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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Sayler Park Village

Council et al. Plaintiffs v. : : U.S. Army Corps of Engineers et al. : : Defendants : ORDER : : District Judge Susan J. Dlott : : Case No. C-1-02-832

This matter comes before the Court on Plaintiffs Motion for Summary Judgment (doc. #9), Motion for Summary Judgment of Lone Star Industries, Inc. (doc. #11), and Federal Defendants Motion for Summary Judgment (doc. #12). Plaintiffs ask the Court to revoke a permit issued to Defendant Lone Star Industries, Inc. (Lone Star) by Defendant U.S. Army Corps of Engineers (the Corps) for the construction of a barge loading and unloading facility on the Ohio River, near the community of Sayler Park in the City of Cincinnati. They contend that the Corps violated the National Historic Preservation Act by prematurely issuing the permit and terminating its consultation with parties interested in the outcome of the permit process. For the reasons set forth below, the Court GRANTS Plaintiffs motion for summary judgment and DENIES Defendants motions. I. FACTUAL BACKGROUND A. The Parties

Sayler Park is a community that lies within the City of Cincinnati and near the Ohio River. About 3,500 people live in Sayler Park, including Plaintiffs Mary Cipriani, Tracy and Joseph Hoffecker, and Stanley and Barbara Tyirich. Plaintiff Sayler Park Village Council, Inc. (the Village Council) is a non-profit corporation operating under the laws of the State of Ohio whose stated purpose is the protection of the interests of the residents of Sayler

Park. Plaintiff Steven Driehaus is a member of the Ohio House of Representatives from the legislative district that includes Sayler Park. Defendant U.S. Army Corps of Engineers is a federal agency responsible for regulating, inter alia, the issuance of permits for undertakings affecting the waterways of the United States. The individual Defendants Secretary of the Army Thomas E. White, Commander and Chief of Engineers Lt. General Robert B. Flowers, and Commander and District Engineer, Louisville District, Colonel Robert A. Rowlette, Jr. are named in their official capacities only. Defendant Lone Star ships and distributes concrete in the Cincinnati area. B. The Regulatory Framework

Congress passed the National Historic Preservation Act (NHPA) in 1966 to accelerate [the federal governments] historic preservation programs and activities, to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist State and local governments . . . to expand and accelerate their historic preservation programs and activities. 16 U.S.C. 470. In furtherance of these goals, Section 106 of the NHPA requires that the head of any Federal department or independent agency having authority to license any undertaking shall, . . . prior to the issuance of any license, . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. 16 U.S.C. 470f. Additionally, the NHPA established the Advisory Council on Historic Preservation (ACHP), an independent federal agency, and gave it a wide variety of responsibilities. 16 U.S.C. 470i. These include advising the President and Congress, encouraging public interest and participation in historic preservation, encouraging training and education in the field of historic preservation, and reviewing policies and programs of federal agencies as they relate to historic preservation. 16 U.S.C. 470j(a). Beyond giving it purely advisory duties, Congress also authorized the ACHP to promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106 of the NHPA] . . . in its entirety. 16 U.S.C. 470s. Other federal agencies, including the Corps, are required to establish procedures for protecting historic properties that are consistent with regulations issued by the [ACHP] pursuant to section 470s. 16 U.S.C. 470h-2(a)(2)(E)(I). The ACHP regulations governing the implementation of section 106 are codified in Part 800 of Title 36 of the Code of Federal Regulations and lay out a multi-step process for an agency to complete when considering

whether to license an undertaking.1 First, the agency must determine the area of potential effects (APE) of the proposed undertaking. 36 C.F.R. 800.4(a)(1). Next, the agency must identify historic properties within the APE and determine whether those properties are eligible for inclusion on the National Register of Historic Places (the National Register). 36 C.F.R. 800.4(b), (c). The agency then must determine whether the proposed

