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HOVSONS, INC. v. SECRETARY OF THE INTERIOR OF THE

July 14, 1981

HOVSONS, INC., a New Jersey corporation; the Coalition to Save Agriculture, a New Jersey Corporation; the Coalition for the Sensible Preservation of the Pinelands, an unincorporated association; Folsom Township, a municipal corporation of the State of New Jersey; Woodland Township, a municipal corporation of the State of New Jersey, Plaintiffs, and Marvin F. Matlack and Shirley Ann Matlack, Pineland landowners, individually and on behalf of their minor children, Pamela and Desiree; Pineland Landowners Defense Fund, Inc., a New Jersey Corporation; Board of Education of Washington Township, a corporate entity under the laws of the State of New Jersey; and Board of Education of Woodland Township, a corporate entity under the laws of the State of New Jersey; Township of Lacey, a municipal corporation of the State of New Jersey; and Lake Lenape Land Co., a corporation of the State of New Jersey, Plaintiffs- Intervenors,
v.
The SECRETARY OF the INTERIOR OF the UNITED STATES of America, Defendant, and State of New Jersey; the Pine Barrens Coalition; the New Jersey Audubon Society; the Environmental Defense Fund, Inc.; the Natural Resources Defense Council, Inc.; Friends of the Earth; the Sierra Club; the National Parks and Conservation Association; the American Rivers Conservation Council; and the National Wildlife Federation, Defendants-Intervenors



The opinion of the court was delivered by: THOMPSON

This case presents a challenge by a number of plaintiffs to an action taken by the Secretary of the Interior on January 16, 1981, in which he indicated his approval, pursuant to 16 U.S.C. § 471i(g)(1), of the Comprehensive Management Plan ("CMP"), for the conservation and development of that area of the State of New Jersey known as the Pinelands. In response to 16 U.S.C. § 471c and d, the State had drawn up this procedural and substantive plan. Following the creation of the CMP by the Pinelands Commission, which had itself been called into existence by Governor Byrne's Executive Order No. 71 of February 8, 1979, and extended by the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. the CMP was submitted to the Secretary of the Interior.

The task of the Secretary was to review the CMP in terms of the criteria set forth at 16 U.S.C. § 471i(g)(2). On approval by the Secretary, New Jersey would be eligible to receive federal funds to aid in the implementation of the CMP. The Secretary's review of the CMP was not related to the plan's existence or authority, since it had already been promulgated by the State authorities, but only to the CMP's assistance by means of federal funding.

 Plaintiffs began this suit by applying for a temporary restraining order on January 12, 1981, to enjoin the Secretary from approval of the CMP. The complaint alleged that the Secretary's approval of the CMP, which was imminent, would be a violation of NEPA due to a deficient EIS, and a violation of the Fifth Amendment and the National Parks and Recreation Act ("NPRA"), the federal law which invited New Jersey to draw up the CMP. We denied the application for a temporary restraining order on January 12, and set a return date of February 2, 1981 for an order to show cause why a preliminary injunction should not issue.

 There followed a series of motions for intervention, filed by a variety of parties on both sides of the issues in this case. These motions were granted, and the litigants presently before the Court as intervenors were granted leave to file appearances.

 On January 26, 1981, the defendant Secretary of the Interior filed a motion to dismiss the complaint. The order to show cause, as well as the motion to dismiss, were ordered adjourned without date from February 2. At a hearing on these matters on February 19, plaintiffs' application for a preliminary injunction was denied as moot, in light of the Secretary's approval of the CMP. However, plaintiffs were given leave to amend their complaint. Also on February 19, we adjourned the Secretary's motion to dismiss to March 16.

 On March 4, 1981, the defendant-intervenors Pine Barrens Coalition, New Jersey Audobon Society, Environmental Defense Fund, Inc., Natural Resources Defense Council, Inc., Friends of the Earth, Sierra Club, National Parks and Conservation Association, American Rivers Conservation Council and National Wildlife Federation filed a motion for summary judgment. The remaining defendant-intervenor, the State of New Jersey, filed its pending motion for dismissal, abstention or summary judgment on March 18. In addition, the plaintiff-intervenor Pineland Landowners Defense Fund, Inc., filed a motion for a preliminary injunction on March 17, 1981.

 The final filing of a pending motion in this case occurred on March 31. The defendant Secretary of the Interior filed his motion for summary judgment on Counts I and II of the complaint, the second amended version of which was filed one day later, on April 1, 1981. On April 7, we heard argument on all defendants' motions except the Secretary's summary judgment motion on the first two counts, and reserved our decision. On April 23, we denied plaintiff-intervenor's motion for a preliminary injunction, and on May 5, 1981, we heard argument addressed to the defendant Secretary's summary judgment motion. At that time we reserved judgment.

 The time has now come to resolve these pending motions. Because we address ourselves to and decide the Secretary's motion on Counts I and II and the State of New Jersey's motion on Count III of the Second Amended Complaint in such a way as to moot all other pending matters, we will not discuss them. Nevertheless, we wish to take this opportunity to state that the able job done by all counsel in briefing and arguing all the pending motions has assisted the Court in framing and determining the issues presented by this case.

