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Ohio: Issuance of Section 404 Permit for Maintenance Dredging at the Cleveland Bulk Terminal (Closed Case Follow-up)

Agency: U.S. Army Corps of Engineers

In September 1999, ACHP notified the Buffalo District of the U.S. Army Corps of Engineers (Corps) that the Corps had violated Section 106 of the National Historic Preservation Act (NHPA) when it authorized the Cleveland-Cuyahoga Port Authority to dredge at the Cleveland Bulk Terminals in Cleveland, Ohio. The Corps issued its authorization absent consultation regarding the effect of the dredging on the historic machine structures known as the Hulett Iron Ore Unloaders (Huletts). The dredging was an initial component in a master plan for redeveloping the terminal that also called for demolishing the Huletts.

Hulett Iron Ore Unloaders,
Cleveland, OH

Following the Corps action, the Port Authority and the lessee of the terminal proceeded to demolish two of the Huletts and dismantle the remaining two. A lawsuit was subsequently filed in December 1999 by the Committee to Save the Cleveland Huletts and others alleging that the Corps violated both its own regulations and Section 106. The National Trust for Historic Preservation also participated in the proceedings as amicus curiae.

On March 30, 2001, a Federal court in Ohio decided against the Corps, in part, finding that the agency cannot rely on its compliance with Appendix C to determine compliance with Section 106. This case is significant in that it is one of only a handful of cases where the issue of the congruence of Appendix C with ACHP’s regulations has been addressed in the courts. The Corps had asserted that its Section 106 compliance should be assessed on the basis of its own regulations, particularly Appendix C, rather than ACHP’s regulations.

The court found, however, that while ACHP’s regulations authorize the issuance of counterpart regulations, such regulations must be adopted in consultation with, and be approved by, ACHP. Appendix C has never been recognized by ACHP as a counterpart regulation that can substitute for ACHP’s Section 106 regulations.

Moreover, the court found Appendix C to be inconsistent with ACHP’s regulations. Thus, the court found that the Corps’ actions impermissibly truncated the Section 106 consultation process set forth in NHPA and 36 CFR Part 800. While the court’s finding will not restore the Huletts, it should provide an important legal precedent for future cases where questions are raised regarding the Corps’ use of Appendix C for compliance with Section 106.

October 1999 report on this case

Staff contact: Charlene Dwin Vaughn

Updated June 6, 2002

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