undertaking will affect historic properties that lie within the APE and are eligible for inclusion on the National Register. 36 C.F.R. 800.4(d). If so, then the agency must assess whether the potential effects would be adverse, i.e., whether the undertaking may alter, directly or indirectly, any of the characteristics of a historic property that may qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the propertys location, design, setting, materials, workmanship, feeling, or association. 36 C.F.R. 800.5(a)(1). Finally, if the potential effects are deemed adverse, then the agency must attempt to resolve those effects. See 36 C.F.R. 800.6, 800.7. The ACHP regulations emphasize the importance of consultation between the licensing agency and other interested parties. Consultation is defined as the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. 36 C.F.R. 800.16(f). Specifically, an agency completing the section 106 process must consult with the state historic preservation officer (SHPO) or tribal historic preservation officer (THPO) in the areas which may be affected by the undertaking, as well as representatives of local governments, the permit applicant, and other individuals and organizations with a demonstrated interest in the undertaking. 36 C.F.R. 800.2. Consultation, particularly with the relevant SHPO or THPO, is required during every step of the permit process. For instance, the agency must determine the APE [i]n consultation with the SHPO/THPO, 36 C.F.R. 800.4(a), the identification of historic properties must be done in consultation with the SHPO/THPO, 36 C.F.R. 800.4(b), the agency must decide whether historic properties qualify for the National Register [i]n consultation with the SHPO/THPO, 36

An undertaking is defined as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. 36 C.F.R. 800.16(y).

C.F.R. 800.4(c)(1), and the agency must determine whether effects are adverse [i]n consultation with the SHPO/THPO, 36 C.F.R. 800.5(a).2 The above sets forth the general structure of the ACHP regulations. However, this lawsuit involves the specific issue of an agencys consultation responsibilities once it determines that a proposed undertaking will have no effect on historic properties. The ACHP regulations speak to this question: (1) No historic property affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in 800.16(I), the agency official shall provide documentation of this finding, as set forth in 800.11(d), to the SHPO/THPO. The agency official shall notify all consulting parties, organizations, and make the documentation available for public inspection prior to approving the undertaking. If the SHPO/THPO, or the [ACHP] if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency officials responsibilities under section 106 are fulfilled. (2) Historic properties affected. If the agency officials find that there are historic properties which may be affected by the undertaking or the SHPO/THPO or the [ACHP] objects to the agency officials finding under paragraph (d)(1) of this section, the agency official shall notify all consulting parties, . . . invite their views on the effects and assess adverse effects, if any, in accordance with 800.5. 36 C.F.R. 800.4(d). But section 800.4 does not stand alone. In 2001, the ACHP issued interim guidance addressing how an agency should proceed after making a no historic properties affected finding. The guidance responds to the decision of the United States District Court for the District of Columbia in National Mining Assn v. Slater, 167 F. Supp. 2d 265 (2001). In relevant part, the Interim Guidance states: [T]he [National Mining] court invalidated two subsections of the Section 106 regulations insofar as they allowed ACHP to effectively reverse a Federal agencys findings of no historic properties affected (Section 800.4(d)(2)) and no adverse effects (Section 800.5(c)(3)). Prior to the court decision, an objection by ACHP or [SHPO/THPO] to a no historic properties affected finding required the Federal agency to proceed to the next step, where it would assess whether the effects were adverse. . . . ACHP plans to provide opinions to Federal agencies regarding their no historic properties affected findings, pursuant to Section 800.9(a) of its regulations, whenever appropriate. However, such opinions will be advisory and will not Consultation need not proceed ad infinitum, however. 36 C.F.R. 800.7 provides a mechanism by which the agency, a SHPO, a THPO, or the ACHP may unilaterally terminate consultation to resolve adverse effects if that party determines that further consultation would be unproductive.
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require the Federal agencies to continue to the next step in the Section 106 process. In the event that a SHPO/THPO does not agree with a finding of no historic properties affected, the agency official should notify ACHP and seek an advisory opinion. ACHP believes this interim step, while not mandatory, would help resolve disputes and avoid the potential for litigation or other delays. (Doc. #10 exh. B.) The Corps has also issued regulations regarding the section 106 process. See 33 C.F.R. Part 325, App. C. Likewise, subsequent to the ACHP Interim Guidance, the Corps also issued interim guidance, which contains two provisions relevant to this suit: If the Corps decided there is no effect to historic properties, [it] has no further obligations under Section 106. It is important to state [that] the Section 106 process ends when . . . it is determined there are no historic properties affected. . . . In other words, for Section 106 to proceed, an Eligible Property must be affected. ... If the SHPO or the THPO disagrees with the district engineers determination concerning effects on historic properties, the district engineer can either consult with the SHPO or THPO to resolve the disagreement or request the ACHP to review the finding. If the SHPO or the THPO concurs with the district engineers determination of no effect, then the Section 106 process ends. (Doc. #10 exh. C (emphasis in original).) In a memorandum to its command staff, the Corps acknowledged that [t]he ACHP does not endorse this guidance nor does it agree with Appendix C. (Id.) C. The Lone Star Permit

