NORTHERN CHEYENNE TRIBE;
Rosebud Sioux Tribe; Yankton Sioux Tribe; Crow Creek Sioux Tribe;
Standing Rock Sioux Tribe; and Defenders of the Black Hills,
In His Official Capacity as United States Secretary of Housing and Urban Development;
Black Hills Council of Local Governments; Sturgis Industrial Expansion Corporation;
City of Sturgis; and Black Hills Sportsman's Complex, Incorporated,
[2003 DSD 4]
Karen E. Schreier, U. S. District Judge
[¶1] Plaintiffs move the court for a preliminary injunction. Plaintiffs' complaint alleges that defendants violated four federal acts: (1) the National Historic Preservation Act (NHPA), (2) the National Environmental Policy Act (NEPA), (3) the Religious Land Use and Institutionalized Persons Act (RLUIPA), and (4) the Religious Freedom Restoration Act (RFRA). Plaintiffs subsequently amended their complaint and added an allegation that defendants also violated the Free Exercise Clause of the United States Constitution. All defendants, except Mel Martinez, consented to the entry of a preliminary injunction. Martinez moves to dismiss the complaint against him. Because the motion to dismiss was filed before the court granted plaintiffs leave to file a second amended complaint, the motion to dismiss does not address the cause of action arising under the Free Exercise Clause of the First Amendment. As a result, this opinion does not address that cause of action. After reviewing the pleadings and documents filed by both parties, and after considering the arguments of counsel during the hearing, and for the reasons set forth below, the court grants in part and denies in part Martinez's motion to dismiss and grants plaintiffs' motion for a preliminary injunction against Martinez.
I. THE PARTIES
[¶2] All plaintiffs, except Defenders of the Black Hills, are Indian Tribes. Defenders of the Black Hills is an unincorporated association whose members are predominantly Native American and who share a common interest in protecting Bear Butte and those who pray there. Defendant Martinez is sued in his official capacity as the United States Secretary of Housing and Urban Development (HUD). Defendant Sturgis Industrial Expansion Corporation proposed the project, which was sponsored by defendant City of Sturgis, to construct the shooting range near Bear Butte, which primarily will use funds provided by HUD. Defendant Black Hills Sportsman's Complex prepared a noise study of the proposed project at the request of Black Hills Council of Local Governments (BHCofLG). BHCofLG is a private organization which provides assistance to local governments, and which prepared an environmental assessment for the proposed shooting range.
[¶3] The facts as alleged in the complaint are as follows: This case is a dispute concerning a proposed shooting range to be developed near Bear Butte in South Dakota. Bear Butte has unique religious and cultural importance to plaintiffs. The United States government placed Bear Butte on the National Register of Historic Places as a National Historic Landmark.
[¶4] A shooting range was initially planned to be developed at a location nearer the city of Sturgis, and farther away from Bear Butte. Residents complained, however, in part because of the noise the shooting range would produce. As a result, the proposed location was moved to a location about four miles south of Bear Butte. When plaintiffs objected to this site, their objections were ignored. If constructed as planned, the shooting range will operate during daylight hours where it is estimated that up to 10,000 rounds will be fired per day, which is equivalent to about one round every five seconds during all daylight hours.
[¶5] The BHCofLG ordered a noise study to be executed on the proposed location. The study was prepared by a person who did not have significant environmental knowledge or training and who used unreliable and misleading methods to produce meaningless results. Even that noise study showed the noise from the shooting range will have a significant impact on plaintiffs who attempt to continue to practice their religion at Bear Butte.
[¶6] None of the defendants consulted with any Indian tribe about the proposed shooting range. No effort was made to identify Indian tribes to be consulted.
III. MOTION TO DISMISS
[¶7] A. Legal Standard
[¶8] A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to review only the pleadings to determine whether they state a claim upon which relief can be granted. In considering a motion to dismiss, the court assumes all facts alleged in the complaint to be true and construes the complaint liberally in the light most favorable to the plaintiff. The court should dismiss the complaint only if "it appears beyond a doubt hat the plaintiff can prove no set of facts which would entitle the plaintiff to relief." Coleman v. Watt, 40 F3d 255, 258 (8th Cir. 1994). "The issue is not whether a claimant will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes, 416 US 232, 236, 94 SCt 1683, 1686, 40 LEd2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 US 183, 191, 104 SCt 3012, 3017, 82 LEd2d 139 (1984).
