Hovsons, Inc. v. Secretary of Interior of US, Civ. No. 81-97.

• Decision Date: 14 July 1981
• Docket Number: Civ. No. 81-97.
• Parties: 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, 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, Defendants-Intervenors.
• Court: U.S. District Court — District of New Jersey

519 F. Supp. 434

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, 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, Defendants-Intervenors.

Civ. No. 81-97.

United States District Court, D. New Jersey.

July 14, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert V. Paschon, Paschon, Feurey & Murray, Toms River, N.J., for plaintiffs Hovsons and The Coalition to Save Agriculture.

Raymond Brown, Brown, Brown & Furst, Newark, N.J., for plaintiffs The Coalition for the Sensible Preservation of the Pinelands, Folsom Township and Woodland Township.

Joseph W. Marshall, Mid-Atlantic Legal Foundation, Philadelphia, Pa., for plaintiffs-intervenors Marvin, Shirley, Pamela and Desiree Matlack, Pineland Landowners Defense Fund, Board of Education of Washington Township, and Board of Education of Woodland Township.

George R. Gilmore, Hiering, Gilmore & Monahan, Toms River, N.J., for plaintiffs-intervenors Township of Lacey and Lake Lenape Land Co.

William W. Robertson, U.S. Atty., by Jerome B. Simandle, Asst. U.S. Atty., Trenton, N.J., for defendant Secretary of the Interior.

James R. Zazzali, Atty. Gen. by Richard M. Hluchan, Deputy Atty. Gen., Trenton, N.J., for defendant-intervenor State of New Jersey.

Matthew P. Boylan, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, Roseland, N.J., for defendants-intervenors The Pine Barrens Coalition and The New Jersey Audubon Society.

Lawrence D. Ross, Madison, N.J., for The Environmental Defense Fund, The Natural Resources Defense Council, Friends of the Earth, The Sierra Club, The National Parks & Conservation Assoc., The American Rivers Conservation Council and The National Wildlife Federation.

James T. B. Tripp, Environmental Defense Fund, Inc., New York City, for defendant-intervenor The Environmental Defense Fund.

OPINION

ANNE E. THOMPSON, District Judge.

This case presents a challenge by a number of plaintiffs to an action taken by the Secretary of the Interior on January 16, 1981, in which he indicated his approval, pursuant to 16 U.S.C. § 471i(g)(1), of the Comprehensive Management Plan "CMP", for the conservation and development of that area of the State of New Jersey known as the Pinelands. In response to 16 U.S.C. § 471c and d, the State had drawn up this procedural and substantive plan. Following the creation of the CMP by the Pinelands Commission, which had itself been called into existence by Governor Byrne's Executive Order No. 71 of February 8, 1979, and extended by the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. the CMP was submitted to the Secretary of the Interior.

The task of the Secretary was to review the CMP in terms of the criteria set forth at 16 U.S.C. § 471i(g)(2). On approval by the Secretary, New Jersey would be eligible to receive federal funds to aid in the implementation of the CMP. The Secretary's review of the CMP was not related to the plan's existence or authority, since it had already been promulgated by the State authorities, but only to the CMP's assistance by means of federal funding.

While the State was drawing up the CMP, the federal officials were formulating an environmental impact statement "EIS", the document which is required by the National Environmental Protection Act "NEPA", 42 U.S.C. § 4321 et seq., to be a part of the decision-making process in every federal action which promises to have a significant effect upon the environment. The Final Environmental Impact Statement "FEIS" was issued on December 10, 1980.

Plaintiffs began this suit by applying for a temporary restraining order on January 12, 1981, to enjoin the Secretary from approval of the CMP. The complaint alleged that the Secretary's approval of the CMP, which was imminent, would be a violation of NEPA due to a deficient EIS, and a violation of the Fifth Amendment and the National Parks and Recreation Act "NPRA", the federal law which invited New Jersey to draw up the CMP. We denied the application for a temporary restraining order on January 12, and set a return date of February 2, 1981 for an order to show cause why a preliminary injunction should not issue.