On June 20, 2000, Lone Star filed an incomplete application with the Department of Army for a permit to construct a barge facility for the loading and unloading of cement. The application identified the proposed site as a parcel of land on the right bank of the Ohio River in Cincinnati, Ohio. The Department of Army received drawings necessary to complete Lone Stars application on December 18, 2000. A public notice of the application was issued on January 3, 2001. In response to the public notice, the Ohio SHPO advised the Corps that the proposed permit area was adjacent to the community of Sayler Park. Because of the historical nature of Sayler Park, the Ohio SHPO recommended that Lone Star be required to make an architectural survey of the properties within the APE of the

proposed facility. On February 16, 2001, the Corps directed Lone Star to provide an architectural survey and view shed analysis of properties within the APE of the project. Based on responses to the public notice, the Corps also held a public hearing on April 19, 2001 at the Sayler Park Community Center. On October 9, 2001, the Corps contacted a number of parties, including the Ohio and Kentucky SHPOs, the City of Cincinnati, and the Village Council, and invited them to consult in the section 106 process. Between October 2001 and February 2002, the Corps met a number of times with the consulting parties. On February 8, 2002, the Corps issued its final APE determination. Neither of the SHPOs objected to this determination. On March 12, 2002, the Corps finalized its report on the properties within the APE, concluding that sixteen buildings and two structures were eligible for the National Register. Then, on July 8, 2002, the Corps issued a finding that none of these historic properties would be affected by the Lone Star facility. Within thirty days, the Corps received letters objecting to the no historic properties affected finding from the Kentucky and Ohio SHPOs, the Boone County Historic Preservation Review Board, the Village Council, and the Sayler Park Preservation Association. In response, the Corps reviewed the objections of the Ohio and Kentucky SHPOs and declared on October 29, 2002 that they provided no basis to reconsider the no historic properties affected finding. Three days later, on November 1, Colonel Robert A. Rowlette, Jr., the District Engineer for the Louisville District, issued another response concurring with the no historic properties affected finding issued by his predecessor: I have determined that the letters of objection from the consulting parties do not provide any new data, information or arguments that would warrant reconsideration of the previous decision regarding the impacts to historic properties as a result of the proposed project. Therefore, I concur with Colonel Slockbowers findings of no effect to historic properties and have determined [that] the Section 106 process for this project is concluded. (Doc. #10 exh. F.) That same day, Lone Star received a Department of Army permit to construct the barge facility. Construction of the facility started soon thereafter. D. The Lawsuit

On November 8, 2002, Plaintiffs filed suit against the Corps and the individual Defendants, alleging that the Corps violated the NHPA by failing to complete the process set forth by either the ACHP regulations or its own

regulations.3 Two weeks later, Plaintiffs moved for a temporary restraining order staying the Lone Star permit and stopping construction at the site. (Doc. #2.) Prior to a hearing on the motion, Lone Star moved to intervene as a defendant. (Doc. #4.) The Court granted Lone Stars motion. At the hearing, the Court did not grant a temporary restraining order, but the parties agreed to stipulate to the relevant facts, file cross-motions for summary judgment, and brief those motions on an expedited schedule. (See doc. #5.) The parties have now filed and briefed their motions. In addition, National Trust for Historic Preservation, City of Cincinnati, and the Kentucky Historic Preservation Office4 have filed amicus curiae briefs in support of Plaintiffs motion for summary judgment. (See docs. #20, 21, 22, 23.) II. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that permissibly can be drawn therefrom, must be read in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The parties have jointly filed a Stipulated Statement of Facts (doc. #10) and agree that this matter is ripe for judgment as a matter of law. III. ANALYSIS Plaintiffs assert that Defendants violated the NHPA by failing to continue the section 106 process, as required by the ACHP regulations, after the Kentucky and Ohio SHPOs objected to the no historic properties affects finding. Defendants argue that, in light of the National Mining decision and the ACHP Interim Guidance, no further consultation was required. Thus, the question presented here is narrow: was the Corps required to consult further with interested parties once the Ohio and Kentucky SHPO objected to its no historic properties affected finding? The Court answers this question in the affirmative.

