Opinion
Case No. C-1-02-832
January 17, 2003
ORDER
This matter comes before the Court on Plaintiffs' Motion for Permanent Injunction (doc. #26), Lone Star's Motion to Modify Court's December 30, 2002 Order (doc. #28), and Federal Defendants' Motion for Reconsideration of Remedy (doc. #33). For the following reasons, the Court DENIES AS MOOT Defendants' motions, GRANTS Plaintiffs' motion, and ENJOINS Defendants as set forth below.
I. FACTUAL BACKGROUND
Defendant Lone Star Industries, Inc. ("Lone Star") applied to the United States Department of Army for a permit to construct a barge facility for the loading and unloading of cement on the right bank of the Ohio River in Cincinnati, Ohio. The proposed facility requires construction both in the Ohio River and "upland," i.e., on dry land adjacent to the river. Pursuant to the National Historic Preservation Act ("NHPA") and procedures established by the Advisory Council on Historic Preservation ("ACHP"), Defendant United States Army Corps of Engineers (the "Corps") undertook a determination of whether the Lone Star facility would adversely affect historic properties. This process involved consultation with interested parties, including the Ohio and Kentucky State Historic Preservation Officers ("SHPOs"). First, the Corps determined the area of potential effects ("APE") of the facility. The Corps then identified historic properties within the APE. Next, the Corps issued a finding that the proposed facility would have no effect on historic properties. The Ohio and Kentucky SHPOs, among others, objected to this finding. The Corps discounted these objections, declared the consultation process complete, and issued a permit to Lone Star on November 1, 2002.
Plaintiffs filed suit on November 8, 2002, alleging that the Corps's termination of the consultation process violated the NHPA and the ACHP regulations. Plaintiffs moved for a temporary restraining order staying the Lone Star permit. (Doc. #2.) Prior to a hearing on the motion, the Court allowed Lone Star to intervene as a defendant. (See doc. #4.) At the hearing, the Court did not grant a temporary restraining order; instead, the parties agreed to stipulate to the relevant facts, file cross-motions for summary judgment, and brief those motions on an expedited schedule. (See doc. #5.) On December 30, 2002, the Court found that the Corps violated the NHPA by failing to continue the consultation process after the Ohio and Kentucky SHPOs objected to the "no historic properties affected" finding. Therefore, the Court denied summary judgment to Defendants, granted summary judgment to Plaintiffs, and ordered the Corps to revoke the Lone Star permit.
The parties filed the instant motions shortly thereafter. The Court held a hearing on the motions on January 13, 2003. When the hearing began, two weeks after the Court ordered the Corps to revoke the permit, the Corps had still not done so. During the hearing, Lone Star's counsel stated that construction in the Ohio River had continued after December 30 only for the purpose of securing the facility, but confirmed that Lone Star intended to continue upland construction absent further court order. At the conclusion of the hearing, the Court ordered that Lone Star cease all construction at the proposed facility. Shortly after the hearing, District Engineer Robert A. Rowlette revoked the Lone Star permit. Lone Star has since represented to the Court that all construction at the site has ceased. (Doc. #34.)
II. DEFENDANTS' MOTIONS
In their motions, both Defendants request similar relief. First, Lone Star asks the Court to amend its December 30 Order and require that the Corps suspend rather than revoke the Lone Star permit. Second, the federal Defendants contend that the December 30 Order mandating revocation of the Lone Star permit was inappropriate and ask that it be amended to remand the matter to the Corps for further proceedings consistent with that Order. The Corps has represented to the Court that if the matter were remanded, the Corps would suspend the permit as provided for in 33 C.F.R. § 325.7 (c). However, the Corps complied with the December 30 Order on January 13, 2003 by revoking the Lone Star permit. Consequently, any action by the Court on Defendants' motion would have no effect, and Defendants' motions are moot.
III. PLAINTIFFS' MOTION
Plaintiffs move the Court to amend the December 30 Order also to enjoin permanently Lone Star from engaging in any further construction at the site of the proposed facility. At the January 13 hearing, the Court ordered this relief. This Order sets forth the legal reasons behind the Court's decision.
