Council et al. Plaintiffs v. : : U.S. Army Corps of Engineers et al. : : Defendants : ORDER : : District Judge Susan J. Dlott : : Case No. C-1-02-832

This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment (doc. #9), Motion for Summary Judgment of Lone Star Industries, Inc. (doc. #11), and Federal Defendants’ Motion for Summary Judgment (doc. #12). Plaintiffs ask the Court to revoke a permit issued to Defendant Lone Star Industries, Inc. (“Lone Star”) by Defendant U.S. Army Corps of Engineers (the “Corps”) for the construction of a barge loading and unloading facility on the Ohio River, near the community of Sayler Park in the City of Cincinnati. They contend that the Corps violated the National Historic Preservation Act by prematurely issuing the permit and terminating its consultation with parties interested in the outcome of the permit process. For the reasons set forth below, the Court GRANTS Plaintiffs’ motion for summary judgment and DENIES Defendants’ motions. I. FACTUAL BACKGROUND A. The Parties

Sayler Park is a community that lies within the City of Cincinnati and near the Ohio River. About 3,500 people live in Sayler Park, including Plaintiffs Mary Cipriani, Tracy and Joseph Hoffecker, and Stanley and Barbara Tyirich. Plaintiff Sayler Park Village Council, Inc. (the “Village Council”) is a non-profit corporation operating under the laws of the State of Ohio whose stated purpose is the protection of the interests of the residents of Sayler

S. in its entirety. § 470j(a).S. § 470h-2(a)(2)(E)(I).” 16 U.C.Park.S. The Regulatory Framework Congress passed the National Historic Preservation Act (“NHPA”) in 1966 “to accelerate [the federal government’s] historic preservation programs and activities. encouraging training and education in the field of historic preservation. Louisville District. structure. § 470i. inter alia. Defendant Lone Star ships and distributes concrete in the Cincinnati area. or object that is included in or eligible for inclusion in the National Register. . Flowers. are required to establish procedures for protecting historic properties that are “consistent with regulations issued by the [ACHP] pursuant to section 470s. . Other federal agencies. .C. . an independent federal agency. . encouraging public interest and participation in historic preservation. B. Beyond giving it purely advisory duties. 16 U. The individual Defendants – Secretary of the Army Thomas E. § 470.C. Defendant U. 16 U. . Rowlette. § 470s. Congress also authorized the ACHP “to promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106 of the NHPA] . Army Corps of Engineers is a federal agency responsible for regulating. Colonel Robert A. and reviewing policies and programs of federal agencies as they relate to historic preservation. . Jr.” 16 U. § 470f. site.S.S. General Robert B. .C. Plaintiff Steven Driehaus is a member of the Ohio House of Representatives from the legislative district that includes Sayler Park. the NHPA established the Advisory Council on Historic Preservation (“ACHP”). take into account the effect of the undertaking on any district.C.S. White. and to assist State and local governments . to expand and accelerate their historic preservation programs and activities. The ACHP regulations governing the implementation of section 106 are codified in Part 800 of Title 36 of the Code of Federal Regulations and lay out a multi-step process for an agency to complete when considering 2 . prior to the issuance of any license. In furtherance of these goals. These include advising the President and Congress. building. . – are named in their official capacities only.” 16 U. including the Corps. to give maximum encouragement to agencies and individuals undertaking preservation by private means.” 16 U.C. the issuance of permits for undertakings affecting the waterways of the United States. Additionally. and gave it a wide variety of responsibilities. .S. and Commander and District Engineer. Commander and Chief of Engineers Lt. Section 106 of the NHPA requires that “the head of any Federal department or independent agency having authority to license any undertaking shall.

