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Vieux Carre Property Owners, Residents & Assocs. v. Brown

ELR Citation: 22 ELR 20497
Nos. No. 90-3740, 948 F.2d 1436/(5th Cir., 12/26/1991) Remanded after second appeal

The court holds that the district court erred in finding the suit by a historic preservation group against the Army Corps of Engineers moot because it incorrectly determined that historic preservation review was not necessary once a riverfront park in New Orleans was built on an existing wharf; that review under the National Historic Preservation Act (NHPA) is required as long as the Corps could require changes to the riverfront park; and that the district court judge was not required to recuse himself from the case. The court first holds that the district court violated the law of the case by not following the appellate court's mandate. The appellate court mandated that the district court determine whether the park project comes within the Corps' nationwide permit under the Rivers and Harbors Act, and, if so, whether the Corps failed to properly undertake historic preservation review. By holding that the Corps had no continuing jurisdiction to perform the historic preservation review after finding that the case was moot because the permit expired, the district court never followed the mandate to determine whether the permit was applicable. The court notes that if the district court determines that the nationwide permit applies so that the Corps has no continuing jurisdiction over the completed project, it must then consider whether the Corps could still order changes because it has jurisdiction over the wharf within which the riverfront park was built. The court next holds that NHPA review is required after a project is completed if the federal agency can order alterations that would impact on historic preservation goals. The NHPA draws no conclusion between federally funded and federally licensed projects regarding historic preservation review. The fact that the developers' interests may be impacted by historic preservation review is irrelevant to the issue of whether review is required. In addition, the developers are provided the opportunity to comment in the NHPA review process. The court next holds that it can grant meaningful relief by declaring that the Corps must comply with the NHPA. It is not possible to predetermine the results of the historic preservation review. The court next holds that if the district court finds that the case is technically moot, it must determine whether this case falls within the exception of actions that are capable of repetition but evade review. Finally, the court holds that the district court judge was not required to recuse himself because of his close personal and political relationship with the mayor of New Orleans.

Counsel for Plaintiff-Appellant
James R. Logan
650 Poydras St., Ste. 2850, New Orleans LA 70130
(504) 524-7604

Counsel for Defendants-Appellees
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before REYNALDO G. GARZA, WIENER, and BARKSDALE, Circuit Judges.