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Mission statement: To promote the preservation, enhancement, and productive use of our Nation’s

historic resources, and advise the President and Congress on national historic preservation policy.

An independent Federal agency, ACHP promotes historic preservation nationally by providing a forum

for influencing Federal activities, programs and policies that impact historic properties, advising the

President and Congress, advocating preservation policy, improving Federal preservation programs,

protecting historic properties, and educating stakeholders and the public.

John L. Nau, III, of Houston, Texas, is Chairman of the 20-member Council, which is served by a

professional staff with offices in Washington, DC, and Lakewood, Colorado. For more information about

ACHP, contact 

Advisory Council on Historic Preservation

1100 Pennsylvania Avenue NW, Suite 809

Washington, DC 20004

Phone: 202-606-8503

Web site: www.achp.gov

,-
./

The Advisory Council on Historic Preservation (ACHP) is grateful to the United States Army

Environmental Center for its generous financial support that has made this supplement possible.

This supplement updates Federal Historic Preservation Case Law, 1966-1996: Thirty Years of the

National Historic Preservation Act, published in 1996. ACHP first published the report in 1985, which

was authored by Charlotte R. Bell. With the support of the United States Army Environmental Center, the

report was revised and updated in 1996 by ACHP General Counsel Adina W. Kanefield.

This current supplement was authored by ACHP Assistant General Counsel Javier Marqués.

Washington, DC

2002
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 136 Fein v. Peltier 1

 137 Knowles, et al. v. United States Coast Guard 1

 138 Apache Survival Coalition v. United States 2

 139 Sierra Club, et al. v. Slater 3

 140 American Institute of Architects v. City of Columbus 3

 141 Tyler, et al. v. Cisneros 4

 142 Brewery Dist. Soc. V. Federal Highway Admin 4

 143 USS Cabot CVL 28 Assn., Inc. v. Josiah et al 5

 144 Friends of the Atglen-Susquehanna Trail, Inc. v. Pennsylvania Public Utility Comm’n 6

 145 Grand Canyon Air Tour Coalition v. Federal Aviation Administration 7

 146 Society Hill Towers Owners’ Assn. v. Rendell 7

 147 Friends of the Astor, Inc. v. City of Reading 8

 148 Presidio Golf Club v. National Park Service 8

 149 Morongo Band of Mission Indians v. Federal Aviation Administration 9

 150 Davis, et al. v Latschar 10

 151 Hoonah Indian Association, et al. v. Morrison 11

 152 Corridor H Alternatives, Inc., et al. v. Slater 11

 153 City of Alexandria, et al. v. Slater, et al. 12

 154 Concerned Citizens Alliance, Inc., et al. v. Slater, et al. 14

 155 Muckleshoot Indian Tribe, et al. v. United States Forest Service, et al. 14

 156 Sac and Fox Nation of Missouri, et al. v. Babbitt, et al. 16

 157 Western Mohegan Tribe and Nation, et al. v. New York, et al. 16

 158 Young, et al. v. General Services Administration, et al. 17

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136

Fein v. Peltier, 949 F. Supp. 374 (D.C. V.I.

1996).

Plaintiff, Fein, sought a preliminary and

permanent injunction barring defendant, a National

Park Service (NPS) Superintendent, from interfering

with a residential construction. Plaintiff was assigned

a property right in 1991 stemming from a 1975 deed

conveying the property in question to the United

States as part of approximately 94 acres to be included

in the Virgin Islands National Park. The deed

conveyed the land subject to a right of use and

occupancy reserved by the grantors for a period of 60

years, which was assigned to plaintiff. This right

included the right to construct a single family dwelling

so long as it did not interfere with the historic ruins

within the area, and also required the grantor to

cooperate with NPS. 

In 1994, Fein applied through the Department of

Planning and Natural Resources (DPNR) for a minor

Coastal Zone Management permit to build a residence.

NPS never received formal notice, but found out and

put DPNR on notice of its interest in project, warned

of the project’s possible impact on historic ruins on

the land, and protested that the architectural plans did

not conform to the restrictions on the mentioned deed.

Although no evidence was presented that DPNR ever

directly responded to NPS, Fein was required to adjust

the plans to meet certain standards. The plans were

revised and approved by DPNR and the permit was

issued. An adjoining landowner who had not received

proper notice successfully appealed to the Virgin

Islands Board of Land Use Appeals, the initial permit

was voided, and the permitting process started anew.

This time, NPS received an official notice from

DPNR of Fein’s renewed application. NPS responded

with a letter advising it of the potential impact on

historic properties and the need to comply with the

National Historic Preservation Act (NHPA) and the

Section 106 process. DPNR did not respond to the

letter, and issued the permit before NPS could

complete the Section 106 compliance procedures. The

commissioner of DPNR then informed NPS that the

permit was granted because Section 106 did not apply

since the construction of the dwelling was not a

Federal undertaking.

When Fein’s contractor began site preparation,

NPS officers entered the construction site and ordered

the contractors to cease all site preparations or risk

going to jail. Plaintiff brought this lawsuit seeking

equitable relief, including a temporary restraining

order (TRO). The TRO was granted on condition that

no historic ruins would be disturbed. At the hearing

for the permanent and preliminary injunction, it was

revealed that the contractor had disturbed some of the

ruins by moving a historic stone wall. 

The court ruled from the bench that a permanent

and preliminary injunction would not be granted and

the matter would be dismissed for lack of subject

matter jurisdiction. The issue of jurisdiction turns on

whether NHPA and the Archeological Resources

Protection Act are applicable. The court found that

they were applicable and that plaintiff had not

exhausted all administrative remedies available to

him. The court concluded that Section 106 compliance

procedures applied to plaintiff for two reasons: 1) NPS

is required to manage and maintain property it owns to

preserve historic, archeological, architectural, and

cultural values in compliance with Section 106 under

Section 110(a) of NHPA, and 2) NPS is required by

Section 106 itself to take into account the effect

plaintiff’s undertaking will have on a site listed on the

National Register, on which the property in question is

located. 

In reaching this conclusion, the court found that

this was an undertaking for purposes of Section 106,

and construed the definition of undertaking to include

any project or activity under the direct or indirect

jurisdiction of NPS that requires its prior approval,

regardless of whether the project or activity is funded

in whole or in part by the Federal Government. Thus,

plaintiff must exhaust all administrative remedies

before seeking relief from the court.

In addition, the court ruled that even if it had

proper jurisdiction, plaintiff would not have been

entitled to equitable relief because he had not come to

the court with clean hands. By violating the

restrictions on the temporary restraining order that this

court issued, the plaintiff was seeking equitable relief

with unclean hands, violating a long-established rule

of equity.

137

Knowles v. United States Coast Guard, 1997

WL 151397 (S.D.N.Y. 1997).

This case arose out of the U.S. Coast Guard’s

decision to close its Support Center on Governors

Island, New York. Plaintiffs, Knowles et al., alleged

that defendants, the Coast Guard, failed to comply

with the National Environmental Policy Act (NEPA),

National Historic Preservation Act (NHPA), Freedom

of Information Act, and other Federal ethics laws and

regulations. Plaintiffs sought a preliminary injunction

to prevent the Coast Guard from executing its plan to

discontinue all of its operations on Governors Island.

	
		
	
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Following a decision in 1996 denying the preliminary

injunction, both plaintiffs and defendants filed cross

motions for summary judgment. Among the important

issues raised in this case were segmentation, the

integration of an agency’s NEPA and NHPA

obligations, and the use of an independent contractor

to prepare NEPA documentation.

Plaintiffs claimed that the Coast Guard

improperly “segmented” its environmental review

process in order to avoid NEPA’s requirement of

preparing an Environmental Impact Statement because

they saw it as a foreseeable event that the Coast Guard

would “dispose” of the property after the Support

Center was closed. Therefore, they argued, the actions

of disposal and closure were interdependent. The court

stated that “only when a given project effectively

commits decision makers to a future course of action

will this form of linkage argue strongly for joint

environmental evaluation.” Based on the evidence

presented, the district court found that the closure of

the Support Center did not commit the property either

to disposal or to the sale and re-development

anticipated by plaintiffs. In view of these

circumstances, the court determined that the Coast

Guard did not segment the project in order to

circumvent any provisions of NEPA.

Plaintiffs further claimed that the Coast Guard

violated NEPA and NHPA not only by failing to

perform the review processes concurrently, but also by

signing the Finding of No Significant Impact (FONSI)

prior to concluding NHPA Section 106 review

process. Additionally, plaintiffs complained that there

was no public participation in the development of the

Programmatic Agreement (PA) under Section 106

addressing the effects of the closure action. The

Council on Environmental Quality’s (CEQ)

regulations call for the integration of the NEPA

requirements “with other planning and environmental

review procedures required by law or by agency

practice so that all such procedures run concurrently

rather than consecutively.” The court also noted that

NHPA’s implementing regulations contemplate that

NEPA and NHPA review should be integrated closely,

but both the Section 106 and CEQ regulations allow

for phased compliance and implementation of reviews

in a flexible manner. The record showed that the Coast

Guard had initiated Section 106 review at the outset of

the NEPA process and had negotiated with various

parties to finalize a PA and formulate caretaker

provisions before issuing the FONSI. It also indicated

that individuals, organizations, and local authorities

participated in the NEPA process.

In summary, the court concluded that the Coast

Guard was not required to complete the Section 106

process before issuing the FONSI, and to the extent

that plaintiffs complained about the level of public

participation in the PA, the court stated that this

agreement is not an “environmental document”

subject to the public notice provisions of 40 C.F.R.

Section 1506(b).

Plaintiffs also questioned the Coast Guard’s use

of non-agency personnel, independent contractors, to

prepare the environmental studies, and asserted that

this violated NEPA. The court dismissed this

contention, stating that a Government agency is

permitted to use outside consultants to prepare

environmental documents provided that the agency

independently reviews and verifies the underlying

data.

After reviewing plaintiffs’ multiple arguments,

the court found that they had failed to demonstrate the

existence of any material issue of disputed fact, and,

dismissing the complaint, awarded summary judgment

in favor of the Coast Guard.

138

Apache Survival Coalition v. United States,

(Apache Survival II), 118 F.3d 663 (9th Cir.

1997).

Plaintiff, Apache Survival Coalition, sought to

enjoin construction of the Mount Graham

International Observatory, arguing that defendant, the

U.S. Forest Service, failed to comply with the

National Historic Preservation Act (NHPA). Up until

this point, there had been an injunction in place from a

suit brought by another group, Red Squirrel V, that

sought the same injunction, but it had recently expired

and construction was underway again.

As in Apache Survival I (see Case 125), the

district court decided this case on the doctrine of

laches. The court emphasized that the Coalition did

not come forward with its claim at the same time Red

Squirrel V sought its injunction, and instead waited

two years until that injunction was dissolved. The

court thought this especially inexcusable in light of the

“strong wake-up call” of Apache Survival I, and it

denied the injunction.

In affirming the denial, the Ninth Circuit found

the Coalition’s argument that it had been attempting to

use other routes of resolution (i.e. “administrative

strategy”) unconvincing. If the Coalition did in fact

pursue its claims through an administrative strategy,

mainly lobbying, there was little evidence of its efforts

in the record. The court stated that the Coalition’s

tactical decisions were remarkably similar to that used

in Apache Survival I. The tactic in those cases was to

wait to bring suit until the challenges launched by

other parties had failed. Further, the Coalition failed to

	
		
	
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explain how the three telescopes in their present

configuration represent any greater desecration than

they would have in their original, already approved,

configuration. 

The court remanded the case to the trial court

and stated that if there is no additional or different

proof, it is likely that the district court will find in

favor of the Government. It did, however, state that

nothing in this opinion is meant to discourage the

Coalition from seeking the placement of Mount

Graham on the National Register of Historic Places,

which would alleviate many of the problems of

outdated information and inadequate consultation

presented here.

139

Sierra Club v. Slater, 120 F.3d. 623 (6th Cir.

1997).

The Sierra Club, along with other plaintiffs,

sought to enjoin the construction of an urban corridor

development project known as the Buckeye Basin

Greenbelt Project in Toledo, Ohio, and claimed a

variety of environmental violations in a suit against

multiple Federal, State, and municipal defendants. In

this order, the court ruled on plaintiffs’ appeal of the

district court’s grant of summary judgment to

defendants on all parts of the complaint. The district

court dismissed Counts I, IV, and V in full, and

Counts III and VIII in part, under the six-year statute

of limitations on all suits against the United States.

The appellate court confirmed this ruling.

Of importance here is plaintiffs’ claim that the

Army Corps of Engineers (Corps) improperly failed to

give the Advisory Council on Historic Preservation

(Council) an opportunity to review and comment on

its conclusion of “no adverse effect” on historic

properties. In response, defendants pointed out that the

district court found that the Federal Highway

Administration (FHWA) submitted its own “no

adverse effect” findings to the Council, and that those

findings were identical to the Corps’ findings.

Although plaintiffs conceded that the findings of the

two entities “may have been similar,” they maintained

that FHWA’s record “was not at all similar to the

record that would have been submitted by the Corps”

if the Corps had complied with its obligation to

compile and submit a record.

Further, plaintiffs did not dispute that the

Council was fully apprised of the FHWA findings

regarding historic properties; that the FHWA findings

were identical to those of the Corps; and that the

Council concurred in the “no adverse effect” finding.

After reviewing both NHPA requirements and the

internal regulations of the Corps, the court stated that

the regulations of the Corps made clear, as defendants

argued, that they were entitled to rely on the lead

agency—here, FHWA—in complying with NHPA. 16

U.S.C. Section 470f; 33 C.F.R. pt. 325, app. C2(c).

The court concluded that plaintiffs had failed to

articulate any recognizable error on this issue.

140

American Institute of Architects v. City of

Columbus, 1998 WL 340445 (S.D. Ohio Jan.

16, 1998); No. C 2-98-048.

The district court denied plaintiff, the Columbus

Chapter of the American Institute of Architects (AIA),

motion for a temporary restraining order to prevent

demolition of a historic State penitentiary in

Columbus, Ohio. The court ruled that it lacked

jurisdiction to prevent defendant, the City of

Columbus, from proceeding with the demolition

because plaintiff failed to demonstrate a “likelihood of

success on the merits.” The court further concluded

that the hardship to the city outweighed any hardship

to plaintiff.

In finding that there was no jurisdiction in this

case, the court concluded that neither Section 106 of

the National Historic Preservation Act (NHPA), nor a

Memorandum of Agreement (MOA) executed by the

city and the Advisory Council on Historic

Preservation, could be invoked to obtain jurisdiction.

Section 106 did not apply because AIA failed to

establish the presence of a “Federal undertaking.”

Plaintiff was unable to prove that the city had either

requested or expended any Federal funds for the

penitentiary demolition. It had merely proposed their

use in the planning process. 