[¶9] B. NEPA and NHPA
[¶10] NEPA, codified at 42 USCA. § 4321 et seq., establishes a "broad national commitment to protecting and promoting environmental quality." Rosebud Sioux Tribe v. McDivitt, 286 F3d 1031, 1038 (8th Cir. 2002) (quoting Robertson v. Methow Valley Citizens Council, 490 US 332, 348, 109 SCt 1835, 104 LEd2d 351 (1989)). "The purpose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions." Id. (citing Nevada Land Action Ass'n v. United States Forest Serv., 8 F3d 713, 716 (9th Cir. 1993)). Under NEPA, the federal government is required to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available sources." 42 USCA. § 4332(E).
[¶11] Similar to NEPA, Congress enacted NHPA, codified at 16 USCA. § 470 et seq., in 1966. NHPA was enacted to "encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment." Rosebud Sioux Tribe, 286 F3d at 1039 (citing 16 USC § 470- (5)). Congress believed "the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people." Id. As part of NHPA, Congress created the National Register of Historic Places. 16 USCA. § 470.
[¶12] Section 106 of NHPA provides that the head of any Federal agency "shall, prior to the approval of any Federal funds on the undertaking . . . take into account the effect of the undertaking on any . . . site that is included in . . . the National Register." (1) 16 USCA. § 470(f). NHPA also provides that "in carrying out its responsibility under [§ 106] a Federal agency shall consult with any Indian tribe . . . that attaches religious and cultural significance to" properties included on the National Register. 16 USCA. § 470a(d)-(6)(B). "Participation in the Section 106 Process," found in 36 CFR § 800.2, begins by declaring that "[i]t is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance with" the section 106 process. 36 CFR § 800.2(a).
[¶13] Federal agencies are encouraged to coordinate their NEPA and NHPA compliance. 36 CFR § 800.8(a). During completion of the environmental assessment for NEPA, the agency official is also required to consult with Indian tribes "that might attach religious and cultural significance to affected historic properties." 36 CFR § 800.8(c)-(1)(iii).
[¶14] While NEPA and § 106 of NHPA are not identical, "many courts fruitfully compare them, and their similarities shed light on the issue of agency action and inaction." National Trust for Historic Pres. v. Blanck, 938 F. Supp. 908, 919 (D.D.C. 1996) (citing McMillan Park Comm. v. Nat'l Capital Planning Comm'n, 968 F2d 1283, 1290 (D.C. Cir. 1992) (Randolph, J., concurring)). "Both statutes require the government to conduct certain procedural and informational activities before embarking on projects that might affect, respectively, historic sites or the environment. Neither NEPA nor § 106 [of NHPA] mandates a particular outcome of governmental decisions; rather each defines the processes by which those decisions must be made." Id. (citing Apache Survival Coalition v. United States, 21 F3d 895, 906 (9th Cir. 1994); and Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425, 1440 n.11 (C.D. Cal. 1985)).
[¶15] Martinez argues that the NEPA and NHPA claims should be dismissed because the State of South Dakota, the grant applicant, assumed all of HUD's responsibilities under both Acts. HUD may release funds to an applicant who assumes all the responsibilities for environmental review, decision making, and action that would otherwise apply to HUD under NEPA. 42 USC § 5304(h) (1976). The Tenth Circuit Court of Appeals, in Brandon v. Pierce, 725 F2d 555, 560 (10th Cir. 1984), upheld this transfer of responsibility after concluding that Congress intended to permit HUD to transfer NEPA responsibilities to grant applicants. See also Heeren v. City of Jamestown, 39 F3d 628, 632 (6th Cir. 1994) (providing it is not HUD's responsibility to monitor a grant applicant's substantive compliance with NEPA); Colony Fed. Sav. & Loan Ass'n v. Harris, 482 F. Supp. 296, 303 (W.D. Pa. 1980) (holding that HUD did not have a duty to prepare a separate environmental impact statement (EIS) or to evaluate critically the substance of EIS prepared by grant applicant); Monarch Chem. Works, Inc. v. Exon, 466 F. Supp. 639, 646 (D. Neb. 1979) (holding HUD had delegated NEPA responsibilities and thus was not responsible in case challenging recipient's decision not to file EIS), aff'd, 604 F2d 1083 (8th Cir. 1979).
