Wisconsin Heritages, Inc. v. Harris

• Decision Date: 11 September 1979
• Docket Number: No. 78-C-632.,78-C-632.
• Citation: 476 F. Supp. 300
• Parties: WISCONSIN HERITAGES, INC., a Wisconsin Corporation, Plaintiff, v. Patricia HARRIS et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

476 F. Supp. 300

WISCONSIN HERITAGES, INC., a Wisconsin Corporation, Plaintiff, v. Patricia HARRIS et al., Defendants.

No. 78-C-632.

United States District Court, E. D. Wisconsin.

September 11, 1979.

William H. Lynch, Daniel J. Steininger, Ebert & Ebert, Milwaukee, Wis., for plaintiff.

Ray J. Aiken, University Legal Counsel, Milwaukee, Wis., for Marquette University.

James B. Brennan, City Atty., James E. Fitzgerald, Asst. City Atty., Milwaukee, Wis., for Redevelopment Authority and William Ryan Drew.

Joan F. Kessler, U. S. Atty., Milwaukee, Wis., for HUD.

DECISION and ORDER

MYRON L. GORDON, District Judge.

One of the defendants, Marquette University, has filed a motion to alter the terms of the preliminary injunction entered on November 17, 1978. The motion will be granted in part.

The plaintiff filed this action alleging that the defendants failed to comply with several federal and state environmental and historic preservation laws in connection with the contemplated demolition of the Elizabeth Plankinton mansion. The plaintiff, Wisconsin Heritages, Inc., is a nonprofit Wisconsin corporation organized, in part, to preserve buildings of architectural and historical value. The defendants included various officials of the United States Department of Housing and Urban Development (collectively referred to herein as "HUD"), the Redevelopment Authority of Milwaukee (RAM), and Marquette University. HUD is responsible for administering federal assistance to urban renewal programs. RAM is responsible for preparing and implementing urban renewal plans for the city of Milwaukee. Marquette is the present owner of the land on which the Elizabeth Plankinton mansion is located.

On November 17, 1978, I entered an order preliminarily enjoining the defendants HUD and RAM from authorizing or permitting the demolition of the mansion. 460 F.Supp. 1120 (1978). I also affirmatively enjoined HUD to produce an environmental impact statement as required by 42 U.S.C. § 4332. The order also stated that

"Upon the parties' and the court's receipt of the environmental impact statement . . ., Marquette may move for an order vacating the preliminary injunction. The propriety of continuing the injunction over Marquette's objection at that time will then be considered in relation to the statement." 460 F.Supp. at 1127.

HUD's "Final Environmental Impact Statement" (FEIS) was filed on June 7, 1979. It stated in part:

"It is our opinion that HUD assistance to the proposed action would result in environmental impacts which are significantly adverse and therefore considered unacceptable under HUD environmental policies and standards. Therefore, HUD selects alternative 3.210 No Federal action. This alternative is chosen in view of the possibility of relocation.

"HUD will review this decision in six months of the date of this FEIS. It is expected that HUD will receive evidence of financial commitment to relocate the Plankinton House along with a workable relocation and continued maintenance plan."

Marquette has now moved to alter the preliminary injunction in two ways: first, by establishing a date certain by which the injunction would be vacated, and second, by requiring the plaintiff to post security during the pendency of the injunction.

An attempt is currently underway to arrange for the removal of the Elizabeth Plankinton mansion to a different site. In view of this attempt and the recommendations contained in HUD's environmental impact statement, the parties have commendably reached an agreement regarding the remaining time in which the present injunction should remain in effect. Essentially the parties are agreed that in the event contracts are entered into prior to March 1, 1980, between RAM and a qualified person or corporation, which provide for the removal of the mansion on or prior to August 31, 1980, then the preliminary injunction should terminate upon the removal of the mansion from its present location. In the event such contracts are not entered into by March 1, 1980, then the preliminary injunction presently in effect should be vacated on that date.

Since there is apparent agreement with this arrangement, and this timetable is consistent with the recommendations contained in HUD's environmental impact statement, the preliminary injunction presently pending in this action will be modified as discussed above.

Marquette has also moved that the plaintiff and RAM be required to post security during the pendency of the preliminary injunction. Marquette requests that the security required of the plaintiff be in the amount of $1,468 times the number of months the preliminary injunction will be in effect. The sum of $1,468 represents the monthly rental paid by the Knights of Columbus, the last tenant of the Elizabeth Plankinton mansion. RAM, in its brief in support of Marquette's motion insofar as it requires the plaintiff to post security, has suggested that such security be in an amount sufficient to cover RAM's costs for custodial and security services. RAM's suggestion would entail the posting of approximately $30,000 in addition to the amount requested by Marquette.

Rule 65(c), Federal Rules of Civil Procedure, provides in pertinent part:

"Security. No restraining order of preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained."

The purpose of the security requirement is to protect the restrained parties from damages incurred by the wrongful issuance of an injunction. Commerce Tankers v....