* District Judge of the Eastern District of Texas, sitting by

designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-3344.

VIEUX CARRE PROPERTY OWNERS RESIDENTS AND ASSOCIATIONS, INC.,

Plaintiff-Appellant,

v.

Lloyd Kent BROWN, Colonel, Defendant-Appellee.

Dec. 19, 1994.

App eal from the United States District Court for the Eastern

District of Louisiana.

Before REAVLEY and JONES, Circuit Judges, and JUSTICE *

, Distr ict

Judge.

EDITH H. JONES, Circuit Judge:

The City of New Orleans' Vieux Carre Commission , the New

Orleans City Planning Commission, and the New Orleans City Council

all approved the site for a wo rld-class aquarium and riverfront

park in 1987. That year a group of landowners in the Vieux Carre

National Historic Landmark District—the French Quarter—disgruntled

with the "historic impact" of the project, filed suit to arrest its

construction. Relying on the Rivers and Harbors Act, 33 U.S.C. §

403, which was designed to protect the navigable waterways of the

United States, and the regulations found in 33 C.F.R. §§ 320

through 330, the plaintiffs have managed to survive two prior

dismissals of their action by the district court by appeal to this1 See Vieux Carre Property Owners v. Brown, 948 F.2d 1436

(5th Cir.1991) ( Vieux Carre II ); Vieux Carre Property Owners,

Residents & Associates, Inc. v. Brown, 875 F.2d 453 (5th

Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 720, 107

L.Ed.2d 739 (1990) ( Vieux Carre I ).

2 33 U.S.C. § 403 et seq.

2 court. 1 Despite our reluctance to accept fully the reasoning of

the district court, we find no barrie r to terminating this

litigation since no m eaningful relief to the plaintiffs is

presently possible.

The park project, properly characterized as "inconsequential,"

fell within the scope of the Corps' nationwide permit process.

Although the Corps' conceded omis sion of compliance with its

internal h istorical review regulation renders the park's permit

technically flawed, neither the regulations nor the RHA authorizes

Vieux Carre to remedy that problem.

I.

The two previous opin ions by this court have significantly

narrowed the issues. Ultimately, the Vieux Carre's fate is

predetermined by the level of historic revi ew properly imported

into the provisions of the Rivers and Harbors Act (RHA). 2 Although

the RHA might appear to c onstitute an odd vehicle to resolve a

dispute over historic impact, the provisions of the Act are

triggered because some structures invol ved in the project were

built on the Bienville Street Wharf. The RHA prohibits all

activities affecting the course, condition, location, or capacity

of any navigable water unless authorized by a permit issued by the

Army Corps of Engineers. V ieux Carre II, 948 F.2d at 1439 n. 2.3 More precisely, this court held that the Corps' conclusion

that the aquarium project would not affect navigation was not

arbitrary and capricious. Id.

3 Vie ux Carre I determined that only the park (in contrast to the

aquarium) segment of the project could obstruct navigable capacity

in waters of the United States so that it alone required a permit

from the Corps. Vieux Carre I, 875 F.2d at 462. 3

That conclusion the Corps no longer contests. Not all

permits are created equal, however; the burden on the Corps of

assessing historical impact may vary considerably as a repercussion

of the precise type of permit required. Specifically, the Corps is

authorized to issue two types of permits, individual and general.

Vieux Carre II, 948 F.2d 1436 n. 3; 33 CFR § 325.5(a). If an

individual permit is necessary, the formal historic review

consultation procedures mandated by Congress in Section 106 of the

Nation al Historic Preservation Act (NHPA) are triggered. V ieux

Carre I, 875 F.2d at 464. The Corps concedes that this type of

historic impact a nalysis was never undertaken. Nevertheless, a

form of general permit that authorizes specific types of activities

without prior particularized approval of the Corps—the nationwide

permit—was designed to expedite endeavors with inconsequential

effects on the RHA concerns. See 33 C.F.R. § 330.1 (stating that

nationwide pe rmits "are designed to allow certain activities to

occur with little, if any, delay or paperwork"). Projects exempted

from the individual permit requirement by virtue of the nationwide

permit merely demand minimal, informal consideration of historical

impact. V ieux Carre I, 875 F.2d at 465 ("nationwide permits4

33 C.F.R. § 330.5(b)(9) (1986) provides in relevant part:

That, if the activity may adversely affect historic

properties which the National Park Service has listed

on, or determined eligible for listing on, the National

Register of Historic Places, the permittee will notify

the district engineer. If the district engineer

determines that such historic properties may be

adversely affected, he will provide the Advisory

Council on Historic Preservation an opportunity to

comment on the effects on such historic properties or

he will consider modification, suspension, or

4 authorizing truly inconsequential activities are not trigger[s]" of

the NHPA).

