Plaintiffs then filed this lawsuit. The parties stipulated that the plaintiffs would apply to have the structures placed on the Register and, until then, the Forest Service would protect the properties. On July 7, 1983, after several more attempts to have plaintiffs remove their property from the campsite, the Forest Service nailed notices to each of the structures proclaiming them to be the property of the United States. On July 14, the cabins were listed in the Register.
Plaintiffs claimed that Section 106 of the National Historic Preservation Act (NHPA) and the Forest Service's past forbearance from eviction gave rise to an implied license for plaintiffs to continue to use the camp until the Forest Service complied with NHPA. The court disagreed. Citing several cases in which courts had examined the effect of NHPA on the Government's right to condemn property, the court concluded that the transfer or reclamation of title was an environmentally neutral action. Therefore, the Forest Service's action asserting ownership of the structures was not an NHPA "undertaking" under the definition established by Section 800.2(c) of the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA. 577 F. Supp. at 1193. The court also noted that the final decision whether to raze the structures rested not with the Keeper of the Register but with the Forest Service. Id. at 1192 n. 1.
Plaintiffs also argued that they were entitled to attorneys' fees under Section 305 of NHPA because the parties to the suit had stipulated that the site would not have been included in the Register or the structures preserved but for the plaintiffs' efforts. Notwithstanding its decision that plaintiffs were not entitled to continued use and occupancy of the structures, the court concluded that plaintiffs' efforts were the moving force behind inclusion of the cabins in the Register and that "in that sense they are the prevailing party." The court allowed plaintiffs to file their petition for attorneys' fees. Id. at 1196.
The court denied plaintiffs' motion for an injunction preventing the Forest Service from moving or destroying the cabins before complying with NHPA because the Forest Service had stipulated that it would so comply. Id.
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