Silva v. Romney, 72-1352.

• Decision Date: 02 February 1973
• Docket Number: No. 72-1352.,72-1352.
• Citation: Silva v. Romney, 473 F.2d 287 (1st Cir. 1973)
• Parties: Arthur SILVA et al., Plaintiffs-Appellants, v. George ROMNEY et al., Defendants-Appellees, and Harry Wolk, Intervenor-Appellee.
• Court: U.S. Court of Appeals — First Circuit

473 F.2d 287 (1973)

Arthur SILVA et al., Plaintiffs-Appellants, v. George ROMNEY et al., Defendants-Appellees, and Harry Wolk, Intervenor-Appellee.

No. 72-1352.

United States Court of Appeals, First Circuit.

Heard December 7, 1972.

Decided February 2, 1973.

John Leubsdorf, Boston, Mass., with whom Foley, Hoag & Eliot, Boston, Mass., and Anne M. Vohl, Lexington, Mass., were on brief, for plaintiffs-appellants.

J. Owen Todd, Boston, Mass., with whom Robert W. Mahoney and Hale & Dorr, Boston, Mass., were on brief, for Harry Wolk, intervenor-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This case involves a housing project undertaken by a private developer with a commitment by the Department of Housing and Urban Development (HUD) to provide a mortgage guarantee and an interest grant. The district court, finding that the project was "likely to be found to be a major federal action" significantly affecting the environment, enjoined HUD from giving any assistance until an environmental impact statement is prepared. The court, however, did not similarly enjoin the private developer from any interim action affecting the environment, here the cutting of trees. This appeal concerns the court's power to enjoin the developer under such circumstances. We hold that this power exists and that the case should be remanded for a hearing on the merits of the request of those living in the neighborhood of the project (appellants) for a preliminary injunction. We are also impelled to go beyond the strict necessities of this case, in view of the increasing frequency of this kind of litigation, and urge the adoption by HUD of suitable "status quo" regulations.

The developer's "Forest Glen Project" contemplates the construction of 138 low and moderate income housing units on an 11.38 acre woodland tract in Stoughton, Massachusetts. HUD had been requested to provide and had approved a mortgage guarantee in the amount of $4,000,000 and an interest grant of $156,000, but the final closing had not yet taken place. Appellants, claiming that their neighboring properties will be adversely affected by the project as presently contemplated, originally brought suit to enjoin HUD from aiding the project until an environmental impact statement had been filed under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332 (2)(C) and appropriate regulations, rather than the less researched "Special Environmental Clearance Worksheet" which had been filed. The developer was granted leave to intervene. After a hearing on a request for a preliminary injunction, the district court enjoined HUD, concluding that "the Forest Glen project appears likely to be found a major federal action . . . that there is a reasonable likelihood that appellants will prevail on the merits, that the grant of preliminary relief will not irreparably harm the defendants, and that denial of relief would irreparably harm appellants." Silva v. Romney, 342 F.Supp. 783, 785 (D.Mass.1972). Subsequently HUD withdrew its appeal from that decision and commenced preparation of a full environmental impact statement.

While the HUD study was continuing, appellants learned that the developer had cut down trees on about three acres of the tract and on September 8, 1972 filed a "Motion for Relief Preserving Status Quo" to temporarily enjoin the developer's actions pending completion of the HUD impact statement. On September 12 appellants filed a "Motion for Temporary Restraining Order" which was denied, after a nonevidentiary hearing, on September 28. Thereupon appellants filed on September 29 a "Motion for Hearing on Motion for Relief Preserving the Status Quo" which included a request for a preliminary injunction. The motion was denied on October 16 and this appeal followed.¹ At argument the developer undertook voluntarily to refrain from further cutting pending our decision.

The district court did not, in denying injunctive relief, set forth findings of fact and conclusions of law as required by Rule 52(a), F.R.Civ.P. We think it clear from the major thrust of the argument below that the court deemed itself without authority to prevent the developer from doing "as he wishes" with his own property.² In particular, the developer now, as then, relies heavily on our opinion in City of Boston v. Volpe, 464 F.2d 254, 257 (1st Cir.1972), where we stated that "agencies may be subject to duties concerning a proposed federal action at a time when an applicant may not yet be enjoined from acting on his own." Thus the developer argues that even if we were to remand to the district court for an evidentiary hearing on appellants' motion for a preliminary injunction, no such relief could be issued under any possible factual situation because the district court lacks power to enjoin a private party from using his land as he pleases simply because an application for federal aid has been filed.