The court also stated that the executed MOA

could not be used to establish jurisdiction because

previous courts had found that such memoranda “have

no binding effect on the parties unless there exists a

‘Federal undertaking,’” and the “obligation itself

assumed by the city in the MOA is not sufficient to

satisfy the threshold requirement of an ‘undertaking.’”

1998 WL 340445, 2.

The court then looked at the issue of irreparable

harm in its decision to deny the injunction. While the

court acknowledged that AIA would suffer great

injury if injunctive relief was not granted, it

nonetheless concluded that “the hardship to the city

outweighed any hardship visited upon the plaintiffs.”

Id. Finally, the court stated that the public interest lay

in favor of the decision to demolish since such a

	
		
	
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decision had been supported by the city's

representatives.

141

Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998).

Plaintiffs, Tyler et al., sought to enjoin the City

of San Francisco from building a low-income housing

project next to their homes, which were eligible to be

listed in the National Register of Historic Places. The

project was to be constructed with Federal funds.

Plaintiffs argued that the U.S. Department of Housing

and Urban Development (HUD) and the other listed

defendants failed to meet the terms of their own

Memorandum of Agreement (MOA), which was

designed to mitigate the project’s impact on plaintiffs’

homes. Plaintiffs sought a preliminary injunction

under the National Historic Preservation Act (NHPA)

and National Environmental Policy Act (NEPA). 

The district court denied the preliminary

injunction and granted defendants’ motion to dismiss.

The court ruled that plaintiffs’ NHPA claims were

moot because NHPA contains an implicit statute of

limitations, which barred assertion of NHPA claims

once the Federal agency (HUD) released the funds to

the city. In holding this, the court relied on 36 C.F.R.

Section 800.3(c), which states in part, “Section 106

requires the Agency Official to complete the Section

106 process prior to the approval of the expenditure of

any Federal funds on the undertaking or prior to the

issuance of any license or permit.”

The court went on to rule that even if there was

no implicit statute of limitations in NHPA, plaintiffs’

claims would fail because HUD no longer exercised

“continuing authority” over the funds. The court used

a similar analysis under NEPA because HUD had

“ceased to exercise continuing authority over the

project once it disbursed the funds.”

In reversing, the Ninth circuit court of Appeals

stated that there was no implicit statute of limitations

in NHPA. Rather, a more common sense reading of

Section 106 would suggest that the “prior to” language

the district court relied on merely refers to the timing

of agency compliance. See 36 C.F.R. Section

800.3(c). In other words, this language establishes a

time during which the agency is required to conduct

an NHPA review, not the time during which a plaintiff

is required to bring a lawsuit. Indeed, construing the

language as the district court did runs counter to the

implied private right of action to file claims under

NHPA, effectively leaving no time slot open for a

plaintiff to file suit. 

Furthermore, the court stated that it has never

held that an implicit statute of limitations bars

plaintiffs from bringing suit under NHPA once funds

are released. Rather, the court has applied the laches

doctrine to resolve the timeliness of both NHPA and

NEPA claims.

The appellate court also found the continuing

authority aspect of the district court’s decision to be

erroneous since the plain language of NEPA and

NHPA regulations states that the Federal agency may

have some continuing authority because it is a party to

the agreement.

Further, the appellate court overruled the district

court’s decision that the city’s Federal environmental

review responsibilities ceased once Federal

involvement in the project ceased. The statute

authorizing delegation of HUD’s NHPA and NEPA

review responsibilities provides that the local official

“consents to assume the status of a responsible Federal

official under [NEPA and other Federal laws]

and...consents...to accept the jurisdiction of the

Federal courts for the purpose of enforcement of his

responsibilities as such an official.” 42 U.S.C.

12838(c)(4). This means that the city, as a signatory to

the MOA, remains liable under NHPA and NEPA for

its failure to carry out the terms of the MOA.

This case was remanded to the district court to

first address the standing issue and then, if it is found

that plaintiffs have standing, to decide the extent of

HUD’s and the city’s obligations to plaintiffs under

the MOA and whether these obligations were

breached.

142

Brewery Dist. Soc. v. Federal Highway Admin.,

996 F.Supp. 750 (S.D. Ohio 1998).

In a second opinion regarding the historic Ohio

State penitentiary, the same district court that ruled

against a temporary restraining order in American

Institute of Architects v. City of Columbus, 1998 WL

340445 (S.D. Ohio 1998), ruled that a lawsuit could

proceed against the Federal Highway Administration

(FHWA), under the “anticipatory demolition”

provision of Section 110(k) of the National Historic

Preservation Act (NHPA). 

The court ruled to deny FHWA’s motion to

dismiss, thus allowing the suit to proceed by

determining that plaintiff, Brewery District Society,

had standing to sue, that NHPA conferred a private

right of action, and that plaintiff had not violated Fed.

R. Civ. P. 19(a) by failing to join the City of

Columbus as a necessary party.

The lawsuit sought to prohibit both FHWA and

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providing any type of funding or assistance to the City

of Columbus in connection with the downtown arena

project, including the demolition of the penitentiary

until such agencies consulted with the Advisory

Council on Historic Preservation (Council). 

Specifically, plaintiff argued that the demolition

of the historic penitentiary constituted “anticipatory

demolition” under Section 110(k) of NHPA. Section

110(k) was adopted in 1992 to discourage

“anticipatory demolition” by prohibiting Federal

agencies from providing grants, loans, permits, or

other assistance to any applicant who intentionally

destroys a historic property in order to avoid

compliance with Section 106 of NHPA, unless the

agency consulted with the Council to determine

whether such assistance was nevertheless justified.

The court allowed the case to proceed against

defendant, FHWA. It dismissed the suit against EPA,

on the grounds that the complaint’s allegations against

EPA were “too hypothetical and conjectural to meet

the Article III standing requirements.” Plaintiff had

only alleged that EPA “may be asked to provide

assistance” to the city. The court believed that plaintiff

needed to show a more immediate threat of harm than

merely alleging that some Federal agency may be

asked at some point in the future to provide assistance.

The claims against FHWA were allowed to

remain based on the allegations of FHWA’s current or

imminent involvement in joint planning with the city,

which would result in “assistance” relating to the

penitentiary site.

The court also ruled that NHPA provides a

private right of action outside of the Administrative

Procedure Act, under Section 305 of NHPA. The court

referenced that two cases did exist that stated

otherwise, but that the greater weight of authority held

for the existence of such a right of action under

Section 305.

The last argument addressed by the court was

whether the case should be dismissed for failure to

join the City of Columbus as a necessary party under

Fed. R. Civ. P. 19(a). While the court acknowledged

that “the Federal agency defendants do not have the

power to prevent the City from destroying the

remaining buildings on the pen site,” the court stated,

“that fact alone does not render the city a necessary

party under Rule 19.” 

The court explained that it can “provide

plaintiffs the relief they request: to enjoin FHWA

from providing assistance which is prohibited under

Section 470h-2(k), and can declare the rights, duties

and responsibilities of the remaining parties in the

litigation.”

143

USS Cabot CVL 28 Assn., Inc. v. Josiah, 1998

WL 315387 (E.D. La. 1998), Docket No. CIV.

A. 98-0154.

Plaintiff, USS Cabot CVL 28 Association, Inc.,

an association of primarily U.S. Navy veterans who

served on the USS Cabot, sought a preliminary

injunction 1) ordering the Commander of the Eighth

Coast Guard District to require that a Dead Ship Tow

Plan be submitted to plaintiff prior to any movement

of the ex-Navy aircraft carrier USS Cabot, a National

Historic Landmark, and 2) prohibiting the

Commander from approving any Dead Ship Tow Plan

for the Cabot unless and until he has complied with

the provisions of the National Historic Preservation

Act (NHPA).

Following its war days, the Cabot was

transferred to Spain and then back to the U.S. to one

of the defendants, the USS Cabot/Dedalo Foundation,

Inc., a non-profit corporation, for the purposes of

converting the vessel into a museum. The ship was

docked in New Orleans and then moved to Violet,

Louisiana. The ship was then transferred to another

one of the defendants, Global Maritime Group, LLC.

The foundation entered into an agreement with Global

to scrap the Cabot. The Cabot was then moved to Port

Isabel, Texas. 

Plaintiff then filed this lawsuit because the

Foundation/Global joint venture planned to move the

Cabot from Port Isabel to Brownsville where it would

be scrapped. Plaintiff made it clear that its interest was

to prevent the scrapping of the Cabot and that it had

no particular interest in any movement of the vessel,

except to the extent it would result in the vessel’s

demolition. Plaintiff contended that the approval of an

additional Dead Ship Tow Plan by the U.S. Coast

Guard, which has extensive regulatory authority, is an

“undertaking” under NHPA.

The court found several serious questions in

regards to the merits of plaintiff’s case. As a

preliminary matter, the court stated that plaintiff had

not shown that, under the circumstances, the

regulations required the Coast Guard to control any

further movement of the Cabot. Any decisions on

further vessel movement were left to the discretion of

the District Commander and the Commander of the

Port (COTP). Further, plaintiff was unable to show

that conditions mandating action by the COTP

currently existed. There was also a serious question as

to whether the movement of the Cabot from Port

Isabel to Brownsville would constitute an

“undertaking” under NHPA.

	
		
	
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However, the court refused to rule on this issue

and decided to deny the petition for a preliminary

injunction on the issue of harm to the public interest.

After assuming that plaintiff had demonstrated

irreparable harm, the court concluded that the

potential harm to plaintiff if the injunction did issue

(i.e., moving the vessel and scrapping it) did not

outweigh the potential hardship to Global and the

foundation if the injunction were granted (i.e., losing

the vessel through capsizing or sinking in a storm due

to its present location). 

The court further found that the issuance of the

preliminary injunction would not be in the public

interest. While acknowledging that there is a public

interest in the preservation of National Historic

Landmarks such as the Cabot, the court stated that the

interest of public safety posed by the current location

and size of the Cabot was more important. In its

current location, the Cabot posed a threat to Port

Isabel in the event of a tropical storm, exposing the

community to a risk of loss of life and damage to

facilities and the environment. 

Since plaintiff could not show that the requested

preliminary injunction would not undermine the

public interest, it failed to establish another of the

necessary prerequisites to the issuance of a

preliminary injunction, and the court denied the

request.

In order to be granted a preliminary injunction,

the movant must demonstrate by a clear showing that

1) there is a substantial likelihood of success on the

merits; 2) there is a substantial threat of irreparable

harm if the injunction is not granted; 3) the threatened

injury outweighs any harm that may result from the

injunction to the non-movant; and 4) the injunction

will not undermine the public interest. Bypassing the

first issue, and assuming the second issue in favor of

plaintiff, the court found against plaintiff regarding the

third and fourth issues. The petition was, therefore,

denied.

144

Friends of the Atglen-Susquehanna Trail, Inc.

v. Pennsylvania Public Utility Comm’n, 717

A.2d 581 (Pa. 1998).

Plaintiff, Friends of the Atglen-Susquehanna

Trail, Inc. (FAST), a rails-to-trails organization,

requested judicial review of a decision by defendant,

the Pennsylvania Public Utility Commission, that

approved stipulations of a settlement that Conrail, a

railroad company, entered into with local townships

and the Department of Transportation (DOT) that

abolished rail-highway crossings along the former

Enola Branch rail line and allowed the transfer of

Conrail’s property.

Plaintiff questioned whether the commission was

preempted from ordering the demolition of historic

bridges by the Interstate Commerce Commission’s

(ICC) and the Surface Transportation Board’s (STB)

orders; whether the commission had complied with

the State History Code; whether the commission had

erred by not including this case in a moratorium

adopted pursuant to the governor’s policy of bridge

preservation; whether the commission complied with

the Rails to Trails Act of December 18, 1990; and

whether the commission’s conclusion that certain

bridges are near the end of their useful life is

supported by substantial evidence. The commission

challenged FAST’s standing to appeal.

The court dismissed the commission’s request to

quash the petition for review based on FAST’s lack of

standing to appeal. In support of its position, the

commission had asserted that FAST did not have an

immediate or substantial interest, did not own the

subject land or have a reasonable expectation of

owning the land. The court found that FAST had

standing under State preservation laws because it

sought to enforce State and Federal laws and policies

relating to historic preservation. Additionally, as a

trails group, it had exerted substantial efforts to

acquire and convert the rail line at issue.

The petitioners attempted to assert that the

subject matter jurisdiction of the commission was

preempted by orders of ICC and STB, and that the

theory of “conflict preemption” which can apply

where State law actually conflicts with Federal law to

such a degree that it is impossible for a private party

to comply with both, “or where State law stands as an

obstacle to the accomplishment and execution of the

full purpose and objectives of Congress.” Friends, 717

A.2d 581, 586. In this instance, FAST proposed that

conflict preemption applied to divest the commission

of jurisdiction until the Section 106 review process

required by the National Historic Preservation Act

(NHPA) was completed. The court held that the

commission was not preempted from proceeding in

the matter, and that its order was not in conflict with

STB requirements because it required the applicant to

complete Section 106 review in compliance with the

order.

FAST’s argument—that the commission erred

by not including the case in the moratorium issued by

the commission pursuant to the governor’s policy of

bridge preservation adopted shortly after the order in

this case—was dismissed with a finding that the issue

had not been properly presented and amounted to

nothing more than a disagreement with a policy

decision.

	
		
	
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The court concluded its review by rejecting

FAST’s assertion that the commission’s conclusion

regarding the condition of the subject bridges, and the

finding that they were near the end of their life span,

was not supported by substantial evidence. On the

other hand, after noting more than 350 factual findings

made by the administrative law judge and reports by

both the applicant and affected townships, the court

found that there was substantial evidence to support

the finding of fact, and affirmed the order of the

commission. 

145

Grand Canyon Air Tour Coalition v. Federal

Aviation Administration, 154 F.3d 455 (D.C.

Cir. 1998).

Plaintiff, the Hualapai Tribe, maintained that

defendant, the Federal Aviation Administration

(FAA), issued too soon Special Flight Rules regarding

the reduction of aircraft noise from sightseeing tours

in the vicinity of Grand Canyon National Park. The

tribe asserted that when FAA was developing these

rules, it failed to consider whether establishing

expanded flight-free zones would push aircraft noise

off the park and onto the Hualapai Reservation. 

The tribe argued that the consequences of this

decision would harm the tribe’s traditional cultural

properties, sacred sites, ongoing religious and cultural

practices, natural resources, and economic

development. It further alleged that FAA’s failure to

consider these possible consequences violated the

National Historic Preservation Act, National

Environmental Policy Act, Administrative Procedure

Act, and the United States’ trust obligations to the

tribe.

The court held that the tribe’s arguments were

not ripe because the routes the air tours would take

had not been determined, and the court could not

assess whether or how much these routes would affect

the reservation.

