Dickman v. City of Santa Fe
| Decision Date | 26 July 1989 |
| Docket Number | Civ. No. 88-0074 JP. |
| Citation | 724 F. Supp. 1341 |
| Parties | Michael DICKMAN and Marcy Dickman, Plaintiffs, v. CITY OF SANTA FE, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Michael Dickman and Marcy Dickman, Santa Fe, N.M., pro se.
James C. McKay, City Atty., Santa Fe, N.M. for City of Santa Fe.
The subjects of this opinion and order are plaintiffs' Motion for Preliminary Injunction and defendant's Motion to Order Joinder of Necessary and Indispensable Parties or in the Alternative to Dismiss for Failure to Join Indispensable Parties. An evidentiary hearing was held on August 9, 1988. In addition, the court has reviewed a transcript of the proceedings which occurred in the District Court of the First Judicial District, Santa Fe, New Mexico prior to defendant's removal of this cause to federal court. After considering the motions and memoranda of the parties and after consulting pertinent authorities, I conclude that plaintiffs' motion should be granted and defendant's motion should be denied.
This matter arises under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. At issue in this case is a proposed highway development project for the City of Santa Fe. The city, serving as the lead agency in a joint project with state and federal highway authorities, intends to develop a new three-lane road from the intersection of Cerrillos Road and Richards Avenue in the southwest part of the city to the intersection of West Alameda Street and St. Francis Drive, west of the downtown area of Santa Fe. The Richards-Alameda project is to be completed in phases, the first three of which involve federal funding. The first phase includes construction of a three-lane extension of Richards Avenue from its intersection with Cerrillos Road north to Agua Fria Street. Phase two involves construction of a bridge on Richards Avenue across the Santa Fe River and a further northerly extension of Richards Avenue to West Alameda Street. The third phase consists of paving a presently unpaved portion of West Alameda Street which runs east approximately to Ricardo Road.1 The last phase, which the defendant does not consider to be part of the same project, traverses east on West Alameda Street from the easterly end of Phase three to the intersection at St. Francis Drive. The cost of the entire road project is estimated at $16.5 million. Federal funding is $3.2 million, which is contemplated to apply only to the first three phases of the project.
Plaintiffs contend that the defendant City of Santa Fe impermissibly isolated the fourth phase of an essentially four-part highway improvement project in order to avoid preparation of an environmental assessment (EA) required pursuant to NEPA.2 Plaintiffs seek to enjoin further project development until an EA which encompasses the fourth phase of the project is prepared. Defendant City of Santa Fe contends that planned improvements to the portion of West Alameda running from approximately Ricardo Road to the intersection at St. Francis Drive constitute an independent, non-federal action and NEPA does not apply.3 Defendant also contends that the New Mexico Highway Department and the Federal Highway Administration are necessary parties to this litigation and joinder of these parties should be ordered or the action should be dismissed.
Defendant City of Santa Fe contends that the Federal Highway Administration (FHWA) is a necessary and indispensable party to this action under Fed.R. Civ.P. 19 because plaintiffs' success in part depends on proof that the City of Santa Fe is involved in a partnership with the federal agency such that the city's actions fall within the constraints of NEPA. Defendant argues that the New Mexico Highway Department (Department) is a necessary and indispensable party because the Department, under a contract with the City, prepared the EA on behalf of the city for the three phases of the project. Therefore, defendant asserts that the Department has an interest in the court's decision concerning the validity of the EA as prepared and would be subject to inconsistent obligations based on breach of contract in the event the EA is deemed unsatisfactory.
The facts of this case belie defendant's contention. The City Council of Santa Fe voted in a single action on December 9, 1987 to approve development of the entire road project. The project is expected to cost the city $16.5 million, with federal aid covering a small portion of the entire project cost. The city has complete control over the direction of the project, and the city undeniably serves as the lead agency in any effort that involves the Department or the FHWA. Plaintiffs seek to enjoin the city from pursuing its proposed road improvement project until it prepares a proper environmental assessment; plaintiffs seek no relief from any other agency. See Biderman v. Morton, 497 F.2d 1141, 1147 (2d Cir.1974) (). There is no reason why complete relief cannot be accorded among those already parties to the lawsuit. Although the city may be in a position to suffer financial hardship or loss should the project be delayed, the same is not true for the Department or the FHWA. The Department and the FHWA have no direct interest in the outcome of the litigation such that their absence will impair the ability to protect that interest or leave them subject to inconsistent obligations.4See Coalition on Sensible Trans., Inc. v. Dole, 631 F.Supp. 1382, 1386-87 (D.D.C.1986) (). Any potential conflict between the city and the Department over the Department's preparation of the EA is entirely speculative and has no bearing on the outcome of this action in which plaintiffs seek to enjoin actions of the city.5 Moreover, at the order of First Judicial District Judge Kaufman, FHWA and the Department were notified of the pending action and neither agency has moved to intervene in this lawsuit. Defendant's motion should be denied.
To succeed on their request for a preliminary injunction, plaintiffs must establish: (1) substantial likelihood of success on the merits; (2) irreparable injury unless an injunction issues; (3) the threatened injury to plaintiffs outweighs damage to defendant; and (4) the injunction, if issued, would not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 64 (10th Cir.1980). Injunctive relief under NEPA has uniformly been viewed as a proper remedy. "Ordinarily when an action is being undertaken in violation of NEPA, there is a presumption that injunctive relief should be granted against the continuation of the action until the agency brings itself into compliance." Realty Income Trust v. Eckerd, 564 F.2d 447 (D.C.Cir.1977). Upon review of the evidence and applicable law as discussed below, I conclude that plaintiffs have carried their burden of proving entitlement to injunctive relief.
42 U.S.C. § 4332(2)(C) of the NEPA, directs government agencies "to the fullest extent possible" to:
Thus, proposals for major Federal action significantly affecting the environment must be accompanied by a detailed discussion of the reasonably foreseeable effects of alternative courses of action. Moreover, "NEPA requires only that an agency take a `hard look' at the environmental consequences of any major federal action" prior to deciding a course of action; it does not dicate particular results. Park County Resource Council, Inc. v. United States Dept of Agriculture, 817 F.2d 609, 620 (10th Cir.1987); Robertson v. Methow Valley Citizens Council, 487 U.S. ___, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
Not all highway improvement projects are subject to the requirements of NEPA; NEPA applies only to federal actions. If a highway improvement project is a major federal action, NEPA requires that the agency determine whether there is significant environmental impact. A finding of federal action is essential because Congress did not intend the environmental laws to apply to state, city or private actions. See Kleppe v. Sierra Club, 427 U.S. 390, 399, 96 S.Ct. 2718, 2725, 49 L.Ed.2d 576 (1976); Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir.1986); Bennett v. Taylor, 505 F.Supp. 800, 803 (D.C.La.1980). However, the phrase "federal action" also includes projects undertaken or performed essentially by cities or states but funded in whole or in part by the federal government. Citizen Advocates for Responsible Expansion, Inc. (I-CARE) v. Dole, 770 F.2d 423 (5th Cir.), reh'g denied, 777 F.2d 701 (en banc) (1985). Similarly, absence of federal funding does not excuse noncompliance with NEPA requirements if the road project at issue is found to be a segment of an overall federal project. Hawthorn Environmental Preservation Assoc. v. Coleman, 417 F.Supp. 1091 (N.D.Ga.1976), aff'd, 551 F.2d 1055 (5th Cir.1977).
The issue raised by this case is whether the portion of the road project which involves widening of the...
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