Case 51

Capitol Hill Restoration Society v. Heimann, No. 80-0237 (D.D.C. July 31, 1980).

Plaintiff sought a declaratory judgment that the Comptroller of the Currency had failed to comply with Section 106 of the National Historic Preservation Act (NHPA) and the regulations of the Advisory Council on Historic Preservation implementing Section 106 in approving the application of a national bank to establish and operate a branch bank. The bank had applied to the Comptroller for permission to establish the branch in June 1978. Although the plaintiff actually learned of the site design in November 1978, it waited until December 1979 to take any action. At that time, it contacted the Council, which then wrote to the Comptroller requesting a determination of the effect of the application approval on historic properties. The plaintiff did not contact the Comptroller directly until January 1980, just before it filed its complaint.

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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