Sierra Club v. Lynn

Civil Action No. SA72CA77 (W.D. Tex. May 21, 1973)

The Secretary of Housing and Urban Development filed an adequate NEPA statement in conjunction with his approval of the construction of a development over an underground reservoir. The court retains jurisdiction in order to insure compliance with the safeguards imposed on the developers. Although the request for an injunction is denied, the court finds that by bringing the suit the plaintiff performed a valuable public service justifying an award of attorneys' fees to be paid by the defendant developer. Plaintiff's service as a private attorney general is analogous to that of a plaintiff in a civil rights suit and attorneys' fees are to be awarded unless there are specific reasons for denial.

Counsel for Plaintiff
Bruce J. Terris
1908 Sunderland Place N.W.
Washington, D.C. 20036

Counsel for Federal Defendants
Hugh Shovlin Assistant U.S. Attorney
Box 1701
San Antonio, Texas 78296

Counsel for Private Defendant
Siegel V. Wheatley
711 Navarro
San Antonio, Texas 78205

[3 ELR 20664]

Spears, C.J.

JUDGMENT AND ORDER

This Court has conducted a thorough, probing, in-depth review of the actions of the Secretary of Housing and Urban Development in this cause. In this connection, numerous pretrial conferences were held; more than fifty hours of testimony (comprising a transcript of 1920 pages) were recorded; a voluminous impact statement, including many exhibits, was reviewed; detailed and comprehensive briefs, together with the authorities therein cited, were studied; and several hours were devoted to the arguments of counsel for all parties.

Based upon the foregoing very substantial inquiry, and recognizing that the Secretary's decision is entitled to the presumption of regularity, and that this Court is not empowered to substitute its judgment for that of the Secretary, the conclusion has been reached, and the finding herein made, that the decision of the Secretary in this cause was neither arbitrary, nor capricious, nor a clear error of judgment, nor an abuse of discretion. On the contrary, the Court finds and concludes that the Secretary's decision, made after full consideration of all aspects of the problems involved, was in full compliance with the law. Similarly, the Court finds and concludes that the actions of HUD, including, but not limited to, its environmental impact statement, comply in all respects with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321, et seq; the Federal Guide Lines of the Council on Environmental Quality; the Urban Growth and New Community Development Act of 1970 (Title VII), 42 U.S.C.A. § 4501, et seq.; and the Water Pollution Prevention and Control Act Amendments of 1972, 33 U.S.C.A. § 1251, et seq.; and further, that Title VII is not unconstitutional.

It is of interest to point out that the proposals submitted by San Antonio Ranch, Ltd. have been approved not only by HUD, but also by the San Antonio City Council, the Texas Water Quality Board, and the Alamo Area Council of Governments. While none of those entities has changed its views, the County of Bexar and the Edwards Underground Water District, who comprise two of the sixteen members of AACOG, have intervened as plaintiffs in this suit. The other agencies, however, apparently remain convinced that if the special conditions and controls imposed upon the developer by HUD are followed implicitly, it is reasonably certain that no pollution originating on the ranch property will find its way into the Edwards aquifer, but that if, in the unlikely event that some pollutant, however slight, should reach the water table north of the Haby Crossing Fault, or enter into the artesian portion of the aquifer south of that fault, the monitoring wells scientifically placed above and below the fault will assure immediate detection and bring about a prompt correction.

This Court's concern about the Edwards Underground Reservoir was expressed on several occasions during the course of the trial, but it had to do primarily with the extensive portion of the recharge area that has no protection whatever. In contrast, it is significant that the exacting restrictions placed upon the San Antonio Ranch New Town in this case constitute the only meaningful attempt thus far, on the part of any governmental agency, to control the use of land over the recharge zone. It is axiomatic that neither individuals nor communities can exist in a vacuum. Ideally, it would be much more desirable if all residential and commercial development were prohibited over the entire recharge area, and the land converted into a closely supervised park or wildlife preserve. But, unfortunately, there is a serious question whether adequate enabling legislation exists to authorize any governmental agency to effect the remedies needed to accomplish anything of a constructive nature in that regard. As the situation now stands, the development of San Antonio Ranch under the supervision and control of the Department of Housing and Urban Development, pursuant to existing federal law, utilizes the only effective legal tools available for the protection of the aquifer, and certainly constitutes a giant step in the right direction. If the public could be assured that the remainder of the recharge zone in the northwest section of Bexar County, including that portion to be occupied by the University of Texas at San Antonio and its environs, will be subjected to controls similar to those governing San Antonio Ranch, then there would be little or no occasion for the deep concern felt for the future purity of the aquifer by this Court, and shared by others. Actually, however, the portion of the recharge area occupied by San Antonio Ranch constitutes only one-half of one percent to one percent of the total Edwards recharge zone. Unless something is done — and soon — by some responsible agency or agencies to eliminate the pollution in Medina Lake and the various streams presently flowing through the fourteen highly sensitive areas of recharge, it stands to reason that the Edwards aquifer is doomed, regardless of what happens in the recharge area of San Antonio Ranch. The time for action, rather than words, has long since passed.

