Beaucatcher Mountain Defense Association v. Coleman

No. A 75-112 (W.D.N.C. December 12, 1975)

The court refuses to dismiss an action challenging the opening of a cut through Beaucatcher Mountain near Asheville North Carolina for freeway construction, but denies plaintiffs' motion for preliminary injunctive relief. Plaintiffs clearly have standing since members of their association live on or visit the mountain and appreciate its natural beauty. The suit, which alleges that defendants' compliance with NEPA was only perfunctory with no sincere intent to evaluate the environmental consequences of the project, also clearly states a claim upon which relief can be granted. In view of the strong policy set forth in NEPA, the court rules that this suit should not be barred by laches, even though it was filed three years after the challenged environmental impact statement was prepared. The court denies plaintiffs' motion for a preliminary injunction, however, because they have made no "strong" showing that they are likely to prevail on the merits of their contention that the EIS fails to consider alternatives, noise impacts and economic, social and cultural effects. The court distinguishes Arlington Coalition on Transportation v. Volpe, City of Davis v. Coleman and Lathan v. Brinegar, because there has been here at least prima facie compliance with NEPA's procedural requirements. Furthermore, the harm plaintiffs will suffer in the two months before trial in the absence of injunctive relief does not balance with the harm that defendants and the public will suffer by further delay in the highway project. Plaintiffs are also mistaken in asserting that an additional public hearing on the EIS is required.

Counsel for Plaintiffs
Norman B. Smith
Michael K. Curtis
Smith, Carrington, Patterson, Follin & Curtis
704 Southeastern Building
Greensboro NC 27401
(919) 274-2992

Prof. Thomas J. Schoenbaum
University of North Carolina Law School
Chapel Hill NC 27514
(919) 933-5106

Counsel for Defendants
Keith S. Snyder, U.S. Attorney
P.O. Box 132
Asheville NC 28802
(704) 258-2850 ext. 655

James B. Richmond Spec. Deputy Attorney General
P.O. Box 25201
Raleigh NC 27611
(919) 829-3377

[6 ELR 20198]

Jones, J.:

MEMORANDUM AND ORDER

THIS ACTION arises under the National Environmental Policy Act (NEPA), 42 U.S.C.A. §§ 4321 et seq., and the Federal Highway Act, 23 U.S.C.A. §§ 101 et seq. The plaintiffs seek to obtain judicial review of the defendants' decision to build a six lane divided freeway from U.S. Highway 70 to the East-West Expressway in Asheville in such a way as to require an open cut through Beaucatcher Mountain. The matter is now before the court upon the Plaintiffs' Motion for a Preliminary Injunction, and upon the Defendants' Motion to Dismiss.

A hearing on these Motions was held on November 10, 1975 in Asheville. After a careful examination of the pleadings, briefs, affidavits, exhibits, and oral arguments, the court now enters its findings and conclusions.

The court must first determine whether the Defendants' Motion to Dismiss should be allowed. After a thorough study of the arguments and controlling law, this court finds that this Motion must be denied.

The defendants moved to dismiss on the grounds that: (1) The plaintiffs have failed to state a claim upon which relief can be granted; (2) This court lacks jurisdiction over the subject matter of the Complaint; (3) This court lacks personal jurisdiction over the parties; (4) The plaintiffs lack standing to litigate this action; (5) The plaintiffs' action is barred by laches.

First, the allegations which the plaintiffs set forth do state a cause of action upon which relief can be granted. Certainly the plaintiffs are entitled to relief if they prove that the defendants' compliance with NEPA was only perfunctory with no sincere intent to evaluate the environmental consequences of the project.

Second, it is also clear that the plaintiffs have standing to assert their cause of action. Generally, to have standing a plaintiff must have suffered an "injury in fact" as a consequence of the federal agency action, and must come within the "zone of interest" sought to be guaranteed by the statute in question. Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). However, in environmental cases it is only necessary to show "an injury in fact" to have the requisite standing. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). Furthermore, this "injury in fact" is not confined to those who show economic harm, since aesthetic and environmental well being, like economic well being, are important ingredients of quality of life in our society. SCRAP, supra.