1 First. § 800. if the potential effects are deemed adverse. or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency. If so. those requiring a Federal permit.F.6. and.F.4(a).. § 800. See 36 C. Finally. § 800. the agency must identify historic properties within the APE and determine whether those properties are eligible for inclusion on the National Register of Historic Places (the “National Register”). Consultation.” 36 C.7.” 36 C.” 36 C. any of the characteristics of a historic property that may qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location.F. then the agency must assess whether the potential effects would be “adverse. the agency must determine the area of potential effects (“APE”) of the proposed undertaking.e. workmanship.R.R.” i. as well as representatives of local governments. license or approval. §§ 800.4(b).F.R. 36 C. the agency must decide whether historic properties qualify for the National Register “[i]n consultation with the SHPO/THPO.4(b). the identification of historic properties must be done “in consultation with the SHPO/THPO. 800. § 800. directly or indirectly. is required during every step of the permit process.4(a)(1). activity. the agency must determine the APE “[i]n consultation with the SHPO/THPO.R.F. 36 C.F.” 36 C. § 800. where feasible. The ACHP regulations emphasize the importance of consultation between the licensing agency and other interested parties. (c). § 800.R. those carried out with Federal financial assistance. the permit applicant. discussing. or association. and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. “Consultation” is defined as “the process of seeking. § 800.4(d).whether to license an undertaking. particularly with the relevant SHPO or THPO. including those carried out by or on behalf of a Federal agency. For instance. setting.F. The agency then must determine whether the proposed undertaking will affect historic properties that lie within the APE and are eligible for inclusion on the National Register. 36 C. an agency completing the section 106 process must consult with the state historic preservation officer (SHPO) or tribal historic preservation officer (THPO) in the areas which may be affected by the undertaking.F. and other individuals and organizations with a demonstrated interest in the undertaking. 1 3 . and considering the views of other participants. design. feeling. then the agency must attempt to resolve those effects.” 36 C.16(f).R.16(y).R. § 800.F.5(a)(1). whether the undertaking “may alter.R. Specifically.R.” 36 An undertaking is defined as “a project. seeking agreement with them regarding matters arising in the section 106 process.2. materials.R. 36 C.F. Next. §§ 800.

the ACHP issued interim guidance addressing how an agency should proceed after making a “no historic properties affected” finding. .R. a THPO. such opinions will be advisory and will not Consultation need not proceed ad infinitum. (2) Historic properties affected.R.5(c)(3)). § 800. . In 2001. the Interim Guidance states: [T]he [National Mining] court invalidated two subsections of the Section 106 regulations insofar as they allowed ACHP to effectively reverse a Federal agency’s findings of “no historic properties affected” (Section 800. The agency official shall notify all consulting parties. . 2 4 .F. in accordance with § 800. Prior to the court decision. or the ACHP may unilaterally terminate consultation to resolve adverse effects if that party determines that further consultation would be unproductive.4 does not stand alone.R. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800. However. 36 C. ACHP plans to provide opinions to Federal agencies regarding their “no historic properties affected” findings. § 800. If the agency officials find that there are historic properties which may be affected by the undertaking or the SHPO/THPO or the [ACHP] objects to the agency official’s finding under paragraph (d)(1) of this section. . The ACHP regulations speak to this question: (1) No historic property affected. 36 C.C.4(d). a SHPO.4(c)(1). the agency official shall provide documentation of this finding. invite their views on the effects and assess adverse effects.11(d). and make the documentation available for public inspection prior to approving the undertaking. Slater. or the [ACHP] if it has entered the section 106 process. however. an objection by ACHP or [SHPO/THPO] to a “no historic properties affected” finding required the Federal agency to proceed to the next step. § 800. The guidance responds to the decision of the United States District Court for the District of Columbia in National Mining Ass’n v.7 provides a mechanism by which the agency.F. But section 800. does not object within 30 days of receipt of an adequately documented finding.R. Supp.” 36 C.4(d)(2)) and “no adverse effects” (Section 800. this lawsuit involves the specific issue of an agency’s consultation responsibilities once it determines that a proposed undertaking will have no effect on historic properties. . to the SHPO/THPO.F. organizations. 2d 265 (2001). § 800. where it would assess whether the effects were adverse. as set forth in § 800. the agency official shall notify all consulting parties. If the SHPO/THPO. if any.16(I). 167 F. pursuant to Section 800.F. However.9(a) of its regulations. In relevant part.2 The above sets forth the general structure of the ACHP regulations.5(a). and the agency must determine whether effects are adverse “[i]n consultation with the SHPO/THPO.5. the agency official’s responsibilities under section 106 are fulfilled. whenever appropriate. .

