Yerger, the concessionaire, alleged that the Forest Service failed to comply with NHPA when it refused his request for permit renewal before completing the Section 106 consultation process. He also argued that the Forest Service had directed him to remove the buildings as a consequence of the permit denial, an activity which would impact the property's historic character.
The court concluded that the Forest Service's failure to renew the permit constituted nothing more than its reassumption of title or control, an exercise of ownership rights that would not affect historic properties. 981 F.2d at 465. According to the court, the Forest Service directive to remove concession buildings on the property properly stipulated that the buildings should not be removed until the agency completed the Section 106 consultation process.
Citing Council regulations, the court reasoned that NHPA does not bar agencies from authorizing nondestructive planning activities before completion of consultation. Id. (citing 36 C.F.R. § 800.3(c)).
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