United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2007 Decided February 5, 2008

No. 06-5278

JIM LEMON AND

ROBIN BISER,

APPELLANTS

v.

PETE GEREN, SECRETARY OF THE ARMY, ET AL.,

APPELLEES

Appeals from the United States District Court

for the District of Columbia

(No. 05cv00949)

Scott M. Edson argued the cause for appellants. With him

on the briefs were John H. Beisner and Mark S. Davies.

Alexander Hays, V., pro hac vice, argued the cause for

amici curiae National Trust for Historic Preservation, et al. in

support of appellant. On the brief were Elizabeth S. Merritt and

Aaron Colangelo.

Brian C. Baldrate, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney. Kevin K. Robitaille, Assistant U.S. Attorney, entered
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an appearance. Lawrence P. Fletcher-Hill, Cristen S. Rose, and

David H. Bamberger joined in the brief for appellees.

Before: RANDOLPH, GRIFFITH and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: Plaintiffs live near and enjoy

Fort Ritchie, a closed Army base in western Maryland described

in our opinion in Role Models America, Inc. v. White, 317 F.3d

327, 330 (D.C. Cir. 2003). The only issues on this appeal are

whether, as the district court ruled, plaintiffs lack standing to

pursue claims regarding the disposition of Fort Ritchie under the

National Environmental Policy Act, 42 U.S.C. § 4321 et seq.,

and the National Historic Preservation Act, 16 U.S.C. § 470 et

seq., and whether the case became moot while the appeal was

pending. 

After Fort Ritchie was selected for closure, Washington

County, Maryland became the local authority to plan the reuse

and redevelopment of the fort. In 1997, Washington County

approved a comprehensive redevelopment plan calling for the

creation of an office complex. Maryland then established

PenMar Development Corporation to serve as the new

redevelopment authority to implement the plan. See MD.CODE

ANN., Art. 83A §§ 5-1201 to -1210 (West 1997). 

In 1997, the Secretary of the Army entered into a

Programmatic Agreement with PenMar, the Maryland Historical

Trust, and the Federal Advisory Council on Historic

Preservation to comply with the National Historic Preservation

Act (“NHPA”). Section 106 of NHPA requires the Secretary,

“prior to the approval of the expenditure of any Federal funds on

the undertaking[,]. . . [to] take into account the effect of the
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[transfer] on any district . . . that is included in or eligible for

inclusion in the National Register,” and to “afford the Advisory

Council on Historic Preservation . . . a reasonable opportunity to

comment” regarding the transfer. 16 U.S.C. § 470f. The

Programmatic Agreement sought to minimize damage to the

historic areas of the fort by requiring PenMar to develop Design

Guidelines that would encumber future receivers of the property.

In 1998, the Secretary prepared, pursuant to the National

Environmental Policy Act (“NEPA”), an environmental impact

statement examining the environmental effects of different

redevelopment options. NEPA requires an impact statement for

“major Federal actions significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(2)(C). Significant

circumstances occurring after the initial impact statement but

before major federal action may require a supplemental impact

statement. See Marsh v. Or. Natural Res. Council, 490 U.S.

360, 371, 374 (1989) (noting that the preparation of

supplemental environmental impact statements is sometimes

necessary to comply with NEPA); City of Olmstead Falls v.

FAA, 292 F.3d 261, 274 (D.C. Cir. 2002) (NEPA requires a

supplemental environmental impact statement when “new

information ‘provides a seriously different picture of the

environmental landscape.’” (quoting Wisconsin v. Weinberger,

745 F.2d 412, 418 (7th Cir. 1984) (emphasis in original))).

By 2004 PenMar had abandoned its original plan and had

decided instead to sell Fort Ritchie to the Corporate Offices

Properties Trust (COPT), a publicly-traded real estate

investment trust. COPT proposed a new redevelopment plan

that entailed more construction and commercial activity,

including activity on historic grounds, than PenMar had

proposed. In 2005, the Secretary of Housing and Urban

Development approved the new plan. In 2006, the Army issued

a Record of Environmental Consideration that called for no
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further examination into the environmental or historical impact

of the COPT plan. 

Plaintiffs brought this action against the Secretary of the

Army, PenMar, and COPT, alleging violations of NEPA and

NHPA in the closure and redevelopment of Fort Ritchie.

