Brandon v. Pierce, 82-2019

Decision Date12 January 1984
Docket NumberNo. 82-2019,82-2019
Citation725 F.2d 555
Parties, 14 Envtl. L. Rep. 20,185 Herbert Earl BRANDON and Iva Marie Brandon, Plaintiffs-Appellants, v. Samuel R. PIERCE, Secretary of Housing and Urban Development, and the City of Stilwell, Oklahoma, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Victor Law Ellis, Tulsa, Okl., for plaintiffs-appellants.

Maria A. Iizuka, Atty., Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Washington, D.C., Gary L. Richardson, U.S. Atty., Mark F. Green, Asst. U.S. Atty., Muskogee, Okl., Robert L. Klarquist, Atty., Dept. of Justice, and Carolyn B. Lieberman, Asst. Gen. Counsel for Litigation, and Edward G. Weil, Atty., Dept. of Housing and Urban Development, Washington, D.C., of counsel, were also on the brief), for defendants-appellees, The Secretary of Housing and Urban Development.

Jack E. Rider, Stilwell, Okl., for defendant-appellee, City of Stilwell.

Before HOLLOWAY and LOGAN, Circuit Judges, and ARRAJ, * District Judge.

HOLLOWAY, Circuit Judge.

This controversy stems from an Urban Development Action Grant (UDAG) that would expand a city-owned sewage treatment facility onto property owned by Herbert and Iva Brandon. The Brandons brought suit in the district court, seeking injunctive and declaratory relief against the Secretary of Housing and Urban Development (HUD) and the City of Stilwell, Oklahoma. The Brandons alleged that HUD had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., and the Housing and Community Development Act of 1974 ("HCDA"), as amended, 42 U.S.C. Sec. 5301 et seq., by failing to prepare an Environmental Impact Statement (EIS) prior to approving the UDAG Grant for the City of Stilwell. The Brandons also alleged that HUD had unlawfully delegated NEPA review responsibilities to the City, and that the City had failed to comply with a variety of procedural requirements mandated by HUD and Council of Environmental Quality (CEQ) regulations. The district court denied relief, and the Brandons appealed. We affirm.


On June 5, 1979, the City of Stilwell submitted its application for a UDAG grant to the Area Office of HUD in Oklahoma City, Oklahoma, and to HUD's central office in Washington, D.C. The application requested $3,888,000 in UDAG funds to increase the capacity of city water treatment and waste water treatment plants and to install new distribution lines. The purpose of these improvements was to provide sufficient water treatment capacity to permit Hudson Foods, Inc., to construct and equip a feedmill, a chicken hatchery, and a broiler processing plant. Under the application, Hudson Foods, Inc. would spend $14,200,000 of its own funds to construct and equip the chicken processing facilities. It was estimated that the chicken processing plant would provide over 900 permanent jobs to residents of the Stilwell area.

The application stated that the existing sewage treatment plant would have to be expanded by two million gallons per day, and that to accommodate the expansion three additional acres would have to be acquired. The expected date for acquiring the land was November 30, 1979.

The application contained the City's certification that it had conducted an Environmental Assessment and determined that there was to be no significant impact on the environment, that the assessment had been cleared by the area planning agencies reviewing the proposal, and that the finding would be officially published and circulated in June 1979.

Prior to submitting the application, the Stilwell city council had held meetings on May 17 and May 21, 1979, pursuant to notices published in the Stilwell Democrat Journal on May 10 and May 17, 1979. The purpose of these meetings was to satisfy HUD Citizen Participation requirements and the City's Citizen Participation Plan.

On June 14, 1979, the City published its "Notice of Finding of No Significant Effect on the Environment" in the Stilwell Democrat Journal, and circulated the notice to private organizations and government agencies. The notice advised the public of the City's finding, and of the reasons why the finding was made. It stated that the Environmental Review Record, which included the City's Environmental Assessment prepared by the Max Holloway Engineering Co., was available for public inspection. It invited public comments, and stated that any comments received up to and including June 28, 1979, would be considered. The City advised HUD that no comments were received in response to the notice.

