Plaintiffs sought a declaratory judgment against the Corps and an injunction to prevent the park authority from proceeding with the project. Plaintiffs claimed that the aquarium phase of the project should not proceed without a Corps permit and that an individual, as opposed to a nationwide, permit was required for the park phase. Even if the park project fell under the nationwide permit, plaintiffs argued, the nationwide permit was still a license within the meaning of NHPA and, therefore, triggered Section 106 review.
The district court dismissed the plaintiffs' challenge to the permits on jurisdictional grounds, finding that RHA did not give plaintiffs a direct right of action to compel the Corps to require permitting and that the Administrative Procedure Act (APA) did not provide for Federal court review of Corps decisions made under RHA.
The court of appeals reversed the district court's holding that Corps' permit decisions under the RHA were non-reviewable. Plaintiffs also sought review of the Corps' violation of NHPA and the Corps' own regulations, as well as RHA, the court explained. The concerns alleged by plaintiffs were well within the zone of interests protected by NHPA and the Corps' regulations, giving plaintiffs standing to sue. 875 F.2d at 458-59. However, the court of appeals concluded that plaintiffs did not have a right of action against the non Federal defendants. According to the court, neither APA nor NHPA gives a private plaintiff a right of action against non-Federal parties. Id. at 456. The court of appeals distinguished several court decisions allowing injunctions against non-Federal defendants when a Federal agency violates Federal law. Id. at 457. Acknowledging that several courts had allowed private plaintiffs to enjoin non-Federal defendants where agencies have not complied with NHPA, the court did not find explicit justification for such holdings. Id. at 458.
With regard to the merits of plaintiffs' challenge to the aquarium phase of the project, the court of appeals made two findings in affirming the district court's dismissal of the claim. First, it determined that neither the Corps' review of the final plans for the aquarium phase nor the monitoring of the project triggered Section 106 review. Second, the court determined that the Corps' decision not to require a permit for the aquarium phase of the project was neither arbitrary nor capricious.
On the issue of the permit for the park phase of the project, the court of appeals reversed the district court. In its ruling, the court of appeals addressed the relationship between nationwide permits and Section 106 of NHPA. The court observed that the statutory purpose of NHPA "contemplates widespread agency responsibility for the protection of historic interests." Id. at 465. However, the court also opined that "Congress clearly did not intend to require the Corps to subject such truly inconsequential projects to the procedural complexities of section 470f." Id. According to the court, "such a literal construction of section 470f is unreasonable and unintended, and as such is a result we must endeavor to avoid." Id. The court of appeals took a "middle path" between the Corps' position that NHPA's Section 106 undertaking requirement is coterminous with the major Federal action requirement in the National Environmental Policy Act (NEPA), and plaintiffs' argument that all activities covered by nationwide permits trigger the NHPA review process: the court held that when nationwide permits authorize "truly inconsequential" activities, they do not trigger Section 106 review. Id.
The court of appeals remanded the case to determine whether the park phase of the project required an individual or a nationwide permit. If it required an individual permit, then the project would be subject to Section 106 review. If it required a nationwide permit, then the district court had to determine whether the project was so inconsequential that it "escaped" Section 106 review. If it did escape Section 106 review, the district court was directed to determine whether the nationwide permit was invalid because the Corps failed to evaluate the park's impact on historic properties as required by its own regulations.
On remand, the district court dismissed the case on grounds of mootness, claiming that no relief could be granted because construction of the aquarium was virtually complete. Once again, the plaintiffs appealed, and the court of appeals reversed the district court on the mootness holding. The court of appeals favored plaintiffs' argument that the district court violated the law of the case doctrine by basing its mootness decision on assumptions about legal issues on which it was directed to rule. 948 F.2d at 1442. The Corps also argued that Section 106 review was not required for a completed project. The court of appeals, however, held that as long as the project was under a Federal license and the Corps had the ability to require changes to mitigate adverse effects, the project remained a Federal undertaking requiring review. Id. at 1445 (citing Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 280 (3d Cir. 1983)).
The court also rejected the district court's reasoning that allowing plaintiffs' action would "unduly penalize" the private developers. 948 F.2d at 1442. The court found that "the interests of the non-Federal developers are not an appropriate basis for concluding that Vieux Carré's suit is moot." Id. at 1445. The court noted that the Section 106 review process calls for consultation with all interested parties when considering mitigation options, ensuring consideration of the developer's interests. Id. The Corps also claimed that the case was moot because the court was no longer able to grant relief to plaintiffs due to substantial completion of the project. The court of appeals rejected that argument as well, concluding that there still could be effective relief for plaintiffs. Id. at 1446. The court observed that it was impossible to pre-judge the outcome of the Section 106 review process and that, conceivably, a broad range of remedies could result from the consultation process. Id. at 1447. According to the court, the Advisory Council on Historic Preservation, not the district court, should decide what relief is available. Id.
Remanding the case to the district court once again, the court of appeals directed it to make the determinations required in its previous order. If the district court again determined the case to be moot, it must inquire as to the applicability of the exception to the mootness doctrine for cases "capable of repetition, yet evading review." Id. at 1449.
On remand, the district court found that the park phase of the project was properly authorized under a nationwide permit and involved "truly inconsequential" navigation activities. Reviewing the case for the third time, the court of appeals affirmed the district court decision, concluding that the Corps was not arbitrary or capricious in finding a nationwide permit appropriate given the nature of the changes to the wharf. 40 F.3d at 116. Approving the district court's analysis of inconsequentiality, the court found that the district court appropriately measured inconsequentiality from the impact on navigable waters. The court found that even if the district court should have considered the consequences of its activities on the historic properties in measuring inconsequentiality, the Corps' decision was not arbitrary or capricious.
The court of appeals also determined that although the Corps did not comply with its own regulations regarding consideration of historic properties, plaintiffs did not have any remedy under RHA or the Corps' regulations. The court stated that compliance with 33 C.F.R. § 330.5(b)(9), which requires consideration of adverse effects to historic properties, is a condition to the activity licensed under the nationwide permit; if the condition is not followed, the Corps regulations provide that the permit is not valid and the project must be authorized through an individual permit. 40 F.3d at 117 (citing 33 C.F.R. §§ 330.1, 330.5(b)). Although the project therefore went forward without a valid permit in violation of Section 10 of RHA, the court nevertheless concluded that RHA did not give plaintiffs a private right of action against the Corps, nor did it require the Corps to enforce the provision violated in this case. Id. The Attorney General, not the Corps, has discretionary enforcement power over such violations.
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