Case 112

Commonwealth of Kentucky v. United States Army Corps of Engineers, No. 89-77 (E.D. Ky. Sept. 21, 1992).

The Commonwealth of Kentucky alleged that the Army Corps of Engineers failed to comply with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) when recommending to Congress that the Corps divest itself of ten historic locks and dams along the Kentucky River and transfer their ownership to the State. The National Trust for Historic Preservation intervened in the case.

The Court did not address the merits of the NEPA claim, agreeing with Corps' arguments that the claims were not justiciable because the Commonwealth had failed to exhaust administrative remedies. The court stated, however, that it had reviewed the administrative record and, if it were to address the merits, it would still find in favor of the Corps.

According to the court, the Commonwealth was "unduly dilatory" in failing to raise its objections in 1981 when the Corps decided to place the locks and dams in caretaker status and again when the environmental assessment was prepared in 1982 and presented to Congress in 1985. The court pointed out that the facts respecting the 1981 decision had not changed and, accordingly, granted the Corps' motion for summary judgment on the NEPA claim.

The court also rejected the Commonwealth's NHPA claims, finding that the Corps had complied with Section 106 by participating in lengthy negotiations with the Kentucky State Historic Preservation Officer and attempting to enter into a Memorandum of Agreement (MOA), even though the Corps ultimately terminated consultation. Slip op. at 7-8.

The court observed that the Corps had also sought comments from the Advisory Council on Historic Preservation, although the Council took the position that the Corps had not submitted adequate documentation or involved interested parties in the consultation process. The court pointed out that the Council planned to consult with the General Services Administration (GSA), which would acquire title to the property prior to its disposal. Because the Council chose to continue the Section 106 process through the GSA, the court found that Corps' responsibilities under Section 106 had ceased.

The Commonwealth also raised claims under Section 110(a) of NHPA, arguing that that section required the Corps to rehabilitate buildings it was divesting. The court disagreed with this interpretation, finding that Section 110 did not require the rehabilitation of surplus property. Agencies must undertake preservation activities only when it is determined that the property will be of use to the agency's mission. Id at 9. [Ed. note: The language of Section 110(a) was revised in the 1992 amendments.]

Moreover, the court found that consistent with Section 110, the Corps had taken steps to prevent deterioration of the property. Finally, the court ruled in favor of the Corps on the Commonwealth's Section 111 claim, finding that the lease between the Corps and the Commonwealth adequately protected historic properties.

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