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Simons v. Gorsuch

decided: August 30, 1983.

EDWARD E. SIMONS, ET AL., PLAINTIFFS-APPELLANTS,
v.
ANNE M. GORSUCH, ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY OF THE U.S.A., ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Western District of Wisconsin. No. 81 C 242 -- Barbara B. Crabb, Judge.

Cudahy and Posner, Circuit Judges, and Max Rosenn, Senior Circuit Judge.*fn*

Author: Cudahy

CUDAHY, Circuit Judge.

This is an appeal of a summary judgment in favor of the defendants in an action for declaratory and injunctive relief against the construction of a sewage treatment facility in the vicinity of land owned by the plaintiffs-appellants. That appeal has been consolidated with an appeal from a denial of the appellants' motion to vacate judgment for fraud and misrepresentation, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. On appeal, the appellants argue that the district court incorrectly determined as a matter of law that no environmental impact statement was required and wrongly decided that the appellants were not entitled to special notice of a public hearing. Further, appellants contend that the district court abused its discretion in denying the appellants' 60(b) motion. We affirm.

I

This action stems from a decision of the City of Hayward, Wisconsin, to construct a new sewage treatment plant using funds received under a grant from the federal government pursuant to section 201 of the Clean Water Act. 33 U.S.C.A. § 1281 (Supp. 1982). In 1977 the Environmental Protection Agency (the "EPA") awarded a grant, under section 201, to the City of Hayward for development of a facilities plan analyzing the City's waste water treatment needs. Later, in 1979, the City conducted a public hearing on the draft version of the facilities plan. Notice of the hearing was published in local newspapers and mailed to various organizations. No adverse comments were received at the hearing. The Wisconsin Department of Natural Resources (the "WDNR"), under a delegation agreement with the EPA, reviewed the plan and ordered further study to be done by a private engineering firm. After reviewing the findings of the study, the WDNR concluded that the sewage treatment facility would not have a significant impact upon the environment and forwarded that conclusion to the EPA, which then performed a review of the project pursuant to applicable federal regulations. That review also concluded that the project would not have a significant impact on the human environment.*fn1 In 1980, the EPA awarded the City of Hayward a grant under section 201 of the Clean Water Act to construct the treatment facility. No environmental impact statement ("EIS") was prepared or issued by the EPA. Construction on the new facility was completed by February 1982.

The City of Hayward owns the property upon which the treatment facility has been constructed. Pursuant to Sawyer County zoning ordinances, the property could be used for waste disposal facilities provided that a conditional use permit was obtained from the county zoning committee. The applicable county ordinances require that a public hearing be held prior to issuance of the permit. Those ordinances also contain the following notice requirements:

[notice must be] mailed to the owners of all lands within 300 feet of any part of the land included in such proposed conditional use at least ten (10) days before such Public Hearing. The failure of such notice to reach any property owner shall not invalidate any . . . approval of a conditional use.

The appellants own property which is separated from the site of the new treatment plant by a United States highway (150 feet wide), a railroad track (133 feet wide) and a town road (either 66 feet or 49.5 feet wide).*fn2 The property of appellants Edward and Ginny Simons is described as follows:

The East One Thousand (1,000) feet of the Northeast Quarter (NE 1/4) of Section One (1), Township Forty (40) North, Range Ten (10) West excepting therefrom South Six Hundred Sixty (660) feet thereof and excepting therefrom the existing highway and railroad right-of-ways. (emphasis supplied)

Appellants Robert and Arlene Simons own property of the following description:

The West One Thousand (1,000) feet of the East Two Thousand (2,000) feet of the Northeast Quarter (NE 1/4) of Section One (1), Township Forty (40) North, Range Ten (10) West, and the East One Thousand (1,000) feet of the South Six Hundred Sixty (660) feet of the Northeast Quarter (NE 1/4) of Section One (1), Township Forty (40) North, Range Ten (10) West, excepting therefrom the existing highway and railroad right-of-ways. (emphasis supplied)

In 1981, the appellants filed suit in the district court for the Western District of Wisconsin. They argued that an EIS for the treatment plant was required as a matter of law and sought a declaration that the federal defendants violated the National Environmental Policy Act ("NEPA") by failing to prepare an EIS. The plaintiffs sought a permanent injunction prohibiting the construction and operation of the facility. Appellants also asked for a declaration that the local governmental defendants violated their rights under the Fifth, Ninth and Fourteenth Amendments because the plaintiffs were improperly denied notices of the public hearing as required by local ordinance. Based on this alleged violation of their constitutional rights, appellants sought damages under 42 U.S.C. § 1983 and a permanent injunction against the local governmental defendants prohibiting construction or operation of the facility. The defendants included the Administrator of the Environmental Protection Agency (the "EPA"), the chief of the United States Army Corps of Engineers, the City of Hayward, Sawyer County, several local officials, an engineering company and two construction companies.*fn3 The plaintiffs moved for summary judgment and the defendants responded with cross-motions for like relief. In August 1982, the district court granted summary judgment in favor of the defendants and the plaintiffs appealed.

Subsequently, the appellants moved to vacate the judgment, pursuant to Rule 60(b), Fed. R. Civ. P., upon the grounds that the defendants had misrepresented to the court that an adequate environmental assessment had been performed, that the defendants would take all steps necessary for the protection of the environment and that the new treatment plant was operating properly. The district court dismissed that motion for lack of jurisdiction, but also, in the alternative, ...


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