Thompson v. Fugate

Nos. 71-1686; 71-1687 (4th Cir. October 13, 1971)

District Court's grant of preliminary injunction preventing highway project's disruption of historic "Tuchahoe Plantation", 1 ELR 20369 and Circuit Judge Butzner's extension of that injunction to include bar of condemnation pending final outcome of the suit, 1 ELR 20370, affirmed.

Counsel for Plaintiffs:
Robert P. Stranahan
Wilmer, Cutler and Pickering
900 17th Street, N.W.
Washington, D.C. 20006
(202) 296-8800

Hunton, Williams, Powell and Gibson
700 East Main Street
Richmond, Virginia 23212
(703) 770-2071

Counsel for State Defendant:
Vann H. Lefeoe Asst. Attorney General
Supreme Court Building
Richmond, Virginia
(703) 770-2071

Counsel for Federal Defendant:
William Kanter Asst. U.S. Attorney
Walter H. Fleischer Attorney
Department of Justice
Washington, D.C. 20530
(202) 737-8200

[1 ELR 20599]

PER CURIAM:

In a suit to contest the right of the defendants summarily to condemn and use an historic site for the construction of a federally-funded four-lane highway prior to a determination by the Secretary of Transportation that there is no prudent and feasible alternative to the route using the historic site, the district judge preliminarily enjoined construction of the highway over the historic site but declined to enjoin preliminary condemnation of the property prior to the trial. An appeal and cross-appeal from the granting and withholding of interlocutory injunctive relief ensued, and thereafter United States Circuit Judge John D. Butzner, Jr. granted an injunction pending appeal enjoining condemnation of the property pending trial and decision of the case on the merits.

Under the limited scope of appellate review of the granting and withholding of a preliminary injunction, we conclude that the district judge did not abuse his discretion in granting injunctive relief. However, we also conclude, for the reasons set forth by Judge Butzner in granting an injunction pending appeal, that the district judge abused his discretion in failing to grant all of the preliminary injunctive relief prayed by the plaintiffs.Accordingly, we affirm the order of the district court in part and reverse it in part, with directions to extend the preliminary injunction to prohibit defendants from condemning the subject property pending trial of the case.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.