Although this lawsuit primarily involved only the portion of the recharge zone to be occupied by San Antonio Ranch, the fact remains that the future of the whole Edwards Underground Reservoir could be at stake, unless adequate controls are instituted for the entire recharge area. Under the circumstances, this Court believes that it should retain jurisdiction of this cause for such period of time as may be necessary to insure that the safeguards imposed upon the San Antonio Ranch developers by HUD are fully instituted and implemented; that the monitoring procedures adopted are followed meticulously; and that the reports reflecting the status and results of all procedures being utilized are made a matter of public record, as and when they are available. By the same token, this Court should be kept advised by the Texas Water Quality Board and the Edwards Underground Water District, on a continuing basis, concerning the status and progress of the efforts being made by those agencies and others to protect the entire Edwards Underground Reservoir.

Accordingly, it is ORDERED by the Court that all relief prayed for by plaintiffs is hereby denied.

It is further ORDERED that, subject to the further orders of this Court, the defendant San Antonio Ranch, Ltd., shall file with this Court, the Texas Water Quality Board, the Edwards Underground Water District, the City of San Antonio, and the County of Bexar, copies of all data and reports required to be supplied to HUD pursuant to the General Development Plan and the project agreement between San Antonio Ranch, Ltd., and HUD, and HUD shall, in turn, file with the Court, the Texas Water Quality Board, the Edwards Underground Water District, the City of San Antonio, and the County of Bexar, copies of all comments thereon and responses thereto, including any and all suggestions, recommendations and ultimatums that may be furnished to the developer by HUD.

It is further ORDERED that, subject to the further orders of this Court, the Texas Water Quality Board and the Edwards Underground [3 ELR 20665] Water District, both of whom are parties to this lawsuit, shall, on or before July 1, 1973, and at intervals of not more than six months thereafter, file with this Court, as well as with the City of San Antonio and the County of Bexar, reports reflecting the status of any development taking place in the portion of the Edwards aquifer recharge zone located in Bexar County, including, but not limited to, the San Antonio Ranch and the University of Texas at San Antonio, as well as the immediate and long-range effect of such development upon the recharge zone and the underground reservoir, indicating what control measures, if any, are being instituted for the protection of the aquifer, and reflecting the status of any legislation, plans or proposals designed to protect the remaining portions of the recharge zone lying outside Bexar County, Texas.

This Court is firmly convinced that even though the plaintiffs may have, at this stage, technically lost this lawsuit, nevertheless, a very important service has been performed in creating a grater public awareness of the dangers of pollution threatening this very valuable natural resource. Therefore, if it is appropriate under the law to award attorneys' fees to certain of counsel for plaintiffs in order to compensate them for their services rendered herein, consideration will be given to doing so. Each attorney for plaintiff is directed to furnish to this Court and opposing counsel, within ten days from this date, a brief setting forth his position in this regard, citing the authorities upon which he relies, and pointing out, among other things, which of the plaintiffs' attorneys should be entitled to receive compensation, together with the amount to be paid to each, and the party or parties from whom payment should come. %defendants shall have ten days thereafter in which to respond.

This chall constitute a final judgment on the merits from which an appeal may be taken. However, in the meantime, this Court reserves the right to file a written opinion setting forth in more detail the basis upon which the decisions set forth herein were reached.

ORDER

On this the 28th day of June, 1973, came on to be considered the citizen plaintiffs' Brief in Support of Attorney's Fees filed pursuant to this Court's Judgment and Order of May 21, 1973, wherein it was stated.

This Court is firmly convinced that even though the plaintiffs may have, at this stage, technically lost this lawsuit, nevertheless, a very important service has been performed in creating a greater public awareness of the dangers of pollution threatening this very valuable natural resource [i.e., the Edwards Underground Reservoir]. Therefore, if it is appropriate under the law to award attorneys' fees to certain of counsel for plaintiffs in order to compensate them for their services rendered herein, consideration will be given to doing so. Each attorney for plaintiffs is directed to furnish to this Court and opposing counsel, within ten days from this date, a brief setting forth his position in this regard . . . . Defendants shall have ten days thereafter in which to respond.

Having reviewed the facts of this case and the briefs filed, as well as the authorities cited therein, this Court is now of the belief that attorneys' fees should be awarded to counsel for the citizen plaintiffs and paid by the defendant San Antonio Ranch, Ltd.

Defendant San Antonio Ranch, Ltd. (SAR) argues strenuously that "it is highly questionable whether this Court has the power to impose upon a prevailing adverse party the burden of reimbursing plaintiffs' attorneys' fees. . . ." It is SAR's position that, unless the award is provided for by either statute or contract, or unless the circumstances of the case indicate the presence of one of the three "well established exceptions to the American Rule" of generally denying attorneys' fees the award may not be made. This Court is in disagreement with such a hard-and-fast approach.

