Preservation Coalition, Inc. v. Pierce

• Decision Date: 12 February 1982
• Docket Number: No. 80-3101,80-3101
• Citation: 667 F.2d 851
• Parties: 12 Envtl. L. Rep. 20,410 The PRESERVATION COALITION, INC., Plaintiff-Appellant, v. Samuel R. PIERCE, Jr., Secretary of the United States Department of Housing and Urban Development; Richard E. Eardley, Mayor, City of Boise; and the Boise Redevelopment Agency, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 851

667 F.2d 851

12 Envtl. L. Rep. 20,410

The PRESERVATION COALITION, INC., Plaintiff-Appellant, v. Samuel R. PIERCE, Jr., Secretary of the United States

Department of Housing and Urban Development;

Richard E. Eardley, Mayor, City of

Boise; and the Boise

Redevelopment

Agency,

Defendants-

Appellees.

No. 80-3101.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 9, 1981.

Decided Feb. 12, 1982.

Allen M. Katz, Munger, Tolles & Rickershauser, Los Angeles, Cal., argued for plaintiff-appellant; Antonio Rossmann, San Francisco, Cal., on the brief.

Maria A. Iizuka, Washington, D. C., William J. Russell, Elam, Burke, Boyd & Koontz, Bosie, Idaho, argued for defendants-appellees; Phillip Barber, Elam, Burke, Boyd & Koontz, Boise, Idaho, on the brief.

Appeal from the United States District Court for the District of Idaho.

Before SNEED and BOOCHEVER, Circuit Judges, and HOFFMAN ^*, District Judge.

SNEED, Circuit Judge:

The Preservation Coalition, Inc. (Coalition) filed this action contending that the Secretary of the Department of Housing and Urban Development (HUD), the Mayor of Boise, Idaho, and the Boise Redevelopment Agency (BRA) violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement (EIS) in 1979 for the Boise Downtown Center Redevelopment Project. The Coalition also contended that the defendants violated the National Historic Preservation Act (NHPA) by deciding to demolish or substantially alter seven buildings in the project that are currently listed on the National Register of Historic Places.

The district court found that laches barred the NEPA claims, and, in the alternative, that the BRA reasonably concluded that an EIS was not necessary. It further found that defendants did not violate the NHPA. The Coalition appeals the NEPA findings. The National Trust for Historic Preservation (National Trust) has filed an amicus brief raising issues under the NHPA. The BRA insists that these issues are not properly before the court. HUD, on the other hand, in its brief addresses the NHPA issues on the merits.

We hold that laches does not bar the NEPA claims but that under the circumstances of this case there was no violation of NEPA. Finally, we hold the NHPA issues are not properly before this court.

I. FACTS

In July 1969 HUD and the BRA entered into a loan and grant contract to fund an Portions of the project site were cleared between 1972 and 1978, but no construction took place. In 1973 the area was reviewed to determine if buildings were eligible to be placed on the National Register. Seven buildings were placed on the National Register in 1974. In 1978, the Eastman Building was added to the Register. The BRA signed Memoranda of Agreement with the Advisory Council on Historic Preservation regarding the listed buildings in 1974 and 1979, respectively.

urban renewal project covering several blocks in downtown Boise (the R-4 contract). NEPA became effective January 1, 1970. On June 28, 1971 the defendants signed a similar loan and grant contract for additional downtown blocks (the R-5 contract). The BRA prepared environmental clearances on both the R-4 and R-5 contracts finding that the project would have no significant environmental impact; thus, no EIS was needed. HUD approved the BRA finding.

In 1979, the BRA converted the funding for the project from urban renewal loan and grant funds to Community Development Block Grant (CDBG) funds by signing a "financial settlement" with HUD. At the same time, the BRA prepared a lengthy environmental assessment (EA) on the entire project. The study found that the project would have no significant environmental impact. HUD approved the finding, and the Coalition filed the instant action.

II. LACHES

Before reaching the merits, we must consider whether, as found by the district court, laches bars the NEPA claims. Laches must be invoked sparingly in environmental cases because ordinarily the plaintiff will not be the only victim of alleged environmental damage. A less grudging application of the doctrine might defeat Congress's environmental policy. Furthermore, citizens have a right to assume that federal officials will comply with applicable law and to rely on that assumption. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 678 (9th Cir. 1975). See Cady v. Morton, 527 F.2d 786, 792 (9th Cir. 1975).

