Suarez-Cestero v. Suarez de la Cruz ( 1999 )

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1603



                  SURIMA SUAREZ-CESTERO, ET AL.,



                     Plaintiffs, Appellants,



                                v.



                    DANIEL PAGAN-ROSA, ET AL.,



                      Defendants, Appellees.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF PUERTO RICO



        [Hon. Juan M. P‚rez-Gim‚nez, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



                  Coffin, Senior Circuit Judge,



                    and Selya, Circuit Judge.



                      _____________________



    Jos‚ R. Garc¡a-P‚rez, with whom Bufete Bennazar, C.S.P., was

on brief, for appellants, except Clarizza Su rez.

    Lizzie M. Portela, with whom Paul B. Smith, Jr., and Smith &

Nevares were on brief, for appellee Daniel Pag n-Rosa.

    Miguel A. Pag n-Rivera, with whom Rodolfo G. Ocasio-Bravo,

Edwin D. Santos-Baerga and Pag n & Pag n were on brief, for

appellee Ferd¡n Carrasquillo.



                       ____________________



                         April 1, 1999

                       ____________________          TORRUELLA, Chief Judge.  Plaintiffs-appellants challenge

the district court's dismissal of their equitable claim on the

grounds of mootness.  We affirm on a different ground.

          Because this case turns principally on its procedural

posture, we do no more than skim the facts.  See CCM Cable Rep.,

Inc. v. Ocean Cost Properties, Inc., 48 F.3d 618, 619 (1st Cir.

1995).

          Plaintiffs are the owners in fee simple of a parcel of

land in the Median¡a Baja Ward of the Municipality of Lo¡za in the

Commonwealth of Puerto Rico.  One of the plaintiffs-appellants,

Surima Su rez-Cestero, has a contract for the extraction of sand

from the property and a Department of Natural Resources and the

Environment ("DNRE") permit for its extraction.  She alleges that

the extraction of sand is the first phase of the development of a

residential project.

          Su rez allegedly sought and received approval for the

project from the Puerto Rico Aqueduct and Sewers Authority, the

Puerto Rico Electric Power Authority, the Department of

Transportation and Public Works, the Institute of Puerto Rican

Culture, the Puerto Rico Telephone Company, the Puerto Rico

Environmental Quality Board, as well as from the Municipality of

Lo¡za and the DNRE.  Plaintiffs-appellants allege that although

the sand extraction was incidental to the project, as approved by

the above agencies, the DNRE additionally required that Su rez

obtain an extraction permit.  Su rez complied with all of the

application requirements and, after public notice and without

opposition, the permit was issued in December 1996.  Plaintiffs-

appellants claim that they relied on the permit and commenced sand

extraction in January 1997.

     On April 29, 1997, the Municipality filed a civil action

in the Carolina Superior Court requesting a temporary restraining

order and temporary and permanent injunctions to prevent the

extraction of sand from the property.  It averred that the

construction permits requested for the development project were a

subterfuge for obtaining a commercial sand extraction permit which

would create an artificial lake without properly evaluating the

individual and cumulative environmental impact on the surrounding

area.  The Superior Court issued a temporary restraining order.

     Needless to say, civil and administrative proceedings

resulted.  As part of the administrative proceedings, on June 6,

1997, the Secretary of the DNRE issued a Cease and Desist and Show

Cause Order against Su rez enjoining her from further extraction

activities and ordering her to show cause why the permits should

not be modified and/or revoked.  On June 24, Su rez filed an answer

and requested an administrative hearing.  After the Carolina

Superior Court refused to issue the permanent injunction (and

dissolved the earlier restraining order), Su rez notified the DNRE

that its Cease and Desist Order was no longer valid because the

Municipality's action had been dismissed, and that she was going to

resume extraction activities.  On August 8, Pag n-Rosa, Secretary

of the DNRE, notified Su rez that the administrative proceedings

against her were to continue and that any request or petition

should be presented by motion in the administrative case.  Su rez

then requested that the administrative case be dismissed.  When it

was not, believing that the Cease and Desist Order constituted a

continuing violation of their due process rights, plaintiffs-

appellants filed a verified complaint and request for a temporary

restraining order in federal district court on August 19, 1997.

     The hearing on the requested injunctive relief was set

for September 24.  On September 23, 1997, the Governor of Puerto

Rico signed into law Joint Resolution of the Senate No. 398.  The

statute declared a year-long moratorium on the issuance of sand

extraction permits by the DNRE in Lo¡za, and stayed the

effectiveness of all existing permits, pending an environmental

study of the impact of sand extraction in the area.

     In its Opinion and Order, the district court dismissed

plaintiffs-appellants' claim for equitable relief on the ground of

mootness because "an injunction enjoining defendants from

interfering with plaintiff's sand extraction activities would be,

in fact, of no benefit to plaintiffs, since they are equally

impeded by [Senate Joint resolution No. 398]."  Opinion and Orderat 9.

     "[C]ourts of appeal will reverse a district court's

denial of a preliminary injunction only if the district court

abused its discretion."  American Bd. of Psychology and Neurology,

Inc. v. Johnson-Powell, 129 F.3d 1, 2-3 (1st Cir. 1997).

     We conclude that the district court acted within its

discretion in refusing to entertain the claim for preliminary

injunctive relief at the start of the moratorium period, albeit for

a different ground than that cited by the district court.  In order

to gain a preliminary injunction in the First Circuit, a plaintiff

must satisfy four criteria.  The court must find:

     (1) that plaintiff will suffer irreparable

     injury if the injunction is not granted; (2)

     that such injury outweighs any harm which

     granting injunctive relief would inflict on

     the defendant; (3) that plaintiff has

     exhibited a likelihood of success on the

     merits; and (4) that the public interest will

     not be adversely affected by the granting of

     the injunction.



Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d

1006, 1008-09 (1st Cir. 1981).

     Irreparable harm is a necessary precondition to a

preliminary injunction and, given the moratorium on sand extraction

in place, none existed here.  By definition, the court's refusal to

grant a preliminary injunction caused plaintiffs no harm since they

were equally impeded by the moratorium.  As a result, plaintiffs-

appellants were not entitled to a preliminary injunction.

     In theory, the district court should have dismissed only

the request for a preliminary injunction, not the request for a

permanent injunction -- which the district court did by denying all

equitable relief.  Nevertheless, to the degree that the moratorium

is no longer in existence, the plaintiffs can renew their request

for temporary equitable relief; and the time to consider permanent

injunctive relief will come at the close of the case, and will not

be foreclosed either by the lower court's ruling or by this court's

opinion. Affirmed.