The tribe also contended that the Government

had failed to consult with it on a government-togovernment basis while developing the Final Rule, but

reformulated this position in oral argument, conceding

that there had been consultations but they were not

meaningful. The court also postponed its review of

this assertion, finding that FAA still had time to

satisfy any consultative obligations before the final

plan was implemented, and these claims would

become ripe for the court’s consideration.

146

Society Hill Towers Owners’ Assn. v. Rendell,

20 F. Supp. 2d 855 (E.D. Penn. 1998).

Plaintiff, a group of residents of Philadelphia’s

Society Hill neighborhood, sought judicial review of a

decision by the U.S. Department of Housing and

Urban Development (HUD) to approve a $10 million

Urban Development Action Grant to the City of

Philadelphia. This grant was to assist in funding the

public portion of the development costs of a hotel and

parking garage. 

Plaintiff asserted that the city failed to comply

with the applicable environmental statutes and

regulations, conducted its procedural obligations out

of sequence, and failed to take other nearby projects

into account while assessing the project’s cumulative

impacts. Additionally, plaintiff claimed that the city

and HUD failed to take into account the effects of this

project on the historic structures and districts in the

area as required by the National Historic Preservation

Act (NHPA).

The court examined HUD’s delegation of

environmental and historic review responsibilities to

the city under the authority of Title I of the Housing

and Community Development Act of 1974. It also

looked at the regulations promulgated by HUD for the

agency to satisfy the requirements of the National

Environmental Policy Act (NEPA) for grant recipients

who assume HUD’s NEPA responsibilities. It also

reviewed the congressional record confirming that the

delegation of authority extended to other acts that

further the purposes of NEPA, including NHPA. 

The court noted plaintiff’s frustration at its

inability to convince HUD to intervene in the review

process. However, the court found that through the

statutory delegation of responsibility, the city, not

HUD, was responsible for compliance with the

relevant statutes and regulations as well as responding

to objections from the public, while HUD retained

final authority for ensuring that the grant applicant

adhered to the proper statutory and regulatory

procedures.

After a thorough review, the court concluded

that both the city and HUD complied with the

applicable statutes and regulations. The court also

stated that plaintiff’s claims of bad faith and

procedural irregularities did not have merit, and noted

that redress for decisions made by elected officials lies

in the political process at the ballot box, not with the

Federal court.

	
		
	
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147

Friends of the Astor, Inc. v. City of Reading,

1998 WL 684374 (E.D. Pa., Sep. 17, 1998); No.

Civ. A. 98-CV-4429.

Plaintiff, Friends of the Astor, Inc., filed a

complaint against defendant, the City of Reading,

alleging that the attempted demolition of a historic

Reading, Pennsylvania, theater, the Astor, violated the

National Environmental Protection Act, National

Historic Preservation Act (NHPA), and Community

Development Grant Act of 1974. In this decision, the

court denied plaintiff’s motion for a preliminary

injunction on the demolition, due to its finding that

plaintiff had not demonstrated a likelihood of success

on the merits.

The city was attempting to demolish the 1928

Astor theater in order to build a new convention

center. The theater was placed on the National

Register of Historic Places in 1978. It has, however,

stood unused since the late 1970s, and although

structurally sound, was in substandard condition.

In 1994, the city received funding from the State

of Pennsylvania to match the Community

Development Block Grant funds that the U.S.

Department of Housing and Urban Development had

agreed to provide for the rejuvenation of Reading’s

downtown business area. This rejuvenation included

the construction of a convention center (the “Project”)

on the block where the Astor was located, which

would result in the Astor’s demolition.

In April 1998, after more than a year of

negotiations, a Memorandum of Agreement (MOA)

was executed between the city, the Advisory Council

on Historic Preservation, and the Pennsylvania State

Historic Preservation Officer (PASHPO) in order to

satisfy Section 106 of NHPA. Stipulation II of the

MOA stated that “The city shall not issue a demolition

permit for the properties until confirmations of the

financing commitments of the Project are received,

with copies being forwarded to the PASHPO.”

Friends of the Astor argued that the city failed to

comply with the requirements of NHPA by violating

this stipulation of the MOA. Plaintiff stated that

although a financing commitment had been received,

it was subject to a number of conditions. Plaintiff then

argued that the intention of the parties was to create a

meaningful condition to the demolition, and that a

commitment subject to conditions was meaningless.

The court refused to consider the intent argument,

stating that “the city’s obligations cannot be read to

extend any further than what is expressly stated in the

MOA.” Since the stipulation at issue only required

financing commitments, without qualifications, a

conditional commitment was enough to comply with

the stipulation.

After reviewing plaintiff’s arguments on the

other alleged violations, the court concluded that there

was no likelihood of success on the merits and denied

the preliminary injunction. Among other things, the

court stated that the fact that a property is listed in the

National Register does not alone require the

preparation of an Environmental Impact Statement

under NEPA, when the property’s demolition is

proposed.

148

Presidio Golf Club v. National Park Service,

155 F.3d 1153 (9th Cir. 1998).

Plaintiff, the private Presidio Golf Club in San

Francisco, California, challenged a proposal by

defendant, the National Park Service (NPS), to

construct a public golf clubhouse near its century-old

private clubhouse, which was eligible for listing in the

National Register. Presidio asserted that NPS violated

the National Environmental Policy Act (NEPA) and

National Historic Preservation Act (NHPA) by failing

to consider that constructing the public clubhouse

might lead to neglect and destruction of the historic

private facility. NPS then challenged plaintiff’s

standing to sue under NEPA, NHPA, and the

Administrative Procedures Act, and filed for summary

judgment.

NPS argued that plaintiff lacked standing for the

following reasons: first, that any future injury to

Presidio would be a purely speculative economic

competitive injury that is not within the zone of

interests to be protected by NEPA or NHPA; second,

that Presidio lacked standing in its representative

capacity based on injury to its club members; and

third, that any future injury would be “self-induced,”

“conjectural and speculative,” and not fairly traceable

to the actions of defendant. The court found that

purely economic interests do not fall within the “zone

of interests” to be protected by NEPA or NHPA,

noting that on previous occasions it has held that a

court would have to find that plaintiff’s interests are

inconsistent with the purposes of NEPA, and the

interests are so inconsistent that it would be

unreasonable to assume that Congress intended to

allow the suit. It further noted that the “zone of

interests” test is not demanding. 

After reviewing the facts, the court concluded

that retention of the historic clubhouse was consistent

with the purposes of NHPA as a “living part

of...community life,” and that it furthered NHPA’s

	
		
	
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goals to “encourage the...private preservation and

utilization of...the Nation’s historically built

environment.” The court found no need to require the

participation of individual members in the suit as

suggested by NPS, since the interests and claims are

undifferentiated among the members and similar to

the interests and claims of Presidio. Finally,

determining that the projected membership losses

could well prove fatal to Presidio and constitute a

future injury that is fairly traceable to NPS’s alleged

procedural violation, the court held that plaintiff had

standing.

The court then turned to plaintiff’s allegations

that NPS violated NEPA and NHPA, noting the

guidance from previous case law stating that “an

agency’s decision should be overturned if it was

‘arbitrary, capricious and abuse of discretion, or

otherwise not in accordance with the law.’” Western

Radio Services Co. v. Epsy, 79 F.3d 896, 900 (9th

Cir.), cert. denied, 117 S.Ct. 80 (1996). It also stated

that “review under the arbitrary and capricious

standard is narrow and the reviewing court may not

substitute its judgment for that of the agency.” Id.

Although NPS expressed confidence throughout

the NEPA process that compliance would end with the

preparation and approval of a Finding of No

Significant Impact, the court found that the agency’s

approach to the process was not pre-decisional and

was therefore permissible. It also determined that it

was neither arbitrary nor capricious for NPS to not

take a “fuller account of the remote environmental

effects on the historic private clubhouse that might

result from the economic impact of competition from

the new public clubhouse.” 

Presidio argued that NPS erred during its NHPA

review by failing to consider the golf club as an

“interested party” and consulting with it. The court

found that all that NPS had to do regarding interested

parties during effect assessment was to “consider their

views.” The court, based on NPS responses to public

comments, decided that NPS had indeed considered

Presidio’s comments. The fact that NPS disagreed

with those comments did not present a compliance

problem. Although Section 106 of NHPA requires

agencies to “consult with...interested persons” as to

the resolution of adverse effects, such consultation

was unnecessary in this case due to NPS’s

determination of no adverse effect.

The court ended its decision by holding that the

district court did not err when it considered a

“litigation affidavit.” The affidavit was prepared to

explain NPS’s prior analyses of the possibility of

using the private clubhouse, and also pointed out the

standard developed by the Ninth Circuit in a previous

case, which permits an “explanation” of agency

decision making to allow for an adequate judicial

review.

149

Morongo Band of Mission Indians v. Federal

Aviation Administration, 161 F.3d 569 (9th Cir.

1998).

Plaintiff, the Morongo Band of Mission Indians,

petitioned for a review of the decision by defendant,

the Federal Aviation Administration (FAA), to

implement the Los Angeles International Airport East

Arrival Enhancement Project, and raised claims under

the National Environmental Policy Act (NEPA),

National Historic Preservation Act (NHPA), Section

4(f) of the Transportation Act, and various FAA

regulations.

The court first stated that agency decisions under

NHPA and Section 4(f) were to be reviewed under the

arbitrary and capricious standard.

The court then dealt with the argument made by

the tribe that the court must apply the “usual canon of

construction that a statute designed to benefit Indians

must be liberally construed in favor of the Indian

beneficiaries,” citing Rumsey Indian Rancheria of

Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th

Cir. 1994). The court stated that, although the United

States owes a general trust responsibility to Indian

tribes, unless there is a specific duty placed on the

Government with respect to Indians, the responsibility

is discharged by the agency’s compliance with general

regulations and statutes not specifically aimed at

Indian tribes. The court believed that the statutes at

issue in this case were not designed to benefit Indian

tribes.

Among other things, the tribe also claimed that

FAA violated NHPA when it did not prepare an

Environmental Impact Statement (EIS) as required by

NEPA and FAA Order 1050. The FAA order requires

the preparation of an EIS when agency action has an

effect that is “not minimal” on properties protected by

NHPA. The court noted that FAA stated in the

Environmental Assessment (EA) that the only change

that would result from the project would be an

increase in “high altitude aircraft overflights.” The

assessment also stated FAA’s conclusion that the

project would cause no adverse impacts and that any

surrounding historic resources would be unaffected by

any of the alternatives. The court reasoned that

because the effect would be minimal, an EIS was not

required pursuant to FAA Order 1050.

The tribe also argued that FAA had not made a

reasonable and good faith effort under Section 106 of

	
		
	
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NHPA to identify all properties eligible for the

National Register of Historic Places because it failed

to follow up on information that indicated the

existence of such properties. The court distinguished

this case from Pueblo of Sandia v. United States,50

F.3d 856 (10th Cir. 1995), finding that “FAA’s

conclusion was not based on a finding of no cultural

properties in the area, but on the fact that the noise and

other studies showed that there would be no impact on

any type of property in the project area” (emphasis

added). Accordingly, the court decided that the failure

to identify specific potential sites or properties is

irrelevant.

The tribe further argued that NHPA required

FAA to obtain the tribe’s consent prior to

implementing the project. It cited Section 106 of

NHPA, which states: “The Agency Official shall

invite the State Historic Preservation Officer, and the

Council should be sensitive to the special concerns of

Indian tribes in historic preservation issues, which

often extend beyond Indian lands to other historic

properties. When an undertaking will affect Indian

lands, the Agency Official shall invite the governing

body of the responsible tribe to be a consulting party

and to concur in any agreement.” 36 CFR Section

800.1(c)(2)(iii). The court found that consent from the

tribe was not necessary in a case such as this, where

the effect on cultural properties was insignificant or

minimal.

The court concluded its review with an analysis

under Section 4(f) of the Transportation Act, finding

that it did not apply here since the increased highaltitude air traffic would have an insignificant effect

on the “use” of the land.

150

Davis v. Latschar, 1998 WL 968474 (D.D.C.

Dec. 31, 1998), Docket No. CIV.A. 97-0232

PLF.

The National Park Service (NPS) sought to

reinitiate its deer management program at Gettysburg

National Military Park and Eisenhower National

Historic Site. The program, in effect during 1996 and

1997, called for park rangers to shoot deer in a

controlled harvest to maintain population density.

NPS suspended the program in July 1997 because of

this lawsuit, and stipulated that it would not reinitiate

the program without an order from the court. This case

involves their request for such an order.

Plaintiffs, Davis et al., argued that the court

should enjoin the deer management program because

defendant, NPS, had acted contrary to the NPS

Organic Act, its own management policies

implementing that act, the National Environmental

Policy Act (NEPA), and the National Historic

Preservation Act (NHPA). After finding that NPS had

acted consistently with the Organic Act and its

implementing guidelines, and that it had complied

with the procedures of both NEPA and NHPA, the

court granted summary judgment for NPS, permitting

it to reinitiate its deer management program.

After this suit was initiated, NPS moved to stay

the litigation, arguing that it would eliminate the

issues in the lawsuit by suspending the program while

revisiting its compliance with the applicable laws.

NPS also revealed that it had already initiated

procedures to comply with NHPA requirements. NPS

argued in the summary judgment motion that it had

completed what it believed to be a sufficient NHPA

process. It first concluded that the program would

have “no adverse effects.” It then sought the

concurrence of the State Historic Preservation Officer

(SHPO), who agreed that there would be “no adverse

effects.” It used the same process to seek the approval

of the Advisory Council on Historic Preservation

(Council), who also agreed.

Although plaintiffs did not argue that NPS failed

to comply with Section 106 requirements, they

asserted that NPS violated the Administrative

Procedure Act (APA) by making an arbitrary and

capricious decision of “no adverse effect” without

considering a “relevant factor.” Plaintiffs’ primary

argument was that the deer management program’s

effect on Gettysburg’s “quiet contemplative

atmosphere” (the “relevant factor”) was an adverse

effect under Section 106, and was not considered by

the reviewing parties. The argument was based on an

excerpt from a National Register of Historic Places

publication, Bulletin No. 40.

However, after reviewing the record, the court

concluded that the argument was considered by all

parties involved. It did state that although the SHPO

and the Council did not use those exact words, they

did consider that contention through a

recharacterization of the argument. The court found

that this recharacterization, coupled with the

reviewers’ concurrence with NPS’s finding of “no

adverse effect” on Gettysburg’s setting, feeling, or

association, suggested that the SHPO and the Council

fully considered plaintiffs’ submissions, and ruled that

NPS had complied with the requirements of APA in

its review of the effects of the management program

pursuant to NHPA. The court issued an order allowing

NPS to reinitiate its deer management program.

Plaintiffs filed a motion for the court to amend

and reconsider the ruling summarized above. In its

opinion regarding this motion, the court asserted that

the “quiet, contemplative atmosphere” factor

	
		
	
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advanced by plaintiffs was not even a “relevant

factor” that would need to be considered for the “no

adverse effect” finding. An “adverse effect” finding

regarding a property’s setting is reached “when that

character contributes to the property’s qualification for

the National Register.” Section 800.9(b)(2). The court

reasoned that a “quiet contemplative atmosphere” was

not among the listed National Register criteria.