[¶16] Not all of HUD's responsibilities, however, are terminated after delegation. "[W]hile HUD is authorized to delegate the task of completing environmental and historic review to the grant applicant, HUD retains final authority for ensuring that the grant applicant adheres to the proper statutory and regulatory procedures." Society Hill Towers Owners' Ass'n v. Rendell, 20 F. Supp. 2d 855, 865 (E.D. Pa. 1998) (citing 24 CFR § 58.75). Brandon acknowledged that "[t]he actual review by HUD is limited to determining that the grant applicant has followed all the . . . regulations in 24 CFR Part 58 in conducting its environmental review." Brandon, 725 F2d at 560.
[¶17] Martinez argues that this case is distinguished from Society Hill and similar cases, because in those cases, the grants were made directly to cities pursuant to the Urban Development Action grant, authorized by the Housing and Community Development Act of 1974 (HCDA), 42 USC §§ 5301 and 5318 et seq. In this case, the grant is a Community Development Block Grant (CDBG), made to the State pursuant to 42 USC §§ 5304 and 5306(d). Pursuant to 42 USC § 5304(g)(4), the State is then responsible for performing all the actions required of the Secretary as described in 42 USC § 5304(g)(2), including the approval of the legal grant recipient's certification of compliance with NEPA and approval of the request for release of funds (RROF). The delegation of duties to the State, however, must be consistent with the regulations issued by the Secretary. 42 USC § 5304(g)(1).
[¶18] The HUD regulations specify that the State may impose appropriate remedies and sanctions if it has knowledge that a grantee failed to comply with clearly applicable environmental authority. 24 CFR § 58.72(b). (2) A permissible basis for objection is the failure of the responsible entity to complete one or more of the steps set forth for the preparation, publication and completion of an environmental assessment (EA). 24 CFR § 58.75(c). Persons "seeking redress in relation to environmental reviews covered by an approved certification shall deal with the responsible entity and not with HUD." 24 CFR § 77(b). HUD's policy, pursuant to its regulations, is to refer all complaints and allegations of non-compliance regarding EAs to the State. Id.
[¶19] Thus, neither HUD nor its Secretary had a legal obligation under NEPA or NHPA to prepare a separate EA, nor a duty to critically evaluate the substance of the environmental analysis prepared by BHCofLG. The Secretary also does not have a duty to ensure that the grant applicant complies with the proper procedural requirements of NEPA and NHPA, as this is a duty that Congress expressly authorized HUD to delegate to the State. Because there is no set of facts which would entitle plaintiffs to relief, the court grants Martinez's motion to dismiss with respect to both the NEPA and NHPA causes of action.
[¶20] C. RFRA
[¶21] RFRA, codified in 42 USCA. § 2000bb et seq., provides that the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless it "demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 USC § 2000bb-1; City of Boerne v. Flores, 521 US 507, 117 SCt 2157, 138 LEd2d 624 (1997). (3) If plaintiffs demonstrate a substantial burden on the exercise of their religious beliefs, then the burden of proof shifts to the government to show a compelling governmental interest in imposing the burden and that no less restrictive means exists to protect that governmental interest. Adams v. Commissioner of Internal Revenue, 170 F3d 173 (3d Cir. 1999); Mack v. O'Leary, 80 F3d 1175, 1180 (7th Cir. 1996).
[¶22] Martinez argues that the RFRA claim should be dismissed because HUD "did not take any action that could be construed as substantially burdening the plaintiffs' exercise of religion." The complaint alleges that the shooting range would "constitute a substantial burden" on plaintiffs' exercise of religion, that "it is not in furtherance of a compelling governmental interest," and that it is "not the least restrictive means." The court will grant a motion to dismiss only if "it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief." Coleman, 40 F3d at 258. Because plaintiffs have alleged facts which would entitle them to relief, Martinez's motion to dismiss on plaintiffs' RFRA claim is denied. As provided in Scheuer v. Rhodes, 416 US at 236, the issue is not whether the plaintiffs will ultimately prevail, but whether the plaintiffs are entitled to offer evidence to support their claims.