Because application of laches is discretionary, the standard of review on appeal is whether the district court properly found (a) lack of diligence by the party against whom the defense is asserted, and (b) prejudice to the party asserting the defense. Coalition for Canyon Preservation, 632 F.2d at 779, citing Lathan v. Brinegar, 506 F.2d 677, 692 (9th Cir. 1974) (en banc). To support its finding of lack of diligence, the district court determined that the last "major federal action" occurred when HUD signed the R-5 contract in 1971 and that the Coalition failed to press its claim until September 24, 1979. See Chick v. Hills, 528 F.2d 445 (1st Cir. 1976); Sworob v. Harris, 451 F.Supp. 96 (E.D.Pa.1978), aff'd without opinion, Sworob v. Harris, 578 F.2d 1376 (3d Cir. 1978), cert. denied, Sworob v. Harris, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979). The passage of eight years since the BRA and HUD signed the loan and grant contract was the rock on which the district court rested its finding of lack of diligence.

We believe the district court accorded too much significance to the eight year period. The factors that should be considered in determining diligence in this type of case are (1) whether the party attempted to communicate its position to the agency before filing suit, (2) the nature of the agency response, and (3) the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal bases for challenging an agency action. Coalition for Canyon Preservation, 632 F.2d at 779 (citing City of Davis, 521 F.2d at 673).

While each of these factors cannot be fitted precisely to the facts of this case, it should be pointed out that no buildings were placed on the National Register of Historic Places until 1974, that the Eastman Building was not so placed until 1978, and that the decision to demolish the Eastman These facts clearly indicate that 1971 is not the relevant date for determining whether the Coalition's historic preservation and funding conversion arguments in support of its NEPA claim are barred by laches. The Coalition did not know that any historic building would be demolished until May 1979. The funding conversion occurred in the same year. Moreover, before bringing suit the Coalition told the BRA it opposed the project and its suit promptly followed a public meeting on the proposed destruction of the historic buildings. These facts demonstrate the degree of diligence required by Coalition for Canyon Preservation, 632 F.2d at 779.

Building was not made until May 1979. Thereafter, the Coalition promptly complained to HUD about the need for an EIS before destroying an historic building. When HUD announced that no EIS was required, the Coalition immediately filed this action.

Furthermore, even with respect to those aspects of the project known in 1971 that the Coalition challenges, the BRA has not shown sufficient prejudice to invoke laches. Delay may be prejudicial if substantial work has been completed before the suit was brought, but even substantial completion is sometimes insufficient to bar suit. See, e.g., City of Davis, 521 F.2d at 670 n.11 (highway interchange 50% completed). Although the amount of money expended and work completed may indicate how difficult it would be to alter the plan of the project, Coalition for Canyon Preservation, 632 F.2d at 779, increased cost from delay is alone not sufficient to establish prejudice. In enacting NEPA Congress contemplated that some delay would necessarily occur in the process of identifying potential environmental harm. Id. at 780; see Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 868-69 (5th Cir. 1975). Here, however, although four square blocks were leveled for the Boise project in 1971, no construction has taken place. The project cannot be considered close to completion. Cf. City of Rochester v. United States Postal Service, 541 F.2d 967, 977 (2d Cir. 1976) (EIS required for post office 35% completed). It follows that laches bars none of the Coalition's claims.

III. NEPA

A. Funding Conversion as a "Major Federal Action" Under NEPA

NEPA requires Federal agencies to make detailed reports on "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). We have held this standard met whenever substantial questions are raised as to whether a project may significantly degrade some human environmental factor. If an agency determines not to file an EIS, the reviewing court must consider whether the agency has reasonably concluded that the project will have no significant adverse environmental consequences. City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975); see Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981). The district court here found that the financial settlement that the BRA signed with HUD was not a major federal action.

1. Funding Conversion as Equivalent to Authorizing Construction of a Parking Garage

The Coalition contends otherwise. It argues that since block grant funds will be used to build a 3000-car parking facility, for which purpose the urban renewal funds could not have been used, the conversion has caused all the environmental effects that ordinarily would be associated with construction of the parking garage. Thus, the conversion has, as would have had the construction of the garage, a significant environmental impact.

This...