Summary
harming Native American artifacts constitutes an irreparable injury for purposes of determining whether to grant a preliminary injunction; artifacts are, by their nature, unique, and their historical and cultural significance make them difficult to value monetarily
Summary of this case from Black Mountain Equities, Inc. v. Pac. Gold Corp.Opinion
CV 208-149.
December 5, 2008
ORDER
Defendant "The Church of the Verity, Inc." has possessory rights on an improved parcel of land within Cumberland Island National Seashore, a tract owned by the United States ("Plaintiff") and managed by the National Park Service. Defendant Dr. Ben Jenkins, The Church of the Verity's Chief Moderator and sole member, lives on that parcel. In 2007, Defendant Jenkins began constructing a new building and then a new septic system on the parcel. Alleging that the additional construction exceeded Defendant's property rights and prejudiced the Plaintiff's remainder interest, Plaintiff has brought trespass and nuisance claims against Defendant.
Presently before the Court is Plaintiff's motion for a preliminary injunction under Federal Rule of Civil Procedure 65. (Dkt. No. 5). The Court heard oral argument on this motion on November 25, 2008, a hearing date requested by both parties. Today, the Court GRANTS the motion in part and DENIES it in part. Specifically, the Court enjoins Defendants from performing any construction, installation or modification that involves additional digging or excavation, but declines to enjoin Defendant as to any construction, installation or modification that does not involve further digging or excavation. The injunction applies to the parcel on Cumberland Island now subleased to The Church of the Verity and on which Dr. Ben Jenkins now resides, which lies within former Carnegie Tract 1-S.
This Order is not a decision on the merits. Instead, the Court addresses only the precise question before it: whether Plaintiff is entitled to the extraordinary remedy of a preliminary injunction. This Court cannot issue an injunction unless Plaintiff shows "that [it] is likely to suffer irreparable harm in the absence of preliminary relief." Winter v. National Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008). Because Plaintiff has failed to show that additional construction not involving digging or excavation will cause irreparable harm, the Court denies Plaintiff's motion to that extent. After finding that Plaintiff has met the prerequisites to preliminary injunctive relief as to further excavation, however, the Court issues an injunction to that extent. In no event should anything in this Order be construed as a stamp of approval for Dr. Jenkins's actions or as pronouncement of which party will ultimately prevail on the merits.
In ruling on Plaintiff's motion for a preliminary injunction, the Court relies upon the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff elicited some testimony about demolition costs during Plaintiff's cross-examination of Jerre Brumbelow. That testimony, however, referred to how demolition costs would rise "from the footer stage to the 80 or 90 percent construction phase," not how demolition costs would rise between the present point, with the construction 80-90% complete, and the point at which construction is 100% complete. Hr'g Tr. 126.
CONCLUSIONS OF LAW
28 U.S.C. § 1345See also Glidden Co. v. Zdanok 370 U.S. 530 563-64 Winter Id. Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A. accord Winter 65accord Schmidt v. Lessard 414 U.S. 473 475-77 Planetary Motion, Inc. v. Techsplosion, Inc. 1. Because the United States is the plaintiff, this Court has jurisdiction under . , , (1962) (article III permits federal jurisdiction when United States is plaintiff). 2. "A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." , 129 S.Ct. at 376. 3. A plaintiff seeking a preliminary injunction must make four showings: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." at 374. 4. The Plaintiff must clearly meet the burden of persuasion on these four issues. , 320 F.3d 1205, 1210 (11th Cir. 2003); , 129 S.Ct. at 375-76. 5. When a court issues an injunction, the court's order must "state its terms specifically" and must "describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required." Fed.R. Civil Proc. (d)(1); , , (1974); , 261 F.3d 1188, 1203 (11th Cir. 2001).LIKELIHOOD OF SUCCESS ON THE MERITS
