Rhode Island Com. on Energy v. General Serv. Admin.

• Decision Date: 08 July 1975
• Docket Number: Civ. A. No. 74-272.
• Citation: 397 F. Supp. 41
• Parties: RHODE ISLAND COMMITTEE ON ENERGY et al. v. GENERAL SERVICES ADMINISTRATION, et al.
• Court: U.S. District Court — District of Rhode Island

397 F. Supp. 41

RHODE ISLAND COMMITTEE ON ENERGY et al. v. GENERAL SERVICES ADMINISTRATION, et al.

Civ. A. No. 74-272.

United States District Court, D. Rhode Island.

July 8, 1975.

COPYRIGHT MATERIAL OMITTED

Myron M. Cherry, Chicago, Ill., Thomas C. Mullaney, Jr., Providence, R. I., for plaintiffs.

Lincoln C. Almond, U. S. Atty., R. I., Everett C. Sammartino, Asst. U. S. Atty., R. I., Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

Plaintiffs¹ bring this action against the United States, the General Services Administration ("GSA"), and Arthur F. Sampson, the Administrator of GSA (sometimes hereinafter collectively referred to as "GSA"), for declaratory and injunctive relief. Plaintiffs contend that GSA, as the federal agency empowered to dispose of "surplus" government property, proposes to dispose of a parcel of land located in Charlestown, Rhode Island and now owned by the Department of the Navy as the Charlestown Naval Auxiliary Landing Field ("NALF"), in violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. ("NEPA"), and the Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 471 et seq. ("FPAS"), as amended, as well as regulations promulgated under both acts.

PROCEEDINGS IN DISTRICT COURT

On December 4, 1974, plaintiffs filed their verified complaint, a lengthy document which, if read broadly, accused GSA of conspiring with the Narragansett Electric Company ("Narragansett") and its parent, the New England Power Company, to circumvent the mandates of FPAS and NEPA in the disposal of the NALF. Plaintiffs' motion for a temporary restraining order was heard in open court on December 4, at which time the Court entered an order halting the disposal to Narragansett. With the parties' consent, the matter was set down for a consolidated hearing on the merits on December 11, 1974. Although invited to do so, Narragansett did not seek to intervene.

Plaintiffs' case at the December 11 trial consisted of three witnesses, two of these being named plaintiffs whose testimony was offered primarily to establish standing, and ninety-seven documents,² the vast majority of which were obtained from the files of GSA itself pursuant to a request made by plaintiff Claudine Schneider under the Freedom of Information Act, 5 U.S.C. § 551 et seq., prior to the filing of this action. Aside from exhibits 1-3, which are copies of this Court's orders, the remainder of plaintiffs' exhibits are documents which had been produced by the defendants prior to trial.

After their motion for a directed verdict was denied,³ the defendants declined to offer any evidence, documentary or oral, at trial. They did file the affidavit of Robert R. Rice, an assistant general counsel of GSA, dated December 23, 1974, along with their first post-trial memorandum. See note 22 infra.

FINDINGS OF FACT⁴

On November 9, 1973, the Department of the Navy informed GSA that 2,595.1 acres of land denominated the "U. S. Naval Air Station, Quonset Point, Rhode Island," were "excess" to the Navy's needs and thereby available to other federal agencies (Exh. 4). See 40 U.S.C. § 472(e). The property was screened by federal agencies in November, 1973, but no federal interest was indicated at that time (Exh. 15). The NALF was included in this acreage, although not specifically mentioned and geographically separated from Quonset Point.⁵ This lack of specificity resulted in the failure of one federal agency to express its interest in acquiring a portion of the NALF during the federal agency screening period and before it was declared "surplus," and thereby made available to nonfederal agencies, on May 1, 1974.⁶See 40 U.S. C. § 472(g).

On May 1, 1974, GSA issued a notice that the NALF had been determined "surplus" and available for disposal under provisions of the FPAS (Exh. 5). Nonfederal public agencies interested in acquiring the property were directed to file a notice of intent by May 10, 1974. Various federal agencies were advised in advance (Exh. 18-20) that the "Notice of Surplus Determination" was being sent to the State of Rhode Island (Exh. 21, 23), the Town of Charlestown (Exh. 22, 25), and others upon request (Exh. 32, 93). Prior to that time, GSA had already received expressions of concern as to the ultimate disposition of the property from Ecology Action for Rhode Island (Exh. 6-9, 11), from Concerned Citizens of Rhode Island regarding the possible construction of a nuclear power plant, and an expression of interest in acquiring the property from the Town of Charlestown (Exh. 15, 26). Additionally, the State of Rhode Island had requested that the Navy issue a license to erect a meteorological tower on the NALF to gather data to evaluate the feasibility of using the site for an electricity generating plant (Exh. 36).

