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. Prez-Gimnez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Jos R. Garca-Prez, with whom Bufete Bennazar, C.S.P., was
on brief, for appellants, except Clarizza Surez.
Lizzie M. Portela, with whom Paul B. Smith, Jr., and Smith &
Nevares were on brief, for appellee Daniel Pagn-Rosa.
Miguel A. Pagn-Rivera, with whom Rodolfo G. Ocasio-Bravo,
Edwin D. Santos-Baerga and Pagn & Pagn were on brief, for
appellee Ferdn 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 Mediana Baja Ward of the Municipality of Loza in the
Commonwealth of Puerto Rico. One of the plaintiffs-appellants,
Surima Surez-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.
Surez 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
Loza 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 Surez
obtain an extraction permit. Surez 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 Surez 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, Surez 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), Surez 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, Pagn-Rosa, Secretary
of the DNRE, notified Surez that the administrative proceedings
against her were to continue and that any request or petition
should be presented by motion in the administrative case. Surez
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 Loza, 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.