The opinion of the court was delivered by: GASCH
This case is before the Court on defendants' motion to dismiss on grounds of mootness. The Court thinks it well to set forth the facts and circumstances giving rise to the present posture of the case.
The National Historic Preservation Act of 1966
provides that any Federal project shall be begun only after taking into account the effect of such project on any property, site, structure or object which is listed on the National Register of Historic Places. The statute also provides that the Advisory Council on Historic Preservation shall be afforded the opportunity of commenting on such projects.
Executive Order No. 11593
also provides that the Advisory Council shall have an opportunity to comment on such a project.
The Advisory Council on Historic Preservation ("Council") has promulgated regulations setting forth the procedures for obtaining its comments. In general these regulations provide that the agency in charge of a proposed project must determine whether the project will affect a Register property. If such agency finds that the project adversely affects a Register property (or if the Director of the Council timely objects to a determination of no adverse effect), an elaborate consultation process must be complied with. This process includes an on-site inspection by agency head and Council Director, a meeting on the matter open to the public, and an opportunity for the Council to suggest alternative plans.
This case began, ironically enough, on Constitution Day of 1973.
On that day the General Services Administration (GSA) advised the Council that it intended to construct a new building for the Federal Home Loan Bank Board (FHLBB) in the 1700 block of G Street, N.W., in Washington, D.C.
The buildings in question here are four. The first of these is the Winder Building, built in 1857,
which was the site of part of the War Department during the Civil War and from which the search for the Lincoln conspirators was directed. The Winder Building was listed on the Register. The second was the Winder Annex which was, as its name implies, an integral part of the Winder Building. Third was the Riggs Bank Building, erected in the 1920's, whose imposing facade was regarded as an excellent example of the architecture of those days. Finally, there was the building occupied by the Nichols Cafe, a fine Federal townhouse from the early 19th Century (one of the few specimens of that style in the downtown area). In its letter of September 17, 1973, GSA stated that it would "determine the relationship" of the new building to the old ones.
Since it is a well-known physical law that two objects cannot occupy a given space simultaneously, the "relationship" in question would appear to have been clearly adversary.
On January 7, 1974, another communication issued from GSA to the Council. GSA found that the new building would have something of a detrimental effect on the Riggs Bank Building (total demolition) but that the Winder Building would be positively affected. The "positive effect" would be encirclement of the Winder Building by the FHLBB edifice. On January 31, 1974, it entered a contract for the demolition of the various buildings concerned.
On February 5, 1974, the Council wrote GSA concerning the Riggs Bank Building, the Winder Annex and the Nichols Cafe, pointing out that all three buildings might be eligible for inclusion on the Register (and thus bringing into play the provisions of Executive Order No. 11593, supra). GSA adopted the useful expedient of ignoring this letter. On February 8, 1974, therefore, the Council sent a telecon message to GSA which reiterated the views expressed in the letter of February 5. The telecon also pointed out that the contract of January 31, 1974, appeared to be a clear violation of the law. GSA ignored this message also.
Undeterred, the Council then communicated the entire problem to an appropriate official of the Department of the Interior and itself requested Interior to determine the eligibility of the three buildings for inclusion on the Register. On the next day (February 14, 1974) the Council informed GSA of its action -- again without response. On February 20, 1974, Interior determined that the buildings were eligible for the Register and so informed GSA and the Council. On February 22, 1974, the Council itself informed GSA of the decision by Interior and stated that the Council looked forward to the undertaking of the legally required procedures of consultation.
At that meeting, the Council informed GSA that there had been no acceptable agreement regarding minimization of adverse impact on the buildings in question. GSA apparently agreed that it would undertake no demolition of the buildings until after submission of the matter to a full Council meeting on May 1-2, 1974. This agreement was set forth in a letter from the Council to GSA, dated March 1, 1974.
Meanwhile, on February 26, 1974, an attorney for plaintiffs herein contacted GSA and expressed plaintiffs' concern over the matter. Plaintiffs, through counsel, stated that they would file a law suit against GSA if the agency intended to continue demolition before completion of the consultation procedures. An official of GSA advised plaintiffs' counsel that GSA would not demolish the buildings until completion of the consultation procedures. Ominously, ...