National Historic Preservation Act: Developments During the Year 2001

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

This article appears in The Year in Review: 2001, pp.254-255,
published by the The American Bar Association Section of
Environment, Energy, and Resources (2002)


Legislative and Administrative Developments

There were no significant legislative or administrative developments involving the NHPA during 2001.  As discussed in the succeeding section, however, one notable judicial decision was rendered during the year regarding the Final Rule that was promulgated in December 2000 by the Advisory Council on Historic Preservation (ACHP).

Judicial Developments

In National Mining Ass'n v. Slater,[2] the Court held that the Final Rule, promulgated in December 2000 by the ACHP pursuant to Section 106 of the NHPA, was valid under both the Administrative Procedure Act and the United States Constitution, with the two following exceptions.[3]  First, the Court found that 36 C.F.R. Section 800.4(d)(2) was substantive and therefore violated the plain language of the NHPA.[4]  That section of the Final Rule required an agency to continue the Section 106 process at the ACHP's request if the ACHP objected to the agency's determination that there were no historic properties present or that existing historic properties would not be affected by a federal undertaking.[5]  Second, the Court ruled that 36 C.F.R. Section 800.5(c)(3) likewise was substantive and violated the plain language of the NHPA, at least to the extent it required the agency official to proceed in accordance with the ACHP's determination regarding the adverse effects of an undertaking on historic property.[6]  The latter section granted to the ACHP both the authority to review an agency finding of no adverse effects, when either the appropriate State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) disagreed with that finding, and to make a determination as to whether the adverse effect criteria had been correctly applied.[7]

In Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transp. Bd.,[8] the Third Circuit held that the Surface Transportation Board (STB) did not comply with its obligations under the NHPA in identifying historic properties eligible for inclusion in the National Register.[9]  The Court also found that the STB abused its discretion when it unilaterally terminated the NHPA process and implemented an unexecuted memorandum of agreement.[10]  In issuing a final order permitting the abandonment of the Enola Branch, a 66.5 mile railroad line built in the early twentieth century, the STB had failed properly to consider the views of the petitioners, the Keeper of the National Register (Keeper), the SHPO, and the ACHP concerning the historical significance of the railroad line.[11]  Therefore, the Court vacated the STB's abandonment orders and remanded the matter to the STB with instructions to consider the comments of the Keeper, the ACHP, and other interested parties as to the scope of the eligible historic properties and a proper mitigation plan.[12]  The Court concluded that if the STB again should decide that further consultation would be fruitless, it nevertheless must follow the procedures established by the regulations, rather than unilaterally terminating the Section 106 Process.[13]

In Western Mohegan Tribe & Nation of New York v. New York,[14] the Second Circuit held that the Tribe did not have a cause of action against the State of New York under the NHPA concerning the development of a state park, because violations of the NHPA can only be committed by federal agencies.[15]

In Committee to Save Cleveland's Huletts v. United States Army Corps of Eng'rs,[16] the Court held that the Army Corps of Engineers (Corps) violated the NHPA when it issued a dredging permit to the Cleveland-Cuyahoga Port Authority.[17]  In particular, the Corps failed to wait for comments from the Ohio SHPO or the ACHP before issuing the permit, and then neglected to pursue the Section 106 process after the aforementioned entities objected.[18]  The Corps argued that its own regulations, rather than those of the ACHP, governed its actions, and therefore the Corps had not violated the NHPA.[19]  The Court explained, however, that while both the NHPA and the ACHP regulations permit agencies to promulgate rules governing their own programs, such rules must be adopted in consultation with and approved by the ACHP.[20]  In this case, the ACHP had not approved the Corps' regulations, and those regulations were inconsistent with ACHP guidelines.[21]  Therefore, the Corps' compliance with its own regulations could not overcome the Court's determination that the Corps had violated the NHPA.[22]

In Sac & Fox Nation of Missouri v. Norton,[23] the Tenth Circuit upheld the District Court's ruling that the NHPA did not apply to a decision by the Secretary of the Interior to purchase land and to hold it in trust for the Wyandotte Tribe, because the Secretary had a non-discretionary duty to do so under the terms of a federal statute.[24]

In a number of other cases, courts rejected challenges to projects based upon the NHPA, holding that the responsible party had complied sufficiently with the NHPA protocols.[25]  Many courts also denied requests for preliminary injunctions that were sought to halt the commencement or continuation of projects.[26]

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 November 26, 2001.  Please direct questions or comments to wdrane@potteranderson.com.

  2. Civil Action Nos. 00-00288 (ESH) & 01-00404 (ESH), 2001 U.S. Dist. LEXIS 14694 (D.D.C. Sept. 18, 2001).

  3. Id. at *87-88.

  4. Id. at *61 & *87.

  5. Id. at *59.

  6. Id. at *61-62 & *87-88.

  7. Id. at *59.

  8. 252 F.3d 246 (3d Cir. 2001).

  9. Id. at 263-66.

  10. Id. at 266-67.

  11. Id. at 263-66.

  12. Id. at 267.

  13. Id.

  14. 246 F.3d 230 (2d Cir. 2001).

  15. Id. at 232.

  16. 163 F. Supp. 2d 776 (N.D. Ohio 2001).

  17. Id. at 791.

  18. Id. at 789-91.

  19. Id. at 791.

  20. Id.

  21. Id. at 792.

  22. Id.

  23. 240 F.3d 1250 (10th Cir. 2001).

  24. Id. at 1263.

  25. See e.g., Save Our Heritage, Inc. v. Federal Aviation Admin., No. 00-2340, 2001 U.S. App. LEXIS 22698 (1st Cir. Oct. 23, 2001) (FAA amendment allowing ten additional daily flights between LaGuardia and Hanscom airports); Buckingham Township v. Wykle, 157 F. Supp. 2d 457 (E.D. Pa. 2001) (improvement of U.S. Route 202, Section 700 and the development of an interchange at Route 202 and State Route 313).

  26. See e.g., Pogliani v. United States Army Corps of Eng'rs, 1:01-CV-0951, 2001 U.S. Dist. LEXIS 11513 (N.D.N.Y. Aug. 10, 2001) (construction of a gas-fired power plant); Hayne Blvd. Camps Preservation Ass'n v. Julich, 143 F. Supp. 2d 628 (E.D. La. 2001) (removal of debris from camps damaged by a hurricane); Stewart v. Federal Reserve Bank of Atlanta, Civil Action No. 00-3183 Section "C" (5), 2000 U.S. Dist. LEXIS 16597 (E.D. La. Nov. 7, 2000) (demolition of a building).