In the Corps' judgment the construction of the park satisfied

the criteria for sanction under the nationwide permit. The

district court held on remand that this conclus ion was not

arbitrary or capricious, and in accord with this court's directive

the district cour t further inquired whether the park project was

"so inconsequential that it does not trigger NHPA." V ieux Carre

II, 948 F.2d at 1448. Inferring that the proper measure of whether

an activity is consequential is its impact on navigation, the court

held that since the park spawned no effect on navigation the Corps

need not activate the procedures demanded by the NHPA.

Although Vieux Carre challenges th ese conclusions in this

appeal, its more cogent assaults address the district court's

deductions from these premises. Indeed, the crux of this

protracted litigation assumes that the district court correctly

resolved the NHPA question. Instead, the enigmatic question

persists as to whether the § 330.5(a)(3) nationwide permit is—or

ever was—valid "given that the Corps did not follow its own

regulations at § 330.5(b)(9)." 4 V ieux Carre II, 948 F.2d at 1449.revocation in accordance with 33 C.F.R. § 325.7.

5 Vieux Carre I, 875 F.2d at 465.

6 The district court ventured to finesse this complication by

reexamination of the issue. Applying an exception to the "law of

the case" doctrine, the court concluded that the Fifth Circuit's

determination "that the Corps concedes that it did not evaluate

the historic impact of either phase if the project", see Vieux

Carre I, 875 F.2d at 465, has no support in the record, thereby

rendering it clearly erroneous. Upon reexamination, the district

court held that the Corps had complied with the regulation. In

particular, the court relied upon Colonel Brown, district

engineer for the Corps, who testified that he and his staff has

discussed the impact of the park project on the French Quarter

and judged that no adverse impact would result. Although a

review of the record in Vieux Carre I does leave the appropriate

interpretation of the "concession" open to debate, the Corps had

several procedures at its disposal five years ago to bring this

misunderstanding to the attention of the original panel of this

court. Without an unequivocal departure from the record,

revision at this late date of settled issues is imprudent in

light of the superior knowledge of the original panel of the

context of the "concession," and the risk of undermining the

litigation decisions the parties adopted in reliance upon it.

5 Simply, the Corps' "con ce[ssion] that it did not evaluate the

historic impact of either phrase of the project" 5 violates even an

i nterpretation of section 330.5(b)(9) demanding solely pro forma

consideration. 6

The district court held for the second time t hat the

completion of the project rendered this difficulty moot. Once

a gain, this decision did not technically comply with our

instructions on remand. Nevertheless, the interpretation we

ascribe to the Rivers and Harbors Act is of little more avail to

the plaintiffs.

II.

We proceed in this trilogy by first affirming the d istrict

court's careful treatment of the "appropriateness" of a nationwide7

The § 330.5(a)(3) nationwide permit provides in relevant

part: The repair, rehabilitation, or replacement of

any previously authorized, currently serviceable,

structure or fill, or of any currently serviceable

structure or fill constructed prior to the requirement

for authorization, provided such repair,

rehabilitation, or replacement does not result in a

deviation from the plans of the original structure or

fill, and further provided that the structure or fill

has not been put to uses differing from uses specified

for it in any permit authorizing its original

construction.

33 C.F.R. § 330.5(a)(3) (1986) (emphasis added).

6 permit and its assessment of the activities as "inconsequential."

The Corps determined tha t the riverfront park project fell

within § 330.5(a)(3) of its nationwide permit program. 7 The court

found that there was no construction beneath the wharf, and the

dimensions of the wharf did not change. Critically, its maritime

purpose as a general cargo wharf was preserved. Since an agency is

afforded "substantial deference" when it interprets i ts own

regulations, Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333,

2341, 90 L.Ed.2d 921 (1986), our inquiry is confined to whether

t his judgment was arbitrary or capricious. Considering that the

Corps' jurisdiction emanates from effects on na v igable water,

evaluating whether the park resulted in a deviation in the original

plan or a different use for the wharf from the perspective of the

wharf's maritime function is perfectly reasonable. Hence the

changes affecting landward surface are not ineligible for

authorization by means of a nationwide permit.

Similarly, the district court properly gauged

"inconsequentiality" by reference to the project's impact "on the8 Recall that any increased traffic and congestion would be

relevant only to the extent it could be tied to the development

of the park as the aquarium is beyond the jurisdiction of the

Corps. See Vieux Carre I, 875 F.2d at 463.

7 RHA concerns," i.e., the obstruction of navigable waters. S ee

Vieux Carre I, 875 F.2d at 465. In this respect, the fact that the

p roject had no effect on the ability of the wharf to function in

its "navigational" capacity proves crucial. Finally, even if the

decision on consequentiality should have considered the park's

historic impact separately from its impact on navigable waters,

appellants have not carried their burden of demonstrating that the

Corps' decision was arbitrary and capricious. With the exception

of an occasional reference to the increased traffic and congestion

attributable to the development of the aquarium and park project,

appellants failed to identify any specific relationship between the

park's development and historic preservation consequences for the

French Quarter. 8 Consequently, no justification is apparent for

disturbing the district court's conclusion that the Corps properly

denominated the park project under its nationwide permit system.

