United States District Court, District of Columbia
May 9, 2001
MIAMI BUILDING & CONSTRUCTION TRADES COUNCIL, ET AL., PLAINTIFFS,
SECRETARY OF DEFENSE, ET AL., DEFENDANTS. MIAMI-DADE COUNTY, PLAINTIFF, V. SECRETARY OF DEFENSE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Paul L. Friedman, United States District Judge
This matter is before the Court on the motion for preliminary
injunction filed by plaintiffs Miami Building & Construction Trades
Council, AFL/CIO, and Homestead Air Base Developers, Inc. ("HABDI
plaintiffs") and on the motion for preliminary injunction filed by
plaintiff Miami-Dade County. On May 3, 2001, the parties appeared before
the Court for oral argument on the motions. Upon consideration of the
briefs and supporting documentation filed by the parties and the oral
arguments of counsel, the Court denies the motions for preliminary
I. FACTUAL BACKGROUND
The dispute in the this case revolves around the disposal of surplus
military property that was once part of Homestead Air Force Base. The
base is located
approximately 25 miles south of downtown Miami, two miles
west of Biscayne National Park, and eight miles east of Everglades
National Park and originally encompassed about 2900 acres. The base was
in heavy use by the Air Force for many years until 1992 when Hurricane
Andrew destroyed most of its facilities.
In early 1993, under the Defense Base Closure and Realignment Act of
1990, ("DBCRA of 1990"), Pub.L. 101-510, 104 Stat. 1808, the Secretary of
Defense proposed that the base be closed completely. The Defense Base
Closure and Realignment Commission recommended that 885 acres of the
original base be realigned to support the operations of the Air Force
Reserve, the Florida Air National Guard and the U.S. Customs Service. In
March 1994, the portion of the base retained for these operations was
renamed Homestead Air Reserve Station.
In July and December of 1993, the Homestead Air Force Base Reuse
Committee submitted a plan proposing that the surplus property on the
base be converted into a commercial airport. Under the plan, reserve
operations would continue on part of the base and the Air Force would
convey much of the surplus property to the County for the construction
and operation of a commercial airport. As required by the National
Environmental Policy Act ("NEPA"), the Air Force prepared an
environmental impact statement ("EIS"), issuing a draft in November 1993
and a final EIS in February 1994. See Federal Defendants' Consolidated
Opposition to Plaintiffs' Motions for Preliminary Injunction ("Defendants'
Opp."), Exhibit 2, Final Environmental Impact Statement, February 1994
("Final EIS"). With respect to the surplus property that the County
would receive, the Final EIS considered the impacts of four
alternatives: The first was the Reuse Committee's plan for a commercial
airport with some non-aviation uses; the second and third alternatives
combined plans for a commercial airport with various non-aviation uses;
and the fourth was a "no-action" plan.
In October 1994, the Air Force issued a Record of Decision making the
property available to the County for redevelopment as a commercial
airport. See Defendants' Opp., Exhibit 3, Record of Decision on the
Disposal of Homestead Air Force Base, October 26, 1994 ("1994 ROD").
Based on the Air Force's consideration of the Final EIS, the 1994 ROD
gave the County the right to apply for the property as an airport subject
to the Air Force's final approval of the County's plans. See id. at 13,
¶ 1. The 1994 ROD provided for alternatives for disposal of the
property if the airport plans never materialized or if the Air Force
rejected the County's plan. The 1994 ROD also made conveyances to other
federal, state and local entities not challenged in these suits.
The County began planning for the construction and operation of the
commercial airport. Instead of applying for the property immediately,
however, it entered into a series of interim leases with the Air Force.
The interim leases, each of which was for a term of six to twelve
months, provided that the lease itself was not "a commitment by the
Government as to the disposal of the Leased Premises or of Homestead
AFB, in whole or in part, to the Lessee or any agency or instrumentality
thereof. . . ." HABDI's Plaintiffs' First Motion for Preliminary
Injunction, Civil Action No. 01-0067, January 12, 2001, Affidavit of
Carlos Herrera, Jr., Exhibit 6, Department of Air Force Lease of Property
on Air Force Base at 9. During the period of the interim lease, in June
1996, the County entered into a Lease and Development Agreement with
Homestead Air Base Developers, Inc. ("HABDI") in
which, among other
things, the County agreed that it would lease the property to HABDI, that
HABDI would build and operate the airport, and that the County would
receive a portion of the revenues. The Lease and Development Agreement
was conditioned upon the County receiving a 30-year lease or a fee simple
conveyance of the property from the Air Force.
