Case 76

Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982).

Plaintiffs alleged that defendants violated the National Historic Preservation Act (NHPA) by deciding to demolish, as part of an urban redevelopment project funded in part by the Department of Housing and Urban Development (HUD), several buildings listed in the National Register of Historic Places. HUD and the local redevelopment agency had entered into loan and capital grant contracts in 1969 and 1971. In 1973, the area was surveyed to determine if any buildings were eligible for listing in the National Register. Seven buildings were placed on the Register in 1974 and one additional building, the Eastman Building, in 1978.

The local agency entered into two Memoranda of Agreement (MOA) with the Advisory Council on Historic Preservation under the Council's regulations implementing Section 106 of NHPA, one in 1974 and one in 1979. In 1979, the local agency converted the funding from urban renewal funds to community development block grant funds by signing a "financial settlement" with HUD and, as the "Federal agency" under the Housing and Community Development Act, prepared an environmental assessment under the National Environmental Policy Act (NEPA). The assessment concluded that the project would have no significant environmental impact.

The Ninth Circuit, in reversing the district court, held first that the suit was not barred by laches even though eight years had passed since the original HUD grant agreement had been signed. During that time, the buildings were placed on the Register and plaintiff had been diligent in making its views known to the agency. 667 F.2d at 854-55.

Second, the court noted that NEPA requires Federal agencies to preserve important historic and cultural aspects of our nation's heritage and that judgments of historic significance made by the Council, "the expert regulatory body concerned with preserving, restoring, and maintaining the historic and cultural environment of the Nation," deserve great weight. Id. at 858. Execution of an MOA or other compliance with NHPA does not relieve an agency of the duty to prepare an environmental impact statement under NEPA. Id. at 859.

The court recognized the similarities between NEPA and NHPA: both create obligations that are chiefly procedural, both have the goal of generating information about the impact of Federal actions on the environment, and both require that the Federal agency carefully consider the information produced. Nevertheless, each statute mandates separate and distinct procedures, and an agency must comply with both statutes whenever historic buildings are affected. Id.

In upholding the local agency's decision not to prepare an environmental impact statement, the court found that the agency's determination regarding the impact on historic buildings was reasonable. The mere fact that the project involved the destruction of buildings listed in the Register did not, standing alone, render unreasonable the decision not to prepare an environmental impact statement. Id. at 861. The appellate court did not reach the NHPA issues because they had not been raised on appeal.

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