Case 105

People for Responsible Omaha Urban Development v. Interstate Commerce Commission, CV88-0 247 (D. Neb. Feb. 14, 1989), aff'd, No. 89-1342 NE (8th Cir. Sept. 14, 1989), 889 F.2d 1092 (mem.), cert. denied, 495 U.S. 957 (1990).

People for Responsible Omaha Urban Development (PROUD), together with the National Trust for Historic Preservation as an intervening plaintiff, sued the Interstate Commerce Commission, the National Park Service (NPS) and the Army Corps of Engineers, to enjoin demolition of an entire historic warehouse district known as Jobbers Canyon, which was listed in the National Register of Historic Places. The area was to be converted into a man-made lake with future commercial sites, as part of an adjacent corporate development.

PROUD alleged that the Federal agencies failed to comply with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). At the outset of the litigation in May 1988, the district court denied plaintiffs' request for a preliminary injunction, so demolition proceeded over the course of the following year as the litigation went forward. The district court later ruled in favor of defendants on the merits, basing its ruling on the findings and recommendations of a magistrate. The court of appeals affirmed the district court decision in a brief opinion.

The case focused on whether there was sufficient Federal involvement in the project to trigger NEPA and NHPA. With regard to ICC, PROUD alleged that since ICC approval was required to change routing of rail lines and abandon a portion of the rail line, compliance with NEPA and NHPA was necessary.

The district court, based on the magistrate's findings, rejected that argument after concluding that the type of abandonment involved in this case and the change in use on the other portion of tracks did not require ICC approval.

Plaintiffs also alleged that the Corps had approval authority over plans to realign storm sewers and other structures that interfaced with a flood wall in the project area. The Corps argued that it only had authority within the levee right-of-way.

The district court found that although the Corps had the right to review plans, the Corps did not have control or responsibility over the project because it lacked enforcement power. Thus, the district court held that the Corps was not involved in the project in any meaningful way.

Even if the Corps and ICC were involved, the district court determined that there was no evidence demonstrating such involvement as to trigger NEPA and NHPA. In so ruling, the district court adopted the reasoning in Ringsred v. City of Duluth, 828 F.2d 1305 (8th Cir. 1987) and Winnebago Tribe v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836 (1980) and determined that in order to assess whether NEPA or NHPA apply, a court should consider whether Federal action is a legal condition precedent to commencement of the project. If Federal action is not a legal condition precedent, but Federal action still exists, the court should consider the degree of discretion exercised by the Federal agency, the existence of Federal funding of the project, and the amount of overall Federal involvement in the otherwise private action.

In its claim against NPS, plaintiffs alleged that the Land and Water Conservation Fund (LWCF) acquisition of land for a park east of Jobbers Canyon triggered a requirement for NPS to approve a "conversion" of the use of the land.

The district court agreed with the magistrate's finding that the use of the federally funded parkland in the corporate campus development was not sufficiently different from the original county park plan to constitute a "conversion" of use, and thus did not require NPS approval.

In a separate opinion, the district court also rejected a title issue raised by plaintiffs, who argued that under Nebraska law the railroad abandonment caused the property to revert to the heirs of turn-of-the-century adjacent landowners along the rail corridor, and that the railroad thus did not have clear title to convey the property.

However, the district court did issue a strong ruling in favor of plaintiffs on standing, which had been challenged by the defendants. The court held that plaintiffs' enjoyment and appreciation of the architecture of Jobbers Canyon was a sufficient basis for standing under the NHPA and NEPA.

Although the court of appeal granted a partial stay of demolition during the appeals at a time when five buildings remained standing in the district, the injunction was later dissolved, and the court of appeals issued a per curiam affirmance in a brief opinion. Ultimately, all 24 buildings in the National Register-listed historic district were demolished, and the adjacent corporate campus was completed.

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