ELR Citation: ELR 20606
No(s). 83-4447 (5th Cir. Jun 4, 1984)

The court rules that prior compliance with the National Historic Preservation Act (NHPA) is not prerequisite to a condemnation action. The Army Corps of Engineers condemned appellants' lands, which include sites on the National Register of Historic Places, before complying with the study and consultation provisions of NHPA §106. The court declines to overrule its prior holding in the case, 11 ELR 20230, that non-compliance with the NHPA is no defense to a condemnation action. The rationale of a later decision of the First Circuit in Massachusetts v. Watt, 13 ELR 20893, involving National Environmental Policy Act (NEPA) compliance in oil leasing, is not persuasive. The condemnation transfers title but does not change the use of the land. If the Corps complies with the NHPA before making any irretrievable commitment of resources or commencing construction, there is no redressable harm. The court holds that the Corps carried out its NHPA duties in time. The court also rules that the Corps complied with NEPA. The supplemental environmental impact statement (EIS) that the Corps prepared contained an adequate analysis of the site, making a separate sitespecific EIS unnecessary.

Counsel for Appellants
J. Arthur Smith III
525 France St., Baton Rouge LA 70802
(504) 383-7716

Counsel for Appellee
Jacques B. Gelin, David Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before CLARK, Chief Judge, RUBIN and POLITZ, Circuit Judges.