Schiavo ex rel. Schindler v. Schiavo 403 F.3d 1289 th see also Sams v. Young 217 Ga. 685 686 accord Lugue v. Hercules, Inc. Armour v. Peek 271 Ga. 202 202-03 Schweiker v. Hansen Office of Personnel Mgmt. v. Richmond 496 U.S. 414 423-24 Bokum v. C.I.R. 992 F.2d 1136 1141 1141Deltona Corp. v. Alexander 682 F.2d 888 891-92 6. Plaintiff has brought claims in trespass and nuisance. Compl. at 8, 10 (Dkt. No. 1). 7. In order to demonstrate that it is likely to prevail on the merits, Plaintiff need only demonstrate the likelihood of prevailing on one cause of action. , , 1298, 1299 (11 Cir. 2005). 8. Georgia law defines "trespass" broadly. In Georgia, "[t] he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie." O.C.G.A. § 51-9- 1; , , (1962); ("any unlawful interference with a property right is a trespass"); , 12 F.Supp.2d 1351, 1359 (S.D. Ga. 1997). 9. To prove a trespass, therefore, Plaintiff must show that Defendant's construction of a new building and installation of a septic system unlawfully interfere with Plaintiff's remainder interest. 10. Because Defendant claims his rights in the parcel through Gertrude Schwartz, Defendant can have no greater property rights than Ms. Schwartz had. , , (1999). 11. Therefore, Defendant is bound by the restriction in the deed to Ms. Schwartz that "[t] he right of construction shall be limited to a single-family residence." (Dkt. No. 5 Ex. 2). 12. Because the addition on which Defendant proposes to complete construction (1) is spatially separate from Defendant's house, connected only by an open-sided walkway, (2) is furnished with bathrooms and cooking facilities, and (3) was designed for use by the Shepherd Center, not by Defendant's family, Plaintiff will likely — although not certainly — be able to prove that it is not part of a "single-family residence." (Dkt. No. 5 Ex. 8, 11, 21); (Dkt. No. 11); Hr'g Tr. 25- 26, 31-32, 45, 48. 13. Because the new septic system is designed to serve the new addition, not the existing house, Plaintiff will likely be able to show that the new system does not come within the "single-family residence" limitation on construction. (Dkt. No. 5 Ex. 17, 18). 14. Because Plaintiff will likely be able to prove that neither the new building nor the new septic system come within the "single-family residence" limitation on construction, Plaintiff will probably be able to prove that both the construction of the building and the installation of the septic system constitute "unlawful interferences" with Plaintiff's remainder interest. 15. Superintendant Brumbelow's letter authorizing construction will probably not estop Plaintiff from asserting that the construction was unauthorized. Case law expresses extreme reluctance to allow estoppel to work against the government, and suggests that "affirmative misconduct" might be a prerequisite to government estoppel. , 450 U.S. 785, 790-91 (1981); , , (1990); , , , n. 6 (11th Cir. 1993); , , (11th Cir. 1982). 16. The Court concludes that Plaintiff has a strong, though not impregnable, trespass claim as to both the new building and the septic system. Therefore, Plaintiff has demonstrated a likelihood of success on the merits as to both projects. 17. Because Plaintiff has demonstrated that it is likely to succeed on the trespass claim, the Court does not assess the viability of Plaintiff's nuisance claim.LIKELIHOOD OF IRREPARABLE HARM
Winter 129 S.Ct. at 375 likely Jayaraj v. Scappini accord Alabama v. U.S. Army Corp of Eng'rs 424 F.3d 1117 1131Deerfield Med. Ctr. v. City of Deerfield Beach 661 F.2d 328 338 accord Reese v. Miami-Dade County 2003 WL 22025458Amoco Production Co. v. Village of Gambell 480 U.S. 531 545 U.S. v. Fisher 977 F.Supp. 1193 1202 see MacGainnitie v. Hobbs Group, LLC 420 F.3d 1234 Ferrero v. Assoc. Materials, Inc. 932 F.2d 1141 1149 See Winter 129 S.Ct. 375-76See Winter 129 S.Ct. at 392Jayaraj 66 F.3d at 40Alabama 18. Before the Court may issue a preliminary injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. , (rejecting "possibility" standard as too lenient and writing, "[o] ur frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is in the absence of an injunction." (emphasis in original)). 19. The "irreparable injury" must be likely to occur after the plaintiff's request for an injunction and before resolution of the case on the merits — i.e., it must constitute future harm. , 66 F.3d 36, 40 (2d Cir. 1995); , , (11th Cir. 2005) (plaintiff must show that "irreparable injury will occur during the pendency of the suit unless the injunction issues"). 20. "An injury is `irreparable' only if it cannot be undone through monetary remedies." , , (11th Cir. 1981); , No. 02-16855, , at *1 (11th Cir. July 14, 2003) (unpublished opinion). 21. A court may more readily find that an environmental injury is "irreparable" because "[e] nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." , , (1987). 22. Plaintiff presented evidence that further excavation will likely cause Native American artifacts to be unearthed. Specifically, when the Court asked Mr. Frederick, the former Superintendant of Cumberland Island and the current Deputy Regional Director for the Southeastern Region, whether there was "a likelihood that Native American artifacts or Native American remains could go unearthed during further construction," Mr. Frederick responded affirmatively. Hr'g Tr. 38. 23. Mr. Frederick's testimony is compatible with, albeit stronger than, Mr. Fry's affidavit, which stated that "[t]here is . . . a possibility that archeological artifacts were disturbed by the construction." Fry Aff. ¶ 8 (Pl.'s Ex. 22). 