) The Corps has also issued regulations regarding the section 106 process. 2000.” the agency official should notify ACHP and seek an advisory opinion. the Corps also issued interim guidance. . would help resolve disputes and avoid the potential for litigation or other delays. In the event that a SHPO/THPO does not agree with a finding of “no historic properties affected. Ohio. It is important to state [that] the Section 106 process ends when .’ then the Section 106 process ends.) C. ACHP believes this interim step. it is determined there are no historic properties affected. B. . C.R. In response to the public notice. for Section 106 to proceed. The Lone Star Permit On June 20. . If the SHPO or the THPO disagrees with the district engineer’s determination concerning effects on historic properties. . C (emphasis in original). The Department of Army received drawings necessary to complete Lone Star’s application on December 18. 2001. Because of the historical nature of Sayler Park. Lone Star filed an incomplete application with the Department of Army for a permit to construct a barge facility for the loading and unloading of cement.. See 33 C. [it] has no further obligations under Section 106.) In a memorandum to its command staff. the district engineer can either consult with the SHPO or THPO to resolve the disagreement or request the ACHP to review the finding. . If the SHPO or the THPO concurs with the district engineer’s determination of ‘no effect.” (Id. App. #10 exh.” (Doc. the Ohio SHPO recommended that Lone Star be required to make an architectural survey of the properties within the APE of the 5 . while not mandatory. #10 exh. . (Doc. In other words. subsequent to the ACHP Interim Guidance. the Corps acknowledged that “[t]he ACHP does not endorse this guidance nor does it agree with Appendix C. The application identified the proposed site as a parcel of land on the right bank of the Ohio River in Cincinnati.F. Likewise. Part 325.require the Federal agencies to continue to the next step in the Section 106 process. A public notice of the application was issued on January 3.. the Ohio SHPO advised the Corps that the proposed permit area was adjacent to the community of Sayler Park. 2000. an Eligible Property must be affected. which contains two provisions relevant to this suit: If the Corps decided there is no effect to historic properties.

alleging that the Corps violated the NHPA by failing to complete the process set forth by either the ACHP regulations or its own 6 . and invited them to consult in the section 106 process. and the Village Council. I concur with Colonel Slockbower’s findings of no effect to historic properties and have determined [that] the Section 106 process for this project is concluded. Therefore. D. 2002. On October 9. Within thirty days. Jr. 2002. the Corps contacted a number of parties. Based on responses to the public notice. Colonel Robert A. the Corps reviewed the objections of the Ohio and Kentucky SHPOs and declared on October 29. on July 8. information or arguments that would warrant reconsideration of the previous decision regarding the impacts to historic properties as a result of the proposed project. the Corps issued its final APE determination. the Corps also held a public hearing on April 19. #10 exh. Plaintiffs filed suit against the Corps and the individual Defendants. 2001. and the Sayler Park Preservation Association. In response. the Corps finalized its report on the properties within the APE.) That same day. On February 16. Between October 2001 and February 2002. concluding that sixteen buildings and two structures were eligible for the National Register. On March 12. the Village Council.proposed facility. 2002 that they provided no basis to reconsider the “no historic properties affected” finding. (Doc. 2001 at the Sayler Park Community Center. the Corps met a number of times with the consulting parties. the District Engineer for the Louisville District. 2002. issued another response concurring with the “no historic properties affected” finding issued by his predecessor: I have determined that the letters of objection from the consulting parties do not provide any new data.. The Lawsuit On November 8. the Boone County Historic Preservation Review Board. Lone Star received a Department of Army permit to construct the barge facility. 2002. Three days later. including the Ohio and Kentucky SHPOs. on November 1. On February 8. the Corps received letters objecting to the “no historic properties affected” finding from the Kentucky and Ohio SHPOs. Then. the Corps directed Lone Star to provide an architectural survey and view shed analysis of properties within the APE of the project. Neither of the SHPOs objected to this determination. Construction of the facility started soon thereafter. Rowlette. F. the Corps issued a finding that none of these historic properties would be affected by the Lone Star facility. 2001. the City of Cincinnati.

