Case 74

Hough v. Marsh, 557 F. Supp. 74 (D. Mass. 1982).

Plaintiffs challenged the issuance of an Army Corps of Engineers permit allowing two individuals to deposit fill in wetlands in Edgartown Harbor on Martha's Vineyard as part of the construction of two residences and a tennis court for private use. The property was adjacent to the historic Edgartown lighthouse. Although the Corps, after its decision to issue the permit had been made, called the State Historic Commission and the Advisory Council on Historic Preservation to ascertain whether the lighthouse had been nominated for inclusion in the National Register of Historic Places, it had not complied with the National Historic Preservation Act (NHPA) or the Council's regulations implementing Section 106 of NHPA.

The Corps argued that NHPA was inapplicable because the lighthouse had not been determined to be eligible for the Register and the Corps had considered the impact of the project on the view of the lighthouse. The court dismissed these arguments, finding that although the Council's regulations impose on the Corps only a procedural and not a substantive obligation, the requirements of NHPA are important, and the Corps' brief consideration of the view of the lighthouse was insufficient to fulfill its NHPA duties. 557 F. Supp. at 87.

Furthermore, the court found it immaterial that the lighthouse had not been officially determined to be eligible for inclusion in the National Register. The Council's regulations define "eligible property" as any property that meets the National Register criteria, not any structure that has been formally determined eligible. In addition, agencies have affirmative responsibilities to locate and identify any eligible properties within the area of an undertaking's impact. Id. at 88.

The court remanded the issue to the Corps. Id.

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