Over the years, the two dozen buildings and structures in the historic district deteriorated and became significantly damaged due to lack of maintenance. The Army considered demolishing the buildings and developed several master plans for the area that proposed demolition; however, those plans were not carried out. Years later, the Army considered excessing the historic district in light of its continued deterioration and lack of use. As the result of the decision to excess the property, in 1991, the Army initiated Section 106 consultation with the Advisory Council on Historic Preservation and the State Historic Preservation Officer (SHPO).
The district court addressed in detail the question of the appropriate standard of review of the Army's actions under the National Historic Preservation Act (NHPA). Defendants argued that the court should apply the arbitrary and capricious standard of review under the Administrative Procedure Act (APA). Slip op. at 11. Plaintiffs asserted that NHPA creates an implied private right of action through the attorneys' fees provision in Section 305 of NHPA. Such a right of action could "trump the deferential standard of review provided by the APA." Id. at 12. The court acknowledged that a number of other cases have held NHPA does create an implied private right of action but, even where such a right was found, the courts applied a deferential standard like that of APA. See id.
In determining whether NHPA establishes a private right of action, the court acknowledged that the existence of an attorneys' fees provision is evidence of an intent to create a private right of action, although it is not dispositive. Id. at 13. Nonetheless, the district court decided that Congress did not intend to create a private right of action under NHPA. The court reasoned that a private right of action would not provide any more relief to plaintiffs than a suit brought under APA because, like APA, NHPA does not provide for attorneys' fees but only for enforcement of agency compliance. Because APA does not provide for attorneys' fees, the court interpreted the legislative history of Section 305 of NHPA as providing for attorneys' fees for actions brought under APA but not creating a different standard of review. Id. at 14. Although the court reviewed the Army's actions under the arbitrary and capricious standard of APA based on the administrative record created by the agency, the court did allow plaintiffs to supplement the administrative record. Id. at 16 n.10.
Addressing the merits of the case in light of Section 106, plaintiffs argued that the Army made an affirmative decision not to excess the historic district in 1984 and that such a decision was an undertaking under Section 106. Id. at 25. Accordingly, the Army's failure to initiate consultation with the Council and the Maryland SHPO prior to that decision in 1984 was a violation of Section 106. Id. The court rejected the Army's argument that there was no undertaking until 1991 when the Army affirmatively decided to excess the property. Id. at 22. The court acknowledged that an agency's failure to act, without more, is not an undertaking. Id. at 23. However, if as in this case a "considered affirmative decision" not to act has "serious and long-term consequences" for the historic properties, then Section 106 is implicated. Id. at 25.
With regard to Section 110, plaintiffs argued that the Army violated Section 110(a)(1) of NHPA which requires that Federal agencies assume responsibility, consistent with the mission of the agency, for the preservation of historic properties owned or controlled by the agency. Specifically, plaintiffs asserted that the Army's failure to prevent decay and deterioration of the historic district violated Section 110, and that Section 110 creates substantive responsibilities. Slip op. at 19. Defendants argued that Section 110 is merely a procedural provision and does not require that agencies preserve historic properties, but merely that they consider the effect of their actions on historic properties. Id.
The court interpreted Section 110 as "an elucidation and extension of the Section 106 process but not its replacement by new and independent substantive obligations of a different kind." Id. at 27 (citing Lee v. Thornburgh, 877 F.2d 1053, 1057 (D.C. Cir. 1989)), the court observed that Congress did not intend to change the preservation responsibilities of Federal agencies when Section 110 was added to NHPA in 1980. Id. at 30. The court also interpreted the Section 110 guidelines issued by the Secretary of the Interior as requiring Federal agencies merely to "consider" ways to use historic properties and to integrate them into agency programs, but not as instructing agencies that they "have an affirmative obligation to spend money to preserve historic buildings." Id. at 31.
The court also examined the Army's compliance with its own regulations, which require the preparation of a historic preservation plan as the primary mechanism for compliance with Section 110 of NHPA. Plaintiffs alleged that the Army violated its own regulations by allowing the historic district to deteriorate and by failing to ratify and implement a historic preservation plan, which had been drafted by a consultant in 1992. The Army countered that it had complied with its regulations and Section 110 by developing the cultural resource management plan in 1992. The court agreed with defendants and determined that the cultural resource management plan served as the historic preservation plan for the historic district. Id. at 32. The court found that since the adoption of the plan in 1992, the Army was in compliance with its own regulations and Section 110, particularly in light of the substantial sums of money the Army spent on repairs and maintenance (even though the amount spent did not prevent significant deterioration) and its efforts to obtain additional funding to carry out the plan. Id. at 33-34. However, from 1984, when the Army promulgated its regulations, to 1992, when the cultural resource management plan was developed, the court found that the Army had violated Section 110 and its own regulations. Id. at 35. The court also noted that, because NHPA does not delegate to the Army any interpretive or enforcement authority, the Army's own interpretation of NHPA is not entitled to any particular deference by the court. Id. at 32 n. 15.
Despite the finding that the Army violated Section 106 and Section 110 and that "the Army's noncompliance has caused real harm," the court did not order the Army to repair the buildings. Id. at 36. The court viewed the requirements of Section 110 as limited and did not view Section 110 as adding substantive obligations on a Federal agency. Id. According to the court, when Section 110 was added in 1980, it "was not intended to expand the preservationist responsibilities of federal agencies beyond what the NHPA already required." Id. at 37. The court determined that Section 110 did not require the Army to undertake preservation beyond the requirements of Section 106 and its own historic preservation plan. Id.
Finding that the Army's expenditure of nearly two million dollars on repairs since 1992 was "not insignificant," the court concluded that the Army had followed the requirements of Section 110 of NHPA, its implementing guidelines and Army regulations. The court emphasized, however, that "merely because a statutory requirement is described as 'procedural' does not render it any less meaningful or mandatory." Id. at 38. The court recognized the value of the con-sultative process itself and stressed that its con clusion was not to be "misunderstood as somehow diminishing the Army's obligations under the NHPA or excusing its derelictions over the years . . . ." Id.
Accordingly, the court denied plaintiffs' motions for a preliminary injunction and summary judgment and granted defendant's summary judgment motion.
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