Case 117

Yerger v. Robertson, 981 F.2d 460 (9th Cir. 1992).

The United States Court of Appeals for the Ninth Circuit affirmed the district court's decision that the United States Forest Service did not violate the National Historic Preservation Act (NHPA) when it declined to renew a special use permit for a recreational facility and food concession in Prescott National Forest in Arizona. In declining to renew the permit, the Forest Service ordered the concessionaire to remove historic concession buildings from the property; however, the order specified that the buildings should not be removed until the Forest Service completed the Section 106 consultation process.

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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