Ely v. Velde

• Decision Date: 08 November 1971
• Docket Number: No. 71-1351.,71-1351.
• Citation: 451 F.2d 1130
• Parties: Hiram B. ELY et al., Appellants, v. Richard W. VELDE, Associate Administrator, Law Enforcement Assistance Administration, et al., Appellees, Natural Resources Defense Council, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

451 F.2d 1130 (1971)

Hiram B. ELY et al., Appellants, v. Richard W. VELDE, Associate Administrator, Law Enforcement Assistance Administration, et al., Appellees, Natural Resources Defense Council, Amicus Curiae.

No. 71-1351.

United States Court of Appeals, Fourth Circuit.

Argued August 23, 1971.

Decided November 8, 1971.

Emanuel Emroch, Richmond, Va. (Emroch & Kauffman, Richmond, Va., on brief), for appellants.

Vann H. Lefcoe, Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, and Anthony F. Troy, Asst. Atty. Gen. of Virginia, on brief), and Edmund B. Clark, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., John D. Helm, Atty., Dept. of Justice, Brian P. Gettings, U. S. Atty., and David G. Lowe, Asst. U. S. Atty., on brief), for appellees.

William Stanley, Jr., Richard B. Stewart, and Covington & Burling, Washington, D. C., on brief, for amicus curiae, National Trust for Historic Preservation in the United States.

Edward L. Strohbehn, Jr., Washington, D. C., on brief for amicus curiae, Natural Resources Defense Council.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and WINTER, Circuit Judge.

SOBELOFF, Senior Circuit Judge:

This appeal calls upon us to consider an alleged conflict between several recently-formulated federal policies. On the one hand, there is a congressional commitment against federal interference with a state's use of federal funds allocated to it for law enforcement; and, on the other, there are congressional mandates to all federal agencies to act so as to preserve and protect the natural environment and the historic and cultural foundations of the nation.

Appellants, who are residents of the Green Springs area of Louisa County, Virginia, brought an action to halt the proposed funding and construction in their neighborhood of a Medical and Reception Center ("Center") for Virginia prisoners. To this end, they sought to enjoin appellees Richard W. Velde and Clarence M. Coster, Associate Administrators of the Law Enforcement Assistance Administration ("LEAA"),¹ from allocating to Virginia $775,000 of federal funds for the construction of the Center.² The complaining residents prayed, in addition, for an injunction against Otis L. Brown, Director of the Virginia Department of Welfare and Institutions, to prevent him from locating the contemplated institution in Green Springs.

The Complaint of the residents in the District Court alleges that the National Environmental Policy Act of 1970 ("NEPA")³ requires both the LEAA and the State of Virginia to (1) take into account, in the funding and location of the Center, the possible effects the Center might have on the Green Springs natural environment and (2) prepare an "impact statement" detailing these possible effects, before proceeding with the funding and construction of the Center.⁴

A further claim of the residents was that the National Historic Preservation Act ("NHPA")⁵ requires the LEAA and the State of Virginia to consider the effect the proposed Center will have on certain historic properties in Green Springs, and to afford an opportunity to the Advisory Council on Historic Preservation to comment on the undertaking.⁶

Since none of the procedures outlined by NHPA and NEPA was observed in deciding upon the funding and location of the Center, the appellants charge the appellees with a violation of these two statutes.

In defense of its admitted failure to comply with NHPA and NEPA, the LEAA relies upon certain provisions in Title I of the Omnibus Crime Control and Safe Streets Act of 1968 ("Safe Streets Act"),⁷ pursuant to which the grant here at issue was approved. Its position is that the Safe Streets Act prohibits any interference or control of the states by the federal government in the spending of grants, except as expressly authorized by the statute.⁸ Thus the LEAA claims it may not look beyond its governing statute and is prohibited, in approving grants, from reading into that statute the requirements of NHPA and NEPA.

For his part, appellee Brown, Director of Virginia's Department of Welfare and Institutions, contends that NHPA and NEPA are addressed only to agencies of the federal government and that the state and its officials, even when spending federal funds, are not obliged to follow NHPA and NEPA.

