Ely v. Velde

• Decision Date: 22 January 1971
• Docket Number: Civ. A. No. 459-70-R.
• Citation: 321 F. Supp. 1088
• Parties: Hiram B. ELY et al. v. Richard W. VELDE et al.
• Court: U.S. District Court — Eastern District of Virginia

321 F. Supp. 1088

Hiram B. ELY et al. v. Richard W. VELDE et al.

Civ. A. No. 459-70-R.

United States District Court, E. D. Virginia, Richmond Division.

January 22, 1971.

Emanuel Emroch, Jay G. Kauffman, Richmond, Va., for plaintiffs.

David G. Lowe, Asst. U. S. Atty., Richmond, Va., for defendants Velde & Coster.

Van H. Lefcoe, Asst. Atty. Gen., Richmond, Va., for defendant Brown.

L. Paul Byrne, W. B. Kerkam, III, Richmond, Va., for intervenors Purcell.

MEMORANDUM

MERHIGE, District Judge.

The plaintiffs in the above styled action are residents of the Green Springs area of Louisa County, Virginia. They sue both as individuals and as members of the Green Springs Association, an unincorporated association. They complain of the proposed building of a Reception and Medical Center for Virginia prisoners in the Green Springs area. The complaint named as defendants Richard W. Velde and Clarence M. Coster, Associate Administrators of the Law Enforcement Assistance Administration (LEAA), which has allegedly appropriated $775,000.00 for construction of the facility, and Otis L. Brown, Director of the Department of Welfare and Institutions for the State of Virginia, under whose responsibility the Center will fall. Plaintiffs seek to permanently enjoin the allocation of the $775,000.00 and the building of the facility. The Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1331(a); 28 U.S.C. § 1343 (3); and 5 U.S.C. §§ 701-706.

On October 7, 1970, the Court denied a Motion to Dismiss or to Drop a Party Defendant made by defendant Brown. Thereafter, L. J. Purcell and Edith S. Purcell, his wife, the owners of the land upon which the proposed center is to be located, were permitted to intervene as parties defendant, pursuant to Fed.R. Civ.P. 24(a) (2), 28 U.S.C. The motion for a permanent injunction was then argued before the Court, and it is this motion with which the Court is now concerned.

Green Springs is an area of land consisting of approximately 10,000 acres located in the western part of Louisa County. It is a uniquely historical and architecturally significant rural community in that almost all of the homes were built in the nineteenth century and have been maintained in substantially the same condition ever since.¹ Three of the homes, Boswell's Tavern, Hawkwood, and Westend, are on the National Register for Historic Places, as provided in 16 U.S.C. § 470a(a) (1).²

Defendant Brown, in his official capacity, has procured from defendants Purcell an option to purchase 200 acres of land in Green Springs for the purpose of erecting the Center on the site.³ Brown stated that the decision was his alone, and he made it after consultation with his staff and architects. He further stated that there are other available sites in Virginia, but he considers this to be the best.⁴

Though the plans for the Center have not yet been finalized, Brown estimates that there will be six buildings in all. There may be a fence, and if so there will be guard towers, which could be as high as thirty feet. The facility will use approximately 40,000 gallons of water per day for the 300 to 325 inmates. In addition, there will be a one hundred bed hospital and a parking lot for 150 cars.

The State of Virginia has requested, pursuant to the Safe Streets Act, 42 U. S.C. § 3701 et seq., a block grant, of which $775,000 has been applied for by the State Department of Welfare & Institutions. Of this amount, $275,000 has been earmarked by the State of Virginia for erection of the Center. The block grant has been approved by the L.E.A. A., and the transmittal of the funds is a purely mechanical act. The location of the Center is immaterial to the L.E.A.A. in that location of such facilities is entirely a local concern. Therefore, in approving the grant, the L.E.A.A. admittedly did not consider the environmental impact of the Center on the Green Springs area.

The plaintiffs allege that defendants Velde and Coster were required to take into account the environmental impact of the Center on the Green Springs area under 16 U.S.C. § 470f.⁵ They further allege that Velde and Coster also failed to issue any statement regarding the environmental impact of the facility on the Green Springs area, in violation of 42 U.S.C. § 4332(2) (C) (i).⁶ The plaintiffs therefore claim that failure to act in accordance with the above mentioned statutes and the placement of the Center on the Purcell tract is in violation of the national policy and the expressed findings and declarations of the Congress as contained in the Historic Preservation Act, 16 U.S.C. § 470 et seq., and the National Environmental Policy Act, 42 U. S.C. § 4321 et seq.