151

Hoonah Indian Association v. Morrison, 170

F.3d 1223 (9th Cir. 1998).

Plaintiffs, Hoonah Indian Association et al.,

sought an injunction against two timber sales in the

Tongass National Forest of Alaska. Both plaintiffs

filed a claim under the Alaska National Interest Lands

Conservation Act, which is beyond the scope of this

report. However, the Sitka Tribe also filed a National

Historic Preservation Act claim as to the Northwest

Baranof sale. The Sitka argued that defendant, the

U.S. Forest Service, improperly handled the

designation and protection of the Kiks.adi Survival

March path. 

However, the appellate court agreed with the

district court’s findings, stating that the Forest Service

applied the National Register standards to this

particular area following a comprehensive search for

possible historic properties during the preparation of

its Environmental Impact Statement (EIS). Out of the

45 properties identified, 39 were found eligible for

inclusion on the National Register. The Kiks.adi

Survival March path was not one of these 39 sites.

The Forest Service, along with the State Historic

Preservation Officer (SHPO), approved this list. 

The Sitka Tribe agreed that the 39 sites would

not be affected by the timber sale. The SHPO

determined that the Kiks.adi Survival March path was

not eligible. The tribe did not appeal the SHPO’s

decision. Failure to do so made that decision

unchallengeable for failure to exhaust administrative

remedies. 

However, the tribe did appeal the EIS on the

ground that the Forest Service did not recommend

listing the Kiks.adi Survival March trail. The courts’

review of this was limited to whether this decision

was arbitrary or capricious. Although the tribe argued

that the Forest Service never applied the National

Register criteria to the Survival March routes, the

court found that the record showed that it did. The

trail did not fit into the definition because, after

extensive research by the Forest Service, no evidence

could be found to point to any one particular place as

the National Register criteria require. The criteria

require an “actual location.” The court found the

“actual location” of the Kiks.adi route to be unknown,

and the tribe’s own submission called it a “symbolic”

location as opposed to an “actual” one. 

In affirming the denial of the injunction, the

court stated that the fact that important things happen

in a general area is not enough to make the area a

“site.” For it to qualify for Federal designation as a

historical site, there has to be some good evidence of

just where the site is and what its boundaries are. The

Keeper of the National Register agreed in her report

on this issue. 

In conclusion, the court stated that the district

judge correctly determined that because the tribe

could not prevail on the merits, and the Forest Service

determinations were not arbitrary or capricious, the

tribe’s request for an injunction against the timber

sales should be denied.

152

Corridor H Alternatives, Inc. v. Slater, 166 F.3d

368 (D.C. Cir. 1999).

Plaintiffs, Corridor H Alternatives, Inc., and

several other environmental and public interest

groups, challenged a highway project in West Virginia

that had been developed and approved by various

Federal agencies. Although study and planning for the

Corridor H project, part of the Appalachian Highway

Development System, dated from the late 1970s, the

project was suspended until 1990 when the current

planning efforts were initiated. 

The Federal Highway Administration (FHWA)

issued the Final Environmental Impact Statement

(FEIS) in April 1996, which contained two

agreements governing the implementation of the

project, including a Programmatic Agreement (PA)

establishing procedures for compliance with Section

106 of NHPA.

Plaintiffs filed suit claiming that defendant,

FHWA, failed to adequately consider the alternative to

improve and use existing roadways and that

modifications in the project after the issuance of the

FEIS mandated the preparation of a Supplemental

Environmental Impact Statement (SEIS). They further

questioned FHWA’s approval of the project

conditioned on eventual compliance with Section 4(f)

of the Department of Transportation Act (DOTA) and

alleged that the planned project would improperly use

Section 4(f) sites. 

Specifically, they asserted: 1) that FHWA

violated DOTA Section 4(f) by failing to identify all

	
		
	
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the historic sites it was charged with protecting prior

to its decision approving the route of the proposed

highway, and by erroneously concluding that the

highway would not “use” two of the sites it did

identify; and 2) that the agency violated the National

Environmental Protection Act by failing to give

adequate consideration to the improvement of existing

roads as an alternative to the construction of the new

highway.

The district court held that the agency had

complied with both statutes. In the decision granting

defendant’s motion for summary judgment, the

appellate court noted that the record did not support

plaintiffs’ arguments that defendants failed to give

substantial consideration to alternatives. Although the

FEIS only included a limited discussion of plaintiffs’

preferred alternative, that document references earlier

studies where it was analyzed in detail. 

The court also determined that FHWA had taken

the required “hard look” and that plaintiffs could not

show that FHWA’s decision was arbitrary or

capricious. While the court recognized that an agency

must complete NHPA’s Section 106 review before it

can begin compliance with Section 4(f), it found that

final approval of the project contingent upon

compliance with the Section 106 PA satisfied

defendant’s responsibility to achieve “as certain

compliance as possible” at the given phase of the

project, and noted that implementation of the PA

would ensure that full compliance was achieved

before any construction begins in an area. 

The court dismissed plaintiffs’ arguments that

defendant’s condition approach defeated the purposes

of Section 4(f), finding that FHWA had considered its

approach in light of its regulations and that its

interpretation of the statute and its regulations was

reasonable and not plainly erroneous. 

Additionally, the court held that while defendant

may not have concluded Section 4(f) compliance for

specific properties, it was clear that defendant had

made a final determination about the non-use of

Section 4(f) properties, and that determination was

ripe for review. 

In its concluding remarks, the court stated that

nothing in its opinion should discourage plaintiffs

from continuing to seek Mt. Graham’s inclusion in the

National Register of Historic Places, noting that this

opinion may alleviate many of plaintiffs’ concerns.

153

City of Alexandria v. Slater, 198 F.3d 862 (D.C.

Cir. 1999).

Plaintiffs-appellees, City of Alexandria, et al.,

had challenged the Federal Highway Administration’s

(FHWA) compliance with the Clean Air Act, the

National Environmental Policy Act (NEPA), Section

106 of the National Historic Preservation Act, and

Section 4(f) of the Department of Transportation Act

in its approval of plans to replace the Woodrow

Wilson Memorial Bridge, which connects Virginia

and Maryland over the Potomac River. The district

court held in favor of plaintiffs. FHWA appealed the

district court’s decision, except the Clean Air Act

issue. As explained below, the circuit court decided in

favor of FHWA and reversed the district court’s

decision.

The district court had found that FHWA violated

NEPA because the final Environmental Impact

Statement (FEIS) had 1) not afforded detailed

consideration to a 10-lane river crossing alternative as

a “reasonable alternative”; and 2) insufficiently

considered the temporary environmental impact of the

construction phase of the project.

The circuit court disagreed. First, it noted that

the 10-lane river crossing alternative was not a

“reasonable alternative.” The reasonableness of an

alternative is judged in light of the objectives of the

Federal action. A Federal agency can properly exclude

those alternatives that do not bring about the ends of

the Federal action. The district court had begun its

reasoning by holding that FHWA’s objectives were

improper because they focused on transportation and

safety needs. The circuit court, however, rejected that

argument by finding that such objectives were

reasonable in replacing a congested and structurally

unsound bridge. 

The district court had then held that the 10-lane

alternative was reasonable since it fit the “broad”

statement of need and purpose of the project. The

circuit court, again, disagreed by pointing out that the

purpose and need were quite particular and focused on

traffic needs projected for the year 2020. The 10-lane

alternative, in the circuit court’s view, did not fit those

needs in that it would only accommodate half the

estimated capacity on peak hours and higher accident

rates. 

The district court had also held that the 10-lane

alternative was a “reasonable alternative” in light of a

previous case holding that an agency could not

disregard an alternative merely because it did not offer

a complete solution to the problem at hand. The circuit

court agreed that such was the case within the context

	
		
	
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of a coordinated effort to solve a broad problem of

national scope and where other agencies may be able

to provide the remainder of the solution. The circuit

court, however, did not find this to be the case with

the Woodrow Wilson Bridge replacement, since it was

a discrete project within the jurisdiction of just one

Federal agency (FHWA).

The circuit court also reversed the district court’s

decision that NEPA had been violated due to

insufficient consideration of the temporary impact of

the construction phase of the project. FHWA’s

consideration seemed reasonable and justified to the

circuit court under the circumstances. FHWA had

addressed, however briefly, a range of expected

construction impacts. NEPA does not “demand the

presence of a fully developed plan that will mitigate

environmental harm before an agency can act.” The

circuit court argued that the brevity of FHWA’s

discussion on construction impact was justified in

light of 1) the proper, and arguably required, need for

delay in identifying staging sites; 2) the numerous

regulatory constraints that will limit the extent of

construction activities; and 3) the “relatively modest”

disruption caused by the construction itself in terms of

scope and duration.

The circuit court then considered the Section 106

and Section 4(f) issues. The district court had found

that FHWA had violated Section 106 by postponing

the identification of the sites that were to be used for

construction-related ancillary activities. It also held

that, since it believed FHWA had not completed the

Section 106 identification process, FHWA had also

necessarily violated Section 4(f). The circuit court

disagreed.

FHWA had conducted several surveys that

resulted in the identification of 23 historic properties

in the project area. A Memorandum of Agreement

(MOA) was signed by, among others, FHWA, the

State Historic Preservation Officers of Virginia,

District of Columbia, and Maryland, and the Advisory

Council on Historic Preservation. The MOA identified

the sites to be affected by the project and set forth

mitigation measures. The MOA also recognized that

the identification of historic properties that could be

affected by the actual construction activities would

have to be postponed until the sites for construction

staging, wetland mitigation and dredge disposal sites

were selected. Nevertheless, FHWA bound itself

through the MOA to fulfill its Section 106

responsibilities when selecting those sites.

Based on the Corridor H Alternatives case (see

Case 152), the district court found that postponing

those identification efforts meant that the Section 106

process had not been concluded before the approval of

the project. This led the district court to find that

Section 106 and Section 4(f) had been violated. The

circuit court, however, distinguished the present

situation from that in the Corridor H Alternatives case,

where FHWA had postponed the entire Section 106

process for a major highway corridor until after it had

issued its Record of Decision. By contrast, in the

present case FHWA had identified historic properties

along the entire project corridor and documented its

findings prior to approval of the project. The only part

that was deferred was the identification of historic

properties “that might be impacted by a small number

of ‘ancillary activities.’” 

Furthermore, FHWA had a good reason for this

postponement. The specific identification of

construction staging sites requires work that is not

conducted until the design stage of the project. The

design stage, in turn, may not be completed until after

the Final EIS. 

Finally, the circuit court noted that the Section

106 regulations in place at the time (i.e., those that

went into effect in 1986) allowed the postponement at

issue in the present case by encouraging flexibility and

specifying they should not be interpreted to prohibit

phased compliance at different stages in planning.

[Ed. note: the Section 106 regulations that have been

in place since 1999 explicitly provide for phased

identification of historic properties in certain cases.

See 36 C.F.R. § 800.4(b)(2).] The circuit court

concluded its discussion of the Section 106 issue by

stating that particularly where the sites whose

identification is postponed are merely ancillary to the

project, Section 106 and the identification

prerequisites of Section 4(f) “do not forbid the rational

planning process adhered to by” FHWA.

The circuit court ended its opinion by disposing

of two Section 4(f) arguments that had been raised by

the appellees. The first argument was that FHWA

failed to consider all prudent and feasible alternatives

to using historic properties. An alternative can only be

“prudent” if it satisfies the transportation needs of the

project. The circuit court had already held that a

narrower bridge did not satisfy the needs of the

project. Moreover, appellees did not present a

“prudent” alternative that had a less significant impact

on historic properties. 

The second argument was that FHWA had failed

to engage in all possible planning to minimize harm to

the historic properties. The circuit court first noted

that the appellees did not question the finding that the

preferred and selected alternative (of all seven

“prudent and feasible” alternatives) would result in the

least overall impact to historic properties. Finally,

FHWA had mitigation plans for those situations where

it could not identify a feasible and prudent plan to

avoid impact on a historic property.

	
		
	
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154

Concerned Citizens Alliance, Inc. v. Slater, 176

F.3d 686 (3rd Cir. 1999).

Danville, Pennsylvania, which contains a

historic district that was nominated to the National

Register of Historic Places in 1994, is joined with

Riverside, the town across the river, by a deteriorating

bridge. In the early 1980s, several State and Federal

agencies determined that the bridge needed to be

replaced. Plaintiffs, the Concerned Citizens Alliance,

a group of Danville area residents, sued over

defendant Federal Highway Administration’s

(FHWA) selection of a particular bridge alignment

that would send traffic through the Danville Historic

District along Factory Street after it exited the new

bridge.

Plaintiffs argued that FHWA failed to comply

with the requirements of Section 4(f) of the

Department of Transportation Act by arbitrarily and

capriciously selecting the Factory Street Underpass

alignment as the preferred alternative. Plaintiffs

claimed that defendants ignored the conclusion of the

Advisory Council on Historic Preservation (Council)

that another alternative, the Mill Street Plus Bypass

alternative, would minimize harm to the Danville

Historic District. Additionally, plaintiffs alleged that

defendants violated both Section 4(f) and the National

Environmental Policy Act (NEPA) by failing to

evaluate, in detail, the Mill Street Plus Bypass

alternative, which would, in addition to rebuilding the

current bridge, build a second bridge about a mile

upstream. The second bridge would allow traffic to

reach the connection to an interstate highway without

going through the center of Danville. The district

court granted summary judgment for defendants on all

grounds, and this appeal ensued.

In determining whether the FHWA selection of

the Factory Street Underpass alternative violated

Section 4(f), the circuit court first considered the

amount of deference that FHWA owes to the Council.

The circuit court noted that the Council was an expert

agency created to comment on federally assisted

projects involving historic properties. Citing

approvingly the decision in Coalition Against a

Raised Expressway, Inc. v. Dole, (see Case 95), the

circuit court stated that “while the [Council’s]

recommendations do not and cannot control agency

decision making, the relevant agency must

demonstrate that it has read and considered those

recommendations.” The circuit court concluded that

FHWA must take the Council’s comments into

account when weighing the alternatives, and must

demonstrate that it gave the Council’s conclusion

genuine attention: “Congress did not create the

[Council] so that it could be a toothless agency.”

The circuit court then proceeded to consider

whether defendants acted arbitrarily in concluding,

pursuant to Section 4(f), that the Factory Street

Underpass alternative would inflict the least amount

of harm on the historic district. After analyzing each

of the plaintiffs’ arguments, and thoroughly reviewing

the administrative record, the circuit court determined

that the record supported FHWA’s finding that the

Factory Street Underpass alternative would minimize

harm to the historic district. The circuit court stated

that defendants had performed a large number of

studies and weighed the results properly in selecting

the preferred alternative. It also found that the record

showed FHWA appropriately considered, and

responded to, the Council’s comments through studies

of their own and joint drafting of a Memorandum of

Agreement. Therefore, the circuit court held that

defendants did not act arbitrarily or capriciously in

their Section 4(f) selection of the Factory Street

Underpass alternative.

