Case 52

Carson v. Alvord, 487 F. Supp. 1049 (N.D. Ga. 1980).

Suit was brought to enjoin the Department of Housing and Urban Development (HUD) from guaranteeing financing for a public housing project known as Paces Ferry Woods. HUD had contacted the State clearinghouse seeking their comments on the project. In response, the State submitted to HUD a memorandum containing language, which the court characterized as "boilerplate," stating that there existed a "probability that archeological resources might be present on the property." The State's memorandum nevertheless concluded that the project would have no effect on "historic, structural" properties eligible for the National Register of Historic Places. HUD's own study of the area found that there were no significant historic features. Plaintiffs, however, claimed that various Civil War relics had been found on the project site and that HUD was therefore required to comply with the National Historic Preservation Act (NHPA).

The court granted a temporary restraining order, dissolved it, and then granted a second restraining order against the issuance of the building permit. On the merits, the court first held that neither NHPA, the National Environmental Policy Act, the Historic and Archeological Data Preservation Act, nor the regulations underlying these statutes create a private cause of action. 487 F. Supp. at 1052. Plaintiffs' right of action was limited to their ability to seek review under the Administrative Procedure Act. Id. at 1053.

The court held that without evidence submitted by the State clearinghouses that historic resources were present on the site, HUD had no obligation to perform any in-depth archeological studies based on the mere potential for resources noted in the boilerplate language. The fact that plaintiffs' survey differed from the one used by HUD to form its conclusions did not show that HUD acted arbitrarily or capriciously. Id. at 1054. The court dismissed the case.

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