Federal Historic Preservation Case Law, 1966-1996

IX. Procedural Questions in Litigating Preservation Cases

Defendants in historic preservation cases occasionally raise procedural questions in defending agency decisionmaking against claims that agencies have violated NHPA and other historic preservation laws. Among these are the issues of jurisdiction, standing, laches, ripeness, mootness, and the scope of judicial review.

A. Jurisdiction

The question of a court's jurisdiction to hear a matter has two aspects. First, the court must determine whether it has personal jurisdiction over the defendants named in the suit. Although it is clear that a Federal court may assume jurisdiction over Federal agencies, the court must inquire further when non-Federal defendants are involved. Federal courts have assumed jurisdiction over non-Federal defendants when they are named with Federal defendants or the non-Federal parties have taken advantage of benefits conferred by Federal law or are otherwise associated with a Federal agency. {361} Most of these non-Federal parties are applicants for permits, licenses, or financial assistance. Plaintiffs most often bring suit against the Federal defendant, alleging violation of Section 106 and other Federal laws to enjoin the non-Federal defendant from taking the threatening action. Other courts, however, have found that they lack jurisdiction to enjoin non-Federal parties despite their association with a Federal agency. {362} An individual or group claiming an interest in the property which is the subject of the suit, or whose claim or defense shares a common question of law or fact with a claim or defense in the suit, may be allowed to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure. {363} If the court permits the non-party to intervene, it can fully litigate the merits of the suit.

The second question for the court to determine is whether it has subject matter jurisdiction. Most suits that allege violations of NHPA base jurisdiction on 28 U.S.C. § 1331, which grants jurisdiction to Federal district courts in civil actions arising under the laws of United States. {364} This grant of jurisdiction can, however, be preempted or limited by other statutes. {365} Jurisdiction can also be premised on the judicial review provisions of the Administrative Procedure Act (APA). {366} The defense of sovereign immunity does not preclude jurisdiction in cases involving NHPA violations. {367} When the parties to a dispute have claims other than those involving historic preservation, they may be heard under 28 U.S.C. § 1367, which gives the court discretion to exercise supplemental jurisdiction over claims arising from the "same case or controversy" as the claim conferring jurisdiction to the court. {368}

B. Standing

To maintain a suit in any court, plaintiffs must have standing. This necessity, which has its roots in the case or controversy provision of the United States Constitution, {369} requires that plaintiffs allege injury to an interest personal to them that is within the zone of interests protected by the statutes at issue. Although early opinions dismissed actions to enforce NHPA for lack of standing on grounds that plaintiffs had shown no real interest because none of them owned or had legal control over the historic properties in question, {370} or because of faulty complaints, {371} later cases have allowed standing more liberally, finding plaintiffs had demonstrated a real interest in the case through their involvement in the administrative process. {372}

The first requirement, injury-in-fact, is not limited to economic injury. {373} Plaintiffs need not show ownership of the property involved, but may base standing on the threatened demolition of a historic building; {374} injury to aesthetic, {375} architectural, {376} cultural, {377} environmental, {378} or historic values; {379} or injury to plaintiff's enjoyment or use of the property. {380} Injury common to the public at large does not defeat standing, {381} as long as plaintifff alleges a concrete and particularized legal interest. {382} Plaintiffs alleging such injury are within the zone of interests protected by NHPA and other historic preservation statutes. {383}

Standing has been granted to residents of towns in which an affected historic property was located, {384} particularly where the plaintiffs resided near the property, {385} and to organizations composed of members who were residents or users of the affected property, as long as injury is alleged. {386} Organizations that allege only a general public interest in a property without further allegations of use and injury have been denied standing. {387} In suits brought by individuals and organizations, courts have denied standing to plaintiff organizations but granted standing to plaintiff individuals, finding their interests as individuals different from the interests of the group. {388} Similarly, a court recognized the right of members of a tribe to sue as individuals, even though the tribe as a whole was barred from suit due to a settlement agreement. {389} A State has been held to have standing to represent the interests of its citizens. {390}

Whether plaintiffs have standing under the "private attorney general" doctrine is not clear. One court held that plaintiffs who had not engaged sufficiently in the administrative process did not have the requisite special interest in the controversy to have standing. {391} Another court, however, allowed standing under this doctrine on the ground that plaintiffs had demonstrated injury to the public interest. {392}

Standing to enforce a Memorandum of Agreement executed under the Council's regulations or a memorandum of understanding made between an agency and a State regarding the treatment of historic properties has been treated differently. Earlier, courts generally concluded that plaintiffs who were not parties to these agreements lacked the necessary privity of contract to maintain an action to enforce the agreement's terms. {393} However, later cases alleging violations of an MOA indicate that citizen organizations have standing to challenge compliance with such agreements. {394} Additionally, because the Council's regulations require an agency to return to the Council for further comments if the agency cannot implement an MOA, {395} failure to comply with the terms of the MOA may put the agency in violation of Section 106, a claim clearly actionable.

