Citizens Defense Fund v. Gallagher

No. Cv-78-63-Bu (D. Mont. November 3, 1978)

The court issues a preliminary injunction against the razing of buildings as part of a federally funded urban renewal project after determining that plaintiffs are likely to succeed on the merits of their claim that defendants violated the procedural requirements of the National Historic Preservation Act (NHPA). The court finds that the responsible federal official simply rubberstamped a state determination that a proposed urban renewal project area contained no buildings eligible for inclusion in the National Register of Highoric Places rather than making an independent decision "in consultation with" the state historic preservation officer, as the Act requires. The court also denies defendants' motion to increase plaintiffs' security bond and decrees that the bond remain at the nominal amount of $100 so as not to stifle the intent of NHPA or preclude citizen access to the judicial system.

Counsel for Plaintiffs
James H. Goetz, William L. Madden, Jr.
Goetz & Madden
522 W. Main St., Bozeman MT 59715
(406) 587-0618

Counsel for Defendants
Allen R. MacKenzie, Ass't U.S. Attorney
Federal Bldg., Butte MT 59701
(406) 723-6561

Mindy Brown
Office of the General Counsel
Department of Housing and Urban Development
1405 Curtis St., Denver CO 80202
(303) 837-4148

James A. Poore, III
Poore, Roth, Robischon & Robinson
4th Floor Silver Bow Block, Butte MT 59701
(406) 792-0488

joseph C. Connors, County Attorney
212 E. Park Ave., Anaconda MT 59701
(406) 563-5297

[9 ELR 20420]

Murray, J.:

The project challenged in this lawsuit involves a proposal by the City of Anaconda, County of Deer Lodge, to demolish certain buildings in an area of approximately six square blocks of downtown Anaconda. This demolition will be done in accordance with a federally funded urban renewal project that contemplates the construction of a shopping mall in place of the razed buildings.

Plaintiff seeks declaratory judgment, injunctive relief, and mandamus on the grounds the actions of defendants are invalid and that demolition will be illegal under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4327; the National Historic Preservation Act of 1966 (NHPA), as amended, 16 U.S.C. §§ 470-470t, the regulations issued pursuant thereto, 36 C.F.R. part 800, and the regulations of the Department of Housing and Urban Development (HUD) relating to "Environmental Review Procedures For The Community Development Block Grant Program," 24 C.F.R. part 58.

The factors to be considered by a court in determining the appropriateness of injunctive relief are: (1) the likelihood that plaintiff will be successful at a trial on the merits; (2) the irreparable harm plaintiff will suffer; (3) the balance between the harm plaintiff will suffer without an injunction versus the harm defendants will suffer from an injunction; and (4) the public interest. King v. Saddleback Junior College District, 425 F.2d 426, 427 (9th Cir. 1970); cert. denied, 404 U.S. 979 (1971). The court has jurisdiction of the matter pursuant to 28 U.S.C. § 1331(a), and plaintiff-organization's standing is established by their allegation that members of the organization would suffer injury to their enjoyment of the cultural, aesthetic, and historical quality of the buildings if the buildings are demolished. Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972).

I. National Historic Preservation Act (NHPA)

The basic issue to be decided is whether defendants complied with the NHPA and the implementing regulations thereunder when defendants made the determination that none of the buildings in the six-block urban renewal area were of historical significance.

16 U.S.C. § 470f of the NHPA provides:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment with regard to such undertaking.

In an effort to implement the policies of the NHPA, the President promulgated Executive Order No. 11593, 36 Fed. Reg. 8921 (May 15, 1971). Section 1(3) of the order directed federal agencies to institute procedures in consultation with the Advisory Council on Historic Preservation (16 U.S.C. § 470i) in order "to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, sitructures and objects of historical, architectural or archeological significance." In 1973 the Advisory Council promulgated regulations setting forth a procedure for compliance with the NHPA, 38 Fed. Reg. 5388 (Fed. 28, 1973). In 1974 those procedures were revised to include guidelines to assist federal agencies in complying with their responsibility under NHPA and Executive Order No. 11593. 36 C.F.R. § 800.1 et seq. (1974). These regulations are binding upon the Department of HUD. Save the Courthouse Committee v. Lynn, 408 F. Supp. 1323, 1337-38 [6 ELR 20639] (S.D.N.Y. 1975).

[9 ELR 20421]

Essentially, federal agencies are required to make an initial determination of whether there are any properties within the area of a proposed "undertaking" (i.e., urban renewal project) that are "included in or eligible for inclusion in the National Register of Historic Places." 36 C.F.R. § 800.4(a). It is indisputable that there are no properties in the Anaconda urban renewal project herein challenged that are already include in the National Register. The focal point of this controversy is whether there are any buildings that are eligible for inclusion.