The three exceptions to the general rule that attorneys' fees are not ordinarily recoverable have been stated recently in La Raza Unida v. Volpe, 57 F.R.D. 94, 96 (N.D. Cal. 1972). The first is the "obdurate behavior" situation wherein the plaintiff is awarded fees because the defendant has been acting in bad faith. See Vaughan v. Atkinson, 369 U.S. 527, 530-531 (1962). The second general exception is the "common fund" situation which ensures that all beneficiaries to the litigation share in its expense. See Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). Finally, there is the "private attorneys general" situation under which plaintiffs are compensated for ensuring the effectuation of a strong Congressional policy. See Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970). However, this Court does not believe that a slight deviation from one of the established elements of any of the exceptions would, ipso facto, deprive the plaintiffs of an award should the trial court decide that equity dictates the award. With this reasoning the Supreme Court appears to be in complete agreement.As Mr. Justice Brennan recently stated for the Court in Hall v. Cole, U.S. , 41 U.S.L.W. 4658-4659 (May 21, 1973),

Although the traditional American rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require. Indeed, the power to award such fees "is part of the original authority of the chancellor to do equity in a particular situation," Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever "overriding considerations indicate the need for such a recovery." Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392 (1970), see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967).

After reviewing the facts here, this Court is of the belief that the position of the citizen plaintiffs is analogous to that of a plaintiff in a civil rights suit, wherein it has been concluded that attorneys' fees should be awarded unless the trial court can articulate specific reasons for a denial. See Cooper v. Allen, 467 F.2d 836, 841 (5th Cir. 1972); Lee v. Southern Home Sites Corp., 429 F.2d 290, 296 (5th Cir. 1970). In Lee, Judge Coleman stated,

There is ample authority, outside the civil rights area, to support the proposition that the allowance of attorneys' fees and expenses of preparation for trial is in the discretion of the district court sitting in equity where exceptional circumstances call for their allowance in order to do justice between the parties, as well as in the more traditional situations where the allowance of attorneys' fees is provided for by statute or contract. In the area of civil rights, many cases have either allowed or implicitly recognized the discretionary power of a district judge to award attorneys' fees in a proper case in the absence of express statutory provision and especially so when one considers that much of the elimination of unlawful racial discrimination necessarily devolves upon private litigants and their attorneys and the general problems of representation in civil rights cases.

429 F.2d at 295 [citations omitted].

As in the civil rights area, the burden of assuring full compliance with the national environmental policy, as expressed by Congress through the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321, et seq., has fallen upon concerned citizens. The mere fact that there is no provision in the statute for the awarding of attorneys' fees will not be viewed as a bar to such an award. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 390-391 (1970).

In this case, not only can no specific and justifiable reasons be articulated for the denial of attorneys' fees, but this Court is of the firm belief that equity dictates the award. At the commencement of this suit, on February 23, 1972, comparatively little of the information subsequently made public had been made available to the general citizenry. Although the "Final Environmental Statement" was circulated for public comment on January 20, 1972, and HUD's offer of commitment was made on February 23, 1972 (the same day suit was filed), this Court, in its Order To Hold Case In Abeyance of March 14, 1972, saw fit to state as point No. 7,

In view of the fact that defendants agree that the existing "Final Environmental Impact Statement" is not in truth and in fact a "final" statement as contemplated by law, and [3 ELR 20666] that additional information required by law needs to be furnished, there is no necessity for this Court to order that the existing statement be withdrawn, but only to require that any environmental impact statement ultimately relied upon satisfies the requirement of finality as used in the legal sense.

Over the months that followed, many studies and hearings were conducted which inquired into the feasibility of the SAR Project and what, if any, adverse effects it might have upon the Edwards Underground Reservoir. It was during this period that Dr. Henry V. Beck's "Evaluation of Water Quality Studies on San Antonio Ranch, New Town", a report relied upon heavily by the defendants, was published, and the studies on storm water runoff conducted by Dr. W. H. Espey, Jr., were performed. In addition, the four meetings of the San Antonio Ranch Water Quality Advisory Review Board were held during the summer of 1972. In light of the reams of material published after this Court's Order of March 14th, it is difficult to conclude that the filing of the suit did not help to ensure that adequate precautions would be taken to protect South Texas' very valuable water resource and that the measures taken would be made available to the scrutiny of the public eye.

Finally, although this Court would like to spread the cost of the award equally between San Antonio Ranch. Ltd., and HUD, it finds that, by congressional mandate, it is prohibited from doing so. See 28 U.S.C.A. § 2412.

It is, therefore, hereby ORDERED that the citizen plaintiffs recover reasonable attorneys' fees from the defendant San Antonio Ranch, Ltd., the amount of such award to be determined at a hearing to be held on a date to be set after conferring with counsel.

Bexar County and the Edwards Underground Water District have waived any right to claim attorneys' fees, and the Court finds that no attorneys' fees are recoverable against the defendant James T. Lynn, Secretary of Housing and Urban Development.

Entered this 28th day of June, 1973, at San Antonio, Texas.