There followed a series of motions for intervention, filed by a variety of parties on both sides of the issues in this case. These motions were granted, and the litigants presently before the Court as intervenors were granted leave to file appearances.

On January 26, 1981, the defendant Secretary of the Interior filed a motion to dismiss the complaint. The order to show cause, as well as the motion to dismiss, were ordered adjourned without date from February 2. At a hearing on these matters on February 19, plaintiffs' application for a preliminary injunction was denied as moot, in light of the Secretary's approval of the CMP. However, plaintiffs were given leave to amend their complaint. Also on February 19, we adjourned the Secretary's motion to dismiss to March 16.

On March 4, 1981, the defendant-intervenors Pine Barrens Coalition, New Jersey Audobon Society, Environmental Defense Fund, Inc., Natural Resources Defense Council, Inc., Friends of the Earth, Sierra Club, National Parks and Conservation Association, American Rivers Conservation Council and National Wildlife Federation filed a motion for summary judgment. The remaining defendant-intervenor, the State of New Jersey, filed its pending motion for dismissal, abstention or summary judgment on March 18. In addition, the plaintiff-intervenor Pineland Landowners Defense Fund, Inc., filed a motion for a preliminary injunction on March 17, 1981.

The final filing of a pending motion in this case occurred on March 31. The defendant Secretary of the Interior filed his motion for summary judgment on Counts I and II of the complaint, the second amended version of which was filed one day later, on April 1, 1981. On April 7, we heard argument on all defendants' motions except the Secretary's summary judgment motion on the first two counts, and reserved our decision. On April 23, we denied plaintiff-intervenor's motion for a preliminary injunction, and on May 5, 1981, we heard argument addressed to the defendant Secretary's summary judgment motion. At that time we reserved judgment.

The time has now come to resolve these pending motions. Because we address ourselves to and decide the Secretary's motion on Counts I and II and the State of New Jersey's motion on Count III of the Second Amended Complaint in such a way as to moot all other pending matters, we will not discuss them. Nevertheless, we wish to take this opportunity to state that the able job done by all counsel in briefing and arguing all the pending motions has assisted the Court in framing and determining the issues presented by this case.

Propriety of Summary Judgment

Fed.R.Civ.P. 56 provides that no summary judgment may be granted unless the moving party demonstrates that there is no genuine issue as to any material fact. The moving party must show that he is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3rd Cir. 1980). There are, in essence, three major issues framed by plaintiffs' complaint. First, whether the defendant Secretary of the Interior improperly approved New Jersey's CMP because his approval was based upon a defective EIS. This question, of course, requires a predicate finding that the EIS was, in fact, defective. Second, whether the defendant Secretary of the Interior improperly approved the New Jersey's CMP because he failed to make the findings required for approval under 16 U.S.C. § 471i(g)(2). Third, whether New Jersey's CMP, as approved by the Secretary of the Interior, amounts to a violation of the plaintiffs' Fifth and Fourteenth Amendment rights to be free from a governmental "taking" without just compensation.

In pressing their motions for summary judgment, defendants rely on the FEIS and New Jersey's CMP, as well as the affidavits of Robert McIntosh and Bernard Fagan, and the Secretarial Issue Document drawn up by the Interior Secretary. In opposing defendants' motions, the plaintiffs are not entitled to rest on their pleadings. Although all inferences to be drawn from any evidentiary material submitted will be drawn in favor of the party in opposition, Special Jet Services, Inc. v. Federal Insurance Company, 643 F.2d 977 (3rd Cir. 1981), that party also has the responsibility to come forward with his own material to demonstrate the existence of a conflict. DeLong Corporation v. Raymond International, Inc., 622 F.2d 1135, 1142 (3rd Cir. 1980).

All three of the issues stated in plaintiffs' complaint may properly be considered in the context of these motions for summary judgment. A careful analysis of precisely what plaintiffs' complaint must be understood as asserting...