452 F2d 57 Thompson III v. B Fugate a Thompson III

452 F.2d 57

3 ERC 1190, 1 Envtl. L. Rep. 20,599

William Taliaferro THOMPSON, III, et al., Appellants,
v.
Douglas B. FUGATE, Commissioner, Virginia Highway
Commission, and John A. Volpe, Secretary of
Transportation, Appellees.
William Taliaferro THOMPSON, III, et al., Appellees,
v.
Douglas B. FUGATE, Commissioner, Virginia Highway
Commission, Appellant.

Nos. 71-1686, 71-1687.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 6, 1971.
Decided Oct. 13, 1971.

Louis F. Oberdorfer, Washington, D. C. (John W. Riely, E. Milton Farley, III, Thomas G. Slater, Jr., Richmond, Va., Lloyd N. Cutler, Robert P. Stranahan, Jr., Gary D. Wilson, Wilmer, Cutler & Pickering, Washington, D. C., on brief), for William Taliaferro Thompson, and others.

Vann H. Lefcoe, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Va., on brief), for Douglas B. Fugate.

William Kanter, Washington, D. C. (Brian P. Gettings, U. S. Atty., L. Patrick Gray, III, Asst. Atty. Gen., Walter H. Fleischer, Atty., Dept. of Justice, on brief), for John A. Volpe.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.

PER CURIAM:

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1

In a suit to contest the right of the defendants summarily to condemn and use an historic site for the construction of a federally-funded four-lane highway prior to a determination by the Secretary of Transportation that there is no prudent and feasible alternative to the route using the historic site, the district judge preliminarily enjoined construction of the highway over the historic site but declined to enjoin preliminary condemnation of the property prior to the trial. An appeal and cross-appeal from the granting and withholding of interlocutory injunctive relief ensued, and thereafter United States Circuit Judge John D. Butzner, Jr. granted an injunction pending appeal enjoining condemnation of the property pending trial and decision of the case on the merits.

2

Under the limited scope of appellate review of the granting and withholding of a preliminary injunction, we conclude that the district judge did not abuse his discretion in granting injunctive relief. However, we also conclude, for the reasons set forth by Judge Butzner in granting an injunction pending appeal, that the district judge abused his discretion in failing to grant all of the preliminary injunctive relief prayed by the plaintiffs. Accordingly, we affirm the order of the district court in part and reverse it in part, with directions to extend the preliminary injunction to prohibit defendants from condemning the subject property pending trial of the case.

3

Affirmed in part; reversed in part; remanded.