As shown in the SCRAP case, this "injury in fact" can be very attenuated. There the plaintiffs alleged that the extension of the surcharge on freight rates would discourage the recycling of products and encourage the use of natural resources which would thereby raise prices to them. On this basis the Supreme Court found the plaintiffs had standing to bring the lawsuit. In addition, the Fourth Circuit has found standing where the development of private land would affect public land. Conservation Council of N.C. v. Costanzo, 505 F.2d 498 (4th Cir. 1974).

In the case at bar, the plaintiffs allege that members of their association live on the mountain and in the vicinity of the mountain. They further allege that their members visit the mountain and appreciate its natural beauty. A liberal interpretation of the pleadings shows that the private property of the members of the organization may suffer an "injury in fact" if the open cut is made. This court is of the opinion that these allegations are sufficient to meet the liberal standing requirements set out by the Supreme Court.

As to the other issues, the Fourth Circuit decision in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), is dispositive. First, it is clear from Arlington that suits such as this one involve a federal question upon which federal jurisdiction rests. Furthermore, that case found there was personal jurisdiction over the United States Secretary of Transportation as well as the Commissioner of the Virginia Department of Highways. On page 1329 of that opinion Judge Craven said, ". . . [F]ederal jurisdiction over such state action is essential to preserve federal question jurisdiction . . ." Therefore, dismissal cannot be granted upon these grounds.

Finally, the court reaches the issue of whether this action is barred by the equitable doctrine of laches. In City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975), it was said:

. . . Laches requires more than delay; it requires a lack of diligence. . . . An indispensable element of lack of diligence is knowledge, or reason to know, of the legal right, assertion of which is 'delayed.' (Citations omitted).

The present case taxes the limits of this language. This suit comes some five years after NEPA became effective and some three years after the environmental impact statement (EIS) was prepared. Although other cases have been liberal in denying dismissals on the basis of laches, none have faced the extreme lapse of time presented in this case. See Coleman, supra, Arlington, supra, and Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974). The court recognizes that this lapse of time raises serious questions as to the diligence of the plaintiffs. However, due to the nature of the action involved, and the policy set forth in NEPA, this court finds that this suit should not be barred by laches.

Therefore, the Defendants' Motion to Dismiss should be denied on the above grounds, and the court must proceed to consider the Plaintiffs' Motion for a preliminary injunction.

In support of their Motion, the plaintiffs contend that the defendants have failed to "sufficiently" consider and study the one tunnel and two tunnel alternatives to the open cut. They admit that the environmental impact statement (EIS) mentions these alternatives, but it is their contention that the defendant's discussion of these alternatives is cursory, and based on invalid data. In support of this contention, the plaintiffs have offered the affidavits of [6 ELR 20199] various experts which contradict the cost figures and environmental data set forth in the EIS.

Secondly, the plaintiffs contend that the EIS does not "fully" discuss the economic, social, and cultural environmental effects of the project. They rely upon the case of Brooks v. Volpe, 350 F. Supp. 269 at 277 (W.D. Wash. 1972), aff'd, 487 F.2d 1344 (9th Cir. 1973), for the proposition that an EIS must be "reasonably detailed." It is the plaintiffs' contention that the defendants' EIS is based upon self-serving, conclusory statements which fail to meet the requirements of Brooks.

Thirdly, the plaintiffs contend that there has been no public forum at which the NEPA-required EIS as a basis for the hearing. It is their contention that the Code of Federal Regulations requires both a "corridor hearing," and a "design hearing." They allege that these hearings took place in 1966 and 1967 before the requirements now specified in NEPA became effective. It is also their contention that the case of Lathan v. Brinegar, supra, makes these new laws applicable to corridor and design hearings conducted prior to the passage of these laws as long as final federal approval (PS&E approval) has not been given at the time the new laws and regulations are put into effect. The plaintiffs argue that a new hearing is required because the defendants have failed to hold a public hearing at which the EIS was properly discussed.

