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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