National Historic Preservation Law Conference
February 25, 2015
Strategic Considerations in Litigation
Under the National Historic
Preservation Act
Andrea C. Ferster
Attorney at Law
2121 Ward Court, N.W. 5th Fl.
Washington, D.C. 20037
(202) 974-5142
www.andreafersterlaw.com
National Historic Preservation Law Conference
February 25, 2015
Litigation under NHPA:
1. Strategic considerations
2. Types of Enforcement
actions
3. Defenses
4. Remedies
Strategic Considerations in
NHPA litigation
1.
Who are proper parties?
2.
When to file: statute of limitations,
Where to file: venue, direct review
3.
Statute governing judicial review?
4.
Evidence/administrative record
Strategic Consideration: Parties

Plaintiffs – must have standing

Defendants:


Federal agencies/head of
federal agency
Applicants for federal
funding or license
Parties: Non-Federal Defendants
Applicant for federal funding –
joinder is generally proper
Applicant for federal permit – may
be dismissed, see Committee to
Save Cleveland‟s Huletts v. U.S.
Army Corps of Engineers, 163 F.
Supp. 2d 776 (N.D. Ohio 2001)
Strategic question: Jurisdiction
Federal district courts ordinarily
have federal question
jurisdiction, except where
special statutory provisions
specify review in the relevant
U.S. Court of Appeals – e.g.,
FCC, STB, NRC, FERC
Strategic question: Where to File?

U.S. District Court review



Is venue proper?
Change of venue for convenience of
parties/witnesses
U.S. Court of Appeals direct review:
FERC, STB, DoE, FCC, NRC – D.C. Circuit
versus other circuit
Statute of Limitations

Tucker Act - 28 U.S.C. § 2501 - six-year
statute of limitations
Special statute, e.g., “Hobbs Act” - 28
U.S.C. § 2342 -- Must file within 60 days of
final order
 Transportation cases - SAFETEA-LU -23
U.S.C. § 139(1) - 180 days after publication
of notice of agency decision in Federal
Register

Statute governing judicial
review: NHPA or APA?
Administrative Procedure Act
(APA) – highly deferential review arbitrary & capricious / contrary
to law
OR
Section 305 of the NHPA Private right of action?
Conflict in circuits over basis
for judicial review under NHPA

9th , 4th, and DC Circuits –


3rd , 5th, 6th, and 7th Circuits 

Review is under APA
NHPA private right of action via NHPA
Section 305
Some courts decline to address this
issue, finding that review is available
under either statute
Judicial Review under the APA

Judicial review is based on
administrative record
 Ripeness
problem absent final
agency action – hard to prevent
“segmentation” or enforce MOAs
 Tucker
Act‟s 6-year statute of
limitations
Judicial Review under Section 305
of the NHPA
 Discovery/witness/”extra-record”
evidence may be allowed more
liberally
 Judicial review need not await
final agency decision;
“segmentation” can be prevented;
MOAs could be enforced against
non-federal entities
Administrative Record Review
 The
administrative record consists
of all documents and materials
considered by the agency in making
the decision under review
 Extra-record
evidence may be
permitted to show what the agency
overlooked or to explain the
administrative record
Administrative Record Review
Discovery generally not permitted

Exception: may be allowed as
part of preliminary injunction
proceedings

Exception: may be allowed to
discover the administrative
record
Types of NHPA Enforcement Actions
1.
Is there a federal “undertaking”?
2.
Did the agency comply with the
Section 106 regulations?
3.
Enforcement of MOAs
4.
Anticipatory Demolition
5.
Compliance with other provisions of
the NHPA
Undertaking: Federal control
over local project
Washburn Wire Factory – Harlem, NY
Section 106 Compliance

Failure to properly consult
SHPO/THPO

Inadequate consultation to identify
cultural resources
Plaintiffs must show that the agency
“really „missed the boat‟” and not just
erroneously “missed a beat.” Edenfield,
J., U.S. Dist. Ct., S.D. Georgia
Section 106 compliance:
Judicial deference

Court will defer to SHPO on issues of
adequacy of consultation

Court will defer to ACHP on
interpretation of NHPA/Section 106
regs

Court will defer to agency in
interpreting its statutory authority,
e.g., is it an “undertaking”
Section 106 Compliance –
Harmless Error
Harmless error: Does the action have
the potential to affect historic
properties?