Finally, the plaintiffs argue that the defendants have given inadequate consideration to the noise impacts of the project in violation of NEPA and the Federal Aid to Highways Act, 23 U.S.C. § 109(i). It is their contention that no quantitative measurements or predictions relating to noise were made, and that the case of I-291 Why? Association v. Burns, 372 F. Supp. 223 (D. Conn. 1974), aff'd 517 F.2d 1077 (2d Cir. 1975), supports their Motion for injunctive relief on this ground.

The plaintiffs rely heavily upon the case of Arlington Coalition on Transportation v. Volpe, supra, Lathan v. Brinegar, supra, and City of Davis v. Coleman, supra, to support their contention that the above allegations justify the issuance of a preliminary injunction in this case.

In response, the defendants contend that the plaintiffs fail to meet the necessary requirements for a preliminary injunction as set forth in Conservation Council of N.C. v. Costanzo, supra. The defendants also contend that the public hearings that were conducted met the requirements of the law. They allege that public hearings were properly advertised and held on October 12, 1966, December 7, 1967, and September 28, 1972, and that the latter two hearings involved discussion of the open cut. It is their position that numerous hearings on the same project are not required, citing Lathan v. Brinegar, supra. Finally, the defendants contend that their EIS is in compliance with NEPA, and that they did properly study and consider the alternatives. Furthermore, it is their position, in reliance upon Atlantic Refining Co. v. FTC, 381 U.S. 357, 85 S. Ct. 1498 (1965), that such an administrative decision as the one under consideration is reviewable only if the officials acted in an arbitrary or capricious manner or in a manner contrary to the law. The defendants argue that their actions were in good faith and in accordance with the law, and therefore a preliminary injunction should not issue. They rely upon the case of Fayetteville Area Chamber of Commerce v. Volpe, 7 ERC 1973 (4th Cir. May 5, 1975) to support their argument.

It is clear that the granting or denying of a motion for a preliminary injunction, pending final determination on the merits, is ordinarily within the sound discretion of the district court. Prendergast v. New York Telephone Company, 262 U.S. 43, 43 S. Ct. 466 (1923): Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94, 96 (4th Cir. 1950). It is equally clear that the awarding of an interlocutory injunction by courts of equity is not a matter of right even though irreparable injury may otherwise result to the plaintiff. Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660 (1944); Scripps-Howard Radio v. Federal Communications Comm'r, 316 U.S. 4, 10, 62 S. Ct. 875 (1942); First Citizens Bank and Trust Company v. Camp, 432 F.2d 481 (4th Cir. 1970). In exercising its discretion in deciding whether to stay the execution of an administrative agency's decision, a court is required to consider four factors:

1. Has the petitioner made a strong showing that he is likely to prevail on the merits? (Emphasis added).

2. Has the petitioner shown that without such relief he will be irreparably injured?

3. Would the issuance of a preliminary injunction harm other parties interested in the proceeding?

4. Would the public interest be served by issuing such an injunction?

First Citizens Bank & Trust Company v. Camp, supra; Conservation Council of N.C., supra.

When the case at bar is measured against these critical questions, it becomes apparent that a preliminary injunction should not issue.

First, there has been no "strong" showing that the plaintiffs are likely to prevail on the merits. The plaintiffs' reliance upon Arlington, Lathan, and Coleman is misplaced, for there is a glaring distinction between those cases and the case at bar. In Arlington and Coleman no EIS had been prepared when the federal action was instituted, and in Lathan, no EIS was prepared before the public hearing was held. Furthermore, Arlington dealt with the issue of the retroactivity of NEPA and not with the substance of the procedures followed. In comparison, the defendants in this case agree that the NEPA standards apply to an ongoing project such as this one, but it is their contention that they have met these requirements. On January 3, 1972 these defendants prepared an EIS which they contend meets the NEPA standards. A public hearing, at which the aspects of this EIS were open for discussion, was held on September 28, 1972. Therefore, there has been at least a pro forma compliance with the procedural aspects of the statute in that the State Highway Commission has held the appropriate hearings, or has afforded the opportunity for such hearings.