(1) If there are any buildings that the federal agency determines may be eligible, or if it is at least "questionable" that some of the buildings may be eligible, the federal agency "shall request" a written opinion from the Secretary of the Interior respecting the property's eligibility for inclusion in the National Register. 36 C.F.R. § 800.4(a)(2). (2) Once eligibility is determined, the federal agency, in consultation with the State Historic Preservation Officer (SHPO) shall determine whether the undertaking has an effect on the property, and whether the effect is adverse. 36 C.F.R. §§ 800.4(b) and (c). (3) If the effect is adverse, the federal agency must request comments from the Advisory Council, and the Advisory Council begins its own process of inspecting the site, the culmination of which is an attempt by all the federal and state bureaucracies involved to find suitable alternatives to the project to avoid or mitigate the adverse effect. 36 C.F.R. §§ 800.4(e), 800.5.

Fortunately, this court is not faced with the task of reviewing whether defendants complied with this intricate maze of regulations. In the process outlined above, defendants never even made it past step 1. Defendants determined at the outset that there were no properties whose eligibility for inclusion in the National Register was even questionable. It is this initial determination that plaintiff challenges. This court does not express any opinion as to the correctness of that determination; however, the court must agree with plaintiff that the determination was procedurally erroneous. The regulations require that determination to be made by the "Agency official . . . in consultation with the State Historic Preservation Officer . . . ." 36 C.F.R. § 800.4(a)(2). The evidence points to the conclusion that in fact, this determination was made by the SHPO, and that the "Agency Official" merely rubber-stamped the determination.This is the error the defendants committed and this is the basis upon which the court must grant an injunction.

In the first instance, defendants argue that the federal official did in fact make the determination. The record is to the contrary. The only HUD official to ever inspect the urban renewal site was a Mr. LeFevre, who merely participated in a walking tour or "windshield inspection." This does not constitute the type of independent investigation required of the federal agency. Mr. LeFevre admits that his conclusion that no properties within the proposed area are eligible for inclusion is based not upon an independent investigation, but rather "a conference" with the SHPO and the state's architectural consultant. (Defendants' Exhibit 11, page 2.) HUD's own report indicates that the determination of non-eligibility was made by "contact with SHPO" rather than investigation. (Defendants' Exhibit 12, page 2, section "G.") This kind of rubber-stamping violates the requirements of the NHPA and the implementing regulations. Hall County Historical Society v. Georgia Department of Transportation, 447 F. Supp. 741, 751-52 [8 ELR 20580] (N.D. Ga. 1978).

In the alternative, defendants admit that the SHPO made the ultimate determination, and argue that such delegation is proper under the Housing and Community Development Act of 1974, 42 U.S.C. § 5301 et seq. As plaintiff points out, however, the express delegation by HUD to local agencies of NEPA responsibilities (42 U.S.C. § 5304(h)) does not include any implicit delegation of NHPA duties. Moreover, NEPA expressly provides for such delegation, while NHPA does not. "If Congress had intended that federal agencies be bound by the conclusions of state authorities, they would have clearly provided for such delegation." Hall, supra 447 F. Supp. at 751.

For the above reasons, this court finds that plaintiff has demonstrated a substantial, if not incontrovertable, likelihood of success on the merits. The harm plaintiff would suffer by demolition of the buildings would be irreparable as well as substantial, while the economic harm of delay to defendants is minimal. The public interest behind preservation of historically significant properties is indeed weighty. Accordingly, a preliminary injunction shall issue. It is important to note that this decision is made without rendering any opinion on the eligibility of any buildings in the project area for inclusion in the National Register. This determination is left to the appropriate agencies.

II. NEPA

The court does not issue the injunction on the basis of plaintiff's NEPA claims. While it does appear that defendants did not adequately consider and document their consideration of alternatives to the proposed action, the record is too incomplete to grant an injunction. Parties are hereby put on notice that at the trial on the merits, a more complete presentation of this issue will be necessary.

III. Miscellaneous Matters

Plaintiff has moved this court to reopen the hearing on the preliminary injunction to permit an additional letter to become part of the record. The letter itself is not necessary to the decision rendered today and defendants should be accorded full opportunity for cross-examination respecting the letter. Plaintiff's motion is denied.

Defendants Gallagher and Wolf have filed a motion requesting an increase in security bond. There is currently a One Hundred Dollar ($100) security bond posted by plaintiff. The rationale of previous courts dealing with security bonds in NEPA cases applies equally here. To require an organization of limited financial resources to post more than a minimal security bond would stifle the intent of NHPA and preclude such plaintiffs from access to the indicial system. Friends of the Earth v. Brinegar, 518 F.2d 322 [5 ELR 20233] (9th Cir. 1975). Defendants' motion is denied.