APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Garth and A. Leon Higginbotham, Jr., Circuit Judges, and Fullam, District Judge.*fn* Garth, Circuit Judge, concurring and dissenting.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This is a suit by a number of plaintiffs who allege that they are aggrieved by actions of the State of New Jersey and the Secretary of the Interior of the United States, and who together have approved and adopted New Jersey's "Comprehensive Management Plan" (CMP) for the Pinelands area of New Jersey. The Pinelands National Reserve was created by Congress in the National Parks and Recreations Act of 1978, ("the Act"), 16 U.S.C. § 471i (Supp. 1982),
(1) to protect, preserve and enhance the significant values of the land and water resources of the Pinelands area;
(2) to encourage and assist the State of New Jersey and its units of local government in the development of a comprehensive management plan for the Pinelands area in order to assure orderly public and private development in the area. . . .
(3) to provide, during the development of this comprehensive plan, Federal financial assistance for the acquisition of lands in the Pinelands area that have critical ecological values which are in immediate danger of being adversely affected or destroyed. . . .
Pub. L. 95-625, Title V, § 502, Nov. 10, 1978, 92 Stat. 3492, 16 U.S.C. § 471i(b).
Each of the plaintiffs is an owner or user of property in the Pinelands, or in the case of each of the plaintiff municipalities, an agency which taxes Pinelands property. New Jersey's CMP undeniably restricts most development in the Pinelands and restricts a great deal of land in the Pinelands to specified, fairly narrow uses. The plaintiffs allege that they have been harmed by those restrictions and have sought to invalidate them. Some of the plaintiffs have challenged the effects of the CMP in various other administrative and judicial proceedings in New Jersey.
This action challenges the preparation, approval and effects of the CMP and alleges various deficiencies in the environmental impact statement (EIS) upon which it is based. The importance of the EIS is that the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (NEPA), requires a legally sufficient EIS before federal funds may be disbursed pursuant to "any major Federal action funded under a program of grants to States." 42 U.S.C. § 4332(2)(D). The federal Pinelands Act provides for federal funding to assist New Jersey's implementation of its CMP. 16 U.S.C. § 47li(k).
Count I of the complaint charges various violations of NEPA, specifically, that the EIS upon which the Secretary based his approval of the CMP was deficient under 42 U.S.C. § 4332(2)(C). The EIS was allegedly deficient because it was based on a preliminary draft of the CMP; because it did not adequately describe and analyze the social and economic impact of the CMP; because it did not set forth in sufficient detail the data, methodology, and standards on which it was based; and because it failed adequately to address alternatives to the CMP. The plaintiffs seek preliminarily and permanently to enjoin the Secretary from approving the CMP (and hence from authorizing the expenditure of federal funds for the Pinelands under 16 U.S.C. § 47i(k)) until a legally sufficient EIS is prepared.
Count II of the complaint alleges that the Secretary failed to adequately consider various factors set forth by Congress in the federal Pinelands Act that must be considered before federal funding can be approved. Those factors include the following: whether the CMP provides for the greatest possible use of police power; whether the state allowed sufficient public participation in the preparation of the CMP; whether the CMP would be implemented promptly; and whether the CMP adequately provides for federal representation, for protection of the Pinelands National Reserve, for the national defense mission, and for continuing state oversight. Count II includes a prayer for preliminary and permanent injunctive relief to prevent the Secretary from approving and funding the CMP until the Secretary has complied with 16 U.S.C. § 471i(g)(2).
Count III alleges that the CMP constitutes a taking of the plaintiffs' property for public use without just compensation, in violation of the United States Constitution and state and federal law. The plaintiffs seek an injunction requiring the Secretary and the state to pay for any such property wrongfully taken, and to withhold approval and implementation of the CMP until the unconstitutional takings have ceased.
The district court denied all preliminary injunctive relief and thereafter, by order dated July 14, 1981, granted partial summary judgment on the merits in favor of the defendants on Counts I and II. Hovsons, Inc. v. Secretary of the Interior, 519 F. Supp. 434 (D.N.J. 1981). In the same order, the district court abstained from decision on Count III in reliance on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), and stayed proceedings on the claim pending resolution of state administrative and judicial proceedings. The court specifically retained jurisdiction over Count III.
The plaintiffs have appealed to this court challenging the entry of summary judgment on Counts I and II, seeking a remand for trial on those claims, and seeking to overturn the district ...