[¶23] D. RLUIPA
[¶24] RLUIPA, codified in 42 USCA. § 2000cc et seq., provides in pertinent part as follows:
(1) General rule
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) Scope of application
This subsection applies in any case which . . .
(C) the substantial burden is imposed in the implementation of a land use regulation . . . under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.
(3) Exclusions and limits
No government shall impose or implement a land use regulation that-
. . .
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.
(Emphasis added); 42 USC § 2000cc(a)(1)(A)-(B). The term "land use regulation" is defined as "a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use ... of land . . ., if the claimant has an ownership . . . or other property interest in the regulated land . . . ." 42 USC § 2000cc-5(5).
[¶25] Martinez argues that under plaintiffs' RLUIPA claim, the term "government" does not include the federal government, and therefore he should be dismissed. Pursuant to 42 USC § 2000cc-5(4), the term "government" means:
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 2000cc-2(b) and 2000cc-3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
[¶26] In plaintiffs' complaint, they allege that the proposed shooting range is a substantial burden that "affects interstate commerce with Indian Tribes," pursuant to § 2000cc-2(b), and that the shooting range constitutes a "land use regulation" that unreasonably limits "religious assemblies," pursuant to § 2000cc-3. Assuming the facts in the complaint to be true and in the light most favorable to the non-moving party, the plaintiff has alleged a cause of action under which he would be entitled to relief. Martinez, therefore, is not dismissed from plaintiffs' RLUIPA claim.
IV. PRELIMINARY INJUNCTION
[¶27] A. Legal Standard
[¶28] The court will grant a preliminary injunction only if the moving party can demonstrate the following: (1) a likelihood of success on the merits; (2) that the balance of harms favors the movant; (3) that the public interest favors the movant; and (4) that the movant will suffer irreparable harm absent the restraining order. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F2d 109, 113 (8th Cir. 1981). "None of these factors by itself is determinative; rather, in each case the four factors must be balanced to determine whether they tilt toward or away from granting a preliminary injunction." West Publ'g Co. v. Mead Data Cent., Inc., 799 F2d 1219, 1222 (8th Cir. 1986), cert. denied, 479 US 1070, 107 SCt 962, 93 LEd2d 1010 (1987). The party requesting the injunctive relief bears the "complete burden" of proving all the factors listed above. Gelco Corp. v. Coniston Partners, 811 F2d 414, 418 (8th Cir. 1987). "[F]indings of fact and conclusions of law made by the court in granting or denying a preliminary injunction are not binding at the trial on the merits." Sierra Club v. US Army Corps of Engrs., 771 F2d 409, 413 (8th Cir. 1985). Martinez did not present any evidence during the preliminary injunction hearing and does not dispute the facts presented by plaintiffs.
[¶29] B. Likelihood of Success on the Merits
[¶30] "The most important of the Dataphase factors is the [plaintiffs'] likelihood of success on the merits." Shrink Missouri Gov't PAC v. Adams, 151 F3d 763, 764 (8th Cir. 1998). Under this factor, plaintiffs need not "prove a greater than fifty per cent likelihood that [they] will prevail on the merits." Dataphase, 640 F2d at 113. "At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Id.
[¶31] 1. RFRA
[¶32] Plaintiffs' evidence demonstrates that a shooting range within earshot of Bear Butte will "substantially burden" plaintiff's exercise of their religion, the shooting range is not a "compelling governmental interest," nor is its location near Bear Butte the "least restrictive means." 42 USCA. § 2000bb. Because Martinez does not dispute this evidence, the court finds that for purposes of this motion, plaintiffs are likely to succeed on the merits of their RFRA claim.
[¶33] 2. RLUIPA
[¶34] Similar to RFRA, the evidence presented by plaintiffs on their RLUIPA claim shows that the noise from the shooting range near Bear Butte would impose a "substantial burden" on plaintiffs' religious exercises, that a shooting range is not a "compelling governmental interest," and that its location near Bear Butte is not the "least restrictive means." 42 USC § 2000. Because Martinez has not disputed this evidence, the court finds that for purposes of this motion, plaintiffs are likely to succeed on the merits in the RLUIPA claim.
