The district court denied plaintiffs' motion for a temporary restraining order. On the merits, the district court concluded that the sampling method used in the survey provided an unbiased sample of the archeological sites on the entire island, 478 F. Supp. at 693 n.105, but that the Navy's failure to nominate or seek eligibility determinations for the newly discovered sites was a violation of Executive Order No. 11593. The court found that Executive Order No. 11593 has the force of law and its violation may be privately enforced. Id. at 694.
On appeal, neither party challenged the district court's ruling with respect to the nomination or determination of eligibility of the known sites, but one party questioned the court's decision on the adequacy of the survey, alleging that the survey did not locate all of the sites on the island. The First Circuit reversed the district court on this question, holding that Executive Order No. 11593 and Section 800.4 of the Council's regulations require an agency to locate, in consultation with the State Historic Preservation Officer, "all" and "any" sites that may be eligible for inclusion in the Register. 643 F.2d at 859. Because the archeologist who conducted the survey acknowledged that a substantial number of sites remained to be located on the island, the archeological survey that the Navy had done was inadequate. The appellate court held that the Navy did not have to do a 100 percent survey, but rather was required to follow up on the leads produced by the survey that had been done. Id. at 860. The court also confirmed that the National Historic Preservation Act applies to ongoing Federal undertakings. Id. at 859 n. 50.
The Supreme Court reversed the First Circuit on other grounds and did not consider the NHPA issues. 456 U.S. at 320.
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