In a second opinion regarding the historic Ohio State penitentiary, the same
district court that ruled against a temporary restraining order in American
Institute of Architects v. City of Columbus, 1998 WL 340445 (S.D. Ohio 1998),
ruled that a lawsuit could proceed against the Federal Highway Administration
(FHWA), under the "anticipatory demolition" provision of Section 110(k)
of the National Historic Preservation Act (NHPA).
The court ruled to deny FHWA's motion to dismiss, thus allowing the suit to proceed by determining that plaintiff, Brewery District Society, had standing to sue, that NHPA conferred a private right of action, and that plaintiff had not violated Fed. R. Civ. P. 19(a) by failing to join the City of Columbus as a necessary party.
The lawsuit sought to prohibit both FHWA and the Environmental Protection Agency (EPA) from providing any type of funding or assistance to the City of Columbus in connection with the downtown arena project, including the demolition of the penitentiary until such agencies consulted with the Advisory Council on Historic Preservation (Council).
Specifically, plaintiff argued that the demolition of the historic penitentiary constituted "anticipatory demolition" under Section 110(k) of NHPA. Section 110(k) was adopted in 1992 to discourage "anticipatory demolition" by prohibiting Federal agencies from providing grants, loans, permits, or other assistance to any applicant who intentionally destroys a historic property in order to avoid compliance with Section 106 of NHPA, unless the agency consulted with the Council to determine whether such assistance was nevertheless justified.
The court allowed the case to proceed against defendant, FHWA. It dismissed the suit against EPA, on the grounds that the complaint's allegations against EPA were "too hypothetical and conjectural to meet the Article III standing requirements." Plaintiff had only alleged that EPA "may be asked to provide assistance" to the city. The court believed that plaintiff needed to show a more immediate threat of harm than merely alleging that some Federal agency may be asked at some point in the future to provide assistance.
The claims against FHWA were allowed to remain based on the allegations of FHWA's current or imminent involvement in joint planning with the city, which would result in "assistance" relating to the penitentiary site.
The court also ruled that NHPA provides a private right of action outside of the Administrative Procedure Act, under Section 305 of NHPA. The court referenced that two cases did exist that stated otherwise. (See Cases 52 and 134). However, the court believed that the greater weight of authority held for the existence of such a right of action under Section 305. (See Cases 102, 107, 114, 133, and 141).
The last argument addressed by the court was whether the case should be dismissed for failure to join the City of Columbus as a necessary party under Fed. R. Civ. P. 19(a). While the court acknowledged that "the Federal agency defendants do not have the power to prevent the City from destroying the remaining buildings on the pen site," the court stated, "that fact alone does not render the city a necessary party under Rule 19."
The court explained that it can "provide plaintiffs the relief they request: to enjoin FHWA from providing assistance which is prohibited under Section 470h-2(k), and can declare the rights, duties and responsibilities of the remaining parties in the litigation."
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