Case 139

Sierra Club v. Slater, 120 F.3d. 623 (6th Cir. 1997).

The Sierra Club, along with other plaintiffs, sought to enjoin the construction of an urban corridor development project known as the Buckeye Basin Greenbelt Project in Toledo, Ohio, and claimed a variety of environmental violations in a suit against multiple Federal, State, and municipal defendants. In this order, the court ruled on plaintiffs' appeal of the district court's grant of summary judgment to defendants on all parts of the complaint. The district court dismissed Counts I, IV, and V in full, and Counts III and VIII in part, under the six-year statute of limitations on all suits against the United States. The appellate court confirmed this ruling.

Of importance here is plaintiffs' claim that the Army Corps of Engineers (Corps) improperly failed to give the Advisory Council on Historic Preservation (Council) an opportunity to review and comment on its conclusion of "no adverse effect" on historic properties. In response, defendants pointed out that the district court found that the Federal Highway Administration (FHWA) submitted its own "no adverse effect" findings to the Council, and that those findings were identical to the Corps' findings.

Although plaintiffs conceded that the findings of the two entities "may have been similar," they maintained that FHWA's record "was not at all similar to the record that would have been submitted by the Corps" if the Corps had complied with its obligation to compile and submit a record.

Further, plaintiffs did not dispute that the Council was fully apprised of the FHWA findings regarding historic properties; that the FHWA findings were identical to those of the Corps; and that the Council concurred in the "no adverse effect" finding. After reviewing both NHPA requirements and the internal regulations of the Corps, the court stated that the regulations of the Corps made clear, as defendants argued, that they were entitled to rely on the lead agency—here, FHWA—in complying with NHPA. 16 U.S.C. Section 470f; 33 C.F.R. part 325, appendix C(2)(c). The court concluded that plaintiffs had failed to articulate any recognizable error on this issue.

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