On December 31, 1996, the County applied to the Air Force for the
surplus property at Homestead. Prior to the submission of the County's
application, environmental groups raised concerns with the Air Force that
the Final EIS inadequately addressed the environmental impacts associated
with the airport, partly because of changed circumstances. Subsequently,
in light of these alleged deficiencies, the Air Force and the Federal
Aviation Administration conducted a review of the Final EIS revealing
that there indeed were new circumstances: (1) the County's application
predicted commercial jet operations at twice the level that was originally
envisioned, and (2) the proposed airport's ground facilities were much
more extensive than first proposed. In December 1997, the Air Force and
the FAA announced that they would supplement the Final EIS.
In December 1999, after conducting public meetings and receiving
comments from interested parties, the Air Force and the FAA issued a
draft supplement to the Final EIS, and on December 7, 2000, they issued
the Final Supplemental Environment Impact Statement ("SEIS"). See
Defendants' Opp., Exhibit 1, SEIS. The SEIS considered four
alternatives: (1) development of a commercial airport along the lines of
the original proposal, (2) development of a spaceport, (3) mixed-use
development involving commercial, industrial and/or residential uses but
without a commercial airport, and (4) a "no action" alternative. The
SEIS analyzed four scenarios for mixed-use development: (1) a land-swap
proposal submitted by the Collier Resource Company, (2) a proposal
submitted by Hoover Environmental Group, (3) a combination of the Collier
and Hoover plans, and (4) a market-based scenario.
In the SEIS, the Air Force concluded that both the commercial airport
and the mixed-use development plan would generate economic benefits for
the region and expressed a preference for either alternative. The FAA
preferred the commercial airport. The Department of the Interior favored
the mixed-use plan for development of the base, specifically the
land-swap proposal submitted by Collier. The EPA also favored the
mixed-use plan. On December 14, 2000, Interior sent a letter to the Air
Force asking that the property be transferred to Interior so it could act
on the Collier land-swap plan. The County objected to this request.
On January 15, 2001, the Air Force issued a Second Supplemental ROD
deciding that the property could be transferred only for mixed-use
development and not as a commercial airport. See Defendants' Opp.,
Exhibit 17, Second Supplemental Record of Decision, January 15, 2001
The 2001 ROD explained that the property first would
be offered to the County which had 90 days to decide whether it wished to
apply for the property for mixed-use development. If the County decided
to apply for the property, it would have six months to complete its
application. If the County decided not to apply or if the Air Force
County's proposal, defendants would consider transferring
the property to Interior to act on the Collier proposal. If the land was
not disposed of under either of these two options, the property would be
disposed of through public sale.
II. PROCEDURAL POSTURE
On January 12, 2001, the HABDI plaintiffs filed Civil Action No.
01-0067. When defendants issued the 2001 ROD, the HABDI plaintiffs'
complaint and first motion for preliminary injunction were rendered
moot. On March 8, 2001, the HABDI plaintiffs filed their first verified
amended complaint contending that: (1) the Air Force violated the DBCRA
laws and the Administrative Procedure Act by deciding to prepare and
issue the SEIS, (2) the Air Force violated the DBCRA and the APA when it
issued the 2001 ROD, (3) the Air Force violated the DBCRA and the APA
when it considered the late request by Interior for the land, (4) the Air
Force violated the DBCRA and the APA when it failed to transfer the land
to the County pursuant to the 1994 ROD, and (5) the Air Force violated
the Fifth Amendment of the Constitution by denying plaintiffs their equal
protection and due process rights.
On March 12, 2001, plaintiff Miami-Dade County filed Civil Action No.
01-0556. In Count 1, the County claimed that the request by Interior for
the surplus land was unlawful under Section 2904 of the Defense Base
Closure and Realignment Act of 1993, ("DBCRA of 1993"). Count 2 claimed
that the SEIS and the 2001 ROD violated Section 2911 of the DBCRA of
1993. Count 3 claimed that the issuance of the 2001 ROD and the decision
made by the Air Force in the 2001 ROD were arbitrary and capricious. On
March 16, 2001, the County gave notice to the Air Force that while
continuing with this lawsuit, it also would develop plans for mixed-use
development and apply for the property under the terms of the 2001 ROD.
The County's decision triggered the running of the six-month time period
for preparing the mixed-use plan. Prior to the motions hearing,
defendants agreed to a short, 30-day stay running from April 10, 2001 to
May 10, 2001 that will not count against the County's six months.