[¶35] C. Balance of Harm
[¶36] The balance of harm must tip decidedly toward plaintiffs to justify issuing a preliminary injunction. General Mills, Inc. v. Kellogg Co., 824 F2d 622, 624 (8th Cir. 1987). With regard to the two remaining causes of action, plaintiffs' right to practice their religion outweighs defendants' interest in constructing a shooting range. When balanced against the risk that plaintiffs will be denied their right to practice religion if a preliminary injunction is not granted, the potential harm to Martinez is minimal if the preliminary injunction is granted.
[¶37] D. Irreparable Harm
[¶38] To satisfy the element of threat of irreparable harm, plaintiffs must prove that harm will result if injunctive relief is denied and the harm will not be compensable by money damages. Possible or speculative harm is not enough. The absence of such a showing alone is sufficient to deny a preliminary injunction. Gelco Corp., 811 F2d at 420; Roberts v. Van Buren Pub. Sch., 731 F2d 523, 526 (8th Cir. 1984).
[¶39] Because the construction of the shooting range near Bear Butte will infringe upon plaintiffs' First Amendment rights to practice their religion, the irreparable harm standard warrants the issuance of a preliminary injunction. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 US 347, 373, 96 SCt 2673, 49 LEd2d 547 (1976) (plurality opinion). See also Marcus v. Iowa Pub. Television, 97 F3d 1137, 1140 (8th Cir. 1996) ("If they are correct and their First Amendment rights have been violated, this constitutes an irreparable harm."). This element is therefore satisfied.
[¶40] E. Public Interest
[¶41] Similarly, the public interest, as reflected in the principles of the First Amendment, is served when promoting freedom of religion. The public interest in avoiding violation of the plaintiffs' First Amendment freedom of religion rights while the court considers the plaintiffs' request for a permanent injunction outweighs the construction of a shooting range. See also Kirkeby v. Furness, 52 F3d 772, 775 (8th Cir. 1995) (stating that the enforcement of the Constitution is clearly in the public interest).
[¶42] After balancing the four factors in determining whether a preliminary injunction should issue, they clearly "tilt toward" granting a preliminary injunction. West Publ'g Co., 799 F2d at 1222.
[¶43] For the reasons set forth above, it is hereby
[¶44] ORDERED that defendant Martinez's motion to dismiss (Docket 21) is granted in part and denied in part. Plaintiffs' motion for a preliminary injunction as to Martinez (Docket 3) is granted.
[¶45] IT IS FURTHER ORDERED that plaintiffs shall propose an order setting forth the conditions of the preliminary injunction to the court within ten days.
1. As previously noted, Bear Butte is listed in the National Register.
2. Section 58.72, entitled "HUD or State actions on RROFs [request for release of funds] and certifications" provides, in its entirety:
The actions which HUD (or a State) may take with respect to a recipient's environmental certification and RROF are as follows:
(a) In the absence of any receipt of objection to the contrary, except as provided in paragraph (b) of this section, HUD (or the State) will assume the validity of the certification and RROF and will approve these documents after expiration of the 15-day period prescribed by statute.
(b) HUD (or the State) may disapprove a certification and RROF if it has knowledge that the responsible entity has not complied with the items in § 58.75, or that the RROF and certification are inaccurate.
(c) In cases in which HUD has approved a certification and RROF but subsequently learns (e.g., through monitoring) that the recipient violated § 58.22 or the recipient or responsible entity otherwise failed to comply with a clearly applicable environmental authority, HUD shall impose appropriate remedies and sanctions in accord with the law and regulations for the program under which the violation was found.
(Emphasis added). Because the RROF and certification are sent to the State for CBD grants, § 58.72(b) applies.
3. The Eighth Circuit upheld RFRA as applied to federal law rejecting both separation of powers and Establishment Clause arguments. In re Young, 141 F3d 854, 859 (8th Cir. 1998). "The Flores Court did not reach any decision as to the constitutionality of RFRA as applied to federal law. By its terms, the Fourteenth Amendment is applicable only to the states, and not to the federal government . . . . RFRA's protection against federal interference with religious liberties is independent and distinct from its protection against state interference . . . . " Id. at 858-59.