Historic Green Springs, Inc. v. Block

No. 77-0230-R (E.D. Va. July 20, 1981)

The district court vacates its prior decision, 11 ELR 20034, invalidating the designation of the Historic Green Springs District in Louisa County, Virginia as a national historic landmark and its placement on the National Register of Historic Places. Subsequent to the court's decision, Congress enacted the National Historic Preservation Act Amendments of 1980, which declared all historic properties listed in the February 6, 1979 issue of the Federal Register to be national historic landmarks. The Green Springs District was among the properties listed. The court holds that the statute's text and legislative history indicate a congressional intent to shelter landmarks, including the Green Springs District, the designation of which faced constitutional challenge. Therefore, the Secretary of the Interior may legitimately list the Green Springs District in the National Register of Historic Places.

Counsel for Plaintiff Historic Green Springs, Inc.
Emanuel Emroch, Thomas W. Williamson
Emanuel Emroch & Associates
5206 Markel Rd., Richmond VA 23226
(804) 288-1661

Counsel for Defendant and Third Party Plaintiff Virginia Vermiculite, Ltd.
Gerald L. Baliles, D. Patrick Lacey, John A. Gibney
Bell, Ellyson, Wilkins & Baliles
P.O. Box 1640, Richmond VA 23213
(804) 649-7021

Counsel for Federal Defendants
Raymond A. Carpenter, Ass't U.S. Attorney
1102 E. Main St., Richmond VA 23210
(804) 771-2186

Gary W. Wilburn, Lars Hanslin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2047

[12 ELR 20101]

Merhige, J.:

Memorandum

The instant action returns to the Court following appeal of the Court's original judgment in the case, 497 F. Supp. 839 [11 ELR 20034] (1980). The history of the case appears in that opinion. The events that have occurred following the Court's judgment are somewhat out of the ordinary, and have left the case in an awkward stance.

On August 11, 1980, the Court invalidated a designation listing in the National Register of Historic Places (National Register) 14,000 acres of property located in Louisa County, Virginia known as the Historic Green Springs District. The Court's basis for invalidating the designation, discussed at length in its earlier opinion, was that the procedures used by the Department of Interior failed to meet the requirements of due process. As a result, the Court ordered the Secretary of the Interior to develop and promulgate regulations prior to designating the Green Springs as a National Historic Landmark. Subsequent to the Court's ruling, Congress enacted the National Historic Preservation Act Amendments of 1980, Pub. Law 96-515, 94 Stat. 2987 (1980) (to be codified at 16 U.S.C. § 470a). Section 201 of the Amendments declares that

[a]ll historic properties listed in the Federal Register of February 6, 1979, as "National Historic Landmarks" . . . are declared by Congress to be National Historic Landmarks of national historic significance as of their initial listing as such in the Federal Register for purposes of this Act and the Act of August 21, 1935 (The National Historic Sites Act[ . . . .

(Emphasis added.)

The Green Springs District was among the over 1,000 properties listed in the February 6, 1979 issue of the Federal Register, 44 Fed. Reg. 7416, 7616.

As a result of the enactment of the 1980 Amendments, defendant would have the Court vacate its order under Rule 60(b)(5) or (6), FED. R. CIV. P., on the ground that Congress' action has made the development or promulgation of regulations regarding the Green Springs District superfluous, and that the case is thus moot. Third-party plaintiffs contend that, to the contrary, Congress did not intend for all properties listed as of February 6, 1979 to be designated by the Secretary, regardless of whether the property's listing was valid or constitutional. Thus, plaintiff would have the Court interpret the statutory phrase "[a]ll historic properties listed in the Federal Register as of February 6, 1979" to mean "[a]ll historic properties constitutionally listed in the Federal Register as of February 6, 1979." As far as the Court can discern, the plaintiff does not contest the constitutionality of the Congressional action itself, as in e.g., United States v. Klein, 77 U.S. (13 Wall.) 128 (1872).

The Court cannot accept plaintiff's contention. Even if the language of the statute were not plain, as it is, the statute's legislative history indicates that Congress quite purposefully sought to shelter landmarks whose designations faced constitutional challenge. See S. REP. NO. 96-943, 96th Cong., 2d Sess. 23 (1980). See also, H.R. REP. NO. 96-1457, 96th Cong., 2d Sess. 26 (1980).¹ Accordingly, the Court holds that Congress intended that the Green Springs District, as well as other listed districts, be designated in the National Register without further administrative action.

Given the Court's holding, the issue of whether the Department of Interior need promulgate new regulations is now moot. The Secretary may legitimately list the Green Springs District pursuant to Pub. Law 96-515, § 201(a). Although the Court believes that should the Department seek to designate some other property not sheltered by the statute where circumstances similar to those found in the Court's prior opinion exist, it would have to comply with the conditions of the Court's prior order, no case or controversy remains here. Thus the Court has determined that its order of August 11, 1980 should be vacated.

1. The Senate Committee Report states in part:

The purpose of this subsection is to assure the continued validity of all National Historic Landmarks designated by the Secreary prior to the effective date of the legislation by the Congress declaring such landmarks, whether individual or districts, as National Historic Landmarks for the purposes of this legislation, the Historic Sites Act of 1935, and other applicable laws. The Federal Register of February 6, 1979, contains a listing of all such landmarks designated to that date as part of the National Register of Historic Places list. The Congressional declaration of National Historic Landmark status is effective as of the date each property was originally listed in the Federal Register as a National Historic Landmark. Recent legal challenges to the National Historic Landmark program have suggested thatlandmarks have been designated by the Secretary by inadequate procedures and beyond the scope of the Historic Sites Act of 1935 with respect to districts of architectural merit and other historic qualities not mentioned in the Historic Sites Act. The definition of historic values contained in the National Historic Preservation Act of 1966, as amended, is equally applicable to the historic values sought to be preserved by the Historic Sites Act of 1935, except for the latter's requirement of national historic significance.

S. REP. NO. 96-943, 96th Cong. 2d Sess. at 23 (1980). (Emphasis added.)