On April 4, 2001, the Court issued an order (1) denying defendants'
motion to transfer both cases to the United States District Court for the
Southern District of Florida, and (2) consolidating the two cases. On
April 24, 2001, the Court granted the motion of the Natural Resources
Defense Council, Sierra Club, and Tropical Audubon Society for permissive
intervention on the side of defendants under Rule 24(a)(2) of the Federal
Rules of Civil Procedure. The Court held a motions hearing on May 3,
2001 at which all parties to the litigation in both matters
A. Standards for Preliminary Injunction
In deciding whether to grant emergency injunctive relief, the Court
must consider (1) whether there is a substantial likelihood that
plaintiffs will succeed on the merits of their claims, (2) whether
plaintiffs will suffer irreparable injury absent an injunction, (3) the
harm to defendants or other interested parties (balance of harms), and
(4) whether an injunction would be in the public interest or at least not
be adverse to the public interest. See Serono Laboratories, Inc. v.
Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Sea Containers Ltd. v.
Stena AB, 890 F.2d 1205, 1208 (D.C.Cir. 1989); Washington Metro. Area
Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.
1977); Milk Industry Foundation v.
Glickman, 949 F. Supp. 882, 888
Plaintiffs are not required to prevail on each of these factors.
Rather, under Holiday Tours, the factors must be viewed as a continuum,
with more of one factor compensating for less of another. "If the
arguments for one factor are particularly strong, an injunction may issue
even if the arguments in other areas are rather weak." CityFed Fin.
Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir.
1995). An injunction may be justified "where there is a particularly
strong likelihood of success on the merits even if there is a relatively
slight showing of irreparable injury." Id. See Serono Laboratories,
Inc. v. Shalala, 158 F.3d at 1318. Conversely, when the other three
factors strongly favor interim relief, a court may grant injunctive
relief when the moving party has merely made out a "substantial" case on
the merits. The necessary level or degree of likelihood of success that
must be shown will vary according to the Court's assessment of the other
factors. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc.,
559 F.2d at 843-45. In sum, an injunction may be issued "with either a
high probability of success and some injury, or vice versa." Cuomo v.
United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.
B. Likelihood of Success on the Merits
1. The Supplemental Environmental Impact Statement
Both the HABDI plaintiffs and the County challenge the decision of the
Air Force to supplement the Final EIS. Based on their reading of Section
2911 of the DBCRA of 1993, Pub.L. 103-160, § 2911, 107 Stat. 1909,
1924, plaintiffs contend that the decision in December 1997 to prepare
the SEIS was untimely. Defendants respond that plaintiffs' challenge to
the decision to prepare the SEIS should fail because (1) plaintiffs'
challenge is barred by the statute of limitations, (2) plaintiffs'
challenge is moot, and (3) defendants properly made the decision to
supplement the Final EIS. Without reaching the second argument, the
Court concludes, based on the first and third arguments, that plaintiffs
have failed to demonstrate a likelihood of success on the merits.
a. Statute of Limitations
Defendants contend that plaintiffs' challenge to the SEIS is barred by
the statute of limitations. Defendants cite Section 2905(c)(3) of the
DBCRA of 1990 which requires that suits seeking judicial review of
actions taken by the Air Force pursuant to its obligations under NEPA
must be made within 60 days of the challenged action. See Pub.L.
101-510, 104 Stat. at 1815. Here, the action plaintiffs ask the Court to
review is the decision of the Air Force to prepare the SEIS but not the
substance of the SEIS itself. Defendants therefore argue that the 60-day
limitations period began to run in
December 1997 when the Air Force made
this decision. They maintain that because plaintiffs did not seek
judicial review at that time and waited for over three years to do so,
the statute of limitations has long since run, making this challenge
Plaintiffs respond that the 60-day limitations period did not start to
run in December 1997 because they challenge the entire course of
allegedly illegal decisions made by the Air Force. The Court rejects
this argument. While it is true that plaintiffs are challenging all of
the actions taken by the Air Force in relation to the SEIS and the 2001
ROD, with respect to the SEIS plaintiffs only challenge the decision to
prepare the SEIS. Thus, the 60-day limitations period began running in
December 1997 when the decision to prepare the SEIS was made.*fn2
Because the challenge to the SEIS appears to be barred by the statute of
limitations, plaintiffs have failed to demonstrate a likelihood of
success on the merits on this claim.
b. Timeliness of the SEIS
Even if the challenge to the SEIS is not time-barred, plaintiffs have
not shown a likelihood of success on their claim that the SEIS was
untimely. Plaintiffs rely on Section 2911 of the DBCRA of 1993, which
Not later than 12 months after the date of the
submittal to the Secretary of Defense of a redevelopment
plan for an installation approved for closure under a
base closure law, the Secretary of Defense shall, to the
extent practicable, complete any environmental impact
analyses required with respect to the installation, and
with respect to the redevelopment plan, if any, for the
installation, pursuant to the base closure law under
which the installation is closed, and pursuant to
Pub.L. 103-160, § 2911, 107 Stat. 1909, 1924. Plaintiffs interpret
this provision as an absolute requirement that all procedures that
defendants have to follow under NEPA must be completed within 12 months.
