Case 103

Ferris v. Secretary of the United States Department of Transportation, No. 89-C-779-C (W.D. Wis. July 30, 1990).

Private citizens and preservation organizations sought injunctive relief against the United States Coast Guard and the Department of Transportation (DOT) to stop the solarization of the Devil's Island Lighthouse until the Federal agencies complied with Sections 106 and 110 of the National Historic Preservation Act (NHPA) and Section 4(f) of the Department of Transportation Act. As part of the project to solarize the lighthouse, which is listed in the National Register of Historic Places, the Coast Guard conducted a site survey, approved removal of the structure's third-order Fresnel lens, and began installing solar panels without notifying the Advisory Council on Historic Preservation or the Wisconsin State Historic Preservation Officer (SHPO). After a private citizen informed the SHPO of these activities, the SHPO notified the Coast Guard that it must comply with Section 106 and requested it to cease work.

The Coast Guard sent the SHPO a finding of no adverse effect. The SHPO disagreed with the determination and informed the Coast Guard that it should initiate consultation to resolve the project's adverse effects. The Council also notified the Coast Guard that it should suspend activities until it could demonstrate compliance with NHPA. Once again, the Coast Guard wrote the SHPO, describing the changes to the lighthouse‹by this time complete‹and restating its finding of no adverse effect. The SHPO again disagreed with the finding, noting that the information provided by the Coast Guard failed to meet the documentation requirements set forth in the Council's regulations.

In deciding whether the Coast Guard had complied with Section 106 of NHPA, the court explained that the Council's regulations require a Federal agency to notify the SHPO of a finding of effect before making a no adverse effect or adverse effect determination. Because the Coast Guard failed to advise the SHPO on the effect finding, the court determined that it had not complied with Section 106. Slip op. at 10-11. The Coast Guard countered that it was complying with the requirements of Section 110 when it removed the Fresnel lens so that the lighthouse could be better used. The court recognized that the Coast Guard may have followed the requirements of Section 110 in attempting to use the historic lighthouse to the maximum extent possible but stated that in planning for such use the Coast Guard was still required to adhere to Section 106 procedures. Additionally, the court found that the Coast Guard failed to comply with NHPA when it approved the lens removal prior to notifying the Council and the SHPO and giving the Council an opportunity to comment.

The court also ruled in favor of plaintiffs on the Section 4(f) claim, finding that the removal of the lens was a "use" as defined in the Department of Transportation Act of 1966 because it diminished the historical value of the lighthouse site. Id. at 13. The court awarded attorneys' fees and costs to plaintiffs and enjoined defendants from proceeding with the project until they complied with the Council's regulations.

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