Case 37

Historic Preservation of Shreveport v. Department of Health, Education, and Welfare, No. 78-0905 (W.D. La. Sept. 11, 1978).

The General Services Administration (GSA) proposed to sell as surplus property the Old Federal Building in Shreveport, Louisiana, a building listed in the National Register of Historic Places. The government of the parish in which the building was located submitted to GSA an application to purchase the building, outlining the parish's plans for remodeling each part of the building. Because of the historic nature of the building, the parish proposed to retain in their original condition one entrance and a portion of the old lobby.

Because the building was to be used for educational purposes, GSA assigned the building to the Department of Health, Education, and Welfare (HEW) for transfer to the parish. HEW then determined that the transfer was not a major Federal action significantly affecting the environment and decided not to prepare an environmental impact statement under the National Environmental Policy Act (NEPA).

This decision was based in part on a covenant that was to be placed in the deed which would bind the parish to preserve the architectural and structural integrity of the building and to accomplish any restoration or action affecting the exterior of the building in a historically authentic manner.

HEW and GSA, with the concurrence of the State Historic Preservation Officer (SHPO), also determined that the transfer would have no adverse effect on the building. The Advisory Council on Historic Preservation accepted the determination of no adverse effect under its regulations implementing Section 106 of the National Historic Preservation Act (NHPA).

The parish then transferred partial title to the city but omitted the covenant from the deed. This deed obligated the city and the parish to carry out the plans contained in the parish's application and to obtain the consent of HEW before deviating from the plans.

As the remodeling plans developed, the parish concluded that it would be necessary to deviate from the plans contained in the application. The major change was to the lobby, which had been named in an addendum to the National Register listing as a significant architectural feature of the building. After HEW requested the Council's comments, the parties entered into a Memorandum of Agreement (MOA) under the Council's regulations that did not mention the lobby. The parties to the MOA, however, had considered the effect of the amended plans on the entire building, including the lobby.

The court granted plaintiffs' motion for a temporary restraining order. In considering the merits of the case, the court first dismissed the suit with respect to the non-Federal defendants for lack of jurisdiction, finding that the injury that plaintiffs sought to avoid could not be valued at more that $10,000 as required by 28 U.S.C. § 1331(a). Slip op. at 10. [Ed. note: The $10,000 amount in controversy has since been abolished.]

Next, the court held that plaintiffs had standing under the Administrative Procedure Act to seek review of the Federal agency's action. Id. The standard by which the agency was to be judged was the Council's regulations. Id. at 11.

Plaintiffs asserted that HEW had violated NHPA and the Council's regulations by failing to take into account the effects of the amended plans on the lobby; failing to seek a formal determination of the eligibility of the lobby for the Register from the Secretary of the Interior; failing to submit a preliminary case report and other documents to the Council; failing to consult with the SHPO; and engaging in the consultation process in bad faith by holding the consultation meetings in the District Attorney's office and failing to include the press and public in the consultation meetings, take minutes, and invite certain people to the meetings. They further asserted that the MOA was void because it was drafted before the parties had reached unanimous agreement. Finally, they claimed that a consultation meeting should have been open to the public under the Federal Advisory Committee Act (FACA).

The court rejected each of these claims. First, how HEW took the plans into account must be judged by determining whether it complied with the Council's procedures. NHPA does not require that all historic structures be preserved. Id. at 12.

Second, the Secretary of the Interior need be consulted only to determine the eligibility of a property for the Register. In this case, the building was already listed at the time of the agency action. The Secretary has no say in determining the legal effect of listing an object. Id. at 13.

Third, the court found that HEW's "marginal impact statement" was the substantial equivalent to a preliminary case report and was accepted as such by the Council. The name that the document bears is less important than whether its contents adequately apprise its recipients of the circumstances of the undertaking. Id.

Fourth, the court found that HEW's procedure of forwarding its decisions to the State Historic Preservation Officer for concurrence or objection was a reasonable means of consultation. Id. at 14.

Fifth, the court rejected plaintiffs' claim that the consultation process had been carried out in bad faith, finding that none of the things for which plaintiffs faulted HEW were required by the Council's regulations. Id.

Sixth, the court held that it was acceptable to draft the MOA based on the tentative conclusions reached at one of the consultation meetings, even though all parties had not agreed fully. Id. at 15.

Finally, the court rejected plaintiffs' FACA argument because NHPA expressly exempts the Council from the provisions of that act. Id. at 17.

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