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Preservation Coalition v. Pierce

Citation: 12 ELR 20410
No. No. 80-3101, 667 F.2d 851/(9th Cir., 02/12/1982)

The Ninth Circuit upholds appellees' determination that a conversion in funding for Boise, Idaho does not require preparation of an environmental impact statement (EIS). In 1971), appellees found that the project, which was being financed with urban renewal loan and grant funds, would have no significant impact on the environment. Subsequently, buildings in the project areas were placed on the National Register and, in 1979, the project funding was converted to Community Development Block Grant funds. At that time, appellees prepared an environmental assessment, which found that the entire project would have no significant environmental impact. Initially, the court rules that appellant's claims are not barred by laches since appellant acted with due diligence and appellees suffered no prejudicial delay with regard to the project. Next, the court rules that appellees' 1979 environmental assessment constituted compliance with the applicable Housing and Urban Development regulations, which required an environmental review of appellees' application for financial settlement and an updated environmental review analyzing the impact of changed circumstances. Turning to the reasonableness of appellees' finding that the project would have no significant environmental impact, the court rejects appellant's contention that a change in the source of federal funds for the project constitutes a major federal action requiring preparation of an EIS since the fundamental nature of the project has not changed. The court also declines to rule that appellees' finding was per se unreasonable simply because the project contemplated destruction or significant alteration of buildings listed on the National Register. Instead, federal action subsequent to a project's initiation must be evaluated comprehensively and in terms of its relationship to the entire project's environmental impact. The court concludes that appellees' findings of no significant impact on the historic environment, air quality, noise pollution, and traffic congestion were reasonable. Finally, the court holds that issues under the National Historic Preservation Act raised by the National Trust for Historic Preservation in its amicus brief are not properly before the court since such issues were disposed of in the district court's judgment and appellant did not raise them in their opening or reply briefs.

Counsel for Appellant
Gary L. Montgomery
Marcus & Marcus
737 N. 7th St., Boise ID 83702
(208) 342-3563

Counsel for Appellees
Phillip Farber
Elam, Burke, Evans, Boyd & Koontz
P.O. Box 1559, Boise ID 83702
(208) 343-5454

Karl Shurtliff, U.S. Attorney
Rm. 693, 550 W. Fort St., Boise ID 83724
(208) 334-1211

Maria B. Iizuka
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before SNEED, and BOOCHEVER, Circuit Judges, and HOFFMAN*, District Judge.