler, Texas 75701
(214) 597-3301

Joseph L. Gibson
P.O. Box 19271
Wahsington, D.C. 20036
(202) 833-2386

Counsel for Defendant City:
Walter L. Borgfeld, Jr.
Renfraw, Zeleskey, Cornelius, Rogers & Berry
P.O. Drawer 1728
Lufkin, Texas 75901
(713) 632-3381

Robert L. Flournoy
City Attorney
300 Shepherd
Lufkin, Texas 75901
(713) 634-3367

[1 ELR 20037]

Steger, J.

FINDINGS OF FACT

The Plaintiffs, Benjamin F. Gibson, Joseph L. Gibson, Thomas M. Gibson, Jeta G. Gray and Benjamin F. Gibson, Independent executor of the estate of Ruth R. Gibson, deceased, are the owners of an approximately twelve hundred acre tract of land in Angelina County, Texas.

II.

The Plaintiff, E. B. Keen, is the owner of a tract of land in Angelina County, Texas.

III.

The Defendant, William A. Ruckelshaus, is the Administrator of the Environmental Protection Agency.

[1 ELR 20338]

IV.

The City of Lufkin, Texas, is an incorporated municipality of the State of Texas.

The Defendant, City of Lufkin, Proposed to construct additions and improvements to their sewer system, including, among other things, the construction of a new sewage disposal plant.

VI.

In connection with the proposed sewage disposal improvement program, the City of Lufkin applied to the predecessor agency of the Environmental Protection Agency for a Federal Grant involving federal subsidy funds.

VII.

On June 30, 1970, an initial grant offer was made to the City of Lufkin, Texas.

VIII.

On July 21, 1970, the City of Lufkin accepted such grant.

IX.

The Federal Grant was conditioned, among other things, to the City of Lufkin's obtaining the necessary title and/or easements to a site for the construction of the sewage disposal treatment plant.

In December, 1970, the City of Lufkin instituted condemnation proceedings in the County Court of Angelina County, Texas, seeking to obtain the title to a portion of the land owned by the Plaintiffs Gibson under the power of eminent domain.

XI.

The case at bar was instituted on January 29, 1971.

XII.

Based upon the verified complaint and the certificate of counsel, a temporary restraining order was issued by this Court, restraining and enjoining the further prosecution of that certain condemnation proceeding pending in the County Court of Angelina County, Texas, styled, "City of Lufkin, Texas v. Mrs. L. H. Gray, et al".

XIII.

The hearing on Plaintiffs' request for a preliminary injunction was set, by agreement of all counsel, for Friday, February 12, 1971.

XIV.

At the agreed setting, appearance and announcements of ready on Plaintiffs' Motion for a Preliminary Injunction was made by Plaintiffs, the Defendant, City of Lufkin, Texas, and the Defendant, William A. Ruckelshaus, Administrator of the Environmental Protection Agency.

XV.

The Environmental Protection Agency, or its predecessor agency, made no investigation of the proposed site for the construction of the sewage disposal treatment plant before making the grant of federal funds.

XVI.

At the time of the making of the grant, the Environmental Protection Agency did not concern itself with the selection of the site for the construction of sewage disposal treatment plants.

XVII.

At the time of the making of the grant, the Environmental Protection Agency did not concern itself with the approval of the site selected by the Agency applying for the grant.

XVIII.

At no time, except as described in Findings XXIII, did the Environmental Protection Agency determine that the proposed project would not foster and cause damage to the ecology and the environment.

XIX.

At no time, except as described in Findings XXIII, did the Environmental Protection Agency consider alternatives to the proposed project.

XX.

At no time, except as described in Findings XXIII, did the Environmental Protection Agency determine that the proposed project would not cause a waste of federal funds.

XXI.

In October of 1970, the Plaintiffs Gibson filed an extensive "Brief" with the Environmental Protection Agency challenging the legality of the grant on the basis of, among other things, damage to the ecology and environment and waste of federal funds.

XXII.

In November of 1970, three representatives of the Environmental Protection Agency flew from Dallas to Lufkin, Texas, where they spent a portion of one day purportedly investigating some of the questions raised by the "Brief" heretofore mentioned in Finding No. XXI.

XXIII.

The circumstances surrounding the November trip to Lufkin, Texas, by the three representatives of the Environmental Protection Agency, the persons contacted by such representatives, the lack of notice to opponents of the project, the amount of time spent, the nature of the investigation made, and the nature of the investigation not made caused the court to conclude that such "investigation" was not a complete and unbiased factual investigation.