Save Our Heritage, Inc. v. FAA, 269 F.3d
49 (1st Cir. 2001) (FAA‟s failure to consult
under Section 106 in approving additional
flights serving airfield near Lexington and
Concord historic sites deemed “harmless
error”)
Section 110 of the NHPA

Anticipatory demolition
Demolition of federal
properties by neglect

National Register delisting issues

Anticipatory Demolition and Section
110(k) of the NHPA
Ferster, Andrea, “Anticipatory
Demolition: Tool for Protection
or Paper Tiger?” Forum Journal,
Vol. 26, No. 2, Winter 2012
NHPA – Section 110 and
Demolition by Neglect
Defenses in NHPA Enforcement Action
1. Standing
2. Mootness
3. Ripeness
4. Sovereign
immunity
Defenses: Standing
Plaintiffs must establish “standing:”
(1) must suffer injury-in-fact that is
concrete and particularized as a
result of the challenged action;
(2) the injury must be within the zone
of interests protected by the
preservation law, and
(3) the injury must be redressable.
NHPA: National Register De-Listing
of Blair Mountain
Standing to Sue - Injury
Injury must be “imminent” or “certainly
impending.”


Kingman Park Civic Ass‟n v. Gray, 27 F. Supp.
3d 142 (D.D.C. 2014) (possible injury due to
electromagnetic field is remote and
speculative)
Friends of St. Frances Xavier Cabrini
Church v. FEMA, 658 F.3d 460 (5th Cir.
2011)
Special standing problem: MOA
enforcement
Non-signatories have standing to
enforce MOA provisions that accord
them rights
Tyler v. Cuomo,
236 F.3d 1124 (9th Cir. 2000)
Coalition of 9/11 Families, Inc. v. Rampe,
2005 WL 323747 (S.D.N.Y. 2005)
Defenses: Issues of Timeliness
Enforcement action cannot be
brought too early or too late.

Too early – Ripeness, anticipatory
demolition

Too late – laches, statute of
limitations, mootness
Defenses: Action brought too late
Statute of limitations
Laches
Mootness
Anticipatory demolition
Action brought too late:
Laches
Laches –unreasonable delay –
disfavored defense
Must show:
 Unreasonable
delay
+
 Prejudice to defendant
Action brought too late: Mootness
Award of a grant – depends on whether the
agency retains the ability to require
mitigation:
YES –
Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998)
Vieux Carre Prop. Owners, Residents & Assoc‟s v.
Brown, 948 F.2d 1436 (5th Cir. 1991)
NO –
Karst Env‟tal Educ. & Protection, Inc. v. EPA,
475 F.3d 1291 (D.C. Cir. 2007)
Action brought too late:
Anticipatory Demolition
Preservation Pittsburgh v.
Conturo, 477 Fed. Appx. 918
(3rd Cir. 2012)
Defense: Action brought too early
Final agency action
Ripeness
Issues of segmentation
Issues of Segmentation
Old Town Neighborhood Ass‟n v. Kauffman,
333 F.3d 732 (7th Cir. 2003) (evasion of
Section 106 compliance can only be
enforced through an injunction against
reimbursement)
Karst Environmental Educ. & Protection, Inc.
v. EPA, 475 F.3d 1291 (D.C. Cir. 2007)
(cannot reach non-federal entity proceeding
with project absent final federal agency
action)
Defense: sovereign immunity
APA
waives sovereign
immunity of federal
agencies
State
agencies waive 11th
amendment defense by
accepting federal benefits
Remedy: Injunctive Relief

Temporary Restraining Order (TRO) preserves the status quo for 10 days until a
preliminary injunction can be heard. The
TRO decision is not normally appealable.

Preliminary Injunction (PI) - preserves the
status quo until the merits are resolved.
Can be appealed.

Stay - stays the effectiveness of an agency
decision
Interim Injunctive Relief – 4-part test

Likelihood of success on the
merits

Irreparable injury to Plaintiff

Balancing harms

Public interest
Bond/Security – Fed. R. Civ. P. 65(c)
Injunction is normally conditioned on
posting bond/security
Public interest waiver/nominal bond

Plaintiff is acting as “private attorney
general”

Harm to government treated
differently from injury to private
party
Attorneys Fees – NHPA Sec. 305
 NHPA
- allows for market rate fees
for any in district court and on
appeal to a “substantially” prevailing
plaintiff, regardless of net worth
 Supreme
Court‟s decision in
Buckhannon - now requires a
judicially-sanctioned change of
posture to be a “prevailing plaintiff”
Attorneys Fees – NHPA Sec. 305
Preservation Coalition of Erie County
v. FTA, 356 F.3d 444 (2d Cir. 2004)
(Plaintiffs entitled to NHPA
attorneys fees even when the sole
relief was an order directing the
agency to comply with NEPA, where
the primary impacts and issues
related to historic resources)