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National Trust for Historic Preservation in the United States v. Corps of Eng'rs

ELR Citation: 13 ELR 20166
Nos. No. C-1-82-624, 552 F. Supp. 784/(S.D. Ohio, 12/10/1982)

The Court rules that the Army Corps of Engineers' issuance of a permit for the construction of a barge facility near the Anderson Ferry, Ohio, violated §106 of the National Historic Preservation Act (NHPA). The court rejects defendants' contention that the preliminary case report submitted to the Advisory Council on Historic Preservation constituted a no adverse effect determination. The court rules that, based upon defendants' conduct and the language used in letters and documents sent to the Council the report was, in fact, an adverse effect determination that triggered the consultation process provided for in the Council's regulations.

In addition, the court concludes that, even if the Corps subsequently reversed its adverse effect determination, statements in its environmental assessment and findings of fact referring to a no adverse effect determination did not amount to adequate notice to the Council of such a change when weighed against the other facts in the case. The consultation process was never terminated and defendants' failure to await the Council's comments prior to issuing the permit violated §106 of the NHPA. The fact that defendants waited five months between submission of the report and issuance of the permit did not give the Council a "reasonable opportunity to comment" as mandated by §106. The court enjoins further work under the permit as well as future Corps' project approvals absent full compliance with the NHPA and Advisory Council regulations.

Counsel for Plaintiffs
Gary W. Wilburn; Harrison B. Wetherill Jr., General Counsel
National Trust for Historic Preservation
1785 Massachusetts Ave. NW, Washington DC 20036
(202) 673-4000

W. Joseph Dehner Jr.
Frost & Jacobs
2500 Central Trust Ctr., 201 E. 5th St., Cincinnati OH 45202
(513) 651-6800

Timothy M. Burke
Manley, Jordan & Fischer
4500 Carew Twr., Cincinnati OH 45202
(513) 721-5525

Counsel for Defendants
Elizabeth G. Whitaker, Ass't U.S. Attorney
220 U.S.P.O. & Cthse. Bldg., 5th & Walnut Sts., Cincinnati OH 45202
(513) 684-3711

Rebecca A. Donellan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2771

P. Michael McCauley
Thompson & Co., L.P.A.
131 Rockwood Bldg., 1077 Celestial St., Cincinnati OH 45202
(513) 651-2600