The NHPA permits a private cause of action to ensure compliance with its provisions. Brewery Dist. Socy v. Fed. Highway Admin., 996 F. Supp. 750, 756 (S.D. Ohio 1998).
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The Kentucky Historic Preservation Office is the Kentucky SHPO.

Under the original ACHP regulations, a no historic properties affected finding does not terminate the section 106 process without at least tacit ACHP and SHPO agreement. The regulations dictate that the ACHP and SHPOs have thirty days to object to an agencys no historic properties affected finding. Absent such an objection, the agency officials responsibilities under section 106 are fulfilled. 36 C.F.R. 800.4(d)(1). However, if the ACHP or a SHPO objects, the regulations require the agency to notify all consulting parties, . . . invite their views on the effects and assess adverse effects, if any, in accordance with 800.5. 36 C.F.R. 800.4(d)(2). Section 800.5 then requires the agency, [i]n consultation with the SHPO/THPO, to apply the criteria of adverse effect to historical properties within the area of potential effects and to consider any views concerning such effects which have been provided by consulting parties and the public. 36 C.F.R. 800.5(a). The ACHP Interim Guidance changes this procedure somewhat.5 According to the Interim Guidance, National Mining invalidated section 800.4(d)(2) insofar as [it] allowed ACHP to effectively reverse a Federal agencys finding[] of no historic properties affected. (Doc. #10 exh. B.) As a result, the ACHP will continue to provide opinions to federal agencies regarding no historic properties affected findings, but those opinions will be advisory and will not require the Federal agencies to continue to the next step in the Section 106 process. (Id.) In other words, an ACHP objection to a no historic properties affected finding no longer forces the agency to continue the section 106 process. The ACHP Interim Guidance, though, does not significantly change the section 106 process in the event of a SHPO objection. It merely adds a new and optional step: when a SHPO objects, the agency official should notify ACHP and seek an advisory opinion. (Id.) Defendants point to nothing in the ACHP Interim Guidance indicating, either explicitly or implicitly, that this additional step somehow abrogates the remaining requirements of section 800.4(d)(2), however. Rather, when a SHPO objects, the agency now may contact the ACHP and request an opinion, but it still must notify consulting parties, invite their views, and assess adverse affects. Considering the Defendants contend, and Plaintiffs do not dispute, that the ACHP Interim Guidance should be given significant weight. The Court accepts this position for the purpose of this Order and will defer to the ACHP Interim Guidance in interpreting the ACHP regulations. See Stinson v. United States, 508 U.S. 36, 45 (1993) ([P]rovided an agencys interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). But see EEOC v. Staten Island Sav. Bank, 207 F.3d 144, 151-52 (2d Cir. 2000) (expressing concern about deferring to interim guidance that has not been subject to notice and comment procedures of the Administrative Procedure Act).
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ACHP regulations and Interim Guidance, it is therefore clear that the Corps was required to continue the section 106 process after the Ohio and Kentucky SHPOs objected. Defendants contend, however, that sources beyond those promulgated by the ACHP require a different result. First, they argue that the National Mining decision invalidated section 800.4(d)(2) in its entirety. While National Mining may stand for that proposition, it does not avail Defendants. The Court is not bound by the National Mining decision, except to the extent that the ACHP Interim Guidance adopted it or the Court finds its reasoning persuasive. See Herendeen v. Mich. State Police, 39 F. Supp. 2d 899, 911 (W.D. Mich. 1999) ([T]he doctrine of stare decisis does not compel one district court judge to follow the decision of another.) (quoting Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991)).6 Neither is the case here. As explained above, the ACHP narrowly construed National Mining to truncate the section 106 process only in the event of an ACHP objection. Furthermore, the Court disagrees with National Mining. In National Mining, the court found that the NHPA empowers the ACHP to issue binding procedural regulations, but that the ACHP could not issue binding substantive regulations. 167 F. Supp. 2d 265, 284. The validity of each challenged regulation therefore depended upon whether the regulation was substantive or procedural. Id. at 285. The court upheld almost all of the challenged regulations, including those adding such procedural hurdles to the section 106 process as public comment and ACHP site visits, noting that regulations do not forfeit their procedural status simply by delaying the exercise of a management right. Id. at 286 (quoting Dept of Treasury v. Fed. Labor Relations Auth., 857 F.2d 819, 822 (D.C. Cir. 1988)). Nevertheless, the court found two regulations to be invalid: sections 800.4(d)(2) and 800.5(c)(3).7 The National Mining court noted that a facially procedural regulation may be effectively substantive if it so affect[s] the environment within which the agency is allowed to act that it places the equivalent of a substantive restraint on its ability to act. Id. (quoting Dept of Treasury, 857 F.2d at 821)). According to the court, Section 800.4(d)(2) fit this description because it

The irony of citing the opinion of another district court for this proposition is not lost on the Court.