On June 28, 1979, the City published a "Notice of Request for Release of Funds" in the Stilwell Democrat Journal, stating that the City intended to request release of funds from HUD, and that HUD would accept objections until July 24, 1979. It again stated that the Environmental Review Record was available for examination by the public. The Area Office received no objections.

At the time the June 14 and 28, 1979, notices were published, the Brandons resided in California, but owned a 5.5 acre tract adjoining the city limits of Stilwell and located near the city-owned sewage treatment facility. The Brandons did not receive direct notice by mail of the contents of the June 14 and 28 notices. They were subscribers to the Stilwell Democrat Journal.

HUD granted preliminary approval of the City's proposal on August 31, 1979, and released funds for the grant on December 17, 1979. HUD did not receive or review a copy of the City's Environmental Assessment prior to approval of the grant, nor did it prepare its own independent EIS regarding the project.

The Brandons retired and returned to Stilwell to live in April 1980. On September 3, 1980, they received a letter from the city attorney, Jack Rider, notifying them that the City was involved in a project to enlarge its sewer capacity and that the project necessitated the acquisition of a portion of property belonging to them. Plaintiffs' Exhibit 10. After the Brandons rejected an offer to purchase three acres of their property, the City filed condemnation proceedings in the District Court of Adair County, Oklahoma. On an appeal taken by the Brandons from an adverse decision, the Court of Appeals of Oklahoma, on May 18, 1982, reversed and held that the taking was unconstitutional under state law because it was not for a public use. City of Stilwell v. Brandon, No. 56,852 (Okla. Ct.App. May 18, 1982), cert. denied, 53 Okla.B.J. 2054 (Okla. Aug. 27, 1982). The City, prevented from condemning the Brandons' property, has since acquired other property for the project.

In October 1980 the Brandons filed this action in the district court challenging HUD's approval and the City's implementation of the UDAG grant. On November 25, 1981, the district court denied a motion by the Brandons for a preliminary injunction. The parties agreed to submit the case on the merits on the pleadings, briefs, exhibits, depositions, and affidavits. On this record the district judge entered findings, conclusions, and a judgment on June 23, 1982, in favor of defendants. This court denied a stay pending appeal on November 1, 1982. The district court found that delegation of responsibility for preparing an EIS, or an Environmental Assessment, to the City was proper; that the City's Environmental Assessment, prepared for it by an engineering firm, and the City's procedures, including its notice of finding of no significant effect on the environment, satisfied the requirements of HUD and CEQ regulations; that HUD's approval of the City's grant application was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; and that the City's determination not to prepare an EIS because the project was not a major federal action which significantly affected the quality of the human environment was reasonable.

On appeal, the Brandons contend that (1) HUD unlawfully delegated its NEPA responsibilities to the City of Stilwell and failed to carry out its residual duty of overseeing the City's procedures; (2) the City failed to comply with various procedural requirements; (3) the City's determination that no EIS was required is unreasonable; and (4) the City's Environmental Assessment was invalidated by a conflict of interest.


The Government suggests that the appeal may be moot and that the Brandons may lack standing; that their pleadings indicated their sole concern was the condemnation of their property; that the Brandons have succeeded in preventing the condemnation; and that much of the work on the project has been completed.

We decline to accept the Government's position. The interest shown by the Brandons is sufficient for them to maintain the suit. At argument in November 1983 we were advised that bids were to be let the following week on the new sewer plant. The showing in our record is not sufficient for us to treat the case as moot and we will consider the merits of the case.


The Brandons argue that HUD's environmental regulations, 24 C.F.R. Sec. 58 (1979), are invalid because they fail to require HUD to conduct an independent review of an applicant's environmental review record prior to HUD's acceptance of the UDAG application and release of funds thereunder. They say this constitutes an unlawful delegation of duties under Sec. 4332 of NEPA, which requires all federal agencies to perform their environmental review responsibilities under NEPA "to the fullest extent possible." We reject these contentions, and hold the regulations are valid.

The grant for the project in this case was made pursuant to Title I of the Housing and Community Development Act of 1974, as amended. The primary objective of Title I is "the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income." 42 U.S.C. Sec. 5301(c) (Supp. II 1978). To that end, the statute...

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