In City of Boston, the administrative process had reached no farther than an intra-agency "preliminary and tentative" allocation of funds. Here, HUD had represented that "the provision of HUD aid for this project has been approved by HUD". The extent of commitment has been made even more clear by a memorandum filed with this court which reveals that in November, 1971, the Federal Housing Authority issued a 180-day commitment concerning the Forest Glen Project, creating a contract between the Authority and the developer.³ These arrangements therefore have reached "the point at which the federal government becomes a partner with" the potential grantee. City of Boston, supra at 256, n. 2.

We must therefore reject the developer's argument that he may not properly be enjoined, since it is "beyond challenge" that one in partnership with the federal government can be prohibited from acting in a certain manner. Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). Such action has been taken in the NEPA context in Boston Waterfront Residents Ass'n v. Romney, 343 F.Supp. 89 (D. Mass.1972), where the Boston Redevelopment Authority, a recipient of HUD funds, was enjoined from proceeding with demolition work until HUD, its benefactor, had complied with NEPA. In Gibson v. Ruckelshaus, 3 E.R.C. 1028 (E.D.Tex.1971), the city of Lufkin received a conditional grant from the federal Environmental Protection Agency (EPA) for sewer construction, dependent upon obtaining land titles and easements, but was enjoined from prosecuting a state condemnation suit until a federal suit alleging EPA's noncompliance with NEPA could be heard.⁴See also Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 446 F.2d 1013, 1027 (5th Cir.1971);⁵ West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 236 (4th Cir.1971). Indeed, the imposition of environmental restraint upon one so linked with a federal grantor would seem to be consistent with the Congressional declaration that "each person has a responsibility to contribute to the preservation and enhancement of the environment", 42 U.S.C. § 4331(c).

Not cited to us, but perhaps opposed to this principle is Ely v. Velde, 451 F.2d 1130 (4th Cir.1971), in which the Law Enforcement Assistance Administration had approved the grant of federal funds to Virginia to build a penal institution, and no statement, pursuant to 42 U.S.C. § 4332(2)(C), having been filed, the federal agency was enjoined from making the grant, though the court refused to prevent the state from proceeding with construction plans. While it appears from the reported facts that the state did little, if any, actual work on the land involved so that the status quo was not disturbed environmentally, to the extent that the court determined that NEPA imposes no duties upon non-federal entities which have entered into partnership with the federal government, we respectfully decline to follow it. The nexus here between HUD and the developer is so extensive that the district court had power to enjoin the developer's actions, and the case will be remanded for a determination of whether an injunction should issue.

While this case, as we have noted, is not controlled by City of Boston, we confess to a sense of growing uneasiness in seeing decisions determining the obligations of federal and non-federal parties under NEPA turn on any one interim step in the development of the partnership between the parties. Such an approach unrealistically stresses adventitious factors which bear little relationship to either the broad concerns of NEPA or the interests of the potential grantee, private or public. Hence, in the present case, the mere fact that a binding contract has been entered into between HUD and the developer is but one manifestation of and quite irrelevant to an ongoing planning process by all parties to the project which must provide for the reasonable expectations of the parties.

We are convinced that there exists a void which can be sensibly filled only by "status quo" regulations which guide the government, aid applicants and the general public where "proposed major federal actions", 42 U.S.C. § 4332(2)(C)—i. e., potential major federal actions—are involved. Such regulations which address the problem of what action may be taken on a project while an environmental impact statement is being prepared and discussed can only contribute to better decision-making.

The government, for its part, has an enormous investment in conducting detailed impact studies in accordance with 42 U.S.C. § 4332(2)(C), such that it must have some reassurance that its work will not be in vain, but will be put the best possible use in avoiding environmental damage in a contemplated federally-aided project. It could, working with the knowledge that a status quo regulation applies, continue to expend large resources on environmental studies without fear that the ecological premises of those...