Case 71

Bayou St. John Improvement Association v. Sands, No. 81-1358 (E.D. La. May 28, 1981), injunction modified, [1983] 13 Envtl. L. Rep. (Envtl. L. Inst.) 20,011 (E.D. La. June 17, 1982).

Plaintiff sought to enjoin a local levee district from building a levee and a roadway crossing at the mouth of Bayou St. John near a historic Spanish fort. The building project required a dredge and fill permit from the Army Corps of Engineers. Although the Corps had consulted with the State Historic Preservation Officer (SHPO) prior to taking action on the permit, it failed to conduct an archeological survey of the area despite the recommendation of the SHPO that one be done. The Corps also decided not to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The Corps then issued the permit. Plaintiffs obtained a temporary restraining order.

In considering plaintiffs' motion for injunctive relief, the court first rejected the Corps' defense of laches, finding the delay of approximately one year from the issuance of the permit to the filing of the lawsuit excusable because plaintiff had made efforts to resolve the conflict out of court. Moreover, although a considerable amount of money had been spent on the project, it was a small percentage of the total to be spent and would not be lost by further delay caused by the lawsuit. Slip op. at 6-7.

Second, the court examined Section 800.4(a)(2) of the regulations of the Advisory Council on Historic Preservation implementing Section 106 of the National Historic Preservation Act (NHPA), which states that the recommendation of a SHPO that a survey be done "should be followed." The court interpreted this provision as requiring the agency to follow the recommendation of the SHPO unless it can show good cause for not doing so. Id. at 11, 13. Concluding that the Corps had not shown good cause for its decision not to follow the SHPO's recommendation, the court enjoined the project until the agency could adequately consult with the SHPO.

Third, the court faulted the Corps for failing to prepare an EIS. It found that although NEPA requires consideration of historic and cultural resources, NEPA obligations placed on an agency are separate from those required by NHPA. Id. at 17. In the court's view, the Corps had not sufficiently examined the impact of the project on historic and archeological elements of the environment, id. at 23, and the Corps' conclusions regarding lack of impact were therefore unreasonable. Id. at 24.

After this opinion had been handed down, the Corps consulted with the SHPO and developed an environmental assessment. In so doing, the Corps considered the entire project area as though it were eligible for the National Register of Historic Places, and the SHPO withdrew all his objections after negotiation with the Corps. The SHPO nevertheless informed the Corps that he considered the entire area to be eligible for the Register. The Corps then sought to modify the injunction to permit implementation of most of the project.

The court closely examined the regulations of the Council and found that under Section 800.4(a)(3), the Corps was required to seek a determination of the eligibility of the area for the Register from the Secretary of the Interior because the SHPO had found the area to be eligible. If the area were to be found eligible, the Corps must provide the Council with an opportunity to comment. The court deferred consideration of the reasonableness of the Corps' decision not to prepare an EIS until the NHPA review had been completed. 13 Envtl. L. Rep. at 20,014.

Finally, the court granted the local levee board's motion to lift the injunction against certain non-Federal aspects of the project because no Federal funds were involved, the activities to be carried out would not cause any environmental impact on the area, and further delay would subject the public to expense. The levee board was required to proceed in a manner that would ensure the integrity and possible eligibility of the area for the Register.

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