Boyd v. Roland

No. 85-4448 (5th Cir. June 27, 1986)

The court, ruling on a petition for rehearing filed by landowner, vacated the lower court's order denying the preliminary injunction because the only ground on which the court clearly based its denial of injunctive relief was its erroneous interpretation of the NHPA. The court observes, however, that its action does not imply that an injunction should be granted, given the progress of construction since the May 14 decision.

Counsel are listed at 16 ELR 20860.

Before Gee and Rubin, JJ.

[16 ELR 20861]

Davis:

Boyd, in his application for rehearing, calls our attention to the fact that the retirement home has been cleared away but construction had not commenced on this site at the time the hearing was held in the district court. Neither had the HUD loan been finally closed. Consequently, Boyd may well be correct that HUD could have declined to close the loan at the time of the district court hearing. The district court made no finding on this fact and we are unable to say that the district court could properly have denied the claim for injunction on the ground of mootness.

The only ground on which the district court clearly bottomed its denial of injunctive relief was its interpretation of the National Historic Preservation Act. Because we have concluded that the district court's interpretation of that statute is erroneous, we vacate the order denying a preliminary injunction. By doing so, we do not imply that an injunction should now be ordered. To the contrary, at argument before this panel counsel for Boyd conceded that during the pendency of the appeal construction on the project had progressed substantially and Boyd did not seek an order requiring destruction of that construction. Since that time, construction has most certainly progressed further which makes denial of injunctive relief more compelling.

Except as stated above, the application for rehearing is DENIED.