Public Service Co. of New Hampshire v. Town of West Newbury, 87-1395

• Decision Date: 14 September 1987
• Docket Number: No. 87-1395,87-1395
• Citation: 835 F.2d 380
• Parties: PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Plaintiff, Appellant, v. TOWN OF WEST NEWBURY, Thomas E. Pulkkinen, and Patricia Wells Knowles, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 380

835 F.2d 380

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Plaintiff, Appellant, v. TOWN OF WEST NEWBURY, Thomas E. Pulkkinen, and Patricia Wells Knowles, Defendants, Appellees.

No. 87-1395.

United States Court of Appeals First Circuit.

Heard Sept. 14, 1987.

Decided Dec. 16, 1987.

Robert J. Stillman with whom Thomas G. Dignan, Jr., Paul J. O'Donnell and Ropes & Gray, Boston, Mass., were on brief for plaintiff, appellant.

Judith H. Mizner with whom Silverglate, Gertner, Fine, Good & Mizner, Boston, Mass., R. Scott Hill-Whilton, Lagoulis, Clark, Hill-Whilton & McGuire, Newburyport, Mass., were on brief for defendants, appellees.

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from the denial of a preliminary injunction sought by Public Service Company of New Hampshire (the Company), owner of the nuclear power plant in Seabrook, New Hampshire, to prevent the Town of West Newbury, Massachusetts (the Town), from removing five utility poles bearing emergency warning sirens. Such sirens are part of the Company's emergency preparedness plan in connection with its efforts to obtain an operating license for the power plant.

I.

In 1984 the Company applied for and received permits from the Town's Board of Selectmen to install the poles. Over a year later, in late 1985 and early 1986, the Company installed the poles, which stand 60 to 65 feet high. In March, 1987, the Board determined that it had proceeded without statutory authority, and ordered the Company to remove its poles. After a hearing and submission of legal memoranda, the Board voted, on April 22nd, to remove the poles.

The Company then brought this action, seeking a declaration that it was entitled under state law to maintain the poles in situ, and requesting damages, injunctive relief, and attorneys' fees, pursuant to 42 U.S.C. Sec. 1983. On May 6, 1987, Judge McNaught refused to grant a temporary restraining order and, the next day, Judge Keeton denied the motion for a preliminary injunction. Both judges concluded that the Company had demonstrated neither irreparable harm nor a likelihood of success on the merits.

II.

The principal question on appeal is whether the Company sufficiently demonstrated that it would suffer irreparable harm if the injunction were not granted. The first ground urged is that any restraint on any interest in real property is per se irreparable injury. This argument confuses permanent alienation or destruction of real property, which is incapable of being reconveyed or restored, with a temporary action subject to reversal with compensation for loss suffered during the period of deprivation. Showing the irreplaceability and uniqueness of real property in the former case is also a showing of the irreparable nature of the harm. In the case at bar, however, if the Company were eventually to prevail, the permit could be reinstated and the poles reinstalled. There is no suggestion that the precise locations would be unavailable, nor is there any allegation or showing that the Company would be unable to recover the cost of the poles, equipment, and installation.

The Company's argument on this point is ill-supported. It relies principally on cases like Crowley v. J.C. Ryan Construction, Inc., 356 Mass. 31, 247 N.E.2d 714 (1969), which dealt with an infringement of an easement. Easements are interests, the Company notes, recognized in Massachusetts law as akin to permits. ¹ (Main brief, p. 40.) In Crowley, the Massachusetts Supreme Judicial Court upheld a permanent injunction requiring plaintiff's neighbor to undo his unilateral raising of the surface of a roadway between the two as to which each had an easement of passage. The case is relevant to this one only in that if the Company finally prevails, it will be entitled to an injunction ordering the Town to restore the poles and sirens.

The Company's second contention is that it made a sufficient showing of irreparable harm by alleging a deprivation of constitutional right. Cases so holding, however, are almost entirely restricted to cases involving alleged infringements of free speech, association, privacy or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief. We have even gone so far as to say, in Rushia v. Town of Ashburnham, 701 F.2d 7, 10 (1st Cir.1983), that "the fact that [plaintiff] is asserting First Amendment rights does not automatically require a finding of irreparable injury." The alleged denial of procedural due process, without more, does not automatically trigger such a finding. Moreover, as we hold below, the allegations fail as a matter of law to comprise a cause of action for deprivation of a constitutional right.