24. Mr. Frederick's testimony establishes that there is a likelihood that further excavation would cause archeological injury. 25. Harming Native American artifacts would constitute an irreparable injury because artifacts are, by their nature, unique, and their historical and cultural significance make them difficult to value monetarily. , , (S.D. Fla. 1997) (removal of artifacts constitutes irreparable injury); , , 1242 (11th Cir. 2005) (harm that is difficult to assess monetarily can be irreparable); , , (11th Cir. 1991) (same). 26. Because Plaintiff has shown that archeological harm is likely, and because archeological harm would be irreparable, Plaintiff has shown a likelihood of irreparable injury as to archeological harm caused by excavation. 27. Plaintiff has shown a possibility of environmental, non-archeological harm. Mr. Fry's affidavit posited that a small stream near the construction site "may be affected" by construction, and Mr. Nickels's report stated that "environmental deficiencies may occur" if Defendant begins using the septic drainfield. Fry Aff. at ¶ 7 (Pl.'s Ex. 22); NPS Field Notes at 11 (Dkt. No. 5 Ex. 21). 28. Although Plaintiff has shown that an environmental injury is possible, Plaintiff has not demonstrated that such an injury is likely. , (Plaintiff must show that environmental injury is "likely" before preliminary injunction may issue). 29. Plaintiff argues that by beginning construction before NPS could assess the environmental resources of the construction site, Defendant made it impossible for Plaintiff to ascertain the extent of the harm that construction would cause. Pl.'s Mem. at 14 (Dkt. 5 Attach. 1); Hr'g 41, 147. Therefore, Plaintiff suggests, Defendant impaired Plaintiff's ability to demonstrate irreparable environmental harm, and as a result, this Court should relax the "irreparable injury" requirement. , (Ginsburg, J., dissenting) (advancing similar argument). 30. To satisfy the "irreparable injury" prong, however, Plaintiff must allege a future injury, i.e., one that will occur after the plaintiff's request for a preliminary injunction. , ; , 424 F.3d at 1131. Defendant's construction to date, even if it has already caused irreparable damage, has not impaired Plaintiff's ability to discover what environmental harm future construction would cause. 31. In short, Defendant's conduct, even if reprehensible, did not impede Plaintiff's ability to gather and adduce evidence of future harm. Therefore, relaxation of the requirement that a plaintiff demonstrate the likelihood of future harm is not warranted, and Plaintiff was charged with fulfilling that requirement. Plaintiff failed to do that with respect to environmental harm. 32. Plaintiff alleges that if the Court allows Defendant to continue building, Defendant's success will undermine "the ability of the [National Park] Service to deal with other retained estates, and its credibility with the public in general." Pl.'s Orig. Br. at 14 (Dkt. No. 5 Attach. 1). Plaintiff, however, has provided no credible evidence that NPS's "credibility with the public in general" will be injured, at least as a result of the partial denial of a preliminary injunction. The Court notes, however, that some citizens may wonder why NPS originally granted permission to complete the construction that Plaintiff now insists will irreparably injure its reputation. 33. In sum, Plaintiff has demonstrated that continued digging or excavation would create a likelihood of irreparable injury to subterranean archeological resources. Plaintiff has failed to demonstrate, however, that further construction not involving digging or excavation is likely to cause irreparable harm.BALANCE OF THE EQUITIES
Winter 129 S.Ct. at 378 16 U.S.C. § 459i-5 See 34. When a District Court grants a preliminary injunction, it should weigh the equities carefully. Cursory analysis is insufficient. , . 35. Several equitable considerations weigh in Plaintiff's favor. NPS's mission is to keep all of Cumberland Island — disturbed and non-disturbed areas alike — as pristine as possible, so that in time, those portions of the island that NPS does not "deem[] to be especially adaptable for recreational uses" will revert to their primitive states. ; Hr'g Tr. 37, 56-58. Currently, the surface of the parcel on which Defendant lives is a "disturbed area." Hr'g Tr. 50. Much of the subsurface, however, is undisturbed. Hr'g Tr. 37 (digging required to install septic system would lead to "further footprint damage"). In light of NPS's statutory mission, NPS's interest in keeping the subsurface undisturbed counsels in Plaintiff's equitable favor, especially as to any construction that involves further excavation. 