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FIRST NATL. BANK OF HOMESTEAD v. WATSON

June 15, 1973

FIRST NATIONAL BANK OF HOMESTEAD, Plaintiff,
v.
Justin T. WATSON, Acting Comptroller of the Currency, Defendant, and The Second National Bank of Homestead, Defendant-Intervenor


Flannery, District Judge.


The opinion of the court was delivered by: FLANNERY

Flannery, District Judge.

 This is a civil action brought by the First National Bank of Homestead, individually, and by the Bank on behalf of its directors, officers and shareholders as citizens of south Dade County, Florida, concerned with protecting the quality of the environment in and around Homestead, Florida. Plaintiff Bank, at the moment the only banking association in Homestead chartered by the Comptroller of the Currency under the laws of the United States, seeks to enjoin the Comptroller from finally approving an application to organize a second national bank in Homestead, the Second National Bank of Homestead and the defendant-intervenor to this action. Plaintiffs seek injunctive relief on the theory that the Comptroller in issuing his preliminary approval failed to comply with procedures intended by the National Environmental Policy Act (NEPA) to be incorporated into the decision-making process of any federal agency whose actions may affect the quality of the human environment. See 42 U.S.C. § 4332.

 Plaintiffs also contend that the Comptroller's decision is illegal since it is not supported by findings of fact and conclusions of law. Absent a showing that his action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," the Comptroller is under no such obligation to explain his action. Pitts v. Camp, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973). This opinion, therefore, is concerned only with the plaintiffs' claim under NEPA.

 The defendants argue first that this court has no jurisdiction to review the Comptroller's action. They contend that since the Comptroller conditioned his approval on acquisition of the new bank by a registered bank holding company -- American Bancshares, Inc. -- proper review is in the United States Courts of Appeals pursuant to the Bank Holding Company Act of 1956, 12 U.S.C. § 1848. The defendants further argue that NEPA did not apply to the action of the Comptroller in this case and even if it did so apply, the Comptroller's office took into account the considerations mandated by NEPA and, in fact, prepared a report, forwarded to the plaintiffs at the time of the preliminary approval, which concluded that the proposed action did not constitute "major" federal action that would have any "significant" impact on the environment.

 The matter is before the court on the plaintiffs' motion for a preliminary injunction and on the renewed motion to dismiss filed by the Comptroller and a motion to dismiss filed by the defendant-intervenor Bank. The court, having previously heard arguments on the government's first motion to dismiss, denied that motion by Order dated May 21, 1973 and enjoined the Comptroller from issuing a final charter pending decision on the plaintiffs' motion for preliminary injunction.

 The court has heard arguments and has considered all the memoranda submitted in support of and in opposition to the motions pending before it, and makes the following findings.

 Plaintiffs are primarily residents of Dade County and allege that a serious ecological crisis brought on by increased urbanization imminently threatens southern Dade County; they further claim any action which will induce increased urbanization, such as the lending activities of a bank, will adversely affected the environment on which both their personal lives and the continued viability of the bank itself depend. *fn1"

 On June 7, 1972, an application was filed with the Comptroller for permission to organize the Second National Bank of Homestead as a subsidiary of American Bancshares, Inc. *fn2" The defendant Comptroller conducted a public hearing on the application on October 18, 1972, at which time the plaintiffs first urged that a new national bank would finance developments that in turn would contribute to the urbanization of the area and thus to the worsening ecological crisis. *fn3" Consequently, plaintiffs urged the Comptroller to consider the application within the context and criteria of NEPA. *fn4" By letter dated February 12, 1973, the Comptroller informed the plaintiffs that he had tentatively approved the application. But, because the new bank was to be a subsidiary of a bank holding company, the Comptroller conditioned the issuance of the charter on the Federal Reserve Board's approval of American Bancshares' acquisition of the new bank. *fn5" An application was filed with the Federal Reserve Board by American Bancshares on March 14, 1973, approximately three weeks after plaintiffs filed this action. The Board subsequently allowed the acquisition. Plaintiffs did not challenge the application in the administrative proceeding before the Board nor did they appeal the Board's decision.

 At the conclusion of the administrative hearing on the application before the Regional Office of the Comptroller, Thomas G. DeShazo, Deputy Comptroller of the Currency, reviewed the evidence presented by the plaintiff and defendant banks and prepared a written five-page analysis which concluded that an environmental impact study was not required under the facts of this case. The memorandum is based on Mr. DeShazo's review of the administrative record. It is an analysis of the proposed new bank as it relates to the size of the community, the bank's proposed physical location and its traffic generating potential. It further includes a discussion of the pattern of growth in the area, *fn6" proposed highway construction, the pattern of growth in Homestead, the number of existing banks in Homestead and their rates of expansion, the availability of housing and land to accommodate increasing needs, and the economic effects of the proposed bank's operations on the area. The memorandum concludes, inter alia, that the establishment of the proposed bank will have no effect on the rate of growth in the area.

 A copy of this document was forwarded to the plaintiffs on February 12, 1973, pursuant to their request during the hearings, along with the Comptroller's notification of the preliminary approval of the new charter. On February 22, 1973, plaintiffs brought this action.

 Additional evidence demonstrates that a national bank charter is a Federal license to engage in the business of banking, 12 U.S.C. § 27, and that it is granted only after: (a) the filing of a detailed application supported by an economic summary of information and financial and biographical information on the organizers; (b) a thorough investigation by the bank examiners employed by the defendant Comptroller; (c) a complete review by the Regional Administrator of National Banks and his staff; (d) in many cases, further consideration of the issues raised by the application in a public hearing held by the Regional Administrator; and (e) further review by the Washington staff of the defendant before presentation to the defendant Comptroller of the Currency for approval or disapproval.

 In addition, national banks created by the United States are regarded by Congress as an important and integral part of a Congressional plan to provide the nation with a safe and sound banking system, to effectuate important government financial purposes and as an important means of implementing the nation's monetary policy through the mandatory membership of all national banks in the Federal Reserve System.

 The evidence further demonstrates that the proposed location for the new bank is on commercially-zoned property at a busy intersection in Homestead, near several shopping centers and within the immediate area of three existing banks and two savings and loan branch offices. Of the three existing commercial banks, the Barnett Bank of Homestead is a subsidiary of the second largest bank holding company in the State of Florida with total assets exceeding $1.4 billion and total deposits of approximately 1.2 billion dollars. Dade County presently has over 75 commercial banks, 15 savings and loan associations with over 72 offices and almost 200 mortgage lending agencies. In addition, insurance companies and national bank real estate investment trusts are active in the area. It appears from Mr. DeShazo's analysis as well as from affidavits submitted by the intervenor Bank that a substantial portion of the funds being utilized in the Homestead area come from lending institutions not located in the area. Most construction lending is presently being done by insurance and mortgage companies located in Miami. *fn7" ...


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