Finally, the circuit court analyzed whether

defendants violated NEPA. Plaintiffs contended that

the Environmental Impact Statement (EIS) was

inadequate because it failed to consider the Mill Street

Pls Bypass alternative. NEPA requires that defendants

only consider “reasonable” alternatives in the EIS.

Courts have found that where an agency has examined

other alternatives and leaves out those that do not

meet the purpose and need of the project, the agency

has satisfied NEPA. The circuit court found that

FHWA had adequately determined that the Mills

Street Plus Bypass alternative was not feasible due to

a low use rate and its excessive construction and

environmental costs. This alternative was not

reasonable and, thus, did not have to be considered

under the EIS.

The circuit court therefore affirmed the district

court’s grant of summary judgment for defendants.

155

Muckleshoot Indian Tribe v. United States

Forest Service, 177 F.3d 800 (9th Cir. 1999).

Plaintiffs-apellants Muckleshoot Indian Tribe, et

al. (“Muckleshoot Tribe”), argued that the Forest

Service violated the National Historic Preservation

Act (NHPA) and the National Environmental Policy

Act (NEPA) when it exchanged lands with

Weyerhauser Company (“Huckleberry Exchange”).

Although the district court had granted summary

	
		
	
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judgment in favor of the Forest Service, the circuit

court reversed.

With the goal of unifying land ownership,

thereby enhancing resource conservation and

management, the Forest Service traded lands with

Weyerhauser, a logging company. Weyerhauser

intended to log the lands it received in the

Huckleberry Exchange. Included within the lands

traded to Weyerhauser were intact portions of the

Huckleberry Divide Trail, a historic property

important to the Muckleshoot Tribe.

On its appeal, the Muckleshoot Tribe argued that

the Forest Service had violated NHPA by 1) failing to

consult adequately with the tribe regarding the

identification of traditional cultural properties; 2)

inadequately mitigating the effects on historic

properties; and 3) failing to nominate certain sites to

the National Register. The circuit court agreed

regarding the claim of inadequate mitigation.

The circuit court found that the Forest Service

had adequately consulted with the tribe. The circuit

court noted that, unlike the case in Pueblo of Sandia v.

United States (see Case 132), the Forest Service had

not withheld relevant information nor shown bad faith.

Moreover, the record showed that the Forest Service

had researched historic sites, communicated several

times with the tribe, and excluded another site of

importance to the tribe from the Huckleberry

Exchange. The circuit court noted that the Forest

Service could have been more sensitive to the tribe

regarding other sites, the information of which the

tribe refused to provide. Nevertheless, the Forest

Service continued seeking the information over a

period of time and had previously conducted research

of its own. The circuit court was unable to conclude

that the Forest Service had failed to make a reasonable

and good faith effort to identify historic properties of

importance to the tribe.

However, the circuit court found that the Forest

Service violated NHPA by failing to adequately

mitigate the adverse effect of the exchange on the

Huckleberry Divide Trail. As stated before,

Weyerhauser planned to log the lands it would get in

the Huckleberry Exchange. Such logging could

adversely affect the trail and render it ineligible for the

National Register. The Section 106 regulations in

place at the time of the exchange provided three

options under which a Federal agency could mitigate

an otherwise adverse effect so that it could be

considered as not being adverse. The two options at

issue in this case set forth that an adverse effect could

be considered not adverse where 1) appropriate

research was conducted, provided that “the historic

property is of value only for its potential contribution

to archeological, historical, or architectural research”;

or 2) in the context of a land transaction, “adequate

restrictions or conditions [were] included to ensure

preservation of the property’s significant historic

features.” The Forest Service argued it was correctly

utilizing these two options by mitigating the effects

through photographing and mapping the trail before

the exchange.

The circuit court, however, found that such

activities did not meet the requirements of the two

mitigating options listed above. The first option was

inapplicable since the Muckleshoot Tribe valued the

trail for more than its potential contribution to

scientific research. The second option was

inapplicable as well since photographing and mapping

would not preserve the trail’s significant historic

features. The circuit court pointed to a letter by the

Washington State Historic Preservation Officer

indicating that documentation was “probably not an

effective mitigation measure.” Having found this

violation of NHPA, the court declined to address the

third NHPA allegation.

Plaintiffs-appellants also argued that the Forest

Service violated NEPA through 1) inadequate

identification and analysis of cumulative

environmental impacts in the Environmental Impact

Statement (EIS); 2) inadequate definition of the

purpose and need for the land exchange; and 3)

insufficient identification and evaluation of

alternatives for the exchange. The circuit court agreed

with the first and third NEPA arguments of the

plaintiffs-appellants.

The Muckleshoot Tribe contended that the EIS

did not adequately consider the cumulative impacts of

logging connected to a land exchange in 1984, to

current logging activities, and to a future land

exchange in the vicinity. The district court had held

that the Forest Service did not need to consider such

impacts since the 1984 land exchange was already

considered in an earlier land management plan, and

the future land exchange was too uncertain. The

circuit court disagreed. It first noted that NEPA

allowed reference to past consideration (also known as

“tiering”) but only with regard to an EIS—not to a

land management plan. Furthermore, the EIS for the

land management plan did not account for the specific

impacts of the Huckleberry Exchange. The

Huckleberry Exchange was only mentioned in a pool

of possible projects, without any detail concerning it

or its impact. Furthermore, the cumulative impact

analysis on the EIS for the Huckleberry Exchange was

deemed by the circuit court to be too general and onesided. It was devoid of specific, reasoned conclusions.

In addition, it did not evaluate the impact of logging

on the natural resources on the land transferred to

Weyerhauser.

Regarding the future land exchange in the

vicinity (“Plum Creek Exchange”), the circuit court

	
		
	
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agreed with the tribe that such an exchange was

“reasonably foreseeable” and that its cumulative

impacts should have been adequately analyzed. Before

the Huckleberry Exchange EIS was issued, the Forest

Service had prepared a summary of the Plum Creek

Exchange, and the Secretary of Agriculture had

formally announced the exchange to the public.

The circuit court disagreed with the plaintiffsappellants’ assertion that the purpose and need in the

EIS of the Huckleberry Exchange was too narrow.

The purpose and need was to “consolidate ownership

and enhance future resources conservation and

management by exchanging parcels of National Forest

System and Weyerhauser land.” The circuit court

found the breadth of the purpose and need to be

reasonable.

However, the circuit court held that the Forest

Service failed to consider an adequate range of

alternatives to meet the stated purpose and need of the

Huckleberry Exchange. The Forest Service only

considered three alternatives: a no action alternative

and two alternatives that only differed in that one

labeled the land transfer as a donation, rather than as

an exchange, and added 141 acres of donated land.

The Forest Service failed to consider an alternative

where it would purchase the land from Weyerhauser

rather than exchanging for it. The circuit court also

found that the Forest Service should have closely

considered a trade involving deed restrictions or other

modifications to the acreage involved.

Finally, the circuit court considered

Weyerhauser’s argument that the case was moot

because the patents and deed to the exchanged lands

had been conveyed and logging permits from

Washington had been secured. Weyerhauser attorneys

also stated in oral arguments that their company had

already “destroyed” at least 10 percent of the land it

obtained on the exchange. The circuit court held that

the case was not moot. It noted that conveyance of

property does not moot a case, and that Federal courts

are authorized to void a property transaction. The

evidentiary burden needed to establish mootness was

not met. The circuit court then enjoined any further

activities pursuant to the Huckleberry Exchange until

the Forest Service satisfied its NHPA and NEPA

obligations.

156

Sac and Fox Nation of Missouri v. Babbitt, 92

F.Supp.2d 1124 (D. Kan. 2000).

Plaintiffs brought this action, challenging the

decision of the Department of the Interior Secretary

(Babbitt) to take .52 acres of land into trust on behalf

of the Wyandotte Indian Tribe of Oklahoma. The

underlying concern of plaintiffs was that the

Wyandotte Tribe would use the land as a location for

gambling.

Public Law 98-602 appropriated funds, and

specifically required that they be used to purchase the

land at issue “which shall be held in trust by the

Secretary for the benefit” of the Wyandotte Tribe.

Among other things, plaintiffs alleged that Secretary

Babbitt had violated the National Environmental

Policy Act (NEPA) and the National Historic

Preservation Act (NHPA) in taking the land into trust.

However, in a brief opinion, the court held that NEPA

and NHPA were not applicable because Babbitt was

performing a nondiscretionary duty and a “merely

ministerial role.” The court cited the cases of Lee v.

Thornburgh (see Case 100), and U.S. v. 162.20 Acres

of Land (see Case 86).

The court, however, noted that NEPA and

NHPA would apply to future actions related to the

property.

157

Western Mohegan Tribe and Nation v. New

York, 100 F.Supp.2d 122 (N.D.N.Y. 2000).

Plaintiffs, Western Mohegan Tribe and Nation,

et al., sued the State of New York, alleging that the

State’s construction of a proposed State park violated

the Native American Graves Protection and

Repatriation Act (NAGPRA), the National Historic

Preservation Act (NHPA), and the First Amendment

of the Constitution. Plaintiffs sought a preliminary

injunction against the State. There were no Federal

defendants. The court not only denied plaintiffs’

motion for the injunction, but also dismissed the case

sua sponte.

Plaintiffs, a non-federally recognized tribe,

contended that the site of the proposed park was of

religious and cultural significance to the tribe.

The court first dismissed the NAGPRA claim. It

noted that NAGPRA only applies to “Federal” and

“tribal” lands. Although the Federal Government

owns a nearby parcel of land, placed under the

jurisdiction of the Corps of Engineers (“Corps”), such

parcel is not part of the proposed park. And, even

though the Corps issued a permit to defendants to

allow construction activities, and gave a license to the

State allowing it to be present on the Federally owned

parcel, such actions did not transform the park land

into “Federal” land. The court also found that there

could be no feasible claim that the park area

comprised “tribal” land. Finally, the court also stated

	
		
	
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that NAGPRA applied to cultural and funerary objects

already possessed or under the control of a Federal

agency or museum, or to those already discovered or

excavated. The State had not seen any indication of

Native American artifacts.

The court proceeded to dismiss NHPA claim.

The court noted that local actions fell beyond the

scope of NHPA. Regarding the permit issued by the

Corps (who was not a defendant), the court found that

it merely allowed the State access to the contiguous

Federal property and did not extend Corps jurisdiction

over the park site. Furthermore, even though it was a

“permit,” it was not legally required. Finally, in a twosentence dicta, the court indicated that even if the

permit was required, NHPA “clearly contemplates a

federal funding requirement,” and “[t]he Park simply

is not ‘funded in whole or in part under the direct or

indirect jurisdiction of a Federal agency.’”

Finally, the court also dismissed the First

Amendment allegation. Plaintiffs claimed that the

State’s proposed fees for access to the island where

the park would be sited would violate their Free

Exercise Rights. The court found that plaintiffs had no

standing since they could not prove that they were

Native Americans nor descendants of the original tribe

of the island where the park would be located.

Accordingly, the fee imposed no cognizable injury to

plaintiffs. Among other things, the court noted that

plaintiffs’ application for recognition as a tribe had

been rejected by the Bureau of Indian Affairs “due to

significant deficiencies, unverifiable statements,

doctored original documents, and significant

omissions in all areas required” by the regulations.

The court also cited as persuasive an archeologist’s

affidavit stating that the Mahicans—a tribe with no

cultural links to the Mohegans, and actually hostile to

them—occupied the island.

Finding no jurisdiction over the NAGPRA and

NHPA claims, and a lack of standing by plaintiffs

regarding the First Amendment claim, the court

dismissed the entire case sua sponte.

158

Young v. General Services Administration, 99

F.Supp. 59 (D.D.C. 2000).

As unsuccessful bidders for a Federal building

project and as neighboring residents, plaintiffs brought

action against the General Services Administration

(GSA) under the National Environmental Policy Act

(NEPA) challenging the adequacy of the

Environmental Impact Statement prepared for the

project. Plaintiffs also claimed GSA had violated

NHPA by failing to 1) examine the impacts on historic

properties adequately and avert such impacts; and 2)

prevent the destruction of a historic property by the

successful bidder. The successful bidder intervened in

the case. The parties filed cross-motions for summary

judgment. The court ruled in favor of GSA and the

intervenor, granting their motions for summary

judgment.

Regarding the NEPA claims, the district court

held that GSA was not required to consider the

unsuccessful bidder’s alternative scenario for the

proposed project. Such alternative simply did not meet

all of the requirements in GSA’s solicitation for

offers. The court also found that GSA’s reliance on

the State department of transportation’s studies to

determine the impact of the project on traffic was a

reasonable means to satisfy the “hard look”

requirement of NEPA.

The court proceeded to analyze plaintiffs’

NHPA claim. Plaintiffs argued that GSA violated

NHPA by failing to prevent the successful bidders

from destroying a historic roundhouse located on the

site of the proposed building project. However, the

court first noted that GSA was fully cognizant of the

requirements of Section 110(k) of NHPA. Section

110(k) prohibits Federal agencies from providing

grants, loans, permits, or other assistance to any

applicant who, with the intent to avoid the

requirements of Section 106 of NHPA, destroys a

historic property, unless the agency consulted with the

Advisory Council on Historic Preservation (Council)

to determine whether such assistance was nevertheless

justified. Once the property was demolished, the

Council told GSA that GSA had to determine whether

the bidder had destroyed the property with the intent

to avoid the requirements of Section 106. 

GSA not only determined such an intent was not

present, but also that circumstances justified keeping

the bidder despite the destruction of the property. The

property owner had been working since 1988 to secure

a master plan for the property, which included

demolition of the historic property. The record

supported the contention that the historic property was

scheduled for demolition in the early 1990s, long

before the Federal project in this case existed. The

record also indicated that in 1995 the city of

Alexandria, Virginia, required photos of the historic

property “prior to the planned private demolition

under its city’s archeology ordinance.”

The court therefore agreed with GSA, and

concluded that the demolition was not intended to

avoid Section 106 requirements, and therefore not in

violation of the provisions of Section 110(k).




	
		
	
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0<
	=		
∗

 

∗ All reference numbers refer to the case numbers of summarized court decisions. Cases 136-158 are found in

Federal Historic Preservation Case Law Update 1996-2000.