Plaintiffs' motion raises the issue of whether the Court has jurisdiction to enjoin Lone Star, a private intervening defendant. Lone Star argues that the Court may not enjoin Lone Star because Plaintiffs do not have standing to assert a claim against it under the NHPA, relying onVieux Carre Property Owners. Residents Assocs., Inc. v. Brown, 875 F.2d 453, 456 (5th Cir. 1989). In Vieux Carre, the Fifth Circuit held that the NHPA did not create a cause of action against a private defendant. In addition, Lone Star argues that the Court does not have jurisdiction over the question of whether the continuing upland construction is proper because that issue is not "before the court, precisely framed and necessary for decision." (Doc. #31 at 9 (citingUnited States v. Alpine Land Reservoir Co., 887 F.2d 207, 214 (9th Cir. 1989).) However, Lone Star's arguments fail to appreciate the breadth of the Court's discretion to fashion injunctive relief in order to guarantee that the Corps can engage in meaningful assessment of the proposed facility pursuant the NHPA.
"It is well established . . . that a federal district court has wide discretion to fashion appropriate injunctive relief in a particular case," Richmond Tenants' Org., Inc. v. Kemp, 956 F.3d 1300, 1308 (4th Cir. 1992) (citing Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)), though that discretion may be limited by statute. See Crutchfield v. U.S. Army Corps of Engineers, 192 F. Supp.2d 444, 452 (E.D. Va. 2001). Absent such a statutory limitation, a court may enjoin private defendants who may not normally be subject to suit under the relevant statute. See Sierra Club v. Hodel, 848 F.2d 1068, 1076-78 (10th Cir. 1988) (though Federal Land Policy Management Act ("FLPMA") may not create private cause of action against private defendant, private plaintiff may seek injunction against private defendant where Bureau of Land Management, the federal agency charged with enforcing FLPMA, has the power to require compliance but refused to exercise that power). Specifically, injunction of a private party is proper when the project in question requires substantial federal involvement and private party action would frustrate that involvement.Comm. to Save Cleveland's Huletts v. U.S. Army Corps of Engineers, 163 F. Supp.2d 776, 784 (N.D. Ohio 2001) (citing Gettysburg Battlefield Pres. Assoc. v. Gettysburg Coll., 799 F. Supp. 1571, 1576 (M.D. Pa. 1992)).
In this case, the NHPA does not limit the Court's discretion to issue injunctions necessary to ensure compliance with the statute. In addition, construction of the proposed facility requires substantial involvement by the Corps, both prior to construction, in determining whether the facility will have adverse effects on nearby historic properties, and during construction, in conducting inspections to certify compliance with the Corps permit. The remaining question, therefore, is whether Lone Star's continuing upland construction would frustrate the Corps's involvement.
The above question requires an affirmative answer. To illustrate this point, let us examine the facts as they stood prior to the Court's enjoining further construction. The Corps, in compliance with the Court's order, was in the process of revoking the Lone Star permit. Lone Star had already completed a substantial portion of its work in the Ohio River and planned to continue with upland construction. Faced with the continued construction, the Corps opted not to require Lone Star to cease this construction. Instead, it advised Lone Star that any further upland construction was undertaken at Lone Star's risk because the Corps may require changes to the project before reissuing the permit or the permit may not be reissued at all. (See doc. #33 exh. 1.)
In theory, by placing responsibility for new construction on Lone Star, the Corps appears to guarantee that it will be able to engage in a meaningful and objective analysis of the impact of the Lone Star facility on nearby historic properties. But in fact, the Corps's admonition to Lone Star rings hollow. When addressing a permit request, the Corps has three options: 1) deny the permit request outright, 2) grant it without modification, or 3) require modifications to either the waterbased or upland portions of the facility before granting the request. In a world where Lone Star has undertaken no construction, none of these options would cause significant economic injury to Lone Star. However, if Lone Star is permitted to continue upland construction, then, when the time comes for the Corps again to address Lone Star's permit request, Lone Star would likely have at least substantially completed the land-based portions of the facility. At that point, the Corps would be left with a much narrower universe of feasible options, as denying the permit or requiring modification of the land-based portions of the facility would entail substantial economic injury to Lone Star. Inevitably, the Corps would feel significant pressure to avoid that injury and grant the permit outright, despite whatever reservations it might have about compliance with the NHPA.
The initial permit process took almost two years, and Lone Star has represented that the upland construction may be completed in six months. (See doc. #34 at 3 .5.)
