Wisconsin Heritages, Inc. v. Harris

• Decision Date: 05 June 1980
• Docket Number: No. 78-C-632.,78-C-632.
• Citation: 490 F. Supp. 1334
• Parties: WISCONSIN HERITAGES, INC., a Wisconsin Corporation, Plaintiff, v. Patricia HARRIS, Secretary, United States Department of Housing and Urban Development, Ronald Gatton, Regional Director Region 5, United States Department of Housing and Urban Development, John Kane, Milwaukee Area Director, United States Department of Housing and Urban Development, Redevelopment Authority of the City of Milwaukee, and Marquette University, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

490 F. Supp. 1334

WISCONSIN HERITAGES, INC., a Wisconsin Corporation, Plaintiff, v. Patricia HARRIS, Secretary, United States Department of Housing and Urban Development Ronald Gatton, Regional Director Region 5, United States Department of Housing and Urban Development John Kane, Milwaukee Area Director, United States Department of Housing and Urban Development, Redevelopment Authority of the City of Milwaukee, and Marquette University, Defendants.

No. 78-C-632.

United States District Court, E. D. Wisconsin.

June 5, 1980.

Daniel J. Steininger, Ebert & Ebert, and William H. Lynch, Milwaukee, Wis., for plaintiff.

Joan F. Kessler, U. S. Atty., Milwaukee, Wis., for defendants Harris, Gatton and Kane.

Janet Geronime, Arnold P. Anderson, Ray J. Aiken, Milwaukee, Wis., for Marquette University.

Michael A. I. Whitcomb, James E. Fitzgerald, Asst. City Attys., Milwaukee, Wis., for Redevelopment Authority.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

This action is before me on the motion of the plaintiff for leave to file a supplemental pleading and on the motion of Marquette University for summary judgment. The plaintiff's motion will be denied, Marquette's motion will be granted, and this action will be dismissed.

I. BACKGROUND

The plaintiff filed this action alleging that the defendants failed to comply with several federal and state environmental and historic preservation laws in connection with the contemplated demolition of the Elizabeth Plankinton mansion. The plaintiff, Wisconsin Heritages, Inc., is a nonprofit Wisconsin corporation organized, in part, to preserve buildings of architectural and historical value. The defendants include various officials of the United States Department of Housing and Urban Development (collectively referred to herein as "HUD"), the Redevelopment Authority of Milwaukee (RAM), and Marquette University. HUD is responsible for administering federal assistance to urban renewal programs; it had previously agreed to pay for the demolition of the mansion. RAM is responsible for preparing and implementing urban renewal plans for the city of Milwaukee. Marquette is the present owner of the land on which the Elizabeth Plankinton mansion is located.

The plaintiff's amended complaint, filed October 12, 1978, alleges seven causes of action. The plaintiff's first cause of action alleges that HUD failed to comply with the requirements of the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq., Executive Order 11593, and regulations promulgated by the Advisory Council on Historic Preservation, 36 C.F.R. § 800.1 et seq., before approving federal financial assistance for the demolition of the building. The second through fifth causes of action allege that HUD and RAM failed to prepare an environmental impact statement with regard to the expenditure of federal funds for the mansion's demolition and otherwise failed to comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. and HUD regulations implementing NEPA. The sixth and seventh causes of action allege violation of the Wisconsin Historic Preservation Program, § 44.22, Wis. Stats., and the Wisconsin Environmental Protection Act, § 1.11, Wis.Stats.

On November 17, 1978, I entered an order preliminarily enjoining the defendants HUD and RAM from authorizing or permitting the demolition of the Elizabeth Plankinton mansion. 460 F.Supp. 1120. I also affirmatively enjoined HUD to conduct an environmental review procedure and to prepare an environmental impact statement (EIS) pursuant to the provisions of 42 U.S.C. § 4332. I further ordered that RAM's motion to dismiss counts six and seven of the complaint be granted.

On February 13, 1979, HUD disseminated its draft EIS to various state and federal governmental agencies and the public. HUD requested comments regarding the draft EIS from sixteen federal agencies, six state agencies, four county agencies, six city agencies and various private parties, including the plaintiff in this case. The formal period for public comment ran until April 23, 1979. No requests for an extension of the period were received by HUD.

