Case 100

Lee v. Thornburgh, 707 F. Supp. 600 (D.D.C.), rev'd, 877 F.2d 1053 (D.C. Cir. 1989).

Community groups and residents of southeast Washington, D.C., brought suit to block construction of a new correctional treatment facility on the Gallinger Hospital site, a place nominated to the National Register of Historic Places. The project was funded by direct congressional appropriation to the District of Columbia at the urging of the Department of Justice. The Justice Department bears responsibility for designating the place of confinement for those convicted of offenses; however, it has no role in the construction and operation of District of Columbia prisons.

Plaintiffs argued that Sections 106, 110(b), and 110(d) of the National Historic Preservation Act (NHPA) applied to the project because the project received Federal assistance. The district court found that NHPA applied because the prison would be built on Federal land with Federal funds appropriated by Congress and, because Federal approval was required before the site could be used.

The court of appeals reversed the district court, declining to adopt the lower court's interpretation of the scope of NHPA and holding that its provisions do not apply since the planning and construction of the facility was neither funded nor dependent on approval by a Federal agency.

Reviewing the statutory text of NHPA, the court of appeals found that "Congress intended these provisions to have a limited reach." 877 F.2d at 1056. The court examined Sections 106, 110(b) and 110(d) and reasoned that "NHPA imposes obligations only when a project is undertaken either by a federal agency or through the auspices of agency funding or approval." Id. Moreover, the court interpreted Section 106 to impose historic preservation obligations on agencies in only two situations: where an agency has the authority to license a project or to approve the expenditure of project funds.

Examining Section 110(d) of NHPA, the appellate court found that "obligations are imposed when federal agencies have the authority to license a project or to provide assistance" to a project. Id. According to the court, "providing federal assistance" means "approving the expenditure of federal funds." Id. at 1056-57. The court explained that the doctrine of in pari materia applied, thus, Sections 106 and 110(d) should be read in conjunction. Citing a report from the House of Representatives, the court noted that the legislative history of Section 110 supported the court's interpretation: the House report stated that Section 110 "clarifies and codifies" agencies' responsibilities under NHPA but does not intend to change them. Id. at 1057. If it were to read the phrase "Federal assistance" in Section 110(d) broadly, the court stated, it would expand the limits of NHPA beyond the responsibilities of Section 106 and deviate from the intent of Congress.

The court of appeals also construed the language of Section 110(b) narrowly, holding that "agency action" referred to the granting of a license or other required approval, while "assistance" referred to the approval of expenditure of funds.

In analyzing Sections 106, 110(d) and 110(b), the court concluded that no Federal agency had approved funds for the proposed correctional treatment facility because the funds for the project were appropriated directly by Congress to the District of Columbia. Id. The court also found that no agency held an approval function with respect to the facility. Although the D.C. government sought the Justice Department's agreement to the site and the Justice Department cleared it with both the General Services Administration and the Department of the Interior, the court stated that "none of these agencies actually claim to have had the authority to grant or refuse permission." Id. Because the agency's involvement was limited to encouraging Congress to appropriate funds for the prison and to identifying property under Federal jurisdiction as possible sites, the court found that "such a negligible involvement as occurred here does not trigger the provisions of NHPA." Id. at 1058.

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