A

Administrative Procedure Act: 10, 19, 21, 37, 43, 52,

55, 93, 99, 101, 107, 118, 148, 149, 150, 151

Advisory Council on Historic Preservation, expertise:

21, 76, 113 

Advisory Council on Historic Preservation,

regulations (see also National Historic

Preservation Act, Section 106): 42, 68

adverse effect: 15, 82, 93, 103, 129 

"agency official": 58 

applicable: 19, 21, 44 

applicants: 99

approval: 47 

archeological resources: 23, 67, 70, 71, 87 

area of potential effects: 56, 87, 121, 131 

as delaying tactic: 81

avoidance: 101

bad faith: 83 

comments of Council obtained: 15, 18, 24, 37, 83,

101, 127

compliance: 15, 17, 18, 21, 23, 26, 33, 37, 56, 58,

66, 82, 96, 106

conditional no adverse effect: 110 

congressional approval: 66, 81, 117 

consistency with NHPA: 58, 81 

consultation process: 37, 68, 75, 77, 79, 82, 101,

113, 131, 148, 150

consultation with Indian tribes: 145, 149, 155

consultation with SHPO: 37, 45, 67, 71, 85, 88, 101,

103, 108, 132 

criteria of effect: 85 

"decision": 19, 21, 61, 81 

deference to Council: 58, 66, 76, 81, 82, 113, 154

delegation: 33, 114, 120 

deviation from Council comments: 15, 95 

deviation from regulations: 49 

discretion of Council: 58 

documentation requirements: 103

"effect": 45 

eligibility determination: 24, 29, 37, 49, 71, 85, 131,

151, 155

"eligible property": 24, 50, 74, 81, 87 

expedited review: 75 

failure to agree: 18, 95

flexibility: 101, 118, 153

forbearance of action: 82 

foreclosure of opportunity to comment: 74, 96 

identification of resources: 34, 67, 74, 79, 101, 125,

131, 132, 149, 151, 153, 155

indirect effect: 45, 87

interested persons: 101, 148

lead agency: 139

legality: 58

"license": 39, 66, 100, 130 

literature search: 67 

location of resources: 70, 74 

meeting: 37, 82 

Memorandum of Agreement: 31, 37, 65, 68, 75, 76,

79, 82, 97, 116, 123, 140, 141, 147, 153,

154

anticipatory breach: 32 

as comments of Council: 58, 93 

as contract: 32, 54, 97, 116

continuing agency authority: 141

deference to parties: 54 

effect: 116

execution: 58

failure to reach: 95, 112, 118 

phased compliance: 66, 106, 153

privity of contract: 32 

ratification: 58

requirements satisfied: 54, 86, 147

treatment plan: 86

violation: 32, 54, 95, 108, 141

mitigation measures: 31, 88, 118, 153, 155 

no adverse effect: 34, 37, 45, 49, 56, 65, 77, 80, 81,

103, 139, 148, 150, 155

no effect: 28, 34, 45, 46, 52, 64, 85, 108, 131, 145

non-destructive planning activities: 117 

not applicable: 61, 44, 47, 51 

notification of demolition: 2 

ongoing action: 47, 70, 80, 113, 123, 125 

opportunity to comment: 6, 16, 34, 44, 45, 61, 71, 81,

82, 83, 112, 139, 145

panel meeting: 77 

"particularly persuasive": 81

phased compliance: 58, 106, 152, 153

preliminary case report: 37, 65, 75, 82 

public participation: 49, 101, 137

"question exists": 85 

review of agreement and land exchange: 15 

	
		
	
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review of EIS: 34 

"rubber-stamping": 33 

Section 800.2 (1986 regulations): 50, 61, 80, 81,

84, 87

Section 800.3 (1986 regulations): 141

Section 800.4 (1986 regulations): 45, 49, 66, 70,

71, 75, 79, 82, 84, 101, 131

Section 800.6 (1986 regulations): 86 

Section 800.13 (1986 regulations): 49 

Section 800.15 (1986 regulations): 49

SHPO approval: 45 

"substantial compliance": 16, 34, 66, 88, 101, 118 

substantive obligation: 74 

survey requirement: 67, 70, 71, 85, 101 

take into account: 37, 45, 110

termination: 112 

timing of compliance: 15-18, 44, 47, 61, 66, 74, 96,

106, 112, 114, 137, 141

"undertaking": 19, 21, 66, 78, 81, 87, 91, 94, 109,

113, 114, 115, 116, 120, 123, 130, 133,

136, 140, 143, 156, 157

Agriculture, Department of

Farmers Home Administration: 55

Forest Service: 26, 63, 81, 83, 84, 117, 131, 138,

151, 155

Rural Electrification Administration: 41, 108

Ahapua'a of Kualoa: 56

Airport expansion: 8, 111

Alabama: 50, 53, 95

Alaska: 151

Alaska National Interest Lands Conservation Act: 151

AMTRAK: 4, 57

Anderson Ferry: 82

Anticipatory demolition: 142, 158

Applewhite Dam: 106

Appropriation request: 42

Archeological resources: 14, 15, 23, 35, 39, 42, 45,

63, 87, 92, 101

identification: 70 

inventory: 66

probability: 52 

survey: 13, 16, 23, 35, 39, 40, 42, 44, 66, 67, 71, 85,

86, 87 

survey adequacy: 70, 52

Archaeological Resources Protection Act: 72, 101

Army (see Defense, Department of)

Arizona: 85, 101, 117, 125, 137, 145

Astor Theater: 147

Atherton Building: 59

Atomic Energy Act: 64

Attorneys' fees

Civil Rights Attorneys' Fees Awards Act: 82

awarded: 90, 103

denied: 17, 26

American Indian Religious Freedom Act: 101

National Historic Preservation Act: 68, 80, 81, 82,

84, 90

Uniform Relocation Assistance and Real Property

Acquisition Policies Act: 26

U.S. Constitution, Eleventh Amendment: 68

B

Bank: 1, 11, 22, 51, 53

Banking agencies (see Federal Reserve System;

Federal Deposit Insurance Corporation; Treasury,

Department of)

Barge-loading facility: 82

Barton Ferry Recreation Area: 86

Barton Townsite: 86

Bay View National Historic Landmark District: 98

Belmont Hills Historic District: 65

Black Hills: 63

Bombing: 40, 42

Bond requirement under NHPA: 33

Bonneville Power Administration: 20

Boundary Waters Treaty: 48

Brame-Bennett House: 62

Bridge: 3, 7, 28, 79, 153, 154

Brinkerhoff House: 22

Buckeye Basin Greenbelt Project: 139

Building, historic (see also names of specific

buildings): 1, 2, 4, 5, 11, 14, 18, 19, 21, 22,

27, 29, 31, 37-44, 38, 39, 40, 45, 47, 49, 53,

63-66, 68, 71, 73, 75 , 81, 86 

adjacent to historic district: 49

included on nomination form for district: 22 

transfer: 37

within historic district: 22, 49 

Bureau of Indian Affairs (see Interior, Department

of)

Bureau of Land Management (see Interior,

Department of)

C

Cabin: 84

Caldwell-Hampton-Boyleston House: 45

California: 15, 83, 87, 88, 114, 141, 148, 149

Camp: 84, 85

Canal: 10

Carnegie Library: 27

Carriage house: 68

Case or controversy (see United States Constitution)

Cedar Oaks: 86

Charleston Historic District: 58

Cherokee Indians: 60

City hall: 1

Civil Rights Attorneys' Fees Awards Act: 82

Classified information: 64

	
		
	
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Clean Air Act: 153

"Clean hands" doctrine: 136

Clean Water Act: 106

Coal lease: 66

Coast Guard (see Transportation, Department of)

Coconino National Forest: 85

Colorado: 14, 30

Colorado River: 87

Colorado River Indian Reservation: 87

Columbia River: 7, 79

Commerce, Department of, Economic Development

Administration: 58

Community development block grant (see Housing

and Urban Development, Department of)

Comptroller of the Currency (see Treasury,

Department of)

Condemnation: 25, 26, 40, 86

Connecticut: 21, 68, 96

Constitution, United States (see United States

Constitution)

Convention center: 58

Corridor H Project: 152

Corps of Engineers (see Defense, Department of)

Costs (see also particular statute): 17, 63, 81

Council on Environmental Quality: 106

Court (see name of particular court)

Courthouse: 19, 38

Covenant (see Deed covenant)

D

Dallas-Fort Worth Airport: 126

Dam: 11, 16, 39, 60

Daniels and Fisher Tower: 30

Danville Historic District: 154

Declaration of Taking Act (see also Condemnation):

86

Deed covenant: 37

Deer management plan: 150

Defense, Department of: 67

Air Force: 40

Army: 134

Army Corps of Engineers: 7, 16, 32, 39, 48, 56, 71,

74, 82, 86, 87, 105, 106, 112, 118, 121, 124,

133, 139

Navy: 42, 43, 64

DeKalb County Courthouse: 38

Delegation (see particular statute)

Demolition

bridge: 79, 144

by neglect: 114

Federal approval: 2, 18, 21, 22, 53, 68

historic building: 1, 2, 4, 5, 11, 14, 18, 19, 21, 22,

27, 33, 39, 44, 49, 53, 54, 59, 61, 68, 75, 76,

81, 89, 105, 140, 142, 147, 158 

permit: 54 

pool: 80 

private funds: 22 

vote for, use by agency: 79

Department of Transportation Act, Section 4(f): 30

alternatives: 79, 153, 154

applicability: 43, 92, 109 

archeological sites: 92

commercial property: 36

compliance: 8, 24, 28, 29, 31, 32, 36, 38, 43, 152

"constructive use": 36, 65, 95, 111, 126 

eligibility determination: 43 

good faith: 36

historic significance finding: 24, 92

"historic site": 24, 43, 79

minimize harm: 153, 154

NEPA and: 43, 93 

NHPA and: 65, 93, 152, 153, 154

physical use: 36 

regulations implementing: 92

scope: 24, 43, 65 

secondary effects: 36 

statement: 28, 31, 32, 38, 65, 110

timing: 152, 153

"use": 36, 65, 79, 93, 103, 126, 149, 152

Desert: 88

Dismissal of case: 1, 2, 7, 8, 17, 18, 21, 22, 27, 46, 49,

52, 59, 60, 61, 62, 79, 85, 86, 136,

157

Dismissal, motion denied: 5, 142

Dismissal of Federal co-defendant: 142

Dismissal of non-Federal defendant: 37

District court (see United States District Court)

District, historic (see also name of specific district):

2, 3, 6, 13, 21, 22, 36, 38, 45, 46, 49, 55, 58,

65, 68, 75, 77, 78, 87, 154

adjacent to project site: 36, 46, 65 

indirect harm: 46

nomination defective: 55

District of Columbia: 3, 16, 18, 34, 51, 54, 85, 90,

91, 93, 100, 113, 120, 124, 130

District of Columbia Circuit (see United States Court

of Appeals)

Downtown Expressway: 10

Dredge and fill permit: 7, 56, 71, 74

Dr. Pepper building: 128

Due process: 55

Duke Ellington Bridge: 93

Dundee Township Historic District: 22

E

Easement, preservation: 55, 122

Eastman Building: 76

	
		
	
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Economic Development Administration (see

Commerce, Department of)

Edgartown Harbor: 74

Eisenhower National Historic Site: 150

Electric transmission line: 72

Eleventh Amendment (see United States Constitution)

Eligibility determination (see National Historic

Preservation Act)

Elizabeth Plankinton Mansion: 61

Energy, Department of, Western Area Power

Administration: 72

Energy and Water Development Appropriation Bill: 60

Enola Branch Line: 144

Enola Hill: 131

Environmental Protection Agency: 35, 107, 116

Equal Access to Justice Act: 68

Estoppel: 110

Executive Order No. 11593: 14, 20, 23, 29, 67, 130

Advisory Council on Historic Preservation and: 15,

78 

archeological resources: 15, 23, 42, 66, 70

balancing test: 50

cause of action: 66, 130 

compliance: 14, 16, 20, 23, 31, 44, 56, 78 

compliance not found: 42

condemnation and: 25

cooperation with SHPO: 42 

deadline: 66

eligibility determination: 42, 45, 66, 70 

enforceability: 66

enhancement and protection requirement: 78, 87 

Federal involvement requirement: 27 

Federal jurisdiction requirement: 19 

Federal ownership requirement: 19, 24, 25, 44 

force and effect of law: 66, 70

inventory requirement: 42

location requirement: 42, 45, 66

managerial tool: 66

mitigation measure: 16 

NEPA and: 14, 16, 20, 66, 81 

newly discovered resources: 70

nomination requirement: 42, 70 

not applicable: 14, 19, 24, 27, 44, 61

opportunity of Council to comment: 16, 45 

private land: 19, 24, 44 

procedures: 14, 78 

reconsideration requirement: 16 

right of action: 42, 70 

Section 2(a): 44 

Section 2(b): 16, 24, 45 

survey requirement: 15, 42, 44, 70 

timing of compliance: 16, 61

Executive Order No. 12072: 50

Executive Order No. 12246: 67

Exhaustion of administrative remedies: 69, 88, 112,

136, 151

F

Faneuil Hall: 5

Farmers Home Administration (see Agriculture,

Department of) 

Federal Advisory Committee Act: 37 

Federal-Aid Highway Act, Section 15(a): 6, 9, 24, 29

Federal Aviation Administration (see Transportation,

Department of)

Federal Communications Commission: 102

Federal Deposit Insurance Act: 22

Federal Deposit Insurance Corporation: 22, 123, 128

Federal Energy Regulatory Commission: 115, 118,

121

Federal Highway Administration (see Transportation,

Department of) 

Federal Power Act, Section 10(a): 8

Federal Power Commission: 8

Federal Reserve bank: 59

Federal Reserve System, Board of Governors: 59 

Federal Rules of Civil Procedure, Rule 54(d): 63 

Fern Mountain Ranch: 85

Ferry: 82

Fifth Amendment (see United States Constitution)

Fifth Circuit, U.S. Court of Appeals (see United

States Court of Appeals) 

First Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Fishpond, Okiokiolepe: 64 

Forest Glen: 134

Forest management: 83

Forest, National: 83, 85 

Forest Service (see Agriculture, Department of)

Fort Allen: 67 

Fort, historic: 7, 12, 71

Fort Lawton: 97 

Fort Loudoun: 12 

Fort Vancouver National Historic Site: 7 

Fourth Circuit, U.S. Court of Appeals (see United

States Court of Appeals) 

Fox Building: 59

Freedom of Information Act: 64

G

Gallinger Hospital: 100

Gasquet-Orleans Road: 83

General Services Administration: 18, 37, 45, 50, 113,

158

Georgetown Historic District: 6

Georgia: 27, 36, 38, 52

Gettysburg National Military Park: 15, 119, 150

Glen Oak Historic District: 65

Goodman Building: 73

Governor's Island: 137

	
		