Second, it is the upland portion of the facility that creates the most concern for Plaintiffs and the Kentucky and Ohio SHPOs. This portion includes two 115-foot steel storage silos. Plaintiffs argue that these silos will be visible from historic properties in Sayler Park, thus impinging on the historic nature of those properties. Likewise, the silos may be visible from historic property in Kentucky. This concern, in part, caused the Kentucky SHPO to object to the Corps's initial "no historic properties affected" finding. The land-based portion of the facility also includes a pneumatic line to transport the cement from the barge into the silos. Plaintiffs contend that the noise generated from this line may also adversely affect the historic nature of certain Sayler Park properties. Yet, absent an injunction, these portions of the facility will already be in place before the Corps makes its determination. It is hard to imagine that an objective discussion of "potential" effects of the proposed facility could honestly occur at that point. Rather, a sort of regulatory inertia would set in as the presence of the upland portion of the facility, unmodified from its initial plans, would create the presumption that the facility, as is, should remain.
Federal courts have recognized that both economic pressure and regulatory inertia may substantially and improperly impact the decision-making of a federal agency. See Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323, 1333-34 (4th Cir. 1972) (in determining where to build a highway, "[f]urther investment of time, effort, or money in the proposed route would make alteration or abandonment of the route increasingly less wise and, therefore, increasingly unlikely. If investment in the proposed route were to continue prior to and during the Secretary's consideration of the environmental report, the options open to the Secretary would diminish, and at some point his consideration would become a meaningless formality."); Crutchfield, 192 F. Supp.2d at 457-59 (finding injunction against private party appropriate where "there is a substantial likelihood that continued construction . . . would increase significantly the pressure to approve the project as tendered"). Therefore, construction outside of a federal agency's jurisdiction may be enjoined "when it has a direct and substantial probability of influencing [the agency's] decision." See also North Carolina v. City of Virginia Beach, 951 F.2d 596, 603 (4th Cir. 1991).
Of course, the Court's concern would be somewhat ameliorated if the Corps appeared willing to require Lone Star to cease upland construction as a prerequisite of continuing the permit process. However, the Corps seems unwilling to do so. In fact, judging from its prior actions, the Corps appears interested less in fulfilling the consultation obligations set forth by ACHP regulations than in finding a way to terminate them at the earliest possible moment. The Corps's reticence only underlines the need to make certain that it will engage in serious consultation with interested parties instead of a rubber-stamp review of the "potential" effects of an already-built facility.
Finally, Lone Star also asserts that zoning laws and other permits authorize it to engage in upland construction without ever contacting the Corps. Therefore, Lone Star argues, despite the revocation of the permit, upland construction should be allowed to continue unabated. This is incorrect and ignores the realities of the situation. At one time, Lone Star may have been able to engage freely in upland construction as long as it did not build in the Ohio River. However, Lone Star has now set forth plans for construction of a barge loading/unloading facility, the upland portion of which would be practically useless without the water-based portion. Instead, the only function that the upland portion of the facility, standing alone, could serve at this point would be as leverage to pressure the Corps into approving a permit to construct the water-based portion of the facility. This the Court will not allow.
Whether this is true is contested by the parties. Lone Star contends that it has obtained the necessary building permits for the upland construction and that the land is appropriately zoned to permit that construction. Plaintiffs assert that the land is zoned such that barge access — and thus a Corps permit to construct the facilities for such access — is required for upland construction to be permissible. This question is not before the Court, and any violations of City of Cincinnati zoning laws would be more appropriately addressed elsewhere.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES AS MOOT Defendants' motions (docs. #28, 33) and GRANTS Plaintiff's Motion for Permanent Injunction (doc. #26). Furthermore, the injunction issued by the Court on December 30, 2002 remains in effect, and the Court ORDERS that Lone Star cease all construction on the parcel of land at issue in this lawsuit until further Order of the Court.
Subsequent to the January 13 hearing, Lone Star asked the Court 1) to issue a preliminary, rather than permanent, injunction and allow the parties further opportunity to brief the jurisdictional issues addressed above and 2) to craft the injunction such that it would dissolve if the Corps issued another permit to Lone Star. The Court will do neither. First, all parties have been given ample opportunity to address Lone Star's jurisdictional arguments. Additional briefing is not necessary. Second, if the Corps issues another permit, that may well give rise to another round of litigation and require another injunction. In addition, requiring Lone Star to apply to the Court for relief from the injunction in the event of a new permit being issued would not be a burdensome process. As such, wisdom dictates that the better course is to keep the injunction in place until the Court orders otherwise.
IT IS SO ORDERED.