 Propriety of Summary Judgment

 Fed.R.Civ.P. 56 provides that no summary judgment may be granted unless the moving party demonstrates that there is no genuine issue as to any material fact. The moving party must show that he is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3rd Cir. 1980). There are, in essence, three major issues framed by plaintiffs' complaint. First, whether the defendant Secretary of the Interior improperly approved New Jersey's CMP because his approval was based upon a defective EIS. This question, of course, requires a predicate finding that the EIS was, in fact, defective. Second, whether the defendant Secretary of the Interior improperly approved the New Jersey's CMP because he failed to make the findings required for approval under 16 U.S.C. § 471i(g)(2). Third, whether New Jersey's CMP, as approved by the Secretary of the Interior, amounts to a violation of the plaintiffs' Fifth and Fourteenth Amendment rights to be free from a governmental "taking" without just compensation.

 In pressing their motions for summary judgment, defendants rely on the FEIS and New Jersey's CMP, as well as the affidavits of Robert McIntosh and Bernard Fagan, and the Secretarial Issue Document drawn up by the Interior Secretary. In opposing defendants' motions, the plaintiffs are not entitled to rest on their pleadings. Although all inferences to be drawn from any evidentiary material submitted will be drawn in favor of the party in opposition, Special Jet Services, Inc. v. Federal Insurance Company, 643 F.2d 977 (3rd Cir. 1981), that party also has the responsibility to come forward with his own material to demonstrate the existence of a conflict. DeLong Corporation v. Raymond International, Inc., 622 F.2d 1135, 1142 (3rd Cir. 1980).

 All three of the issues stated in plaintiffs' complaint may properly be considered in the context of these motions for summary judgment. A careful analysis of precisely what plaintiffs' complaint must be understood as asserting reveals that there are no genuine issues of fact to bar summary judgment at this time. Here, as elsewhere, it is important to focus on the fact that the complaint is directed against the Secretary's approval of the CMP, not against the CMP itself. Whatever the faults of the CMP, it exists as a finished product upon which the FEIS was based. Plaintiffs' complaint calls upon the Court to make a series of legal determinations and defendants' summary judgment motions simply point out that these determinations may be made now. Plaintiffs have not introduced any materials which lead us to believe that any further fact gathering is necessary to elucidate, explain or alter the record which has been developed for the pending motions. For instance, plaintiffs argue that summary judgment on Count II is not appropriate because "factual issues" are raised by their proffered affidavits alleging that certain members of the public were deprived of what was, in their opinion, an adequate opportunity for public participation in the CMP. However, the adequacy of public participation is not at issue in Count II. What is at issue is the Secretary's approval of the CMP, including his consideration of whether

 
the planning entity has afforded adequate opportunity, including public hearings, for public and governmental involvement in the preparation and review of the plan, and whether such review and comment thereon were considered in the plan or revision as presented to him;

 16 U.S.C. § 471i(g)(2)(A).

 Clearly, the facts of public participation underlie, but do not determine the legal adequacy of the Secretary's consideration of that public participation in his review of the CMP. In other words, both of the first two counts of the complaint *fn1" require that we function as reviewers of the procedure of Secretarial review, and not of the substance of that approval. So long as the Secretary did what he was supposed to do under the law, the content of what he approved is not at issue in this lawsuit. As the Court in Greater Saint Louis Health Systems Agency v. Teasdale, 506 F. Supp. 23, 32 (E.D.Mo.1980) said in similar circumstances, "(t)his Court cannot enact a satisfactory law for the State."

 
(New Jersey's CMP) obviously has to satisfy the Secretary. However, the fact that the Secretary must be satisfied does not mean that the plaintiffs must be satisfied...

 Id., at 36 (emphasis added).

 Parties

 Plaintiff, Hovsons, Inc., describes itself as a builder and developer and the owner of 562.87 acres in Berkeley Township, Ocean County. Hovsons complains that it is unable to complete a subdivision which it had planned and begun on the land as a result of "the Moratorium issued by Governor Brendan T. Byrne under Executive Order 71 and ... the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq." (Second Amended Complaint, P 2).

 Plaintiff Coalition for the Sensible Preservation of the Pinelands is an unincorporated association of individuals and groups; the complaint alleges that the individual members of the group live in the vicinity of the Pinelands National Reserve as set out in the National Parks and Recreation Act of 1978, 16 U.S.C. § 471i et seq., and in the Preservation Area established by the Pinelands Comprehensive Management Plan. This plaintiff also alleges that it proposed to the Pinelands Commission ("PC") an alternative to the CMP, which alternative, it is presumed, was rejected. (P 1).

 Plaintiff Coalition to Save Agriculture is made up of persons who live in and/or use the Pinelands; they allege a "deep appreciation of the Pinelands and a desire to preserve them for future generations." They complain that some of their members are severely affected by the building restrictions contained in the CMP; and also that they are the owners of land which "may be" acquired by the United States or the State of New Jersey.