	
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Governor's Mansion: 45

Grand Canyon: 145

Grand Rapids City Hall: 1

Granny White Pike and Grave: 65

Grant: 1, 2, 3, 4, 5, 10, 11, 13, 19, 21, 27, 30, 31, 44,

58, 59, 61, 68, 73, 75, 76, 77, 80, 81

Grant refusal: 4

Green Springs Historic District: 6, 12, 55

Green Street Historic District: 36

H

Haish Building: 47

Hales Building: 44

Hawaii: 24, 42, 56, 64

Health, Education, and Welfare, Department of: 27,

37

Helen Hayes Theater: 75

Highlands Metropolitan Park: 35

Highway (see also Bridge; Department of

Transportation Act; Federal-Aid Highway

Act; Transportation, Department of)

beltway: 9

construction: 7, 9, 21, 29, 32, 34, 36, 43, 62, 65,

86, 98, 152

detour: 46 

expressway: 10 

extension: 32, 98 

"Federal": 10 

Federal aid: 24, 36, 86 

funding: 9, 10, 62, 98

interstate: 29, 34, 65 

parkland: 32

planning: 9 

repair: 46

segment: 7, 9, 10, 29, 62, 98

Historical and Archeological Data Preservation Act:

52, 66, 101

Historic Landmark, National (see National Historic

Landmark)

Historic preservation law, Federal (see Advisory

Council on Historic Preservation;

Archeological Resources Protection Act;

Historic and Archeological Data Preservation

Act; Historic Sites Act; National Historic

Preservation Act)

Historic preservation law, State and local: 54

Historic Sites Act: 55

Hoonah Indian Association: 151

Horry-Guinyard House: 45

Hotel: 4, 58, 77

Housing Act of 1949 (see Housing and Urban

Development, Department of, loan and

capital grant)

Housing and Community Development Act: 75, 76,

114

delegation of NEPA duties: 33, 58, 146

delegation of NHPA duties: 33, 58, 77, 114, 141,

146

Housing project: 49, 52, 73, 78, 141

Housing and Urban Development, Department of

community development block grant: 76,

114, 147

grant: 4 

Housing Act of 1949: 8, 24 

housing project: 49, 52, 73, 78, 141

loan and capital grant: 1, 2, 12, 19, 21, 30, 44, 61,

68, 73, 76, 81, 89 

loan guarantee: 52 

redevelopment: 59 

urban development action grant: 58, 59, 75, 77,

146

urban renewal: 1, 2, 8, 12, 17, 19, 21, 30, 33, 44, 47,

61, 68, 76, 81

Hualapai Tribe: 145

Huckleberry Divide Trail: 155

Hudson River: 8

I

Illinois: 47, 78, 99

Immunity

28 U.S.C. 228a(1) & (6): 48 

international board: 48

sovereign: 7, 68

Indian law

United States trust responsibility: 149

Indians: 60, 66, 85, 87

Injunction

against City: 140

against local agency: 19, 71

against private entities: 108, 119 

against State: 6, 36 

conditional: 12

denied: 2, 4, 6, 12, 13, 15, 22, 27, 29, 30, 36, 34,

39, 42, 44, 45, 46, 50, 53, 54, 56, 59, 64, 66,

83, 84, 88, 89, 98, 138, 139, 143, 147, 150,

151

dissolved: 14, 68, 71, 80, 105 

granted: 3, 5, 7, 14, 19, 21, 24, 36, 39, 61, 67, 71,

80, 82, 86, 87, 97, 103, 155

hardship: 140

injury: 19, 42, 87, 140, 143

likelihood of success: 140, 147, 150, 151

pending appeal: 4, 105

preliminary: 8, 14, 15, 19, 21, 22, 27, 29, 39, 61,

68, 80, 83, 87, 88, 97, 105, 106, 108, 123,

136, 137, 142, 143, 147, 157

public interest: 140, 143

	
		
	
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standard: 45, 87 

vacated: 49, 67

Inman Park neighborhood: 38

Interior, Department of the: 156

Bureau of Indian Affairs: 108

Bureau of Land Management: 87, 88

Bureau of Reclamation: 66

Land and Water Conservation Fund: 80

National Historic Landmark program: 55

National Park Service: 16, 23, 69, 81, 105, 119,

127, 136, 148, 150

National Register of Historic Places: 2, 4, 6, 7, 12,

13, 15, 18, 19, 22, 24, 27, 28, 29, 30, 33, 35,

36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 48, 49,

50, 51, 54, 55, 56, 58, 59, 60, 61, 62, 63, 65,

69, 71, 73, 74, 75, 76, 80, 82, 86, 87

Office of Surface Mining: 120

International Joint Commission: 50

Interstate Commerce Commission: 96, 99, 104, 105,

129, 144

Island: 6, 7, 42, 70

J

Jobbers Canyon: 105

Johnson Pool: 80

Joinder of building owner: 59

Joinder of City: 142

Judgment for defendant: 32 

Judicial Review: 1, 6, 45, 46, 58 

Jurisdiction of Federal court 

28 U.S.C. § 1331: 10, 19, 36, 37, 39 

Administrative Procedure Act: 10, 19, 24, 133 

amount in controversy: 10, 19, 21, 36, 37, 39 

ancillary: 36

exclusive jurisdiction to courts of appeal: 102 

none found: 22, 102, 104, 157

non-Federal defendants: 10, 22, 39, 37, 114, 119,

133

subject matter: 10, 19, 21, 36, 41, 102, 107, 120,

123, 128, 130, 133, 136, 140, 157

Justice, Department of, Law Enforcement Assistance

Administration: 6, 12

K

Kahoolawe: 42

Kansas: 57

Kentucky: 2, 43, 59, 111, 112

Kentucky River: 112

Kiks.adi Survival March path: 151

Kootenai River: 39

L

Laches

administrative steps taken: 138

burden of proof: 10, 125, 138

continuing Federal involvement: 68, 141

date laches begins to run: 10, 19, 21, 45, 110, 125,

138 

delay of 1 year: 71

delay of 11⁄2 years: 45 

delay of 2 months: 50 

delay of 2 years: 59, 138

delay of 31⁄2 weeks: 88 

delay of 7 years: 10 

delay of 8 years: 76

delay reasonable: 10, 19, 21, 36, 71, 76, 88, 108,

138

delay unreasonable: 50, 51, 53, 72, 125

demolition: 59, 68

diligence: 36, 76, 125, 138

environmental lawsuit: 10, 88 

found: 45, 50, 51, 59, 72, 110, 125, 138

generally: 141

historic building still stood: 19, 21, 68

not found: 10, 19, 21, 36, 38, 43, 64, 68, 71, 76,

88, 108

percentage of project completed: 45 

prejudice to defendant: 38, 45, 51, 53, 71, 72, 88,

108, 110, 125 

public interest: 10, 19, 21, 45, 68 

purposes of NHPA and NEPA fulfilled: 19, 21 

test: 10, 21, 38, 43, 125

Lake Placid Club: 123

Lake Superior: 48

Lake Superior Board of Control: 48 

Landmark (see National Historic Landmark and name

of specific landmark) 

Land and Water Conservation Fund: 80 

Las Huertas Canyon: 132

Law Enforcement Assistance Administration (see

Justice, Department of) 

Lease, building: 50

Lease, mining: 66

Levee: 71 

Library: 27 

Library Service and Construction Act: 27 

License: 9, 39, 66, 84, 118, 130 

Lighthouse: 74, 103 

Loan and capital grant (see Housing and Urban

Development, Department of)

Loan and loan guarantee: 39, 52, 55 

Louisiana: 37, 62, 71, 77, 133, 143

	
		
	
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M

Market Square Historic District: 11

Martha's Vineyard: 74

Maryland: 110, 134, 153

Massachusetts: 8, 49, 74, 129

Mass transit system: 38

Mather House: 21

Memorandum of Agreement (see Advisory Council

on Historic Preservation, regulations)

Merriam Base Camp: 85

Merritt College: 114

Michigan: 1, 98

Military operation: 40, 42, 64, 67, 70 

Mining: 55, 63, 66, 120

Mississippi: 86, 89

Missouri: 11

Moanaloa Valley: 24

Montana: 23, 39

Mootness: 17, 18, 63, 108, 119, 120, 131, 133, 141,

155

Morongo Band of Mission Indians: 149

Morosco Theater: 75

Motion to amend complaint: 59

Motion to dismiss (see Dismissal)

Motion to file supplemental complaint: 61

Motion to vacate: 47

Motorcycle race: 88

Mountain: 85

Mount Graham: 125, 138

Muckleshoot Indian Tribe: 155

Munitions facility: 64

Munsey Building: 54

N

National Capital Planning Commission: 91, 113

National Environmental Policy Act: 16, 22, 68

applicability: 7, 11, 13, 19, 30, 64, 68, 81, 93, 99 

appropriation request: 42

Atomic Energy Act and: 64

avoidance: 10, 12

categorical exclusion: 108, 110, 126 

comment, duty of public: 61

compliance: 12, 30, 99 

compliance required: 6, 7, 81 

cooperating agency: 58

delegation: 58 

environmental assessment: 64, 71, 75, 87, 94, 96,

99, 118 

environmental clearance: 44, 49, 75, 78 

environmental impact statement: 28 

adequacy: 11, 14, 15, 20, 23, 31, 32, 38, 39, 45,

58, 61, 66, 72, 75, 86, 88, 95, 106, 111, 118,

151

aesthetic concern: 45 

alternatives: 7, 19, 58, 61, 95, 111, 126, 152,

153, 154, 155

alternatives of preservation and rehabilitation: 9 

annual: 42

appropriation request: 42 

classified: 64

consultants: 137

consultation with other agencies: 20 

continuing involvement: 5

control over funds: 61

cumulative impacts: 111, 106, 126, 155

direct effect: 87

disagreement among experts: 23 

effect, cultural: 73, 86, 87, 88

effect, noise: 149

effect on archeological resources: 14, 15, 23, 35,

39, 42, 66, 71, 86, 87 

effect on desert resources: 88 

effect on historic property: 12, 20, 23, 29, 31,

38, 42, 45, 46, 47, 49, 53, 58, 61, 71, 76, 78,

147, 148, 149

effect, social: 59 

effect, visual: 77, 149

exemption: 67 

"Federal" action: 10, 11, 22, 27, 119, 130 

hypothetical: 48 

indirect effect: 87, 94 

"major Federal action": 37, 42, 47, 49, 53, 67,

68, 81, 87, 94, 99, 101, 109, 119, 130

Memorandum of Agreement, incorporation: 31,

58

minimal Federal involvement: 87, 94

mitigation measures: 88, 111, 118 

new information: 42, 66, 68, 75 

none prepared: 7, 19, 21, 30, 37, 49, 53, 61, 64,

67, 68, 71, 73, 76, 87, 99 

not required: 44, 46, 47, 49, 53, 67, 74, 147, 149

off-site location: 87

prepared: 11, 14, 16, 23, 28, 31, 32, 34, 35, 38,

39, 42, 43, 45, 58, 65, 66, 68, 72, 75, 79, 86,

88, 151

programmatic: 86 

"proposal": 42

public disclosure: 64

purpose and need: 155

required: 8, 19, 61, 64, 81, 87 

revised: 39, 42 

scope: 12, 87

"significantly affecting the environment": 37, 53,

64, 77, 87, 147

social concern: 59 

supplemental: 38, 42, 45, 75, 124

survey: 14, 42, 72, 87

temporary impact: 153

Executive Order No. 11593 and: 12, 15, 66, 81 

	
		
	
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"Federal agency": 4, 6, 58

Finding of No Significant Impact: 137, 148

historic preservation policy: 7, 76, 81 

insufficient Federal involvement: 27, 119

lead agency: 58, 118

national security and: 64 

negative declaration: 19, 46, 49, 73, 76

NHPA and: 46, 66, 71, 73, 76, 81, 93, 109, 137,

149

nondiscretionary statute and: 3 

not applicable: 4, 13, 22, 27, 30, 53, 76, 156

Omnibus Crime Control and Safe Streets Act and:

3

ongoing project: 30, 81

private cause of action: 52

purpose: 3

segmentation: 10, 137

unexecuted part of project: 9 

withdrawal of funds: 13

National Historic Landmark: 4, 7, 27, 55, 77, 95,

110, 116, 133

National Historic Preservation Act: 48, 83

arbitrary and capricious action: 1 

attorneys' fees (see also Section 305): 17 

avoidance: 10, 12 

bond requirement: 33 

costs (see also Section 305): 17 

eligibility, determination of: 18, 19, 24, 37, 42, 44,

53, 61 68, 70, 71, 74, 75, 81, 84, 85, 89, 110 

Energy and Water Development Appropriation Bill

and: 57

Federal Advisory Committee Act, exemption from:

37

"Federal agency": 4, 6, 53, 58, 75

Historic Sites Act and: 55 

landmark and (see also Section 110(f)): 55 

legislative history: 68, 81

NEPA and: 20, 34, 46, 66, 71, 76, 81, 93, 94, 99,

106, 114, 133 

nondiscretionary statute and: 3

Omnibus Crime Control and Safe Streets Act and:

3

past actions of agency: 78, 113

preservation requirement: 37, 87 

project splitting: 10

Public Buildings Cooperative Use Act and: 50

purpose: 6, 66, 87 

Section 106 (see also Advisory Council on Historic

Preservation, regulations): 31, 35, 39, 79

administrative record: 3

"affected area": 87, 121

applicability: 6, 8, 11, 13, 42, 68, 70, 74, 80, 81,

91, 113 

"approval": 1, 2, 19, 30, 39, 44, 68, 81, 94, 100,

105, 108, 109, 113, 126 

archeological survey: 35, 39, 42, 67, 70, 87 

comments of Council: 15, 20, 24, 30, 35, 47

compliance found: 11, 17, 20, 23, 28, 31, 34, 37,

38, 56, 65, 72, 73, 83, 88, 118, 139, 146,

148, 149, 150, 153

compliance not found: 33, 74, 82, 87, 155

compliance not required: 19, 29, 44, 57, 109,

115

compliance required: 3, 6, 7, 40, 74, 81, 87 

condemnation and: 25, 40, 86 

conditional approval: 108, 118, 126

consultation with SHPO: 37, 67, 71, 88 

delegation: 36, 33, 58, 77 

deviation from Council recommendation: 15 

effects: 7, 29, 31, 35, 34, 64, 85, 87, 93 

exemption: 60

Federal action: 10, 11, 22, 66, 115

"Federal agency": 4, 6, 58, 59, 128 

Federal funds: 98, 100, 108

Federal involvement: 39, 87, 91, 94, 100, 105,

115, 119, 120, 123 

future funding: 1, 10 

good faith: 66 

historic significance, determination of: 76 

identification of resources: 34, 67, 74, 149, 153

indirect or insubstantial effect: 8, 45, 46, 87 

insufficient Federal involvement: 4, 10, 27, 39,

51, 62, 100, 105, 109, 115, 119, 123

interested persons: 118 

international entity: 48 

inventory: 66

lead agency: 32, 58, 118 

legislative history: 68, 81 

"license": 40, 130, 133

license, implied: 84 

literature search: 67 

no adverse effect: 34, 139, 148, 150

no effect: 28, 34, 46, 52, 64, 145

nondiscretionary statute and: 3

non-Federal defendants: 133

not applicable: 2, 4, 10, 13, 19, 21, 22, 27, 30,

39, 44, 46, 47, 50, 51, 57, 59, 61, 62, 84,

105, 156

notification requirement: 2 

ongoing Federal action: 68, 80, 81 

"opportunity to comment": 3, 16, 20, 34, 44, 45,

61, 81, 82, 145

"permit area": 87 

"prior to approval": 1, 19, 30, 81, 126 

private right of action: 42, 52, 102, 107, 114, 133,

134, 141, 142

procedural statute: 81, 99, 106, 110

project splitting: 10 

public: 118

purpose: 81, 87 

record, obligation to make: 3 

"rubber-stamping": 33, 36, 115 

	
		
