Case 136

Fein v. Peltier, 949 F. Supp. 374 (D.C. V.I. 1996).

Plaintiff, Fein, sought a preliminary and permanent injunction barring defendant, a National Park Service (NPS) Superintendent, from interfering with a residential construction. The court found that the plaintiff had not exhausted administrative remedies and that there was no final decision to review. Accordingly, the court held it lacked subject matter jurisdiction, and dismissed the action.

Plaintiff was assigned a property right in 1991 stemming from a 1975 deed conveying the property in question to the United States as part of approximately 94 acres to be included in the Virgin Islands National Park. The deed conveyed the land subject to a right of use and occupancy reserved by the grantors for a period of 60 years, which was assigned to plaintiff. This right included the right to construct a single family dwelling so long as it did not interfere with the historic ruins within the area, and also required the grantor to cooperate with NPS.

In 1994, Fein applied through the Department of Planning and Natural Resources (DPNR) for a minor Coastal Zone Management permit to build a residence. NPS never received formal notice, but found out and put DPNR on notice of its interest in project, warned of the project's possible impact on historic ruins on the land, and protested that the architectural plans did not conform to the restrictions on the mentioned deed. Although no evidence was presented that DPNR ever directly responded to NPS, Fein was required to adjust the plans to meet certain standards. The plans were revised and approved by DPNR and the permit was issued. An adjoining landowner who had not received proper notice successfully appealed to the Virgin Islands Board of Land Use Appeals, the initial permit was voided, and the permitting process started anew.

This time, NPS received an official notice from DPNR of Fein's renewed application. NPS responded with a letter advising it of the potential impact on historic properties and the need to comply with the National Historic Preservation Act (NHPA) and the Section 106 process. DPNR did not respond to the letter, and issued the permit before NPS could complete the Section 106 compliance procedures. The commissioner of DPNR then informed NPS that the permit was granted because Section 106 did not apply since the construction of the dwelling was not a Federal undertaking.

When Fein's contractor began site preparation, NPS officers entered the construction site and ordered the contractors to cease all site preparations or risk going to jail. Plaintiff brought this lawsuit seeking equitable relief, including a temporary restraining order (TRO). The TRO was granted on condition that no historic ruins would be disturbed. At the hearing for the permanent and preliminary injunction, it was revealed that the contractor had disturbed some of the ruins by moving a historic stone wall.

The court ruled from the bench that a permanent and preliminary injunction would not be granted and the matter would be dismissed for lack of subject matter jurisdiction. The issue of jurisdiction turned on whether Section 106 of the NHPA and the Archeological Resources Protection Act were applicable. The court found that they were applicable. The court concluded that Section 106 applied for two reasons. First, the court reasoned that, pursuant to Section 110(a) of the NHPA, NPS is required to manage and maintain property it owns to preserve historic, archeological, architectural, and cultural values in compliance with Section 106. Also, the court found that NPS is required by Section 106 itself to take into account the effects that plaintiff's project will have on the construction site, which is located on a property listed on the National Register.

In reaching these conclusions, the court found that this was an "undertaking" for purposes of Section 106. It construed the statutory definition of "undertaking" to include any project or activity under the direct or indirect jurisdiction of NPS that requires its prior approval, regardless of whether the project or activity is funded in whole or in part by the NPS.

Once the court found that Federal law required NPS to conduct a Section 106 review of the project, it considered whether such review had been completed. At the time the matter was before the judge, a dispute in the Section 106 process (regarding an adverse effect finding) had yet to be resolved by the Advisory Council. Accordingly, the Section 106 review was still in progress. The court therefore concluded that the plaintiff had not exhausted all administrative remedies before seeking relief from the court, and that the court did not have before it a final decision to review.

In addition, the court ruled that even if it had proper jurisdiction, plaintiff would not have been entitled to equitable relief because he had not come to the court with clean hands. By violating the restrictions on the temporary restraining order that this court issued, the plaintiff was seeking equitable relief with unclean hands, violating a long-established rule of equity.

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