The Company's more substantial argument is that "the likely loss is not readily susceptible of calculation and likely would not be recovered from the defendants." Its reasoning is that in its effort to bring the Seabrook facility to the point where it can begin operations, its emergency procedure plan must be approved by the Nuclear Regulatory Commission (NRC) before the NRC will issue an operating license, and that West Newbury's permit for five poles and sirens is a key element of that plan. If, therefore, the removal of the poles were to be an identifiable cause of NRC disapproval, thus causing delay in commencing operations, the possible loss to the company of multiple hundreds of millions or even billions of dollars would be far beyond the ability of the Town to pay.

The problem with this argument lies with the absence of the necessary predicate, a showing that there is a likelihood of delay in operations being caused by the Town's action. We have searched the record and have found no such showing. The four affidavits submitted by the Company show only that the pole-siren system was chosen as the optimal evacuation warning method, that appropriate sites were selected, and that $75,000 was spent in purchase and installation. There are no facts alleged which demonstrate that a present lack of sirens in West Newbury would have any effect on the NRC's decision, let alone dispositive effect. There is even the suggestion that alternative sitings "would have been arranged" if the Town had not agreed to the particular sites involved here. (A62, Affidavit of David Keast.) There was the candid statement of the Company representative at the hearing on the motion for preliminary injunction that "we cannot come to you and say irreparable harm, bang, in the classic sense ... because I can't represent to you that, absent these poles, the Commission will withhold ... [the] license. There are, frankly, technological fixes, portable sirens, that sort of thing, that can be utilized to provide the reasonable assurance, which is the standard under which the Commission operates." (A. 142.) Moreover, sirens might not even be necessary for NRC approval. As of the time of submission of the Company's main brief, a rule had been proposed by the Commission "uncoupling the siren poles from the licensing effort." (Main brief, p. 19, n. 10.)

Perhaps even more important is the lack of any indication that the merits of this case would not be decided before the critical time for the NRC's decision as to an operating license. The district court denied the motion for preliminary injunction on May 7, 1987. Nearly half a year has since elapsed, within which time it might be presumed that decision could have been reached on the merits. Perhaps of even greater weight is the fact that even as of the time when the Company's reply brief was submitted to us, the Company had no emergency plan on file with the Nuclear Regulatory Commission. (Reply brief, p. 7, n. 6.)

All of these considerations convince us that the prospects of any irreparable damage were speculative. Speculative injury does not constitute a showing of irreparable harm. See, e.g., Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency and Office of Emergency Preparedness of Massachusetts, 649 F.2d 71, 74 (1st Cir.1981) ("mere possibility" of threat insufficient); Goldie's Bookstore v. Superior Court of California, 739 F.2d 466, 472 (9th Cir.1984); 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2948, at 436-37 (1973). We therefore hold that the district court did not err or abuse its discretion in ruling that the Company had not made a sufficient showing of the likelihood of irreparable damage.

III.

Because of our analysis as to irreparable harm, we need not reach the question of likelihood of success on the merits. Yet it is an additional criterion, generally required, and "has loomed large in cases before this court." Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981). See also Lancor v. Lebanon Housing Authority, 760 F.2d 361, 362 (1st Cir.1985) ("The probability-of-success component in the past has been regarded by us as critical.") As an independent ground for decision, therefore, we also hold that the district court did not err or abuse its discretion in ruling that the Company had not made a sufficient showing of likelihood of success on the merits.

a. The Company's State Law Claim for Declaratory Relief

The Company claims, based on New England Power Co. v. Amesbury, 389 Mass. 69, 449 N.E.2d 648 (1983), that the Town may not revoke the permits where the Company has acted in reliance on them. In Amesbury, however, the original actions of the selectmen were valid. No authority has been cited for the proposition that a municipality is estopped from nullifying an action invalid from the beginning. Indeed, the Company acknowledges that "reliance cannot cure action that was ultra vires." (Reply brief, p. 12.)

Thus, if the selectmen had no authority to issue the...