must be read in the light most favorable to the party opposing the motion. Supp. #2. 475 U. no further consultation was required. but the parties agreed to stipulate to the relevant facts. 23. Ohio 1998). in light of the National Mining decision and the ACHP Interim Guidance. file cross-motions for summary judgment. R. Fed. 750. 4 The Kentucky Historic Preservation Office is the Kentucky SHPO.. Plaintiffs moved for a temporary restraining order staying the Lone Star permit and stopping construction at the site. Defendants argue that.S. the movant has the burden of showing that there exists no genuine issue of material fact. #10) and agree that this matter is ripe for judgment as a matter of law. III. ANALYSIS Plaintiffs assert that Defendants violated the NHPA by failing to continue the section 106 process.3 Two weeks later.) The Court granted Lone Star’s motion. together with all inferences that permissibly can be drawn therefrom. the question presented here is narrow: was the Corps required to consult further with interested parties once the Ohio and Kentucky SHPO objected to its “no historic properties affected” finding? The Court answers this question in the affirmative. 3 The NHPA permits a private cause of action to ensure compliance with its provisions. Lone Star moved to intervene as a defendant. The parties have jointly filed a Stipulated Statement of Facts (doc. Indus. 574. See Matsushita Elec. Highway Admin. 756 (S. On a motion for summary judgment. City of Cincinnati. Brewery Dist. 996 F. #4. (See docs. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56 governs motions for summary judgment. and the Kentucky Historic Preservation Office4 have filed amicus curiae briefs in support of Plaintiffs’ motion for summary judgment. In addition. Thus. v. (Doc. (See doc.. #5. as required by the ACHP regulations. 587 (1986). Zenith Radio Corp.D. Civ.regulations. See Fed. 56(c). Soc’y v. after the Kentucky and Ohio SHPOs objected to the “no historic properties affects” finding. 7 .) Prior to a hearing on the motion.) The parties have now filed and briefed their motions. the Court did not grant a temporary restraining order. Co. (Doc. At the hearing. and brief those motions on an expedited schedule. and the evidence. National Trust for Historic Preservation. P.) II. 21. #20. 22. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.

