10 ELR 20246 | Environmental Law Reporter | copyright © 1980 | All rights reserved
Committee for Charter Protection for Parks v. BrownNo. 80-0009 (S.D. Cal. February 14, 1980)
The court denies plaintiff's motion for a preliminary injunction against the taking by the Navy of 35 acres of park land in the City of San Diego for development into a medical center. Side-stepping plaintiff's argument that the environmental impact statement prepared for the project is deficient under the National Environmental Policy Act, the court rules that plaintiff has failed to show that it will suffer irreparable harm if the preliminary injunction is not issued. Because the Navy plans only minor testing at the site prior to the time at which a hearing on the merits could be held, the court finds that plaintiff has not met its burden of proof in this regard. Considering further the likelihood that a court-ordered delay in the project would significantly increase its cost and place the public health at risk, the court concludes that the motion must be denied.
Counsel for Plaintiff
Judith M. Copeland; William Schwartz Jr., Deputy County Council
360 Bank of California Plaza, 110 W. A St., San Diego CA 92101
Counsel for Defendants
Ronald G. Gluck, Gary W. Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
[10 ELR 20246]
This decision addresses a motion brought by a citizens group — comprised of The League of Women Voters of San Diego, The San Diego Chapter of Sierra Club, The American Society of Landscape Architects, The California Native Plant Society, and The Citizens Co-ordinate for Century Three — to enjoin the immediate taking of some 35 acres of land in Balboa Park which the Navy intends to use as a site for its New Regional Medical Center. Upon consideration of all of the papers filed by the parties and the issues raised at oral argument, and for the reasons set forth below, the court hereby denies the plaintiff committee's motion for a preliminary injunction.
In about 1973 the Navy commenced seeking a site for its new Navy Regional Medical Center (NRMC). The Navy had made a general determination that the site should be in San Diego, where it was already providing medical services to upwards of 400,000 people annually at its center in Balboa Park. The Balboa treatment facility had, however, become outdated to such an extent that it was no longer on a level with modern health and safety standards; its physical plant was also situated in such a way as to cause costly duplication of functions among the various departments. The problems with the Balboa facility became so acute that the Navy was in danger of losing its hospital accreditation. See Exhibit No. 5 of defendants' brief.
With these problems in mind, the Navy began evaluating several sites in the San Diego area. Those sites which were given the greater consideration were Murphy Canyon, Florida Canyon in Balboa Park, and Helix Heights in central San Diego. Sometime during 1974 the City of San Diego entered into negotiations with the Navy regarding the Florida Canyon site. The proposal which was eventually adopted by the City and the Navy was embodied in a memorandum of understanding (MOU), executed in September of 1977, which called for the Navy to acquire the land it needed in Florida Canyon in leasehold for a period of 50 years with an option to renew the lease for an additional 25 years. In return for a leasehold interest, the Navy was to trade a portion of the land it already owned in the park to the City in fee simple — the returned land to be restored to park conditions by the Navy. In March of 1978, the MOU was repudiated by a newly elected City Council.
Following the repudiation to the MOU, a proposal regarding the siting of the hospital in the Park was placed on the ballot as Proposition "D." Prop. "D" basically embodied the terms of the MOU. The City charter required that a 2/3 majority of the voting polity favor any transfer of its lands by the City. Prop. "D" did not obtain the 2/3 necessary to allow the City to convey the Florida Canyon property, although 61% of the voters favored transfer.
After the failure of the proposition, the Navy moved, at a hearing on January 28, 1980, to condemn the Florida Canyon property, seeking immediate possession for the purposes of doing preliminary soil testing, etc. That suit for condemnation is a separate action from the one involved herein, but it is collateral to the present suit and it is that taking by the Navy which the instant action seeks to enjoin on the basis of noncompliance with NEPA regulations.
The siting of the hospital has been a controversial issue, but during the process of public debate the Navy has apparently been working on their environmental impact statements (EIS) as they [10 ELR 20247] have evaluated potential sites. As early as the first part of 1976, the Navy gave substantial consideration to the Florida Canyon site. A concrete proposal to reconstruct the NRMC on a site in Florida Canyon adjacent to the existing facility was produced in late 1976. At about the same time, the Navy began work on an EIS. After over two years, a draft EIS (DEIS) was made available to the public. A public hearing was held on the DEIS in early 1979 and it underwent extensive revision before the final environmental impact statement (FEIS) was issued in October of 1979. The following month, the EPA determined that the FEIS adequately assessed the environment, responding to concerns raised by the draft. Finally, after considering the FEIS, and the comments to the FEIS, the Secretary of Defense determined, with the express approval of Congress, to proceed with the Balboa Park project.