36. A preliminary injunction ordering Defendant to stop any construction that involves excavation will not cause undue difficulty to Defendant. Such an injunction will probably permit Defendant to complete much of the work on the addition, which is mainly interior work and should not require further excavation. Hr'g Tr. 82, 90, 92. Such an injunction will probably prevent Defendant from completing work on the septic system, at least for now, but Defendant has gotten by with only the existing septic system since 1979 — Defendant can wait until this Court reaches the merits of the instant dispute to finish installing the new system, if he is entitled to do so. 37. Some equitable factors favor Defendant. For instance, Defendant has nearly completed construction on a handicapped-accessible building that is well- constructed and "built to last." Hr'g Tr. 26-27, 32, 115-16. Given the limited wheelchair-accessible facilities on Cumberland Island, NPS might want to keep the house for its own use after the Term of Years expires in 2010. Hr'g Tr. 65-66, 113-14, 116. The new septic system will serve that new building. (Dkt. No. 5 Ex. 17, 18). The Court notes, however, that what use NPS will make of the addition in 2010 is up to NPS, not Defendant. 38. Defendant could reasonably have relied on Superintendant Brumbelow's letter permitting him to proceed with construction, since the superintendant was Defendant's "primary contact" with NPS and probably had "apparent authority." (Dkt. No. 5 Ex. 10); Hr'g Tr. 21, 29, 48. 39. However, Defendant's delay in asking permission to build until after commencing construction and Defendant's refusal to stop installing the septic system after being directed to do so undercut any argument that Defendant relied on NPS's permission in pursuing his course of conduct. (Dkt. No. 5 Ex. 18, 19, 20). Moreover, the evidence indicated that Defendant did not request permission to build until Superintendent Brumbelow saw the ongoing construction and told Defendant that he should have asked permission before commencing construction. Hr'g Tr. 107-08. 40. Defendant's disregard for authority works against Defendant. Although Defendant halted construction on the addition after receiving NPS's August 8, 2007 letter, Defendant subsequently began installing a septic system without permission from NPS. (Dkt. No. 5 Ex. 17); Hr'g Tr. 11, 35-36. Defendant then refused to stop the installation until NPS issued a citation despite being thrice instructed to stop. (Dkt. No. 5 Ex. 17, 18, 19, 20). Defendant offered the most poignant expression of his contempt, however, upon receipt of NPS's May 8, 2008 letter instructing him to stop installing the septic system — he wrote "BULL SHIT" on the letter and sent it back. (Dkt. No. 5 Ex. 19). Equity does not shine on those with unclean hands, and those of the sole member of The Church of the Verity are less than sanitized with regard to this incident. 41. Upon weighing the above factors, the Court concludes that the balance of the equities favors Plaintiff.PUBLIC INTEREST
Fisher see also Nat'l Wildlife Federation v. Marsh 721 F.2d 767 786 16 U.S.C. § 459i-5 42. The public has a strong interest in preserving Cumberland Island in a primitive state and preserving any artifacts that remain in the soil. , 977 F.Supp. at 1202 (preservation of artifacts in natural setting serves public interest); , , (11th Cir. 1983) ("Issuance of the injunction will serve the public interest, given the substantial issues involved both as to the proper use of federal funds and protection of the environment."). 43. Congress has established that the maintenance of Cumberland Island in a primitive state is a public policy goal. . 44. On the other hand, the public has an interest in seeing that the rights of individuals are not trammeled by government bureaucracies. Here, however, the evidence at this juncture does not show that NPS is attempting to run roughshod over Defendant's rights. 45. The Court concludes that the public interest favors Plaintiff.CONCLUSION
Plaintiff has met Winter's four prerequisites for a preliminary injunction as to further excavation on the parcel, but not as to construction or installation that does not require further excavation. 129 S.Ct. at 374. Therefore, the Court GRANTS Plaintiff's motion for a preliminary injunction in part and DENIES the motion in part. (Dkt. No. 5).The Court enjoins Defendant from conducting any construction, installation, modification of the property, or any other work on the parcel that involves further excavation or digging. This injunction does not prohibit Defendant from continuing construction or installation that requires no further excavation or digging. The injunction applies to the parcel on Cumberland Island now subleased to The Church of the Verity and on which Dr. Ben Jenkins now resides, which lies within former Carnegie Tract 1-S.
For purposes of this injunction, digging or excavation in order to obtain "fill" — i.e., material needed to fill an existing hole — constitutes prohibited excavation.
SO ORDERED, this 5th day of December, 2008.