In addition to the language of the statute, plaintiffs rely on Justice
Souter's concurring opinion in Dalton v. Specter, 511 U.S. 462, 478-84
(1994) (Souter, J., concurring), as support for their argument that the
intent of Congress and the structure of the base closure laws demonstrate
that the timetables in the base closure laws are "tight and rigid
deadlines" and that the preparation of the SEIS violated this law because
it occurred well beyond the 12-month period.
Based on its reading of the text of Section 2911, the Court rejects
plaintiffs' argument. Section 2911 contains the phrase "to the extent
practicable," suggesting that there is some discretion and flexibility
given to the Air Force to complete the EIS as required by NEPA. See Fund
for Animals v. Babbitt, 903 F. Supp. 96, 107 (D.D.C. 1995). Although
plaintiffs believe otherwise, the Court concludes that the best reading of
Section 2911 is that the phrase "to the extent practicable" modifies the
time in which the EIS must be prepared and does not modify or eliminate
the Air Force's responsibilities under NEPA. Here, it was not
practicable — that is, feasible or possible — to comply with
all the requirements of NEPA within 12 months from the date the
redevelopment plan had been submitted to the Air Force. Information had
surfaced that did not exist when the Final EIS was completed in February
1994 — namely, (1) the scope of commercial jet operations out of
the airport, (2) new options for the land (mixed-use development), (3)
new laws reflecting the importance of protecting the Everglades, and (4)
previously unknown environmental impacts. Thus, compliance with NEPA
within the 12-month time frame was not "practicable." In fact, the Air
Force was probably required under NEPA to prepare the SEIS in light of
circumstances whenever they came to light. See Marsh v.
Oregon Natural Resources Council, 490 U.S. 360, 370-74 (1989); see also
40 C.F.R. § 1502.9(c)(1)(ii) & (2).
The Court also does not agree with the plaintiffs' reading of Justice
Souter's concurring opinion in Dalton v. Specter. Justice Souter's
analysis focused on the timetables provided in the base closure laws with
respect to the decision to close or realign military bases and not to the
decision about how to dispose of the surplus property at closed or
realigned bases after closure. See Dalton v. Spector, 511 U.S. at
479-82. Here, the initial decision to close Homestead Air Force Base had
already been made when the SEIS was authorized and prepared. All that
remains is the disposal of the property for use by the County, a decision
that implicates the requirements of NEPA and not the "tight and rigid"
enforcement of deadlines discussed in Dalton.*fn3 On the challenge to
the decision to prepare the SEIS, the Court concludes that plaintiffs
have not demonstrated a likelihood of success on the merits.
2. Claims Relating to the 2001 ROD
Plaintiffs also challenge the 2001 ROD itself and allege that the
decision to designate the land for mixed-use development was unsupported
by any evidence in the record. They contend that the decision reflected
in the 2001 ROD was arbitrary and capricious because all of the
information examined when issuing the 2001 ROD was information that was
known when the 1994 ROD was issued; thus the change from the airport to
mixed-use development cannot be supported.
The standard for the Court's review of agency action requires deference
to the reasonable decision of the agency in light of its expertise in the
field. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co.,
463 U.S. 29, 42-43 (1983). Moreover, the question before the Court is not
whether other options, such as building a commercial airport on a smaller
scale, could have been adopted by the Air Force, but whether its actual
decision was a rational one. See id. at 43. Finally, an agency may
change a past decision so long as there are reasons for the change and
those reasons are rationally related to the agency's new decision. See
id. at 42-43. With these principles in mind and based on the record
before it, the Court concludes that plaintiffs have failed to demonstrate
a likelihood of success on this claim.