Among other things, their amended complaint alleged that the

emergence of COPT’s proposed redevelopment plan for Fort

Ritchie created additional NHPA and NEPA obligations on the

Secretary before the property could be conveyed. Plaintiffs

sought declaratory and injunctive relief to prevent the Army’s

transfer of Fort Ritchie to PenMar. 

The district court recognized that Article III of the

Constitution requires plaintiffs to “demonstrate injury-in-fact

(concrete and particularized, actual or imminent), caused by the

defendant and capable of being redressed by a court order.”

Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 4 (D.C.

Cir. 2005); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). With respect to plaintiffs’ NEPA claim, the court held

that they had not satisfied this test because the Army’s

preparation of a supplementary impact statement would not

“force defendants to alter their allegedly injurious course of

action here.” Lemon v. Harvey, 448 F. Supp. 2d 97, 104 (D.D.C.

2006). We think the court misperceived the nature of plaintiffs’

claim. The key word in the quotation from the district court’s

opinion is “force.” Preparation of an environmental impact

statement will never “force” an agency to change the course of

action it proposes. The idea behind NEPA is that if the agency’s

eyes are open to the environmental consequences of its actions

and if it considers options that entail less environmental damage,

it may be persuaded to alter what it proposed. See, e.g.,

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349

(1989). Countless lawsuits in which this court and others upheld

a plaintiff’s standing were predicated on that understanding.
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The plaintiffs in some of those cases had standing because they

lived – as do the plaintiffs here – near where the federal action

would occur and would feel the environmental effects of that

action if it went forward. Lujan, 504 U.S. at 572-73 nn.7-8; City

of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir.

2007); City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.

2003). Sometimes, the Article III injury in these types of cases

is called a “procedural injury,” the thought being that plaintiffs

suffer harm from the agency’s failure to follow NEPA’s

procedures, compliance with which might have changed the

agency’s mind for the reasons just given. See City of Dania

Beach, Fla., 485 F.3d at 1185; Nat’l Parks Conservation Ass’n,

414 F.3d at 4; Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 674-

75 (D.C. Cir. 1996)(en banc). Whatever the label, it is clear that

individuals in the same position as the plaintiffs in this case have

standing to seek compliance with the impact statement

requirement of NEPA. The Supreme Court recognizes as much,

as do we. Lujan, 504 U.S. at 572-73 nn.7-8; Nat’l Parks

Conservation Ass’n, 414 F.3d at 4-6; City of Waukesha, 320

F.3d at 235. 

For similar reasons we believe plaintiffs had standing to

pursue their claim under NHPA. The district court treated the

claim as if plaintiffs were seeking to enforce a contract – the

Programmatic Agreement – despite having no contractual rights

under the agreement. We do not believe this is a correct view of

plaintiffs’ complaint. Lemon, 448 F. Supp. 2d at 105. As we

have mentioned, § 106 of NHPA required the Secretary of the

Army to “take into account” the effect of transferring Fort

Ritchie on the area within the former base that is eligible for

inclusion in the National Register of Historic Places – about

one-third of the Fort. Plaintiffs’ alleged injury is similar to that

under NEPA – if the Secretary had taken into account the effect

of the new COPT redevelopment plan he might have placed

conditions on the transfer of the land to PenMar, conditions that
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might have ameliorated what plaintiffs see as damage to an

historic site they visit and enjoy. See Karst Envtl. Educ. &

Prot., Inc. v. EPA, 475 F.3d 1291, 1294-95 (D.C. Cir. 2007);

Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55-56 (1st Cir.

2001); Pye v. United States, 269 F.3d 459, 468 (4th Cir. 2001).

Plaintiffs therefore had standing to pursue their NHPA claim. 

The remaining question is whether, as the defendants

contend, the case became moot when the Army recently

completed the transfer of Fort Ritchie to PenMar, which

immediately transferred the property to COPT. A case becomes

moot when “intervening events make it impossible to grant the

prevailing party effective relief.” Burlington N. R.R. Co. v.

Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996). But all

of the parties to the transaction are before the court. If

unraveling the transfer is necessary after the district court

decides the merits, it will be within the court’s power to do so.

See Porter v. Lee, 328 U.S. 246, 251 (1946); Indus. Bank of

Wash. v. Tobriner, 405 F.2d 1321, 1323 (D.C. Cir. 1968). The

case therefore is not moot. 

The judgment of the district court dismissing the action for

lack of standing is reversed and the case is remanded for further

proceedings. 

So ordered.