National Historic Preservation Act: Developments During the Year 2002

W. Harding (Hardy) Drane, Jr., Elizabeth D. Power

This article appeared in The Year in Review: 2002,
published by the The American Bar Association Section of
Environment, Energy, and Resources (2003)

Legislative and Administrative Developments

There were no significant legislative or administrative developments involving the NHPA during 2002.  As discussed in the succeeding section, there also were no groundbreaking judicial developments this year, but there were several noteworthy cases in which courts considered various NHPA issues, including standing, ripeness, improper segmentation of projects, and criteria for establishing violations of the NHPA.

Judicial Developments

In Rosebud Sioux Tribe v. McDivitt,[2] the Eighth Circuit found that the plaintiff below (known as Sun Prairie) lacked standing under the NHPA and other statutes, and the court accordingly vacated a permanent injunction that the district court had issued against the Assistant Secretary for Indian Affairs at the Department of Interior (the "Secretary").[3]  Before the district court issued the injunction, the Secretary had voided a lease previously approved by the Bureau of Indian Affairs ("BIA") between the Rosebud Sioux Tribe, as lessor, and Sun Prairie, as lessee.[4]  On appeal, Sun Prairie asserted that the Secretary's decision to void the lease violated the NHPA.[5]  In vacating the district court's order, the Eighth Circuit held that Sun Prairie lacked standing to pursue its complaint under the NHPA, because Sun Prairie had failed to show how its economic interests fell within the zone of interests protected or regulated by the NHPA and failed to demonstrate how the NHPA was implicated by the Secretary's decision to void the lease.[6]  In particular, the appellate court noted that the Secretary's decision was based upon a failure by the BIA to comply with the mandates of the National Environmental Policy Act (NEPA), not the NHPA, and was unrelated to the purpose of the NHPA "to encourage the public and private preservation and utilization of all elements of the Nation's historic built environment."[7]

In Pogliani v. United States Army Corps of Engineers,[8] the Second Circuit upheld the district court's decision to deny a motion for preliminary injunction in an action commenced by citizens and property owners in Athens, New York.[9]  The plaintiffs sought the injunction on the basis that an environmental impact statement should have been prepared in accordance with NEPA and the NHPA.[10]  They wished to enjoin the issuance of a permit authorizing the filling of wetlands for construction of an access road to a natural gas-fired electric generating plant and the installation of water intake and discharge pipelines from the plant to the Hudson River.[11]  Utilizing an abuse of discretion standard of review, the Second Circuit upheld the district court's decision to deny the preliminary injunction based upon the plaintiffs' failure to show that harm would imminently occur absent the issuance of an injunction.[12]

In Yankton Sioux Tribe v. United States Army Corps of Engineers,[13] the Eighth Circuit dismissed without prejudice claims asserted under the NHPA by the Yankton Sioux Tribe against the Army Corps of Engineers (the "Corps") related to a burial site, because the court concluded that the claims were not ripe for review.[14]  As a threshold matter, the court agreed that a private right of action exists under the NHPA and therefore that the Tribe could seek injunctive relief against the Corps.[15]  The court ruled, however, that the Tribe's claim based upon section 470(f) of the NHPA was not ripe for review because no factual record had been developed to determine whether the site met the eligibility criteria for listing on the National Register.[16]  As additional support for its lack of ripeness finding, the court noted that (i) the Corps had not made a final determination that the site was ineligible for inclusion in the National Register, (ii) the Tribe had not pursued its right of appeal to the Secretary of the Interior any refusal by the Corps to nominate the site for listing in the National Register, and (iii) the Secretary had not been given opportunity to decide whether the site met the eligibility criteria.[17]  The court likewise found that the Tribe's claims under section 470h-2(a) of the NHPA were not ripe because the Tribe could still provide evidence to the Corps supporting the contention that the site should be listed in the National Register or it could appeal the Corps' decision to the Secretary.[18]

In Bonnichsen v. United States Army Corps of Engineers,[19] the court held that that the Corps violated the NHPA when it buried the site where the "Kennewick Man" had been discovered, because the Corps failed to meet the following NHPA requirements before burying the site:  1) to consider the views of "interested parties"; 2) to mitigate the potential loss of archaeological data; and 3) to consider the potentially negative effects of the project fully and carefully.[20]

In Old Town Neighborhood Association, Inc. v. Kauffman,[21] the court granted a preliminary injunction enjoining the widening of a street which ran through a large historic district until the defendants had thoroughly evaluated the project's effects on the historic district.[22]  The court found that the plaintiffs had shown a substantial likelihood of prevailing on the merits of their claims that the project had been improperly segmented from a major federal undertaking for the purpose of avoiding compliance with federal laws including the NHPA.[23]

In another "segmentation" case, Brewery District Society v. Federal Highway Administration,[24] the court found that a genuine issue of material fact existed regarding whether a federally-funded highway construction project and a locally-funded highway construction project had been unlawfully segmented and, therefore, the court denied the plaintiffs' and the defendant's cross-motions for summary judgment concerning whether a violation of the NHPA had occurred.[25]  On a related legal issue of first impression, the court considered whether NHPA strictures apply "when the local entity takes over a piece of a federal project and then alters it before constructing it."[26]  The court concluded that when the road that is to be constructed is not functionally identical to the road originally contemplated in the federal project, but is designed to serve the same purpose as the road it is replacing, compliance with the NHPA in connection with the construction of the altered road is required.[27]  The court added the following qualifications, however, to its conclusion that the NHPA applies in such a case: (i) "fulfilling the role of the canceled federal project segment must be the primary purpose" of the replacement road; and (ii) "in order to succeed, the plaintiff must establish a prima facie case of 'functional replacement'" of the federal project by the altered local project.[28]

Notes:

  1. This report was authored by W. Harding Drane, Jr., Esquire and Elizabeth D. Power of Potter Anderson & Corroon LLP.  The report covers significant published and unpublished decisions available on LEXIS as of December 12, 2002.  Please direct questions or comments to wdrane@potteranderson.com.

  2. 286 F.3d 1031 (8th Cir. 2002).
  3. Id. at 1039-40.
  4. Id. at 1034.

  5. Id. at 1035.  Subsequent to the entry of the permanent injunction below, the Tribe, which originally had supported the injunction, changed its position, leaving Sun Prairie as the only party seeking to uphold the district court's decision. Id.

  6. Id. at 1039.
  7. Id. (quoting 16 U.S.C. ยง 470-1(5)).
  8. Nos. 01-6199, 01-6201, 2002 U.S. App. LEXIS 21477 (2d Cir. October 9, 2002).
  9. Id. at *5.
  10. Id. at *4.
  11. Id. at *3-4.
  12. Id. at *4-6.
  13. 194 F. Supp. 2d 977 (D. S.D. 2002).
  14. Id. at 990-94.
  15. Id. at 990.
  16. Id. at 990-93.
  17. Id. at 991-93.
  18. Id. at 993-94.
  19. 217 F. Supp. 2d 1116 (D. Or. 2002).
  20. Id. at 1164.
  21. Case No. 1:02-cv-1505-DFH, 2002 U.S. Dist LEXIS 23510 (S.D. Ind. November 15, 2002).
  22. Id. at *69 & *76-77.
  23. Id. at *53-69.
  24. 211 F. Supp. 2d 902 (S.D. Ohio 2002).
  25. Id. at 914-17.
  26. Id. at 916.
  27. Id.
  28. Id. at 916-17.