 Plaintiff Folsom and Woodland Townships are wholly or partially included in the Pinelands. They complain that the CMP and the PC will usurp and override their municipal responsibilities for such things as "land use, planning, zoning, municipal services, and quality of life in their respective communities." (P 4).

 Plaintiff Township of Lacey, 70 of whose 85 square miles are included in the CMP, complains that "(with) the adoption of the Pinelands CMP, the Township finds itself in a position of virtually a no-growth future." More specifically, Lacey complains that because of the CMP it will suffer a reduction in ratables and a decline in its school population. Additionally, Lacey complains that it had no participation in the formulation of the CMP. (P 5).

 Plaintiff Lake Lenape Land Company alleges that it is the owner of some 1758 acres in Hamilton Township, Atlantic County, which is subject to the provisions of the CMP. Lake Lenape Land complains that "(development) of said property on an economically feasible scale has been rendered impossible by the Pinelands CMP ... and has rendered the land virtually useless." (P 6).

 Plaintiffs Marvin F. and Shirley Ann Matlack are residents of Burlington County, and own land in Chatsworth, New Jersey which is subject to the provisions of the CMP. They also allege that they have one child attending public school "within the Pinelands National Reserve." It is not alleged in the complaint that they have suffered any injury as a direct result of the Secretary's action. (P 7, 8, 9). Testimony in the record given by plaintiff Marvin Matlack attempts to imply that his property has lost its value.

 Plaintiff Pinelands Landowners Defense Fund, Inc. is a non-profit corporation with approximately 250 members. These persons, it is alleged, reside and/or own land and/or pay various taxes and/or recreate in the area of the Pinelands National Reserve. This organization complains that it has among its membership persons who do not qualify for the so-called "Piney Exemption" which is part of the CMP. In addition, some members of the organization have relatives who would like to live in the area but who likewise do not qualify for the "Piney Exemption." (P 10, 11, 12, 13).

 Plaintiff Board of Education of Woodland Township administers the school system of that township, which is located within the Pinelands National Reserve. Like the Board of Education of Washington Township, this plaintiff alleges that it must raise 60% of the annual school budget. As with Washington, we presume that Woodland's Board of Education is complaining that it will not be able to raise this money as the result of a loss of tax ratables flowing from the CMP's adoption and operation. (P 17, 18, 19).

 Under Section IV of the Second Amended Complaint, labeled "Standing," plaintiffs have alleged the interests and facts which they feel entitle them to prosecute this action. In a general statement, paragraph 36 alleges that plaintiffs' standing proceeds from their "interest in the preservation and environmentally sound development of the Pinelands, their residence in and use and enjoyment of the Pinelands," their governmental jurisdiction, and their ownership of property which may be acquired under the Pinelands legislation.

 Section IV of the complaint then proceeds to list each plaintiff individually, alleging standing for each "by virtue of the economic, environmental and social injuries sustained by them as a result of the Pinelands CMP, submitted by the State of New Jersey and approved by the defendant, Secretary of the Interior." (P 37-48).

 The defendants have raised the issue of plaintiffs' standing in their motions. This question is complicated in the present case because the plaintiffs complain exclusively of the effects upon them of the State's CMP. The harms alleged in their complaint are, without exception, a litany of wrongs suffered as the result of the imposition of the CMP. The act of the Secretary of the Interior in approving the plan did not in any direct way affect any plaintiff. The effect of the defendant's action upon the plaintiffs was at most indirect, opening the possibility, but not the certainty, of federal funding of the CMP. Therefore, plaintiffs have brought before the Court a defendant whose actions have only the potential and derivative effect upon the plaintiffs of making the CMP more likely to be implemented.

 The defendants have argued that this problem in plaintiffs' position demonstrates their lack of standing, because of the "redressability requirement" of Article III jurisprudence. The requirement was pointed out in Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S. Ct. 1601, 1607-1608, 60 L. Ed. 2d 66 (1979), where the Court spoke of "the Article III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself' ... that is likely to be redressed if the requested relief is granted." See also, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261-62, 97 S. Ct. 555, 561-562, 50 L. Ed. 2d 450 (1977).

 Plaintiffs in this action seek the following relief: 1. an order voiding the approval of the CMP by the Secretary of the Interior; 2. an order requiring the Secretary to prepare a new environmental impact statement; 3. an order requiring the Secretary to reconsider the CMP in light of this new EIS; 4. a stay in the 90-day statutory period for review of the CMP until the new EIS is prepared; 5. a permanent injunction against the approval of the CMP which the Secretary issued on January 16, 1981.

 Count I

 Count I of the plaintiffs' complaint alleges that the defendant is guilty of a violation of the National Environmental Protection Act, NEPA. Specifically, the complaint alleges that the EIS upon which the Secretary relied in making his decision to approve New Jersey's CMP was legally deficient in a number of respects. NEPA requires that a federal agency contemplating "any major Federal action funded under a program of grants to States," 42 U.S.C. § 4332(2)(D),

 
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a ...

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