The plaintiffs now contend that the 1979 determination to proceed was arbitrary, capricious, and without observance of the procedures required by law, notably the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, 4332(2)(C). It is their view that there was sufficient noncompliance with NEPA to warrant an injunction by this court preventing the taking of immediate possession of the Florida Canyon land by the Navy in a collateral action before this court.
There is no real question that cases involving a violation of NEPA can give rise to a preliminary injunction under some circumstances. See, e.g., Warm Springs Dam Task Force v. Gribble, 565 F.2d 549 [8 ELR 20065] (9th Cir. 1977).However, the cases where such an injunction will be granted are uncommon and a strict standard is utilized.
NEPA cases appear to require a stricter standard for preliminary injunctions than the standard which is traditionally applied to applications for preliminary injunctions in other types of cases in this circuit. Basically, the court has required that cases involving a violation of NEPA must filfill three requirements: (1) The movant must establish a strong likelihood of success on the merits; (2) The applicant must demonstrate that the balance of irreparable harm favors him; and (3) He must demonstrate that the public interest favors granting the injunction. See, e.g., Sierra Club v. Hathaway, 579 F.2d 1162 [8 ELR 20736] (9th Cir. 1978); King v. Saddleback School District, 425 F.2d 549 (9th Cir. 1964).
Much of the plaintiff's argument centers on demonstrating a likelihood of success on the merits. They have failed to carry the second prong of their burden to demonstrate that the balance of irreparable harm tips in their favor. Such a showing must be coupled with a showing of likelihood of success on the merits, even under the traditional standard for granting preliminary injunctions as described in Benda v. Grand Lodge Ass'n of Machinists, 584 F.2d 308 (9th Cir. 1978). The court in Benda required that the moving parties make a minimum showing of a fair chance of success on the merits coupled with a showing that the balance of hardships tips decidedly in the movant's favor. Benda, supra, at 315. Plaintiffs do not meet their burden of showing that the balance of irreparable injury is in their favor under either the Sierra Club or the Benda standard. The plaintiffs express concern with disturbing rare and valuable plant and animal life in the Canyon. They further express concerns about taking the land out of park use and irreversibly devoting it to an environmentally harmful use without proper consideration of the environmental impacts.
The Navy has stated, in affidavits and in open court, that they only wish to conduct preliminary testing on the Florida Canyon property prior to a trial on the merits of this case. That preliminary testing will involve approximately 25 soil borings, and some trenching work necessary to discover any faulting on the property. The Navy has represented that this work will be conducted in such a manner as to avoid disturbing the native flora and species of the Florida Canyon area. Thus, any substantial disturbance to the Florida Canyon area will not take place until after a trial on the merits; in the meantime, any minimal injury to the environment in Florida Canyon, during preliminary testing, appears to be outweighed by the harm to the Navy in not conducting their preliminary tests.
The Navy has expressed the need to conduct these tests immediately, so that they can budget specifications for Congressional budget hearings in the spring of 1980. These Congressional hearings will be to consider appropriations for construction in 1981. If the preliminary tests are not conducted soon, the project will be delayed for at least another fiscal year.This would result in endangering numerous patients who will be treated in the present substandard facility rather than a new facility. It will also result in a cost of approximately $50,000 a day for each day of delay. Thus, the harm to the Navy seems to outweigh those to the plaintiffs at this preliminary stage, since any irreversible harm which may occur to the Florida Canyon area through construction of the actual facility can be litigated when the merits of the EIS are litigated. In similar circumstances, the courts have found that the moving parties must show that irreparable harm is imminent and will occur prior to a ruling on the merits. Quechan Tribe of Indians v. Rowe, Sheriff of Imperial County, et al., 531 F.2d 408 (9th Cir. 1976).
In addition to the failure to show a balance of harm tipping in their favor, the movants fail to show that the public interest favors granting an injunction prior to testing. The concerns raised by the Navy, that people requiring care in the future may be forced to seek that care at a substandard facility because this project is delayed, present problems of grave moment for the public.
If the court grants a preliminary injunction, a new hospital could not be built until at least a year later than presently projected, even if the EIS is found to comply with NEPA. This loss to the community, along with additional tax monies which will be expended for each day of delay, must be weighed against the loss occurring from carefully conducted preliminary testing. Under these circumstances, the plaintiffs have not demonstrated that the public interest favors the granting of an injunction. Accordingly, the court denies the motion for a preliminary injunction. However, because of the reasonable concerns of the plaintiffs, the possession of the land in question will be granted subject to such conditions as can be agreed upon by the City and the Navy with the approval of the court. The court grants possession for the purpose of conducting preliminary tests, but such tests are to be subject to the supervision of the court given the Navy's representations with regard to minimizing damage to the native environment and protecting rare plant species.
10 ELR 20246 | Environmental Law Reporter | copyright © 1980 | All rights reserved