As part of its standard disposal procedures, GSA had already requested an appraisal to determine the fair market value of the property.⁷ See 40 U.S.C. § 484(e)(3). The appraiser's report was approved on October 8, 1974 and supplemented on October 23. See note 7 supra. On May 1, GSA also sought to determine "whether or not the subject property has any historical significance" and invited Frederick C. Williamson, Director of the Rhode Island Department of Community Affairs and State Historic Preservation Officer, to make the necessary studies. (Exh. 24). In a responding letter dated May 8, 1974, Mr. Williamson stated that the Rhode Island Historical Preservation Commission was conducting a survey of the NALF under a grant from the New England Power Company and hoped to complete the task by late summer. (Exh. 33A). In a letter to GSA of September 24, 1974, Mr. Williamson reported some of the results of the Commission's surveys and advised:

"Subsequent research by the Commission's new staff archeologist has revealed that a major Indian site exists on the former Charlestown Naval Air Station, near Foster's Cove in the western section of the base. A National Register nomination for this site is in process. Further information on this and other archeological sites will be made available in the following weeks." (Exh. 99).

Details of the discovery and other results of the Commission's survey are contained in a draft report of November, 1974.⁸ (Exh. 97).

After May 1, formal notices of intent to acquire the NALF were received by GSA from a number of public and private entities. The State advised that it sought the NALF for "multi-purpose use" (Exh. 28); the Town renewed its earlier requests (Exh. 27, 62); Providence College and the Narragansett Tribe of Indians each indicated their interest in acquiring the land through the Department of Health, Education, and Welfare (Exh. 31, 34, 35, 65, 66); and the Bureau of Sport Fisheries and Wildlife of the Fish and Wildlife Service, Department of the Interior ("FWS"), sought over 300 acres of the NALF to be used as a refuge for migratory waterfowl. See note 6 supra.

In a letter dated May 6, 1974, the President of Narragansett Electric Company wrote directly to Administrator Sampson⁹ to formally request that GSA enter negotiations for the sale of the NALF to Narragansett for construction of a nuclear power plant on the site. Although not a public agency, Narragansett stated its belief that GSA had authority to negotiate a disposal to it under the FPAS, 40 U.S.C. § 484 (e)(3)(G), based upon two unusual circumstances: first, the NALF was "uniquely suited to nuclear power plant use"; and second, the "Arab oil embargo" and resulting intensification of the "energy crisis" had hit New England particularly hard and caused then President Nixon to issue a directive on April 19, 1974, that federal surplus property should be made available, whenever practicable, for energy facilities. (Exh. 86).¹⁰

As the May 6 letter indicated, Narragansett's interest in the NALF was the result of nearly a year's investigation. See note 10 supra. By May 8, its parent, the New England Power Company, had already funded a study to determine the historical and archaeological significance of the area and the potential environmental impact of a nuclear power plant on the region. (Exh. 33A). Even before Narragansett formally expressed interest in the NALF, the State of Rhode Island's request for a license to erect a meteorological tower as noted above was made on Narragansett's behalf. (Exh. 38, 70). The license was issued by the Navy on May 23 with GSA concurrence. (Exh. 38-39).

From the moment Narragansett made its request on May 6, the proposed negotiated sale received top priority in GSA's Washington Office of Real Property. A memorandum of May 8 indicates that Walter Moreland, Assistant Commissioner of the Office of Real Property, and Minton Holland, GSA's general counsel, had already reviewed Narragansett's letter and concluded that direct negotiations could be undertaken. (Exh. 87). Although purporting to consider all interests equally,¹¹ preferred parties were quickly sorted out, and GSA's energies were devoted to bring them to an agreement. These parties were the State, the Town, and Narragansett, the State and Town being willing to defer their respective interests in acquiring the NALF only if Narragansett could acquire the same to construct a nuclear power plant.¹² According to a GSA "Fact Sheet" prepared August 5, 1974 (Exh. 70), Assistant Commissioner Moreland and a Mr. Berky met with representatives of Narragansett on May 7 to discuss sale of the NALF for a nuclear power plant. The license for the meteorological tower was approved and executed by May 23. (Exh. 39, 70). The report also makes clear that by the beginning of July GSA had determined in principle the ultimate disposition of the NALF:

"On Wednesday, July 3, 1974, GSA officials met with representatives of the State of Rhode Island and the Electric Company in Central Office to discuss alternative ways of selling the property for use as a nuclear power plant and the legal ramifications of such a

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