I

The Green Springs area is aptly described in the District Court's opinion:

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. Three of the homes, Boswell\'s Tavern, Hawkwood and Westend, are on the National Register for Historic Places, as provided in NHPA.⁹

The proposed Center will consist of at least four concrete-faced buildings, a thirty-foot guard tower and a surrounding fence. It will, in addition, contain parking facilities for 150 cars. Appellee Brown estimated that the Center would use 40,000 gallons of water per day to support its projected population of 400 to 500 inmates and 74 correctional officers.

The above facts would seem to warrant the application of the procedural requirements of both NHPA and NEPA.¹⁰ While neither the LEAA nor the Virginia Department of Welfare and Institutions complied with these two Acts, the Virginia agency seems to have given consideration to factors such as soil and water requirements. These factors are indeed "environmental" in a sense, but other environmental or cultural factors — the very ones accented in NHPA and NEPA — were not taken into account by either of the agencies in the decisions concerning the Center.

In assessing the residents' claims, the District Court thought it was faced with an irreconcilable conflict between the Safe Streets Act on the one hand and NHPA and NEPA on the other. The court sought to resolve the problems arising from the supposed conflict by applying two familiar rules of statutory construction. First, since the Safe Streets Act was enacted after NHPA, the court held that the later expression of Congress must prevail, thus precluding consideration of historic and cultural factors as prescribed by the earlier NHPA.

However, as between NEPA and the Safe Streets Act, the District Court departed from the rule it previously applied and attributed prevailing force to the Safe Streets Act, despite the fact that NEPA was the later enactment. The court accepted the LEAA's interpretation which turned on an odd reading of the language of NEPA that commands all federal agencies to observe the procedural duties it imposes "to the fullest extent possible."¹¹ The argument advanced was that this phrase made the statute "discretionary," while the duty of the LEAA to make grants was claimed to be "non-discretionary." Reasoning from this categorization of NEPA as "discretionary" and the Safe Streets Act as "non-discretionary," the court was persuaded to apply the rule of construction that in case of conflict, a discretionary statute must yield to a non-discretionary one.

II

We reject the appellees' basic assumption that the Safe Streets Act is irreconcilable with NHPA and NEPA.

The rules of thumb urged by the LEAA — namely that a later enactment controls earlier legislation and that a discretionary command must yield to a mandatory one — can be useful as aids in statutory construction. But they represent a last resort, to be invoked only when it is impossible to avoid a collision between two statutes and to effectuate both. Where reconciliation is possible, these rules of thumb do not come into play.

Normally there is a strong presumption against one statute repealing or amending another by implication. United States v. Welden, 377 U.S. 95, 102-103, n.12, 84 S.Ct. 1082, 12 L.Ed. 2d 152 (1964); United States v. Borden Co., 308 U.S. 188, 198-199, 60 S.Ct. 182, 84 L.Ed. 181 (1939) (there must be a "positive repugnancy between the new law and the old"). This circuit has similarly applied this approach several times. See, e. g., Fanning v. United Fruit Co., 355 F.2d 147 (4th Cir. 1966). "When two statutes present an apparent conflict, the proper approach is to ascertain the purposes underlying both enactments, not to dispose of the problem by a mechanical rule." 355 F.2d at 149. See also Baines v. City of Danville, Va., 337 F.2d 579, 590-591 (4th Cir. 1964) (en banc), cert. denied, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1964).

Close examination of the purposes and policies of the Safe Streets Act reveals no real antagonism to NHPA and NEPA such as would prevent effectuation of all three statutes.

The LEAA insists that it is not obliged to comply — indeed it may not comply — with NHPA and NEPA because it has been disabled, when approving block grants, from imposing any conditions not found in the Safe Streets Act itself.¹² Support for this proposition is claimed in the language and the policy inherent in the Safe Streets Act.

In 42 U.S.C. § 3733, Congress specified that:

The LEAA shall make grants under this chapter to a State planning agency if such agency has on file with the LEAA an approved comprehensive State plan * * * which conforms with the purposes and requirements of this chapter. (Emphasis added.)

In addition, 42 U.S.C. § 3757 provides that grant funds under the Safe Streets Act can be withheld only if the LEAA finds that there has been a "substantial failure" of the grantee to comply with (1) the Safe Streets Act, (2) regulations and guidelines promulgated by the LEAA, or (3) the state comprehensive plan itself. The LEAA maintains that these two sections specify the only criteria that the states can be required to meet before they become entitled to a block grant. Thus, it is argued, the permissible areas of inquiry with regard to the states' plans are similarly restricted.

The LEAA urges that its reading...