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MIAMI BUILDING & CONSTRUCTION v. SECRETARY OF DEFENSE

May 9, 2001

MIAMI BUILDING & CONSTRUCTION TRADES COUNCIL, ET AL., PLAINTIFFS,
v.
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

OPINION

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 injunction.
I. FACTUAL BACKGROUND
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 ("2001 ROD").*fn1 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 rejected the 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 ...

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