Public Service Co. of New Hampshire v. Town of West Newbury, No. 87-1395

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, ALDRICH and TORRUELLA; COFFIN
• 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
• Docket Number: No. 87-1395
• Decision Date: 14 September 1987

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.

Page 381

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

Page 382

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...