	
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rumor of historic significance: 2 

salvage activities: 39 

scope: 11, 37, 87, 115

Section 4(f) and: 43, 95 

stage-by-stage compliance: 66, 121 

substantial compliance: 15, 61, 66, 88, 118 

survey requirement: 40, 66, 67, 71, 72, 87 

"take into account": 3, 37, 45, 61, 81, 125 

temporary effect: 46 

timing: 1, 2, 12, 19, 21, 30, 44, 47, 50, 53, 61,

62, 66, 74, 81, 99, 114, 126, 137, 141

transfer of title and: 84, 86, 114 

"undertaking": 7, 22, 62, 91, 94, 109, 113, 114,

115, 116, 120, 123, 130, 133, 134, 136, 140,

143, 156, 157

veto authority: 113, 130

Section 110(a): 87, 101, 103, 112, 134, 136

Section 110(b): 100

Section 110(d): 100

Section 110(f): 77, 95

Section 110(k): 142, 158

Section 305: 68, 80, 81, 82, 84, 134, 142

substantive decision: 84, 130 

unexecuted part of project: 9 

withdrawal of funds: 11, 62

National Park Service (see Interior, Department of

the)

National Park Service Organic Act: 150

National Register of Historic Places: 2, 4, 6, 7, 12,

13, 14, 16, 18, 19, 21, 22, 24, 27, 28, 29, 30,

33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,

47, 49, 50, 52, 53, 55, 56, 58, 59, 61, 62, 63,

64, 65, 66, 68, 70, 71, 73, 74, 75, 76, 79, 80,

81, 82, 84, 85, 86, 87, 138, 151, 155

removal from: 69

National security: 64

Native Americans: 60, 66, 85, 101, 118, 125

Native American Graves Protection and Repatriation

Act: 118, 157

Navigable waters of the United States: 10, 28

Navy (see Defense, Department of)

Nebraska: 105

New Hampshire: 92

New Jersey: 32, 81

New Mexico: 66, 108

New York: 8, 19, 46, 69, 75, 80, 123, 137, 157

Nichols Cafe: 18

Ninth Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

North Carolina: 29, 40

Nuclear weapons storage facility: 64

O

Ohio: 35, 82, 139, 140, 142

Ohio River: 82

Okiokiolepe Fishpond: 64

Oklahoma: 44

Old Federal Building: 37

Old Grand Rapids City Hall: 1

Old Stone Academy: 81

Old Truss Bridge: 79

Olentangy River: 35

Omnibus Crime Control and Safe Streets Act: 3

Oregon: 7, 84, 122, 131

P

Paces Ferry Woods: 52

Palmetto Iron Works: 45

Paris Pike: 52

Park: 15, 32, 35, 56

Parking facility: 45

Parties

citizens' group: 18, 34, 46, 59, 68, 137, 143

City: 153

corporation: 1, 10, 21, 39, 43, 44, 73, 158

golf club: 148

historical society: 36, 142

Indian tribes: 87, 101, 138, 149, 151, 155, 156, 157

intervenor: 36

library card holder: 27 

members of preservation organization: 6, 19

mining company: 55, 63, 66 

neighborhood organization: 59, 146

nonprofit organization: 1, 2, 10, 19, 44, 145

preservation organization: 54, 61, 68, 88, 144, 147,

152, 154

professional association: 140

property owner: 2, 7, 12, 19, 40, 43, 48, 72, 84,

136, 141

resident: 6, 11, 19, 27, 38, 49, 150

SHPO: 41

State: 6, 16, 32, 36 

taxpayer: 2 

town: 68

unincorporated association: 21 

user: 43

Pearl Harbor: 64

Penal facility: 6, 12, 140, 142

Pennsylvania: 16, 31, 41, 107, 119, 121, 135, 144,

146, 147, 150, 154

Pennsylvania Avenue Development Corporation: 54

Pennsylvania Avenue Development Corporation Act:

54

Pennsylvania Public Utility Commission: 144

Permit: 7, 28, 32, 53, 54, 56, 71, 74, 79, 82, 84, 87, 88,

106, 117, 118, 120, 121, 130, 131, 133

Petroglyph: 24

Plankinton Mansion: 61

	
		
	
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Political pressure: 3, 58, 75

Pool: 80

Portland International Airport: 7

Potomac River: 6

Powerhouse: 8

Power transmission line: 20, 72

Preemption: 54, 144

Preliminary injunction (see Injunction)

Prescott National Forest: 117

Presidio Golf Club: 148

Private cause of action (see particular statute)

Programmatic Agreements: 106, 137, 152

Public Buildings Cooperative Use Act: 50

Puerto Rico: 67, 70 

R

Rails-to-Trails Act: 144

Railway: 4, 31, 57, 96, 99, 104, 129, 144

Railway station: 4, 31

Ranch: 85

Reading Terminal: 31

Refugee camp: 67

Refugee Education Assistance Act: 67

Remand to agency: 3, 5, 6, 16, 55, 74, 85

Remand to district court: 12, 24, 68

Remedy (see also particular remedy)

caution on scope of project: 45

order to conduct survey: 40

order that resources not be disturbed: 15, 71 

selection of: 12

Republic Building: 59

Res judicata: 15

Richland West End Historic District: 65

Riggs Bank Building: 18

Ripeness: 38, 93, 108, 121, 145, 152

Riprap: 87

River: 3, 7, 9, 28, 35, 39, 79, 82, 87

River City project: 87

Rivers and Harbors Act: 10

Road: 83

Rock, petroglyph: 24

Rural Electrification Administration (see Agriculture,

Department of)

S

Sac and Fox Nation of Missouri: 156

Saint Joseph Historic District: 11

Sale of property: 30, 37

San Francisco Peaks: 85

Second Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Seventh Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Severn River Bridge: 110

Sewage treatment plant: 35

Sitka Tribe: 151

Six Rivers National Forest: 83

Sixth Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Ski area: 85

Snow Bowl: 85

Society Hill: 146

South Carolina: 45, 58

South Dakota: 63, 72

South End Historic District: 49

South Green Historic District: 21

Sovereign immunity (see Immunity)

Stallings Building: 50

Standing

Administrative Procedure Act: 6, 10, 19, 37, 43 

aesthetic interest: 19, 36, 39, 59, 79, 114, 135 

association: 6, 21, 36, 41, 108 

attorneys' fees provision in NHPA: 97

conjectural allegations: 142

corporation: 1, 10, 21 

Department of Transportation Act and: 79 

development proposal: 2 

Executive Order No. 11593 and: 27

found: 6, 10, 16, 19, 21, 27, 36, 37, 39, 43, 53, 59,

68, 79, 88, 101, 108, 114, 142, 144, 148

historic interest: 79 

injury: 6, 10, 19, 21, 27, 36, 39, 53, 59, 79, 135,

142, 148

interest: 1, 2, 6, 19, 101, 105, 114, 123, 133, 135,

148

library card holder: 27 

link between taxpayer status and NHPA: 2 

member: 6, 10, 19, 21, 36, 39, 59, 79 

NEPA and: 6, 19, 59, 105 

NHPA and: 6, 10, 19, 21, 27, 37, 39, 53, 97, 105,

133 

nonprofit organization: 1, 2, 10, 19, 97, 105, 116,

123, 142, 144

not found: 1, 2, 10, 36, 101, 136, 142

private attorney general: 2, 3 

property owner: 2, 19, 36, 43, 148

public interest: 6, 10 

resident: 3, 19, 27, 36, 41 

Rivers and Harbors Act and: 10 

SHPO: 41 

standard: 37 

State: 15

taxpayer: 2

to challenge land exchange agreement: 36 

to enforce MOA: 32, 97

under State preservation law: 144

user: 10, 21, 27, 43, 59 

	
		
	
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zone of interests: 10, 19, 21, 27, 39, 53, 79, 148

State, Department of: 130

Storm King Mountain: 8 

Street: 38

Sugarloaf Mountain Historic District: 115

Summary judgment: 10, 35, 56, 75, 82, 85, 137, 139,

150, 152, 154, 155

Supreme Court, United States (see United States

Supreme Court)

Surface Transportation Board: 144

Survey (see Advisory Council on Historic

Preservation, regulations; Archeological

resources; Executive Order No. 11593;

National Historic Preservation Act)

Sycamore Street: 38

T

Taking (see United States Constitution, Fifth

Amendment; Condemnation)

Techworld: 91

Telegraph Building: 41

Tellico Dam: 14, 60

Temporary restraining order

denied: 38, 32, 39, 46, 70, 50, 78, 98, 140

granted: 19, 18, 21, 37, 52, 53, 72, 71, 80, 123, 128 

granted, then dissolved after change of

circumstances: 57, 136

Tennessee: 14, 25, 60, 65

Tennessee Tombigbee Waterway Project: 86

Tennessee Valley Authority: 14, 25, 60

Tenth Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Texas: 106, 126, 128

Theater: 75, 90

Third Circuit, U.S. Court of Appeals (see United

States Court of Appeals)

Three Sisters Islands: 6

Timber harvesting: 83, 151, 155

Tower: 16, 30

Traditional cultural property: 108, 131, 132

Train (see Railway)

Transfer of property: 37

Transportation, Department of (see also AMTRAK;

Bridge; Department of Transportation Act;

Federal-Aid Highway Act; Highways): 3, 29,

31, 34, 43, 57

capital assistance grant: 31

Coast Guard: 28, 32, 79, 103, 137, 143

Federal Aviation Administration: 111, 126, 145,

149

Federal Highway Administration: 7, 24, 36, 46, 65,

79, 92, 93, 95, 97, 109, 139, 142, 152, 153,

154

segmentation: 98, 109

Urban Mass Transportation Administration: 31, 38 

Treasury, Department of, Comptroller of the

Currency: 22, 51

Tribal lands: 101

Trust lands: 156

Tuckahoe Plantation: 9

Tunnel, commuter rail: 31

Turkish Chancery: 130

Tuxedo Park Village: 69

U

Uniform Relocation Assistance and Real Property

Acquisition Policy Act: 26

United States Constitution: 3

case or controversy: 32

due process: 55

Eleventh Amendment: 7, 43, 68 

Fifth Amendment: 25, 55 

Tenth Amendment: 55

United States Court of Appeals

1st Circuit: 17, 49, 70, 92, 129

2d Circuit: 5, 68, 96, 118

3d Circuit: 81, 107, 119, 121, 154

4th Circuit: 4, 6, 10, 11, 28, 34, 58, 110, 115, 116

5th Circuit: 38, 62, 86, 89, 102, 133

6th Circuit: 2, 14, 59, 60, 98, 111, 139

7th Circuit: 22, 47

8th Circuit: 94, 195, 109, 132

9th Circuit: 24, 26, 42, 64, 73, 76, 79, 104, 117,

122, 125, 131, 138, 141, 148, 149, 155

10th Circuit: 30, 57, 66

11th Circuit: 95

D.C. Circuit: 3, 54, 85, 93, 99, 100, 113, 120, 126,

127, 130, 145, 152, 153

United States District Court

Alabama, Northern District: 50, 53 

Alabama, Southern District: 95

Arizona: 101

California, Central District: 87, 88 

California, Northern District: 15, 83, 114

Colorado: 14

Connecticut: 21, 68

District of Columbia: 16, 18, 51, 85, 90, 91, 93,

100, 113, 120, 124, 128, 130, 134, 150, 158

Georgia, Northern District: 27, 36, 38, 52

Hawaii: 42, 56, 64 

Illinois, Northern District: 47, 78

Kansas: 156

Kentucky, Eastern District: 43, 112

Louisiana, Eastern District: 71, 77, 133, 143

Louisiana, Middle District: 62

Louisiana, Western District: 37

Maryland: 110

Massachusetts: 7, 49, 74

	
		
	
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Michigan, Western District: 1

Missouri, Western District: 11

Montana: 23, 33, 39 

Nebraska: 105

New Hampshire: 68, 92

New Jersey: 32

New Mexico: 66, 108

New York, Eastern District: 46, 123

New York, Northern District: 80, 157

New York, Southern District: 19, 69, 75, 137

North Carolina, Eastern District: 40

North Carolina, Western District: 29

Ohio, Southern District: 35, 82, 140, 142

Oklahoma, Western District: 44

Oregon: 7, 84, 122, 131

Pennsylvania, Eastern District: 31, 107, 121, 135,

146, 147

Pennsylvania, Middle District: 41, 119

Puerto Rico: 67, 70 

South Carolina: 45, 58

South Dakota: 63, 72

Tennessee, Eastern District: 14, 25

Tennessee, Middle District: 65

Texas, Western District: 106

Vermont: 118

Virginia, Eastern District: 6, 7, 10, 55

Virgin Islands: 136

Washington, Eastern District: 20

Washington, Western District: 97

Wisconsin, Eastern District: 61

Wisconsin, Western District: 43, 103

United States Supreme Court: 2, 9, 24, 57, 60, 64, 70,

75, 85

Urban Mass Transportation Administration (see

Transportation, Department of)

Urban renewal: 1, 2, 5, 12, 17, 19, 21, 30, 33,44, 47,

61, 68, 76, 81

USS Cabot: 143

V

Valley: 24

Vermont: 118

Veto authority: 113, 130

Vieux Carré Historic District: 77

Virginia: 6, 7, 10, 11, 34, 55, 116, 153, 158

Vieques Island: 70

Virgin Islands: 136

W

Warm Springs Dam: 16

Washington: 20, 79, 97

Washington, D.C. (see District of Columbia)

Waterfront: 9

Westchester County Courthouse: 19

West End Heights Historic District: 65

Western Area Power Administration (see Energy,

Department of)

Western Mohegan Tribe and Nation: 157

West High Street Historic District: 2

West Virginia: 152

Wetlands: 74

Wicker Park Historic District: 78

Will Sales Building: 59

Winder Building and Annex: 18

Wisconsin: 43, 61, 103

Woodrow Wilson Memorial Bridge: 153

Wyandote Tribe: 156

Z

Zealandia: 29