Hovsons, Inc. v. Secretary of Interior of U.S., No. 81-2580

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before GARTH and HIGGINBOTHAM, Circuit Judges, and FULLAM; A. LEON HIGGINBOTHAM, Jr.; GARTH
• Citation: 711 F.2d 1208
• Parties: , 13 Envtl. L. Rep. 20,792 HOVSONS, INC., a New Jersey corporation; the Coalition to Save Agriculture, a New Jersey corporation; the Coalition For the Sensible Preservation of the Pinelands, an unincorporated association; Folsom Township, a municipal corporation of the State of New Jersey; Woodland Township, a municipal corporation of the State of New Jersey, Plaintiffs and Marvin F. Matlack and Shirley Ann Matlack, Pineland Landowners, individually and on behalf of their minor children, Pamela and Desiree; Pineland Landowners Defense Fund, Inc., a New Jersey corporation; Board of Education of Washington Township, a corporate entity under the laws of the State of New Jersey; and Board of Education of Woodland Township, a corporate entity under the laws of the State of New Jersey; Township of Lacey, a municipal corporation of the State of New Jersey; and Lake Lenape Land Co., a corporation of the State of New Jersey, Plaintiffs-Intervenors, Appellants v. The SECRETARY OF the INTERIOR OF the UNITED STATES of America, Defendant and State of New Jersey; the Pine Barrens Coalition; the New Jersey Audubon Society; the Environmental Defense Fund, Inc.; the Natural Resources Defense Council, Inc.; Friends of the Earth; the Sierra Club; the National Parks and Conservation Association; the American Rivers Conservation Council; and the National Wildlife Federation, Defendant-Intervenors, Appellees.
• Docket Number: No. 81-2580
• Decision Date: 13 July 1983

Page 1208

711 F.2d 1208 19 ERC 1751, 13 Envtl. L. Rep. 20,792 HOVSONS, INC., a New Jersey corporation; the Coalition to
Save Agriculture, a New Jersey corporation; the Coalition
For the Sensible Preservation of the Pinelands, an
unincorporated association; Folsom Township, a municipal
corporation of the State of New Jersey; Woodland Township,
a municipal corporation of the State of New Jersey, Plaintiffs
and
Marvin F. Matlack and Shirley Ann Matlack, Pineland
Landowners, individually and on behalf of their minor
children, Pamela and Desiree; Pineland Landowners Defense
Fund, Inc., a New Jersey corporation; Board of Education of
Washington Township, a corporate entity under the laws of
the State of New Jersey; and Board of Education of Woodland
Township, a corporate entity under the laws of the State of
New Jersey; Township of Lacey, a municipal corporation of
the State of New Jersey; and Lake Lenape Land Co., a
corporation of the State of New Jersey,
Plaintiffs-Intervenors, Appellants
v.
The SECRETARY OF the INTERIOR OF the UNITED STATES of
America, Defendant
and
State of New Jersey; the Pine Barrens Coalition; the New
Jersey Audubon Society; the Environmental Defense Fund,
Inc.; the Natural Resources Defense Council, Inc.; Friends
of the Earth; the Sierra Club; the National Parks and
Conservation Association; the American Rivers Conservation
Council; and the National Wildlife Federation,
Defendant-Intervenors, Appellees. No. 81-2580. United States Court of Appeals,
Third Circuit. Argued June 24, 1982.
Decided July 13, 1983.

Page 1209

Paschon, Feurey & Kotzas, Robert V. Paschon (argued), Toms River, N.J., for appellant, Hovsons, Inc., et al.

The Mid-Atlantic Legal Foundation, Myrna P. Field, Joseph W. Marshall, III, Philadelphia, Pa., for appellants, Matlack, et al.

Hiering, Gilmore & Monahan, George R. Gilmore (argued), Toms River, N.J., for appellants, Township of Lacey and Lake Lenape Land Co.

W. Hunt Dumont, U.S. Atty., Jerome B. Simandle, Asst. U.S. Atty. (argued), Trenton, N.J., for appellee, Secretary of the Interior.

Irwin I. Kimmelman, Atty. Gen. of N.J., James J. Ciancia, Asst. Atty. Gen., Richard M. Hluchan, Deputy Atty. Gen., John M. Van Dalen, Deputy Atty. Gen. (argued), Trenton, N.J., for appellee, State of N.J.

James T.B. Tripp (argued), New York City, for appellee, The Environmental Defense Fund, Inc.

Lawrence D. Ross, Bessler, Plotkin & Ross, Morristown, N.J., for appellees, The Environmental Defense Fund, Inc.; The Natural Resources Defense Council; Friends of the Earth; The Sierra Club; The Nat. Parks and Conservation Ass'n; The American Rivers Conservation Council; and The Nat. Wildlife Federation.

Matthew P. Boylan, Lowerstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N.J., for appellees, The Pine Barrens Coalition, and The N.J. Audubon Soc.

Sarah Chassis, Jane Bloom, New York City, for appellee, The Natural Resources Defense Council.

Before GARTH and HIGGINBOTHAM, Circuit Judges, and FULLAM, District Judge. ^*

Page 1210

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

I. PROCEEDINGS BELOW

This is a suit by a number of plaintiffs who allege that they are aggrieved by actions of the State of New Jersey and the Secretary of the Interior of the United States, and who together have approved and adopted New Jersey's "Comprehensive Management Plan" (CMP) for the Pinelands area of New Jersey. The Pinelands National Reserve was created by Congress in the National Parks and Recreations Act of 1978, ("the Act"), 16 U.S.C. § 471i (Supp.1982),

(1) to protect, preserve and enhance the significant values of the land and water resources of the Pinelands area;

(2) to encourage and assist the State of New Jersey and its units of local government in the development of a comprehensive management plan for the Pinelands area in order to assure orderly public and private development in the area ....

