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Pye v. United States

Citation: 32 ELR 20280
No. No. 98-2229, 269 F.3d 459/(4th Cir., 10/22/2001)

The court holds that owners of land in South Carolina adjacent to both land containing a historic plantation and an African American cemetery and land on which a road crossing is constructed have standing to bring a National Historic Preservation Act (NHPA) challenge to the U.S. Army Corps of Engineers' (the Corps') grant of a Clean Water Act (CWA) § 404 permit to a county for improvement of the road crossing. The court first holds that the landowners have alleged concrete injuries sufficient to demonstrate injury-in-fact. The landowners are adjacent to the proposed improvement. Moreover, the land on which the plantation and cemetery is located and probably a portion of the landowners' land are eligible for listing on the National Register of Historic Places. Thus, the challenged action may lead to trespassing, vandalism, and looting of the historic sites on the landowners' property. In addition, the future development of the surrounding area enabled by the Corps' permit is not so speculative as to render the landowners' allegation of injury abstract. Similarly, the fact that the road improvement will not actually touch any of the historic sites is of no consequence. Damage to historic areas can occur in less direct ways, and the Corps' own regulations require consideration of the effects of permitted activities on historic sites outside of the permit area. Likewise, the popularity of the landowners' aesthetic concerns pertaining to the historic district do not make them a common concern for obedience to law that renders them too abstract for standing purposes. The landowners' concerns stem from their aesthetic interest in the historic sites in their own backyard. The court next holds that the landowners' claims are within the NHPA's zone of interests. As adjacent and probably actual property owners, they are members of the public concerned with the impact of the Corps' permit on a historic site next to and on their property and want to ensure that the Corps take into account the effects of the improved road on that site. The NHPA is aimed at the preservation of areas like the sites here, and the Act expressly provides for interested members of the public to participate in the permitting process when those areas may be affected by agency action. The court also holds that the landowners' alleged injury is traceable to the Corps' conduct. Their injury is caused by the improved road and but for the improvements authorized by the Corps' permit, the complained of injuries have less probability of occurring. The court then holds that the court can redress the landowners' injuries by requiring the Corps to comply with the procedures of the NHPA and, thereby, allowing the landowners to participate in the CWA § 404 permitting process.

Counsel for Plaintiffs
C.C. Harness III
Ogletree, Deakins, Nash, Smoak & Stewart
134 Meeting St., Ste. 500, Charleston SC 29401
(843) 853-1300

Counsel for Defendants
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Widener, J. Before Wilkinson and Motz, JJ.