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Hart v. Denver Urban Renewal Auth.

ELR Citation: 7 ELR 20168
Nos. No. 75-1909, 551 F.2d 1178/10 ERC 1250/(10th Cir., 01/06/1977)

The Tenth Circuit affirms the trial court's injunction against sale of an historic department store tower in Denver for urban renewal purposes pending compliance with Department of Housing and Urban Development (HUD) regulations implementing the National Historic Preservation Act (NHPA) of 1966. Defendants below appealed the final order granting the injunction, and plaintiffs cross-appealed claiming that, in addition to the NHPA regulations, both the National Environmental Policy Act (NEPA) and NHPA themselves apply. The court concludes that the NHPA requirement for comment on the proposed sale by the Advisory Council on Historic Preservation is inapplicable. NHPA ordinarily requires such comment prior to approval of federal expenditures on an undertaking involving a building on the National Register, but in this instance the approval of federal funding was the signing of the contract in 1968 before the tower was placed on the National Register of Historic Places. Concerning the NEPA claim, the Tenth Circuit rejects the district court's restrictive view limiting "major federal action" to the project contract signing in 1968 and finds that continuing agency responsibility regarding the project justifies NEPA application. The court agrees, however, with the trial court's conclusion that HUD has carried out the balancing necessary under NEPA by treating the tower separately from the rest of the renewal project.

Counsel for Plaintiffs
J.D. MacFarlane, Attorney General
Jean E. Dubofsky, Deputy Attorney General
Edward G. Donovan, Solicitor General
Janet Lee Miller
Joseph M. Goldhammer Asst. Attorneys General
Department of Law
104 State Capitol
Denver CO 80203
(303) 892-2542

Counsel for Defendants
Paul C. Benedetti
Benedetti, Opperman & Martinez, P.C.
1515 Arapahoe St.
Denver CO 80202
(303) 623-1970

James L. Treece, U.S. Attorney
James W. Winchester, Asst. U.S. Attorney
323 U.S. Courthouse
1961 Stout St.
Denver CO 80294
(303) 327-2081

Peter R. Taft, Asst. Attorney General
Maryann Walsh
George R. Hyde
Kathryn A. Oberly
Department of Justice
Washington DC 20530
(202) 737-8200

Joined by Barrett & Doyle, JJ.