(3) to provide, during the development of this comprehensive plan, Federal financial assistance for the acquisition of lands in the Pinelands area that have critical ecological values which are in immediate danger of being adversely affected or destroyed ....

Pub.L. 95-625, Title V, § 502, Nov. 10, 1978, 92 Stat. 3492, 16 U.S.C. § 471i(b).

Each of the plaintiffs is an owner or user of property in the Pinelands, or in the case of each of the plaintiff municipalities, an agency which taxes Pinelands property. New Jersey's CMP undeniably restricts most development in the Pinelands and restricts a great deal of land in the Pinelands to specified, fairly narrow uses. The plaintiffs allege that they have been harmed by those restrictions and have sought to invalidate them. Some of the plaintiffs have challenged the effects of the CMP in various other administrative and judicial proceedings in New Jersey.

This action challenges the preparation, approval and effects of the CMP and alleges various deficiencies in the environmental impact statement (EIS) upon which it is based. The importance of the EIS is that the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (NEPA), requires a legally sufficient EIS before federal funds may be disbursed pursuant to "any major Federal action funded under a program of grants to States." 42 U.S.C. § 4332(2)(D). The federal Pinelands Act provides for federal funding to assist New Jersey's implementation of its CMP. 16 U.S.C. § 471i(k).

Count I of the complaint charges various violations of NEPA, specifically, that the EIS upon which the Secretary based his approval of the CMP was deficient under 42 U.S.C. § 4332(2)(C). The EIS was allegedly deficient because it was based on a preliminary draft of the CMP; because it did not adequately describe and analyze the social and economic impact of the CMP; because it did not set forth in sufficient detail the data, methodology, and standards on which it was based; and because it failed adequately to address alternatives to the CMP. The plaintiffs seek preliminarily and permanently to enjoin the Secretary from approving the CMP (and hence from authorizing the expenditure of federal funds for the Pinelands under 16 U.S.C. § 471i(k)) until a legally sufficient EIS is prepared.

Count II of the complaint alleges that the Secretary failed to adequately consider various factors set forth by Congress in the federal Pinelands Act that must be considered before federal funding can be approved. Those factors include the following: whether the CMP provides for the greatest possible use of police power; whether the state allowed sufficient public participation in the preparation of the CMP; whether the CMP would be implemented promptly; and whether the CMP adequately provides for federal representation, for protection of the Pinelands National Reserve, for the national defense mission, and for continuing state oversight. Count II includes a prayer for preliminary and permanent injunctive relief to prevent the Secretary from approving and funding the CMP until the Secretary has complied with 16 U.S.C. § 471i(g)(2).

Page 1211

Count III alleges that the CMP constitutes a taking of the plaintiffs' property for public use without just compensation, in violation of the United States Constitution and state and federal law. The plaintiffs seek an injunction requiring the Secretary and the state to pay for any such property wrongfully taken, and to withhold approval and implementation of the CMP until the unconstitutional takings have ceased.

The district court denied all preliminary injunctive relief and thereafter, by order dated July 14, 1981, granted partial summary judgment on the merits in favor of the defendants on Counts I and II. Hovsons, Inc. v. Secretary of the Interior, 519 F.Supp. 434 (D.N.J.1981). In the same order, the district court abstained from decision on Count III in reliance on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and stayed proceedings on the claim pending resolution of state administrative and judicial proceedings. The court specifically retained jurisdiction over Count III.

The plaintiffs have appealed to this court challenging the entry of summary judgment on Counts I and II, seeking a remand for trial on those claims, and seeking to overturn the district court's decision to abstain on Count III. We affirm.

II.

Before reaching the merits, we must determine two preliminary issues. The first is whether this court has jurisdiction of the appeal, and the second is whether counsel for one of the appellants should be disqualified.

A. Jurisdiction

When this appeal was argued there was a substantial question as to whether the appeal was from a judgment which was "final" for purposes of 28 U.S.C. § 1291. Only two of the three counts in plaintiffs' Complaint were encompassed within the grant of partial summary judgment. The district court had stayed the remaining count in the exercise of a Pullman-type abstention, and there was authority in this circuit to the effect that such orders are not final and appealable under 28 U.S.C. § 1291. See Brace v. O'Neill, 567 F.2d 237 (3d Cir.1977); Cotler v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir.1975); Arny v. Philadelphia Transport Company, 266 F.2d 869 (3d Cir.1959). Since it appeared probable that the Supreme Court would shortly render a definitive decision on the appealability, under 28 U.S.C. § 1291, of Pullman-type abstentions and stay orders (the court having recently granted certiorari to consider the question), decision of this appeal was deferred.

On February 23, 1983, the Supreme Court decided Moses H. Cone Memorial Hospital v. Mercury Construction Corp., --- U.S. ----, 103 S.Ct. 927, 74 L.Ed.2d 765 (U.S.1983), holding that when a district court enters a stay of proceedings for the purpose of requiring the case to be litigated in a state forum, such orders are final and appealable under 28 U.S.C. § 1291. ¹ It is therefore now clear that we have jurisdiction...