Defendants argued that the suit should be barred by laches. The court agreed, finding that plaintiff had unreasonably delayed in bringing its claim and that the delay caused prejudice to the Comptroller and the bank. Slip op. at 4.
The court went on, however, to discuss the merits of the case, assuming arguendo that the claim was not barred by laches. Although there was no dispute that the Comptroller is the head of a Federal agency subject to NHPA, the court found Section 106 to be inapplicable. The action to which plaintiff objected was not the establishment of the branch, which was within the Comptroller's jurisdiction, but its design and construction. Because these activities were not federally undertaken, assisted, or licensed, but were to be carried out by private firms, the Comptroller was not required to conduct a historic preservation review. Id. at 7-8.
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