Homeowners Emergency Life Protection Committee v. Lynn
| Decision Date | 12 August 1976 |
| Docket Number | No. 74-3301,74-3301 |
| Citation | 541 F.2d 814 |
| Parties | , 6 Envtl. L. Rep. 20,659 HOMEOWNERS EMERGENCY LIFE PROTECTION COMMITTEE, an unincorporated association, Plaintiff-Appellant, v. James T. LYNN, Individually and as Secretary of Housing and Urban Development, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Durwood J. Zaelke (argued), Washington, D. C., for plaintiff-appellant.
Kenneth W. Downey, Asst. City Atty. (argued), Los Angeles, Cal., Larry G. Gutterridge (argued), of Appellate Section, Land & Resources Div., U. S. Dept. of Justice,
Washington, D. C., for defendants-appellees.
Before BROWNING and ELY, Circuit Judges, and SHARP, * District Judge.
This case involves a request for injunctive and declaratory relief as a result of alleged noncompliance with the environmental impact statement (EIS) requirements of § 102(2)(c) of the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 et seq. (1970). Appellant, an unincorporated association of homeowners and taxpayers, seeks to enjoin the construction of the Los Angeles Dam and Reservoir project by the City of Los Angeles on the basis that the project is a "major federal action," thereby requiring compliance with NEPA before any action can be undertaken which could significantly affect the environment. Further, due to an unusual turn of events resulting in the completion and submission of an EIS by the Department of Housing and Urban Development (HUD) and the Federal Disaster Assistance Administration (FDAA) during the pendency of this appeal, appellant, in additional briefing requested by the Court, raises the contention that the EIS as submitted is substantially inadequate and does not comply with NEPA.
The defense interposed by the city and federal appellees is that the activities of certain federal agencies investigating the feasibility of federal disaster relief funding for the construction of the dam do not constitute major federal action, and that the city's mere request for federal funding does not make the project federal within the meaning of NEPA. The city further argues that § 405 of the Federal Disaster Relief Act of 1974, which exempts the restoration of public facilities destroyed by major disasters from the requirements of NEPA, applies retroactively to the Los Angeles Dam and Reservoir project.
On February 9, 1971, an earthquake damaged the Van Norman Dam and Reservoir complex, which served an important function in the Los Angeles water system. As a result of the severe damage inflicted upon the complex, the Lower Van Norman Dam was removed from service and the Upper Van Norman Dam was forced to operate at a reduced level. Shortly after the earthquake, the damaged complex was declared a major disaster by the President pursuant to the Federal Disaster Relief Act of 1970, 42 U.S.C.A. § 4401 et seq. (the 1970 Act). Subsequently, Los Angeles submitted an application pursuant to the 1970 Act for disaster relief funds to assist in replacing the damaged Van Norman complex by construction of the Los Angeles Dam and Reservoir, on a site located between the former Van Norman Dams. In evaluating the city's application for funds, the Office of Emergency Preparedness, now a branch of FDAA, directed that the Army Corps of Engineers (Corps) and the United States Geological Survey (USGS) provide technical assistance to the FDAA. More particularly, those agencies were to investigate the proposed project to determine if it was in compliance with applicable state and federal regulations and to provide ongoing review of design and construction of any proposed project, advising the FDAA as to whether the project qualified for federal funding. In addition, the Corps and USGS were directed to prepare a comparative geologic and cost analysis of the Upper and Lower Van Norman Dam sites, and the proposed Los Angeles Dam site. During the course of these studies, officials of those agencies met with city officials and made copies of their studies available to the city. As a result, the city incorporated material from the studies into its own project proposals and designs in hope of qualifying for future federal funding.
In July of 1973, following an amended request for federal funds, the city was advised by FDAA that, although the Corps and USGS studies and recommendations were a matter of public record and could be incorporated by the city into its design, no federal agency had been instructed or authorized by FDAA to require that the city incorporate in its dam project any specific design criteria in order to qualify for federal funding. Further, the FDAA advised that the responsibility for safe design was still with the city. The city, however, continued its preparations for the dam project.
In February 1974 HUD notified the city that an EIS would be required before any federal funds could be granted for the dam project, and FDAA subsequently sent to the appropriate federal, state and local agencies and other interested parties, including appellant, a formal notice of intent to file an EIS. Shortly thereafter, the FDAA informed the city that at that time there had been no approval or commitment of federal funds, but that if the city commenced construction on its own accord, reimbursement would be possible in the event the project was ultimately approved for federal funding. The city was further advised by FDAA at a later date that, although it was free to commence construction solely as a locally funded project, it would be doing so at the risk of foreclosing alternatives otherwise acceptable to the federal government and, as a result, might preclude federal funding. The city, however, feeling it was in the best interests of the residents of Los Angeles to commence with construction of the dam, opened the project for bids, after submitting a satisfactory Environmental Impact Report (EIR) in accordance with the California Environmental Quality Act (CEQA), California Public Resources Code § 21000 et seq. In deciding to commence with construction on the project, the city indicated that if federal funding was not approved, it would proceed with the project, financing it with local water revenue bonds.