As noted previously, defendants and intervenors offer several changed
circumstances to support the Air Force's new decision — most
significantly, the increased scope of commercial jet operations out of
the proposed airport and newly recognized environmental impacts. In
addition, defendants contend that the decision to prohibit an airport is
supported by the fact that for the first time the Air Force could
consider an option other than economic development through construction
of the airport or no development at all. In the 2001 ROD, the Air Force
was able to weigh an additional choice — mixed-use development
— which it felt best balanced the goals of economic development and
environmental protection. Because it appears that the Air Force acted
within the proper scope of its discretion, and because the Air
appears to have provided a reasoned explanation for its change of view
based on changed circumstances, plaintiffs cannot show a likelihood of
success on the merits.
Plaintiffs make a related argument concerning the late request by the
Interior Department to receive the land so it can act on the land-swap
proposal by Collier. Plaintiffs have failed to demonstrate a likelihood
of success on this claim because it is either not ripe for adjudication
or is not a final agency action. As the 2001 ROD clearly indicates, the
Air Force will consider Interior's request that the land be transferred
to it only if the County does not receive the land either because it
decides not to apply to the Air Force for the land or because the Air
Force rejects the County's plan. The County has given notice that it is
applying for the land, and the Air Force therefore never may have to
consider Interior's request. Furthermore, as the Air Force explained in
the 2001 ROD, even if it considers Interior's request it will not
necessarily grant that request. Because this challenge relates to agency
action that is not final and the claim is not ripe, plaintiffs have
failed to show a likelihood of success on the merits.*fn4
C. Irreparable Harm
For the Court to grant a preliminary injunction, plaintiffs must make
some showing that irreparable harm will result absent immediate
intervention by the Court. The County advances essentially three
arguments to demonstrate irreparable harm: (1) having to comply with an
illegal agency decision is itself irreparable harm, (2) plaintiffs have
to expend time, money and effort in preparing a mixed-use development
plan for what the County contends is an illegal agency decision, and (3)
the County will be unable to attract bidders for the mixed-use plan
during the pendency of this litigation. The Court rejects all three
First, plaintiffs' argument that compliance with an illegal agency
decision is per se irreparable harm is unsupported by the case they cite
for that proposition. See CityFed Fin. Corp. v. Office of Thrift
Supervision, 58 F.3d at 746. Even if plaintiffs were correct, the Court
has concluded that plaintiffs have not demonstrated a likelihood of
success on their claims that the challenged agency actions were illegal,
thus undercutting any argument that they have been irreparably harmed on
this basis. Second, the expenditure of time, money and effort as alleged
by plaintiffs is not the type of injury normally considered to be
irreparable for purposes of a preliminary injunction. As the Supreme
Court has said:
The key word in this consideration is irreparable. Mere
injuries, however substantial, in terms of money, time
and energy necessarily expended in the absence of a
stay, are not enough. The possibility that adequate
compensatory or other corrective relief will be
available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of
Sampson v. Murrey, 415 U.S. 61, 88-90 (1974). See Wisconsin Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Finally, while there may be
some possibility that bidders would
be dissuaded from helping the County
develop a mixed-use plan during the pendency of the lawsuit, this is a
highly speculative possibility. In fact, there may well be ample numbers
of developers willing to get involved despite the lawsuit. Furthermore,
to the extent that the litigation has created uncertainty, the
County itself has helped create that uncertainty by initiating the
D. Balance of Harms and Public Interest
Plaintiffs do not devote substantial time discussing the balance of
harms and the public interest, and the Court does not need to address
these issues at length. Even if the Court assumes that plaintiffs'
arguments are correct with respect to both of these factors, they fail to
outweigh the Court's determination that plaintiffs have failed to
demonstrate a likelihood of success on the merits or that they would
suffer irreparable harm without a preliminary injunction.
An Order consistent with this Opinion will be issued this same day.
This matter is before the Court on the motion for preliminary
injunction filed by plaintiffs Miami Building & Construction Trades
Council, AFL/CIO, and Homestead Air Base Developers, Inc. and on the
motion for preliminary injunction filed by plaintiff Miami-Dade County.
On May 3, 2001, the parties appeared before the Court for oral argument
on the motions. Upon consideration of the briefs and supporting
documentation filed by the parties and the oral arguments of counsel, and
for the reasons stated by the Court in its Opinion issued this same day,
it is hereby
ORDERED that the motion for preliminary injunction [10-1] filed by
plaintiffs Miami Building & Construction Trades Council, AFL/CIO, and
Homestead Air Base Developers, Inc. in Civil Action No. 01-0067 is
DENIED; and it is
FURTHER ORDERED the motion for preliminary injunction [3-1] filed by
plaintiff Miami-Dade County in Civil Action No. 01-0556 is DENIED.