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Historic Green Springs, Inc. v. Bergland

ELR Citation: 11 ELR 20034
Nos. No. 77-0230, 497 F. Supp. 839/14 ERC 2057/(E.D. Va., 08/11/1980)

The district court invalidates the designation of Historic Green Springs District in Louisa County, Virginia, as a National Historic Landmark and its placement on the National Register of Historic Places because of the Department of the Interior's failure to (1) promulgate substantive standards guiding the determinations of national historic significance, and (2) prepare and publish procedural rules to govern the designation process. After gaining recognition as a Virginia Historic Landmark, the district was nominated by the state to the National Register, and was approved by Interior on March 1, 1973. Thereafter, the Department gave notice of and held a public hearing on its proposed acceptance of preservation easements over one-half of the district. Subsequently, Interior issued an environmental assessment of the proposal which concluded it was not a major federal action requiring an environmental impact statement. Following another public hearing, Interior redesignated the district as a National Historic Landmark and accepted the offer of preservation easements. After plaintiffs filed suit to restrain development of the area, defendants and third-party plaintiff sued the Departments of the Interior and Agriculture, challenging the legality of their actions in connection with the designation. The court rules that the Department of the Interior's failure to set forth adequate substantive criteria and a statement of reasons regarding this particular designation precludes it from determining whether the standards of the Historic Sites, Buildings and Antiquities Act of 1935 or the National Historic Preservation Act of 1966 were in fact applied. Without published rules of procedure and substantive criteria for qualification as a landmark, third-party plaintiff was denied meaningful opportunity for informal response to the proposed action. Thus any decision as to whether or not the Department exceeded its scope of authority would be mere speculation. Furthermore, the Department of the Interior's conclusory findings of the national historic significance of the easements give no indication whether the agency's discretion was properly exercised. Therefore, the court remands the case for compliance with procedural due process, including preparation of a statement of reasons and promulgation of substantive standards. The court adds that there is no Tenth Amendment violation because designation of a federal historic district in no way impairs essential state functions. Similarly, the court rules that third-party plaintiff failed to show that federal regulation of the district constitutes a taking without just compensation under the Fifth Amendment.

The full text of this opinion is available from ELR (19 pp. $3.00, ELR Order No. C-1234).

Counsel for Plaintiff Historic Green Springs, Inc.
Emanuel Emroch, Thomas W. Williamson
Emanuel Emroch & Associates
5206 Markel Rd., Richmond VA 23226
(804) 288-1661

Counsel for Defendant and Third Party Plaintiff Virginia
Vermiculite, Ltd.
Gerald L. Baliles, D. Patrick Lacey, John A. Gibney
Bell, Ellyson, Wilkins & Baliles
P.O. Box 1640, Richmond, VA 23213
(804) 649-7021

Counsel for Federal Defendants
Raymond A. Carpenter, Ass't U.S. Attorney
1102 E. Main St., Richmond VA 23210
(804) 771-2186

Gary W. Wilburn, Lars Hanslin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2047

Merhige, J.