On October 10, 1974, the construction contract was awarded and appellant subsequently filed suit in the district court to enjoin construction. The district court entered judgment denying preliminary and permanent injunctions and finding, after extensive examination of the record, that the activity in issue was not a major federal action, or, in the alternative, that the Federal Disaster Relief Act of 1974 operated retroactively and exempted the subject activity from the requirements of NEPA. After unsuccessfully seeking an injunction pending appeal, appellant filed this appeal.
During the pendency of the appeal, construction has proceeded on the dam project. In addition, HUD and FDAA, the federal agencies responsible for processing the city's application for federal funds, submitted a completed EIS statement on January 12, 1976. As a result, on March 26, this Court ordered the parties to submit memoranda of law concerning the issue of mootness and also to advise the Court of any major funding decision made by the federal government concerning the project. Subsequently, the Court was informed that on or about May 18 a decision was made by the federal government to provide $33.2 million in federal funds to the city for the dam project. Of that sum, $25 million was delivered to the city and placed on deposit with a bank pursuant to an irrevocable one-year deposit agreement. Since, as mentioned supra, appellant raised the issue of the adequacy of the EIS in supplemental briefing, the Court, on May 26 and by supplemental order on June 2, stayed any action by the appellees with respect to the granting of federal funds or the expenditure of such funds for further construction of the dam project or reimbursement for construction already completed.
The filing of the EIS and subsequent grant of federal funds for the dam project during the pendency of this appeal has altered the complexion of this case. Initially, the issues presented on appeal were twofold: First, whether the district court erred in holding that the city appellees' application for federal funds and voluntary compliance with federal requirements in hope of securing such funds did not constitute "major federal action" within the meaning of NEPA and, as a consequence, did not require the filing of an EIS before construction could commence on the dam project. Second, whether the district court erred in holding that § 405 of the Federal Disaster Relief Act of 1974 applied retroactively to the subject earthquake disaster of February, 1971, thereby exempting the dam project from NEPA requirements.
Inasmuch as the grant of federal funds unquestionably moves the activity in issue to the point of a federal-city partnership, the project is now a major federal action. Scenic Rivers Association of Oklahoma v. Lynn,520 F.2d 240 (10th Cir. 1975), rev'd on other grounds, sub nom., ...
To continue reading
Request your trial
-
Cal. Tahoe Regional Planning v. Sahara Tahoe Corp.
...consent, a sufficient "nexus" exists to create major federal action. For authority, California cites Homeowners Emergency Life Protection Committee v. Lynn, 541 F.2d 814 (9th Cir. 1976) and Dalsis v. Hills, 424 F.Supp. 784 (W.D.N.Y. 1976). In both cases, the plaintiff in the action brought ......
-
US v. South Florida Water Management Dist.
...approved and funded by the National Institutes of Health without compliance with NEPA); Homeowners Emergency Life Protection Comm. v. Lynn, 541 F.2d 814, 817 (9th Cir. 1976) (per curiam) (grant of federal funds transformed dam and reservoir project into a federal-city partnership, rendering......
-
Sierra Club v. U.S. Fish and Wildlife Service
...non-federal party in a NEPA action if it receives federal assistance for the challenged activity. Home-owners Emergency Life Prot. Comm. v. Lynn, 541 F.2d 814, 818 (9th Cir.1976). Thus, actions by the ODFW may well be enjoinable here. Second, even if an injunction could not be directed at t......
-
Crutchfield v. U.S. Army Corps of Engineers
...nonfederal party who receives federal financial assistance in furtherance of the challenged activity." Homeowners Emergency Life Protection Comm. v. Lynn, 541 F.2d 814, 818 (9th Cir.1976) (remanding to district court to determine whether prerequisites to injunctive relief existed such that ......
-
Table of Cases
...Holy Cross Wilderness Fund v. Madigan, 960 F2d 1515 (10th Cir. 1992): 12 app. A §A.XIV(9)(c) Homeowners Emerg. Life Prot. Comm. v. Lynn, 541 F2d 814 (9th Cir. 1976) (per curiam): 1.4(2) Idaho v. Hanna Mining Co., 882 F2d 392 (9th Cir. 1989): 15.4(5) Idaho v. Howmet Turbine Component Co., 81......
-
§1.4 - When Does NEPA Apply?
...of cash grants, loans, or mortgage insurance, may also amount to major federal action. E.g., Homeowners Emerg. Life Prot. Comm. v. Lynn, 541 F.2d 814 (9th Cir. 1976) (per A more difficult question involves determining when nonfederal actions are subject to NEPAs environmental review require......
-
Nepa and Gentrification: Using Federal Environmental Review to Combat Urban Displacement
...federal action.").48. NAACP, 584 F.2d at 634.49. Id. at 633.50. Id. at 634.51. See, e.g., Homeowners Emergency Life Prot. Comm. v. Lynn, 541 F.2d 814, 816-17 (9th Cir. 1976) (holding that a federally funded municipal dam and reservoir required an EIS); 40 C.F.R. § 1508.18(a) ("Actions inclu......