III.

Because of the vitality of the Corps' concession that it did

not follow its own historical impact regulation, § 330.5(b)(9), the

permit authori zing the park project, albeit appropriate, is

defective. Compliance with section 330.5(b)(9), requiring the

consideration of adverse historical impact by the district

engineer, is a "condition" of activity licensed via the nationwide

permit scheme. See 33 C.F.R. § 330.5(b) ("Conditions"). Since no9 These are criminal statutes. See 33 U.S.C. § 406 (persons

violating this title are guilty of a misdemeanor punishable by a

term of imprisonment not exceeding one year and a fine of $500-

2,500).

10 "[T]he removal of any structures or parts of structures

erected in violation of the provisions of the said sections may

be enforced by the injunction of any district court exercising

jurisdiction in any district in which such structures may exist,

and proper proceedings to this end may be instituted under the

direction of the Attorney General of the United States." 33

8 individualized permit was ever sought for the park project, no

valid authorization exists. 33 C.F.R. § 330.1 ("Failure to comply

with a condition does not necessarily mean the activity cannot be

authorized but rather that the activity can only be authorized by

an indi vidual or regional permit.") "Without a valid and

appropriate permit, the park project is unlawful under RHA § 10."

Vieux Carre II, 948 F.2d at 1443 n. 22.

Although this corollary manifests a ring of importance, the

"unlawful" shibboleth does not advance the cause of the Vieux

Carre. Indeed, the fact that the park is illegal may expose others

to draco nian consequences, 9 but the RHA statutory scheme does not

assign enforcement prerogatives to these plaintiffs.

The Vieux Carre cannot pursue an injunction to ameliorate the

violation of RHA § 10. C alifornia v. Sierra Club, 451 U.S. 287,

294, 101 S.Ct. 1775, 1779-80, 68 L.Ed.2d 101 (1981) (RHA does not

provide private right of action). Moreover, this court has already

rejected the suggestion that the Corps could be compelled to

enforce the statute. V ieux Carre I, 875 F.2d at 457 ("[N]o statute

requires the Corps to enforce the RHA provision that Vieux Carre

claims was violated here. In fact, 33 U.S.C. § 406 [ 10 ] explicitlyU.S.C. § 406.

11 Interestingly, it is the Department of Justice that has

been defending the position of the Army Corps against the Vieux

Carre.

12 Since the Corps cannot modify, suspend, or revoke a permit

that does not exist, § 325.6(a) has no application. No need

arises, therefore, to answer the difficult question whether or

not permits "expire." See Vieux Carre II, 948 F.2d at 1444.

9 vests that authority in the Attorney General.") 11 And patently the

Attorney General may not be obliged to p rosecute any offenders.

D iamond v. Charles, 476 U.S. 54, 64-65, 106 S.Ct. 1697, 1704, 90

L.E d.2d 48 (1986) (in American jurisprudence a private citizen

lacks a judic ially cognizable interest in the prosecution or

non-prosecution of another).

The Army Corps of Engineers is not, however, left unbridled.

Other parties, concerned with exposure to criminal liability, must

be motivated in the future to seek an after-the-fact permit. For

example, a need or desire for new construction or a modification of

the park project may arise. As section 401 makes it unlawful "to

construct or commence the construction " of a structure without the

designated approval, only the foolhardy would proceed in such a new

venture in disregard of the statutory penal ty. To issue such a

"valid" permit, the Corps could not circumvent the historical

review pr ocess. If the contemplated activity warranted the

simplified approach of the nation wide permit only brief

consultation would be implicated ; otherwise, complete NHPA

treatment would be necessary. 12

IV.10

For these reasons, we AFFIRM the judgment of the district

court.

JUSTICE, District Judge, dissenting:

I wholly agree with the majority opinion, save for its

ultimate conclusion that no meaningful relief is now available to

plaintiff-appellant Vieux Carre. Vieux Carre I plainly hold that

Vieux Carre "has standing to assert its claim for a declaratory

judgment against the Corps." V ieux Carre Property Owners v. Brown,

875 F.2d 453, 459 (5th Cir.1989). The majority opinion is clearly

contrary to Vieux Carre I in this respect, and apparently fails to

give recognition to t he law of the case doctrine. N orth Miss.

Commu nications v. Jones, 951 F.2d 652, 656 (5th Cir.1992), cert.

denied, --- U.S. ----, 113 S.Ct. 184, 121 L.Ed.2d 129 (1992).

I would reverse and remand this case, in order that Vieux

Carre may pursue the remedy made available to it under Vieux Carre

I.