Case 3

Ely v. Velde (Ely I), 321 F. Supp. 1088 (E.D. Va.), aff'd in part, rev'd in part, 451 F.2d 1130 (4th Cir. 1971).

This was an action to enjoin construction of a penal facility in the Green Springs area of Virginia, an area containing many historic properties, some of which were listed in the National Register of Historic Places. The facility was to be financed in part by a block grant from the Law Enforcement Assistance Administration (LEAA), an agency within the Department of Justice. Plaintiffs, who were residents of the area and members of a historic preservation organization, alleged that LEAA was required to comply with Section 106 of the National Historic Preservation Act (NHPA) and to prepare an environmental impact statement under the National Environmental Policy Act (NEPA). LEAA contended that the Omnibus Crime Control and Safe Streets Act, the statute under which the Federal grant was made, exempted the agency from NHPA and NEPA. The State of Virginia, also a defendant, alleged that neither of these statutes applied to the State agencies involved.

The district court held that the plaintiffs had standing under the Administrative Procedure Act to bring the suit because they had exhibited sufficient injury-in-fact and their interests were within the zone of interests to be protected by NHPA and NEPA. They had alleged injury to the public interest, enabling them to act as private attorneys general as well. The Safe Streets Act does not preclude judicial review. 321 F. Supp. at 1092. This holding was not challenged on appeal.

The Safe Streets Act provides that block grant funds can only be withheld if LEAA finds that the grantee has failed to comply with the act, LEAA's regulations implementing the act, or the State plan that the State submitted to LEAA in applying for the grant. The act leaves no discretion with the agency to deny the funds for other reasons or to condition the grant. The policy underlying the act is to assist local law enforcement agencies without imposing any Federal control over their operation. LEAA argued that it need not comply with NHPA because it was prohibited by the Safe Streets Act from imposing any conditions on the grant recipient. Although the district court agreed with LEAA that the two statutes were irreconcilable, the Court of Appeals for the Fourth Circuit did not agree and reversed the district court on this point.

The appellate court noted that "in the absence of unmistakable language to the contrary," it could not assume that the Safe Streets Act canceled NHPA. Because there was no such language in the Safe Streets Act, the court concluded that the two statutes were not irreconcilable. 451 F.2d at 1136. An LEAA requirement that every State plan and grant application must contain enough information to assess the environmental and cultural impact of the proposed plan or grant would not frustrate the "hands off" policy of the Safe Streets Act. Moreover, LEAA had coordinated its Safe Streets Act activities with several other Federal statutes, and the court did not believe that compliance with the additional requirements imposed by NHPA would undercut the goals of the Safe Streets Act. Id. at 1137. For the same reasons, the court concluded that LEAA must comply with NEPA. Id. at 1137-38.

The court declined to rule on the merits of the proposed facility, finding that the purpose of NHPA and NEPA is to place consideration of such issues in the Federal administrative forum and that the decision on whether to proceed was therefore up to the agency. Nevertheless, the court noted that a Federal agency obligated to take into account the values that NHPA and NEPA seek to safeguard may not evade its obligations by keeping its thought processes under wraps. LEAA not only must observe the required procedures, but it must also make a detailed record of its efforts to take historic and environmental values into account. Id. at 1138.

The Fourth Circuit rejected plaintiffs' argument that the State should also comply with NHPA, holding that NHPA imposes duties only on Federal agencies. The court declined to consider plaintiffs' claim that the United States Constitution had been violated by the defendants' decision in siting the facility. Id. at 1139.

The appellate court remanded the matter as to the Federal defendants and affirmed the district court's denial of an injunction against the State defendants. Id. [Ed. note: See Ely v. Velde (Ely II), 497 F.2d 252 (4th Cir. 1974), Case No. 12 in this report.]

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