Case 33

Citizens' Defense Fund v. Gallagher, [1979] 9 Envtl. L. Rep. (Envtl. L. Inst.) 20,420 (D. Mont. Nov. 3, 1978).

The city of Anaconda, Montana, proposed to demolish certain buildings in downtown Anaconda as part of an urban renewal project funded by the Department of Housing and Urban Development (HUD). None of the buildings were listed in the National Register of Historic Places, and the State Historic Preservation Officer (SHPO) had determined that none of the buildings were of historic significance. HUD had conducted no independent examination of the project area but had "rubber-stamped" the SHPO's determinations. Plaintiff sought injunctive relief, alleging that the National Historic Preservation Act (NHPA) and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA had been violated.

The court held that HUD's rubber stamping of the SHPO's determination that there were no eligible properties in the area violated NHPA and the Council's regulations. Moreover, the court found that although Section 104(h) of the Housing and Community Development Act (HCDA) permitted HUD to delegate its National Environmental Policy Act responsibilities to the city, the section did not authorize HUD to delegate its NHPA responsibilities. Slip op. at 5. [Ed. note: Congress clarified its intent to allow delegation of NHPA duties in the 1980 amendments to HCDA.]

Finally, the court denied defendants' request to require plaintiff to post a more substantial security bond. To require an organization of limited financial resources to post more than a minimal bond would "stifle the intent of NHPA." Id. at 6.

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