Case 61

Wisconsin Heritages, Inc. v. Harris, 460 F. Supp. 1120 (E.D. Wis. 1978), dismissed, 490 F. Supp. 1334 (E.D. Wis. 1980).

Plaintiff, a preservation organization, sought to enjoin a local redevelopment agency from demolishing the Elizabeth Plankinton mansion in Milwaukee, Wisconsin, as part of an urban renewal project financed in part by a loan and capital grant from the Department of Housing and Urban Development (HUD). HUD and the local agency entered into the loan and capital grant contract in 1965 and revised it on several occasions between 1966 and 1974. In 1975, the Secretary of the Interior determined that the mansion was eligible for inclusion in the National Register of Historic Places and listed the mansion in the Register in 1976. Between the time that the mansion was determined eligible and the time that it was actually listed in the Register, HUD and the local redevelopment agency made a conditional closeout of accounts for the grant. Under the closeout, some money remained available to cover the costs of demolition. Plaintiff challenged HUD's failure to comply with the terms of Executive Order No. 11593, the National Historic Preservation Act (NHPA), and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA.

In considering the requested preliminary injunction, the court found that NHPA did not apply because the loan and capital grant contract had been signed and the expenditure of funds approved before the mansion was determined eligible or listed in the Register. 460 F. Supp. at 1123-24. Likewise, the Council's regulations and Executive Order No. 11593 did not apply because at the time that HUD made its "decision," as defined in the Council's regulations at 36 C.F.R. § 800.2(g), the mansion had not been determined eligible for or listed in the Register. HUD's "decision" occurred in 1965 when HUD executed the contract and in so doing passed the point beyond which it could no longer require alterations in the plan to modify its impact on the mansion. Id. at 1124.

Although the court declined to issue an injunction on historic preservation grounds, it did enjoin demolition until HUD could prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) on the project's effect on the mansion. Id. at 1127. Despite the fact that much of HUD's involvement in the project had ended, its retention of control over the remaining funds for demolition was sufficient to impose further NEPA duties. Id. at 1126.

After HUD had prepared the EIS, plaintiff returned to the court seeking permanent injunctive relief. In its second opinion, the court first denied plaintiff's motion to file a supplementary complaint, which alleged that HUD had failed to consider rehabilitation of the mansion in the EIS. The court held that plaintiff had waited too long and had not made its comments known to HUD during the commenting process as envisioned by NEPA. 490 F. Supp. at 1338.

Second, the court upheld the EIS, stating that it adequately discussed the adverse impact on the mansion and historic interests. The court found that the alternative of onsite adaptive use of the mansion discussed in the EIS must be judged in light of the information available to the agency at the time it prepared the EIS. Because this alternative was "totally speculative" at that time, HUD's discussion was sufficient. Id. at 1340.

Finally, the court reiterated its position that NHPA did not apply, referring to the reasons stated in its earlier opinion. The court did state, however, that even if NHPA did apply, the EIS demonstrated that HUD had taken historic properties into account. The Council had an opportunity to comment when it received and commented on HUD's draft EIS. Thus, the statutory mandates of NHPA were followed. Id. at 1341-42.

The court dismissed the lawsuit.

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