Stockslager v. Carroll Elec. Co-op. Corp.

• Decision Date: 07 January 1976
• Docket Number: No. 75--1752,75--1752
• Citation: 528 F.2d 949
• Parties: 6 Envtl. L. Rep. 20,388 Mary STOCKSLAGER et al., Appellants, v. CARROLL ELECTRIC COOPERATIVE CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 949

528 F.2d 949

6 Envtl. L. Rep. 20,388

Mary STOCKSLAGER et al., Appellants, v. CARROLL ELECTRIC COOPERATIVE CORPORATION et al., Appellees.

No. 75--1752.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1975.

Decided Jan. 7, 1976.

John B. Hawley, Fayetteville, Ark., for appellants.

Appearance for Federal appellees was made by Walter Kiechel, Jr., Acting Asst. Atty. Gen., Dept. of Justice, Washington, D.C.

James F. Dickson, Fayetteville, Ark., for appellees.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

This action was brought by several land owners and the Arkansas Ecology Center to enjoin the construction of electric high voltage lines across or near the lands of some of the individual plaintiffs. The named defendant was Carroll Electric Cooperative Corporation, which was planning the construction of the line. In its complaint the plaintiffs alleged generally that the defendant cooperative was receiving federal funds for the project; that the project would adversely affect the environment and that the defendant had 'failed to include in its reports to federal agencies * * * a detailed statement concerning the environmental impact of the proposed action * * $.

After a motion to dismiss was filed on behalf of the defendants pointing out that 42 U.S.C. § 4332 placed the duty of filing environmental impact statements on 'all agencies of the Federal Government' rather than on the cooperative, the plaintiffs amended their complaint to include David A. Hamil, Administrator of the Rural Electrification Administration.

On September 2, 1975, two orders were entered. The first order dismissed the complaint of certain named plaintiffs against whom state condemnation proceedings had already been instituted by the cooperative on the grounds that 'in view of 28 U.S.C. Section 2283, this court is without jurisdiction of the subject matter of this action as to these plaintiffs.' ¹ The named plaintiffs thus dismissed filed a notice of appeal from that order.

On the same date Judge Williams entered an order conditionally granting a preliminary injunction against Carroll Electric Corporation as to constructing the 69 kilovolt line. The preliminary injunction was conditioned upon the posting of a $10,000 bond by the plaintiffs and further provided that the injunction 'shall not prohibit construction upon lands which are the subject of condemnation actions in the state courts of Arkansas on May 16, 1975.' This, again, was based on 28 U.S.C. § 2283 on the theory that the anti-injunction statute precluded the court from interfering with state court actions pending prior to the filing of this federal court action. Plaintiffs did not post the bond but appealed from those portions of the order relating to the bond and exempting the land of the plaintiffs already involved in condemnation actions.

Neither of the defendants cross-appealed so the validity of the injunction is not before us except as to the two conditions of the injunction heretofore described which are being challenged by the plaintiffs.

As to the appellants' first ground for appeal, the dismissal of several of the plaintiffs, the simple answer is that this court does not have jurisdiction to decide it. The dismissal of some of the plaintiffs, but not all, is not an appealable order in the absence of certification under Rule 54(b) of the Federal Rules of Civil Procedure. See Lane v. Graves, 518 F.2d 965 (8th Cir. 1975).

As to appellants' contention that the trial court should not have required a $10,000 bond we need only look to Rule 65(c) of the Federal Rules of Civil Procedure which provides as follows:

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. * * *

The amount of the bond rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion. Commonwealth of Puerto Rico v. Price Commission, 342 F.Supp. 1308, 1309--1310 (D.P.R.1972); 7 J. Moore & J. Lucas, Moore's Federal Practice 65--94--65--95 (2d ed. 1975). We find no such abuse here and agree that a bond of at least $10,000 should have been required under the circumstances of this case.

The last question raised in this appeal is less easily disposed of. The district court granted a preliminary injunction against further construction of the power line except as to those lands which were the subject of condemnation proceedings in the Arkansas state courts prior to this federal court action. The reason given for limiting the scope of the injunction was the anti-injunction statute, 28 U.S.C. § 2283.

The anti-injunction statute prohibits interference with state court proceedings, subject to certain narrow exceptions. ² The exception we are concerned with here, appearing on the face of section 2283, allows injunction of state court proceedings where 'expressly authorized by Act of Congress.' This exception was discussed in Mitchum v. Foster, 407 U.S. 225, 237--238, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). The Court stated that the statutory authorization need not expressly refer to section 2283 or expressly authorize injunction of state court proceedings. The question is whether the statute creates a federal right or remedy enforceable in a federal court of equity which can only be effectuated by injunction of the state court proceedings. We are satisfied that 42 U.S.C. § 4332 authorizes such an injunction.

42 U.S.C. § 4332(2)(C), the stated basis of the district court's preliminary injunction, requires that before taking any major action which may affect environmental quality the responsible federal agency must prepare an environmental impact statement for submission to the President, the Council on Environmental Quality and the public. This requirement creates substantive and procedural rights enforceable in a federal court of equity. See Environmental Defense Fund v. Froehlke, 473 F.2d 346, 350--351, 353, 356 (8th Cir. 1972); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973). In this case the plaintiffs seek to enforce these rights by requiring the Rural Electrification Administration to file an environmental impact statement in compliance with 42 U.S.C. § 4332 before authorizing federal loans to finance Carroll's project. The purpose of the statement is to insure consideration of the environmental consequences of the federal action, possible alternatives thereto which would have a less adverse effect, and reasons for the choice of the course of action in question; this...