The Court agrees with National Mining to the extent that it found section 800.5(c)(3), which allowed the ACHP to issue a binding review of an agencys decision, to be substantive and invalid. Section 800.5(c)(3) permitted the ACHP to review and overturn, rather than merely delay, an agencys final determination. Therefore, it is clearly substantive. This problem has been corrected by the ACHP Interim Guidance, which makes ACHP review of an agencys final determination merely advisory.

plainly give[s] the ACHP the authority to review and effectively reverseat least for the purpose of continuing the section 106 processthe agencys determination with respect to the effects of an undertaking on historic properties. Id. at 288. The Court respectfully disagrees with the National Mining courts description of section 800.4(d)(2) as substantive. In comparing those regulations that National Mining upheld with those it found invalid, the Court can discern only one difference: the former elongate the section 106 process prior to a tentative agency finding while the latter add to the process subsequent to such a finding. The difference is meaningless. Even though a SHPO or a THPO can extend the section 106 process by objecting to an agencys no historic properties affected finding, that objection does not effectively reverse the finding. Nor is the addition of one more layer of consultation after a tentative finding the proverbial straw that breaks the camels back and substantively restrains the agencys ability to act. This is so because, no matter the process, the agency never loses final authority to make the substantive determination. Rather, invalidating section 800.4(d)(2) as substantive while upholding other sections which require similarly time-consuming steps as procedural appears to the Court to be an exercise in hair-splitting. Therefore, the Court will not extend National Mining beyond the interpretation it has been given by the ACHP. Defendants also contend that the Corps did not violate the NHPA because it complied with its own regulations as interpreted in its interim guidance. This argument fails. The Corps may independently promulgate regulations for compliance with section 106, but any such regulations have effect only if they are consistent with those propounded by the ACHP. See 16 U.S.C. 470h-2(a)(2)(E)(I); 36 C.F.R. 800.14(a). The Corps Interim Guidance states that the Section 106 process ends when . . . it is determined that there are no historic properties affected. (Doc. #10 exh. C.) However, the ACHP regulations require a different result. A no historic properties affected finding terminates the section 106 process only if no SHPO or THPO objects within thirty days. Consequently, the Corps Interim Guidance is inconsistent with the ACHP Interim Guidance and irrelevant.8 Consequently, the Court finds that once the Ohio and Kentucky SHPOs objected to the Corpss no historic properties affected finding in this case, the Corps was required to follow section 800.4(d)(2) and notify all In addition, the Corps Interim Guidance is internally inconsistent. On one hand, it states that the section 106 process is complete as soon as the Corps issues a no historic properties affect finding. On the other, it instructs Corps personnel to either consult with the SHPO or THPO or ask for ACHP review when a SHPO or THPO objects to a no historic properties affected finding.
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consulting parties, invite their views on the effects, and assess adverse effects, if any, in accordance with section 800.5. The only remaining question is whether it did so. Based on the factual record to which the parties stipulated, it is clear that the Corps did not. The Corps never again met with any consulting party. The two responses issued by the Corps, though detailed in their review of the objections entered by various parties, were ultimately dismissive and insufficient substitutes for the consultation required by section 800.4(d)(2). Therefore, by issuing a permit to Lone Star without having complied with the regulations issued by the ACHP, the Corps violated the NHPA.

IV.

CONCLUSION For these reasons, the Court GRANTS Plaintiffs motion for summary judgment (doc. # 9) and DENIES

Defendants motions for summary judgment (docs. # 11, 12). Furthermore, the Court ORDERS that the Corps immediately revoke the Department of Army permit (No. 200000871) that it issued to Lone Star Industries, Inc. to construct a barge loading/unloading facility on November 1, 2002. IT IS SO ORDERED.

_______________________ Susan J. Dlott United States District Judge

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