C. Laches

Under the doctrine of laches, plaintiffs are barred from maintaining their lawsuits if they have unreasonably delayed in bringing the action and their delay would cause prejudice to defendants if the suit was allowed to go forward. In environmental cases, including those concerning historic preservation, defendants carry an especially heavy burden in attempting to convince the court that laches should apply. {396}

The length of the delay involved has varied considerably from case to case. A delay of two months was held to be too long in one case, {397} while a delay of eight years was considered reasonable in another. {398} Whether a delay is reasonable may depend on plaintiffs' efforts to solve their problems out of court. When plaintiffs have been diligent in making their views known to the agency, the defense of laches generally is not allowed. {399} Laches begins to run from the time it becomes reasonably clear to plaintiffs that further efforts to achieve their goals would be fruitless, not from the date on which the Federal decision was made or the demolition of a building was first discussed. {400} In one case, the court decided that the onset of the NHPA review process, rather than the date of permit issuance, was the appropriate date from which to measure laches. {401} The court explained that if the plaintiff had participated in the NHPA review process, many of the deficiencies alleged in the suit could have been corrected. {402}

The test for determining the application of laches involves a balancing of the prejudice to the defendants and the benefit to the public that would result from the suit. {403} When the buildings in question remained standing and the public interest in preservation could still be safeguarded, courts have rejected the laches defense. {404}

In some cases, courts have dismissed lawsuits because their maintenance would cause undue prejudice to defendants. {405} In one case, defendants had spent a considerable sum of money to acquire properties, foreclosed the opportunity to explore alternative sites, and begun demolition of the historic property. The court denied injunctive relief, holding that the plaintiffs' suit, coupled with their delay in bringing the action, unduly prejudiced the defendant. {406} Under other circumstances, even the expenditure of a great deal of time and money has not justified dismissal, particularly when the expenditure represented only a small percentage of the total to be spent and would not have been lost by further delay{407} and no construction had begun. {408} Even where construction is substantially complete, courts have acknowledged that a suit may still be allowed. {409} Additionally, where defendants continued construction while aware of plaintiffs concerns and failing to address them, a court is less likely to find undue prejudice to defendants. {410} Courts may also examine defendants' actions to determine if their conduct precluded notice and an opportunity for the public to make its concerns known earlier. {411}

D. Ripeness and Mootness

When a suit is brought before an agency has had time to complete any historic review requirements, a court will dismiss it for lack of ripeness or failure to exhaust administrative remedies. {412} In at least one case, the court allowed an action even though plaintiffs had not exhausted their administrative remedies because the court determined that pursuit of the administrative remedies would be futile and application of the exhaustion rule would bar consideration of a decision with wide-ranging effects on the public interest. {413} In another case, the court rejected defendants' claim that the case should be dismissed and the agency be allowed to continue through the administrative process because the agency was willing to reopen consultation with the SHPO and Council; the court noted that the agency had not been willing to cooperate until the lawsuit was filed. {414}

When a suit is brought but the agency eliminates the historic review defects during the pendency of the action, a court will dismiss the case as moot. {415} Cases have also been dismissed as moot when the Federal involvement ceases and the court determines that it can no longer grant plaintiffs redress. {416} However, if there is still an opportunity to impact a project, even if a project is near completion and a permit already issued, courts will deny a motion to dismiss based on mootness. {417}

E. Scope and Standard of Review

When a court accepts jurisdiction of a controversy, it generally limits the scope of its review to the administrative record in existence. {418} Because this is so, courts hold that agencies should create a detailed record of their consideration of the effects of their undertakings on historic properties. {419} Under certain circumstances, courts will allow plaintiffs to supplement the agency record. {420}

When a court renders a decision on Federal agency compliance with NHPA, the court usually applies the "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" standard of review of the Administrative Procedure Act. {421} Some courts have found an implied private right of action through the attorneys' fees section of NHPA, but those decisions fail to clearly indicate what standard of review a court should apply where a private right of action is found. {422} The D.C. Circuit, in a 1996 decision, declined to find a private right of action under NHPA. {423}

F. Remedies

In most preservation cases, the remedy sought has been a temporary restraining order{424} and a permanent{425} or preliminary injunction{426} against the Federal activity or Federal funding. In other cases, the remedy sought has been review of agency decisions. {427} In the past, the courts have displayed some creativity in fashioning remedies. In one case, an appellate court remanded the case to the district court for selection of a remedy: {428} The State grant recipient could implement the project without compliance with the National Historic Preservation Act if it reimbursed the Federal Government for the money received for the project; could reapply for the Federal money knowing that the Federal agency must comply with NHPA; or could abandon the project altogether. If the State were to decline these alternatives, the court directed the district court to enter an injunction.

Courts have also directed agencies not to disturb historic resources even though they declined to issue injunctions. {429}

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