This leaves the plaintiffs in the position of attacking the substance of these procedures, and thereby imposes upon them the burden of showing these officials acted in an arbitrary or capricious manner or in a manner contrary to the law. Environmental Defense Fund v. Corps of Eng., U.S. Army, 470 F.2d 289 (8th Cir. 1972); Calvert Cliffs' Coord. Comm. v. AEC, 449 F.2d 1109 (U.S. App. D.C. 1971); Town of Groton v. Laird, 353 F. Supp. 344 (D. Conn. 1972). The presence of this burden alone weighs heavily against a "strong" showing that the plaintiffs will prevail. In addition, it has been said that a substantial dispute as to the facts may furnish a strong reason to deny relief. DOBBS, REMEDIES. p. 109 (1973). In the present case, such a substantial dispute exists over the content of the EIS. Therefore, the factual allegations alone appear compelling enough to deny relief.

Secondly, the plaintiffs have not shown that they will be irreparably injured if injunctive relief is denied at this point. They rely principally upon the Arlington case for the proposition that any further investment of time, effort, or money in the proposed open cut would make alteration or abandonment of the route increasingly less wise and thereby contend they are irreparably injured. It cannot be disputed that further investment in the project makes abandonment less wise, but again the glaring distinction of Arlington appears. The project in Arlington was enjoined ". . . pending preparation and consideration of the environmental report." Arlington, p. 1334. In this case, the EIS has been prepared and a subsequent public hearing has been held. Therefore, the posture of this case is much different than that in Arlington, and leads to the consideration of the next question, "Would other parties be harmed by the issuance of a preliminary injunction?"

As pointed out earlier, the requirements under NEPA went into effect in 1970, and in 1972 these defendants prepared an EIS and held a subsequent public hearing at which time this EIS was open for discussion. In August of 1975 these plaintiffs filed this lawsuit seeking to enjoin this open cut project. Although this court has generously held that these plaintiffs are not barred in this action by the doctrine of laches, it certainly appears that from 1970 until 1975 they existed in apathetic bliss until the roar of the 'dozer stampeded them to the courthouse door. The irreparable harm they will suffer in the next two months before trial, if an injunction fails to issue, does not balance with the harm that these defendants and the public will suffer by further delay in this project.

The NEPA requirements impose a trusteeship upon the federal government to preserve the environment for future generations, and set forth certain procedural safeguards to insure the fulfillment of this fiduciary duty. Arlington p. 1333. However, when there is a prima facie compliance with these procedural safeguards, there must come a point when the public interest requires the project to proceed in order. These plaintiffs have a right to attack the [6 ELR 20200] substance of this EIS and the substance of these procedures. However, this court is of the opinion that this action, three years after the courts have been open to hear such an attack, will not justify a injunction. Otherwise, a filbuster of legal actions, challenging an EIS or the substance of a hearing, could effectively close a project for years. Therefore, it is clear that an injunction would injure the defendants and the public at large in this case.

The above discussion sufficiently answers the final question of where the public interest lies. The public has a very great and compelling interest in seeing the environment preserved. Likewise, it has a similar interest in seeing public projects implemented expeditiously. In balancing these interests, this court finds that the point has been reached where the public interest is better served by allowing this project to continue.

In conclusion, it appears to this court that the plaintiffs have failed to meet any of the criteria necessary to justify the issuance of a preliminary injunction. Furthermore, it is clear that the failure to meet only one of these requirements calls for the denial of Plaintiffs' Motion. Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). A preliminary injunction is an extraordinary remedy and a harsh one, for it results in inhibiting one's freedom of action. The plaintiffs in this case have failed to satisfy this court that such a remedy is necessary or proper in this case.

IT IS, THEREFORE, ORDERED that the Defendants' Motion to Dismiss, and the Plaintiffs' Motion for a Preliminary Injunction be and the same are hereby denied. The clerk is directed to send a copy of this Memorandum and Order to the attorneys for the parties.