XXIV.

Although the testimony reveals that the City of Lufkin, Texas, has the potential financial ability to construct a sewage treatment disposal plant without the use of federal funds, the city has made no such decision.

XXV.

There is no evidence of probative force that a preliminary injunction would result in other than minimal damage to either the Defendant, City of Lufkin, Texas, or the Defendant, William A. Ruckelshaus, Administrator of the Environmental Protection Agency.

XXVI.

The bond required of Plaintiffs for the issuance of the writs of preliminary injunction is set at $500.00

CONCLUSIONS OF LAW

The Court has jurisdiction over this cause.

II.

The Plaintiffs have standing to prosecute this action.

III.

The Environmental Protection Agency has failed to meet the minimal requirements of law in the offer of grant made to the City of Lufkin, Texas.

IV.

Prior to the issuance of the offer of grant on June 30, 1970, by its predecessor agency, the Environmental Protection Agency failed to make determinations pursuant to proper investigation which are required by law.

Plaintiffs have shown diligence and are not barred by laches.

VI.

Plaintiffs will be irreparably injured and have no adequate remedy at law and are, therefore, entitled to equitable relief.

VIII.

Plaintiffs make no claim that Defendants failed to have substantial evidence relative to the record of the Environmental Agency, except as to the requirements relative to determinations of ecological damage and waste of tax funds insofar as said matters are required by 33 U.S.C. 1158; 42 U.S.C. 4331; 42 U.S.C. 4332; 18 C.F.R. 601.26(a); 18 C.F.R. 601.32; and Ex. O. 11514, and therefore, the Court's ruling does not deal with the question of substantial evidence.

VIII.

The purchase of the plant site by the City of Lufkin, Texas, and the proceedings under the Environmental Protection Agency grant are so integrated that irreparable damage will be incurred by Plaintiffs if the City of Lufkin is allowed to proceed in the condemnation and the Environmental Protection Agency is allowed to proceed under the grant.

IX.

The Environmental Protection Agency having failed to comply to requirements relative to investigation of ecological damage and waste, the Court cannot determine whether or not such damage or waste will occur and the temporary injunction is issued by virtue of the failure of the Environmental Protection Agency to make such investigation.

Dated: March 1 1971.

[1 ELR 20339]

PRELIMINARY INJUNCTION

This cause came on to be heard on Plaintiffs' Motion for a Preliminary Injunction and the Court having considered the verified complaint, having heard oral evidence in open court, and having considered the exhibits offered in evidence upon the hearing of Plaintiffs' Motion for a Preliminary Injunction, and the Court having made and filed its findings of fact and conclusions of law, and it appearing to the Court after due deliberation that the Defendants should be enjoined pending final determination of this cause, and in the event of a failure of the issuance of the Preliminary Injunction that irreparable injury would result, it is

Ordered that the Defendant City of Lufkin, Texas, its agents, servants, employees and attorneys and all other persons in active concert and participation with it be, and they are hereby restrained and enjoined, pending the determination of this action from the further prosecution of that certain condemnation proceeding now pending in the County Court of Angelina County, Texas, styled "City of Lufkin, Texas, vs. Mrs. L.H. Gray, et al"

It is ordered that the Defendant William A. Ruckelshaus, Administrator of the Environmental Protection Agency, its agents, servants, employees and attorneys and all persons in active concert and participation with him be, and they are hereby restrained and enjoined, pending the determination of this action, from taking further action to fulfill the initial commitment of the Environmental Protection Agency to provide federal subsidy to the City of Lufkin, Texas, by virtue of the grant offer dated June 30, 1970.

It is specifically ordered that before the writ of injunction should issue, Plaintiffs shall give security in the sum of $500.00 for the payment of such costs and damages as may be incurred or suffered by any party who has found to have been wrongfully enjoined, such security to be approved by the Clerk of this Court.

It is specifically ordered, however, that this Preliminary Injunction shall terminate without further action of the Court, insofar as it restrains and enjoins the City of Lufkin, Texas, from proceeding with the condemnation proceedings hereinabove mentioned and described, in the event the City of Lufkin, Texas, shall file among the papers of this cause a duly authenticated instrument or instruments, representing the official actions of the legally constituted authorities of the City of Lufkin, Texas, abandoning federal subsidy or grants in connection with the construction of the proposed sewage treatment facility by the City of Lufkin, Texas.

Dated: March 1, 1971.