Considering the Defendants contend.S. 207 F. 508 U. invite their views. but it still must notify consulting parties. The ACHP Interim Guidance.” to “apply the criteria of adverse effect to historical properties within the area of potential effects” and to “consider any views concerning such effects which have been provided by consulting parties and the public. 36. does not significantly change the section 106 process in the event of a SHPO objection. either explicitly or implicitly.5(a). and Plaintiffs do not dispute. “the agency official should notify ACHP and seek an advisory opinion. Rather.R.3d 144.’” (Doc. But see EEOC v. a “no historic properties affected” finding does not terminate the section 106 process without at least tacit ACHP and SHPO agreement. The Court accepts this position for the purpose of this Order and will defer to the ACHP Interim Guidance in interpreting the ACHP regulations. The ACHP Interim Guidance changes this procedure somewhat. However.4(d)(2) “insofar as [it] allowed ACHP to effectively reverse a Federal agency’s finding[] of ‘no historic properties affected.” 36 C.4(d)(1).F.5 According to the Interim Guidance. it must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation. the regulations require the agency to “notify all consulting parties. Bank. 45 (1993) (“[P]rovided an agency’s interpretation of its own regulations does not violate the Constitution or a federal statute. however. if any. It merely adds a new and optional step: when a SHPO objects. 5 8 .R. 151-52 (2d Cir.S.) Defendants point to nothing in the ACHP Interim Guidance indicating. 414 (1945)).F. 410.F. that this additional step somehow abrogates the remaining requirements of section 800. The regulations dictate that the ACHP and SHPOs have thirty days to object to an agency’s “no historic properties affected” finding.5 then requires the agency.R. § 800. “[i]n consultation with the SHPO/THPO. and assess adverse affects. . .’”) (quoting Bowles v.) As a result. National Mining invalidated section 800. though.. in accordance with § 800. that the ACHP Interim Guidance should be given significant weight. Staten Island Sav. § 800. “the agency official’s responsibilities under section 106 are fulfilled. invite their views on the effects and assess adverse effects. See Stinson v.4(d)(2). Seminole Rock & Sand Co. Absent such an objection.” 36 C. #10 exh. § 800.4(d)(2).” 36 C. the ACHP will continue to provide opinions to federal agencies regarding “no historic properties affected” findings.5.” (Id. . United States. an ACHP objection to a “no historic properties affected” finding no longer forces the agency to continue the section 106 process. B. Section 800.Under the original ACHP regulations.) In other words. the agency now may contact the ACHP and request an opinion. when a SHPO objects. if the ACHP or a SHPO objects.” (Id. 2000) (expressing concern about deferring to interim guidance that has not been subject to notice and comment procedures of the Administrative Procedure Act). but those opinions “will be advisory and will not require the Federal agencies to continue to the next step in the Section 106 process. 325 U.

Supp. however. at 285. In National Mining. an agency’s final determination. it does not avail Defendants.’”) (quoting Threadgill v.’” Id.. the court found that the NHPA empowers the ACHP to issue binding procedural regulations. 1371 (3d Cir. Supp. Inc. Furthermore. at 286 (quoting Dep’t of Treasury v. rather than merely delay. the ACHP narrowly construed National Mining to truncate the section 106 process only in the event of an ACHP objection. Defendants contend. The Court agrees with National Mining to the extent that it found section 800. The court upheld almost all of the challenged regulations. The validity of each challenged regulation therefore depended upon whether the regulation was substantive or procedural. The Court is not bound by the National Mining decision. but that the ACHP could not issue binding substantive regulations. Mich. Therefore. they argue that the National Mining decision invalidated section 800. As explained above. 822 (D. 1999) (“‘[T]he doctrine of stare decisis does not compel one district court judge to follow the decision of another.5(c)(3).’” Id. According to the court. the Court disagrees with National Mining. which makes ACHP review of an agency’s final determination merely “advisory. 2d 899. See Herendeen v. Labor Relations Auth. 1988)). 857 F. 857 F.4(d)(2) in its entirety. Fed.2d 819. Cir.” 7 9 .ACHP regulations and Interim Guidance. except to the extent that the ACHP Interim Guidance adopted it or the Court finds its reasoning persuasive. to be substantive and invalid.2d 1366. including those adding such procedural hurdles to the section 106 process as public comment and ACHP site visits.5(c)(3). it is clearly substantive.7 The National Mining court noted that a facially procedural regulation may be effectively substantive if it “‘so affect[s] the environment within which the agency is allowed to act that it places the equivalent of a substantive restraint on its ability to act. the court found two regulations to be invalid: sections 800. 1991)).. While National Mining may stand for that proposition. Mich.5(c)(3) permitted the ACHP to review and overturn.C. First.. 284. Nevertheless. 167 F. Armstrong World Indus. (quoting Dep’t of Treasury.4(d)(2) and 800. which allowed the ACHP to issue a binding review of an agency’s decision. 2d 265. Section 800. noting that regulations “‘do not forfeit their procedural status simply by delaying the exercise of a management right. 39 F.D. 911 (W.6 Neither is the case here. Section 800. it is therefore clear that the Corps was required to continue the section 106 process after the Ohio and Kentucky SHPOs objected. that sources beyond those promulgated by the ACHP require a different result.2d at 821)). Id.4(d)(2) fit this description because it 6 The irony of citing the opinion of another district court for this proposition is not lost on the Court. This problem has been corrected by the ACHP Interim Guidance. 928 F. State Police.