The plaintiffs further allege that defendant Brown could have selected a suitable site other than the one now in question, and that "because the preservation of the Green Springs area as a group of historic houses in related context, representing a century and a half of architectural development, is of great historical importance and national interest to all people of the United States, they assert a constitutional right to be protected from unnecessary and unreasonable environmental degradation and destruction by the erection of the Center in the Green Springs area," under the Ninth and Fourteenth Amendments to the Constitution of the United States.

Accordingly, the plaintiffs have asked the Court to permanently enjoin any appropriation of federal funds for the Center and to permanently enjoin construction of said Center as planned.

Defendants Velde and Coster contend that the plaintiffs have no standing to seek judicial review of the actions or non-actions of the L.E.A.A. because of 42 U.S.C.A. § 3759(a), which states:

§ 3759. Judicial review—Petition; record

(a) If any applicant or grantee is dissatisfied with the Administration's final action with respect to the approval of its application or plan submitted under this chapter, or any applicant or grantee is dissatified with the Administration's final action under section 3757 or section 3758 of this title, such applicant or grantee may, within sixty days after notice of such action, file with the United States court of appeals for the circuit in which such applicant or grantee is located a petition for review of that action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Administration. The Administration shall thereupon file in the court the record of the proceedings on which the action of the Administration was based, as provided in section 2112 of Title 28 (Emphasis added).

The plaintiffs claim that although neither applicants nor recipients of federal funds under the Act, they are not precluded from seeking judicial review of the actions or non-actions of the L.E.A. A. They contend that 42 U.S.C. § 3759(a) is concerned only with the procedure by which applicants and grantees may seek judicial review, and that the statute does not purport to limit the right to judicial review by other persons, nor does the Act specifically preclude judicial review by such other persons elsewhere.⁷ The plaintiffs further contend that in absence of such specific preclusion, judicial review is governed by the Administrative Procedure Act, 5 U.S.C. § 702, which states:

§ 702. Right of review

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof.

It is contended that in the instant case "relevant statutes" includes the Safe Streets Act, 42 U.S.C. § 3701 et seq., the National Historic Preservation Act, 16 U.S.C. § 470 et seq., and the National Environmental Policy Act, 42 U. S.C. §§ 4321, 4331 et seq.

This Court finds that the plaintiffs do have standing under 5 U.S.C. § 702 to seek judicial review of the actions of the L.E.A.A. While cases involving 5 U.S.C. § 702 generally consider the relevant statute to be the one upon which the particular agency relies for authority of its actions, the Court does not consider those cases controlling on the point.⁸ The Court holds that the National Historic Preservation Act, 16 U. S.C. § 470 et seq., and the National Environmental Policy Act, 42 U.S.C. §§ 4321, 4331 et seq., are relevant statutes within the meaning of 5 U.S.C. § 702, and the plaintiffs' interests come within those sought to be protected by the Acts.⁹ See Barlow v. Collins, 397 U.S. 159, 167, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

However, the Court's inquiry is not limited solely to § 702. 5 U.S.C. § 701(a) states that "This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."

In determining the question of standing, "we start with the presumption that aggrieved persons may obtain review of administrative decisions, unless there is `persuasive reason to believe' that Congress had no such purpose." City of Chicago v. United States, 396 U.S. 162, 164, 90 S.Ct. 309, 311, 24 L.Ed.2d 340 (1969), relying on Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). See also, Tooahnippah v. Hickel, 397 U.S. 598, 606, 90 S.Ct. 1316, 25 L.Ed.2d 600 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The Supreme Court in Association of Data Processing Service Organizations v. Camp, supra, set out a two-prong test in determining the standing issue. "The first question is whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." Id. at 152, 90 S.Ct. at 829. The plaintiffs clearly satisfy this test. They have alleged not only injury to their personal interest, but also, acting as private attorneys general, injury to the public interest. See Citizens Committee...