This post was authored by Amy Lavine, Esq.
The District Court for the District of Oregon refused to issue a preliminary injunction in a recent decision alleging that the City of Salem and various state and federal agencies failed to comply with the National Historic Preservation Act (NHPA) Section 106 review process. The plaintiff, John L. Poole, owned property in the National Register Court Chemeketa Residential District, part of which was included within the study area of the federally funded State Street Corridor Plan, and he sought a preliminary injunction to stay enactment of the zoning and comprehensive plan until a determination could be made as to whether the defendants sufficiently complied with the NHPA.
The court found that there was no basis a preliminary injunction because there was no private right of action under either the NHPA or the National Environmental Policy Act to enforce the Section 106 historical review process. Nor could Poole rely on a provision in an Intergovernmental Agreement which required compliance with “all federal laws,” because he wasn’t a party or a third-party beneficiary to the agreement. Poole also attempted to bring his case under the Administrative Procedures Act (APA), but this statute wasn’t applicable to his claims against City of Salem, the court explained, because actions under the APA can only be raised against federal agencies. In sum, the court noted: “Because it does not appear that plaintiff has a viable cause of action against the City of Salem, he cannot demonstrate serious questions going to the merits—a deficiency fatal to his request for preliminary injunctive relief.”
The court also noted that even if Poole had satisfied the prerequisites for a preliminary injunction it would have be extremely hesitant to grant this relief due to the inherintly undemocratic nature of his request. The court referred to an Eleventh Circuit case in this regard, Ne. Fla. Chapter of Ass’n of General Contractors of Am. v. City of Jacksonville, which held that “preliminary injunctions of legislative enactments—because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits—must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.” In this case, Poole sought to stop the city council from even voting on the proposed legislation, and that, the court believed, represented “an even greater infringement of the democratic process than blocking the enactment of a piece of legislation.”
Poole v. City of Salem, 2018 WL 384791 (D OR 8/13/2018)
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