National Historic Preservation Act: Developments During the Year 2000

W. Harding (Hardy) Drane, Jr.

This article appears in The Year in Review: 2000, pp.247-249,
published by the The American Bar Association Section of 
Environment, Energy, and Resources (2001)


Legislative and Administrative Developments

On May 26, 2000, the President signed into law the National Historic Preservation Act Amendments of 2000.[1]  Those amendments reauthorized through Fiscal Year 2005 the Historic Preservation Fund[2] and the Advisory Council for Historic Preservation (ACHP),[3] revised the requirement that encourages Federal agency use of available historic properties,[4] and effected certain technical and conforming changes to the NHPA.[5]

On December 12, 2000, the ACHP published a final rule[6] which governs the process established by Section 106 of the NHPA[7], replacing a previous version of the rule adopted in 1999.[8]  The main reason for replacing the 1999 Rule was a lawsuit filed by the National Mining Association challenging that rule.[9]  The lawsuit alleged violations of the Appointments Clause of the Constitution and the Administrative Procedure Act in the rule making process for the 1999 Rule.[10]  In promulgating the Year 2000 Historic Properties Rule, the ACHP retained the major provisions of the 1999 Rule, but implemented certain modifications to the Section 106 process, clarified some provisions and terms, and made technical and informational edits throughout the rule.[11]

Judicial Developments

In Virginia Vermiculite Ltd. v. W.R. Grace & Co. - Conn.,[12] the court held that an historic preservation organization whose actions violated the Sherman Act was not immune from antitrust liability, even though it may have acted to protect a landmark from development at the behest of the government.[13]  W.R. Grace had donated certain rights to land to HGSI, a local organization interested in preserving a part of Louisa County, Virginia which had been designated as a national landmark.[14]  Some of the donations included deed restrictions against vermiculite mining.[15]  A competitor of Grace in that industry, VVL, asserted that the donations violated various antitrust laws, because they were intended to restrict VVL from mining in the area.[16]  The court found that the evidence supported a finding that the transaction was commercial in nature, because there was evidence that HGSI acted for purposes other than simply to preserve the landmark.[17]

In Western Mohegan Tribe & Nation v. New York,[18] the Court ruled that the NHPA did not apply to construction of a state park funded exclusively by the State, because "[t]he lack of federal funding for or jurisdiction over the park bars application of the NHPA."[19]  The fact that the United States Army Corps of Engineers had granted a permit allowing construction on contiguous federal lands of an access road leading to the state park did not trigger the NHPA with respect to the state park, because the federal permit issued by the Corps was not for the state park itself but merely for access thereto.[20]

In Sac and Fox Nation v. Babbitt,[21] the court held that the NHPA did not apply to the 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 mandatory duty to do so under the terms of a federal statute.[22]

In Young v. GSA,[23] the court upheld the federal agency's finding that destruction of an historic roundhouse for locomotives in Alexandria, Virginia, by the property owner and the bidder, in order to make the property more attractive for the relocation of the Patent and Trademark Office Consolidation Project, was not intended to avoid the requirements of Section 106, and did not disqualify the bidder.[24]  The court noted that destruction of the structure had been scheduled long before the current PTO project, and that the owner had prepared documentation depicting the condition of the structure prior to demolition.[25]  The court found that the government adequately examined potential impacts on historic resources and took adequate although unsuccessful steps to prevent destruction of the roundhouse by the private landowner.[26]

In a number of other cases, courts rejected challenges to proposed projects based upon the NHPA, holding either that the responsible party had complied sufficiently with NHPA protocols,[27] or that such protocols did not apply because no federal funds were being used for the project in question.[28]

Notes:

  1. Pub.L. No. 106-208, 114 Stat. 318 (codified at 16 U.S.C. §§ 470 et seq.(2000)).

  2. Id. § 2 (codified at 16 U.S.C. § 470h (2000)).

  3. Id. § 3 (codified at 16 U.S.C. § 470t(a) (2000)).

  4. Id. § 4 (codified at 16 U.S.C. § 470h-2(a)(1) (2000)).

  5. Id. § 3 (codified at 16 U.S.C. § 470 et seq. (2000)).

  6. Protection of Historic Properties, 65 Fed. Reg. 77698-77739 (2000) (to be codified at 36 C.F.R. pt. 800) [hereinafter Year 2000 Historic Properties Rule]

  7. Pub.L. 89-665, Title I, § 106, 80 Stat. 917 (codified as amended at 16 U.S.C. § 470f (2000)).  [hereinafter Section 106].  Section 106 prescribes certain procedures to be followed by Federal agencies and federally-assisted entities in connection with projects that may affect historic properties or objects. Id.

  8. Protection of Historic Properties, 64 Fed. Reg. 27,043-27,084 (1999), [hereinafter 1999 Rule], replaced by Year 2000 Historic Properties Rule.

  9. See 65 Fed. Reg. at 77,698.

  10. Id.

  11. Id. at 77,699.

  12. 108 F. Supp. 2d 549 (W.D. Va. 2000).

  13. Id. at 603.

  14. Id. at 558-60.

  15. Id.

  16. Id. at 560-61.

  17. Id. at 603-04.

  18. 100 F. Supp.2d 122 (N.D.N.Y. 2000).

  19. Id. at 127.

  20. Id. at 127.

  21. 92 F. Supp. 2d 1124 (D. Kan. 2000).

  22. Id. at 1129.

  23. 99 F. Supp. 2d 59 (D.D.C. 2000)

  24. Id. at 82-83.

  25. Id. at 82.

  26. Id.

  27. See, e.g., Davis v. Latschar, 202 F.3d 359 (D.C. Cir. 2000) (National Park Service program to curtail the deer population in Gettysburg National Military Park); Society Hill Tower Owners Ass'n v. Rendell, 210 F.3d 168 (3d Cir. 2000) (development of a hotel and parking garage using federal grant monies); Rosebud Sioux Tribe v. Gover, 104 F. Supp. 2d 1194, 1212 (D.S.D. 2000) (proposed hog production facility); Lesser v. City of Cape May, 110 F. Supp. 303 (D.N.J. 2000) (rehabilitation of historic hotel); Atlantic States Legal Foundation, Inc. v. Browner, No. 00 Civ. 1947 (DLC), 2000 U.S. Dist. LEXIS 12511 (S.D.N.Y. Aug. 30, 2000) (sewer project).

  28. See, e.g., Maxwell Street Historic Preservation Coalition v. Board of Trustees, No. 00c4779, 2000 U.S. Dist. LEXIS 11750 (N.D. Ill. Aug. 11, 2000) (demolition of structures for university development project).