On June 7, 1979, HUD filed with the court its final EIS, which made the following recommendations with regard to HUD's funding of the mansion's demolition:

"It is our opinion that HUD assistance to the proposed action would result in environmental impacts which are significantly adverse and therefore considered unacceptable under HUD environmental policies and standards. Therefore, HUD selects alternative 3.210 No Federal action. This alternative is chosen in view of the possibility of relocation.

"HUD will review this decision in six months of the date of this FEIS. It is expected that HUD will receive evidence of financial commitment to relocate the Plankinton House along with a workable relocation and continued maintenance plan.

* * * * * *

"In the event conditions specified above are not received within the six month period, HUD will select revised alternative 3.230(a)(b) Project as Proposed with Modification . . ."

In the final EIS § 3.230, "Project as Proposed with Modification," provided:

"a. Prior to demolition, accomplish adequate documentation of the interior and exterior of the Plankinton House, in accordance with the standards of the Historic American Building Survey.

"b. Prior to demolition, remove, store and preserve such fixtures, attachments, equipment accommodations and accoutrements of the original structure as have special historical, cultural or artistic significance or value that can practically be detached, removed, stored and preserved for re-installation."

Subsequent to the court's entry of a preliminary injunction in this case, efforts were made by various parties to secure financing for the relocation of the mansion. On September 11, 1979, I entered an order modifying the terms of the previously entered injunction, setting specific dates by which the injunction would be vacated. 476 F.Supp. 300, 302. That order stated in part:

". . . that if prior to March 1, 1980, contracts are entered into between the Redevelopment Authority of Milwaukee and a qualified person or corporation which provide for the removal of the Elizabeth Plankinton mansion from its present site on or prior to August 31, 1980, the preliminary injunction pending in this case will be vacated upon the removal of the mansion from its present location.

"IT IS FURTHER ORDERED that in the event such contracts are not entered into by March 1, 1980, then the preliminary injunction presently in effect will be vacated on that date." 476 F.Supp. at 303.

The reason for the court's entry of the above order is pertinent to the motions currently at bar. At the time of the September 11, 1979, order, HUD had already filed the EIS required by the injunction in this case. With that requirement fulfilled, Marquette arguably could have sought dissolution of the injunction then in effect. See 460 F.Supp. at 1127. Instead, however, Marquette agreed to the extension of the injunction provided by the above order. It was based on the consent of the parties that the court entered the order. 476 F.Supp. at 301. A promise made by the plaintiff apparently induced Marquette's consent to the extension. The promise is reflected in a letter from the plaintiff's counsel to Marquette's counsel, dated July 24, 1979, which stated in part:

"The purpose of this letter is to confirm our telephone conversation of July 24, 1979. It is my understanding that the date March 1, 1980 suggested by me on behalf of Wisconsin Heritages, Inc. relates to the date by which a firm binding commitment shall have been made by a qualified person or corporation to remove and restore the Elizabeth Plankinton Mansion. It is my understanding that should no firm commitment be made by that date the preliminary injunction would be dissolved and Wisconsin Heritages, Inc. would have no further role to play through the court in the disposition of the Elizabeth Plankinton Mansion. This position, of course, does not bind in any way the Redevelopment Authority in determining what course it would take should no commitment be forthcoming." (emphasis added).

As of March 1, 1980, no commitment had been made providing for the removal of the mansion. Thus, under the terms of the court's order of September 11, 1979, the injunction was vacated on March 1, 1980. The plaintiff has now made a motion for leave to file supplementary pleadings and Marquette University, with the support of the other defendants, has moved for summary judgment.

II. MOTION FOR LEAVE TO FILE SUPPLEMENTARY PROCEEDINGS

In its proposed supplementary complaint, the plaintiff attacks HUD's draft and final EIS. Specifically, the plaintiff alleges that HUD failed to consider adequately the alternative of rehabilitation and reuse of the mansion on its present site by parties other than Marquette, and that HUD failed to follow the provisions of the National Historic Preservation Act, Executive Order 11593 and regulations of the Advisory Council on Historic Preservation found in 36 C.F.R. § 800 et seq.

Rule 15(d), Federal Rules of Civil Procedure, provides in pertinent part:

"Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."

While leave to file supplemental pleadings should be liberally granted where such pleadings will help avoid piece-meal litigation, "if the moving party is guilty of inexcusable delay or laches, the supplemental pleading will not be permitted." 6 Wright & Miller, Federal Practice & Procedure, § 1510. The proposed filing of the plaintiff's supplemental complaint is untimely in two senses, and thus its filing cannot be permitted.

The procedure set up under NEPA for the preparation...