The Corps may independently promulgate regulations for compliance with section 106. 36 C. The Court respectfully disagrees with the National Mining court’s description of section 800. Therefore. Rather. it states that the section 106 process is complete as soon as the Corps issues a “no historic properties affect” finding. the Court can discern only one difference: the former elongate the section 106 process prior to a tentative agency finding while the latter add to the process subsequent to such a finding.R. the Corps Interim Guidance is internally inconsistent. This argument fails. See 16 U.4(d)(2) as substantive. the ACHP regulations require a different result.) However.S.4(d)(2) and notify all In addition. but any such regulations have effect only if they are consistent with those propounded by the ACHP. Consequently. the agency never loses final authority to make the substantive determination.F. #10 exh. .“plainly give[s] the ACHP the authority to review and effectively reverse–at least for the purpose of continuing the section 106 process–the agency’s determination with respect to the effects of an undertaking on historic properties. The Corps Interim Guidance states that “the Section 106 process ends when . Even though a SHPO or a THPO can extend the section 106 process by objecting to an agency’s “no historic properties affected” finding. This is so because. Defendants also contend that the Corps did not violate the NHPA because it complied with its own regulations as interpreted in its interim guidance. The difference is meaningless. the Corps was required to follow section 800. A “no historic properties affected” finding terminates the section 106 process only if no SHPO or THPO objects within thirty days. invalidating section 800. 8 10 .C. Nor is the addition of one more layer of consultation after a tentative finding the proverbial straw that breaks the camel’s back and substantively restrains the agency’s ability to act. the Court finds that once the Ohio and Kentucky SHPOs objected to the Corps’s “no historic properties affected” finding in this case. On one hand. it instructs Corps personnel to either consult with the SHPO or THPO or ask for ACHP review when a SHPO or THPO objects to a “no historic properties affected” finding. it is determined that there are no historic properties affected. C.14(a). On the other. § 800.4(d)(2) as substantive while upholding other sections which require similarly time-consuming steps as procedural appears to the Court to be an exercise in hair-splitting. that objection does not “effectively reverse” the finding.” Id. .” (Doc. at 288. § 470h-2(a)(2)(E)(I). the Corps Interim Guidance is inconsistent with the ACHP Interim Guidance and irrelevant. In comparing those regulations that National Mining upheld with those it found invalid. no matter the process. the Court will not extend National Mining beyond the interpretation it has been given by the ACHP.8 Consequently.

5. in accordance with section 800. parties. 200000871) that it issued to Lone Star Industries. 2002. The two responses issued by the Corps. were ultimately dismissive and insufficient substitutes for the consultation required by section 800. invite their views on the effects. IT IS SO ORDERED. Inc. The Corps never again met with any consulting party. though detailed in their review of the objections entered by various parties. the Corps violated the NHPA. the Court ORDERS that the Corps immediately revoke the Department of Army permit (No. to construct a barge loading/unloading facility on November 1. # 9) and DENIES Defendant’s motions for summary judgment (docs. it is clear that the Corps did not. Furthermore. IV.4(d)(2). The only remaining question is whether it did so. Dlott United States District Judge 11 . # 11. and assess adverse effects. if any. 12). Based on the factual record to which the parties stipulated. _______________________ Susan J. by issuing a permit to Lone Star without having complied with the regulations issued by the ACHP. CONCLUSION For these reasons. the Court GRANTS Plaintiffs’ motion for summary judgment (doc.

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