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LEE v. THORNBURGH

March 1, 1989

FLOSSIE E. LEE, et al., Plaintiffs,
v.
RICHARD THORNBURGH, et al., Defendants



The opinion of the court was delivered by: GREEN

 JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 I. The Statutory and Regulatory Background

 Proclaiming that "the spirit and direction of the Nation are founded upon and reflected in its historical heritage," Congress enacted the NHPA in 1966 in order to "foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony." 16 U.S.C. §§ 470(b)(1) & 470-1(1). To that end, the Secretary of the Department of Interior is authorized to create a National Register of Historic Places (National Register) composed of "districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." Id. § 470a(a)(1)(A). Sites may be added to the National Register by Act of Congress, by designation of the Secretary, and by nominations of interested persons, local governments and federal agencies. The Secretary has published regulations, contained at 36 C.F.R. Part 60, establishing procedures and criteria to govern the nomination process.

 NHPA contains other mechanisms to achieve its goals. The Act permits the creation of State Historic Preservation Programs, which are administered by a State Historic Preservation Officer and regulated by a State Historic Preservation Review Board, to carry out preservation activities and identify and nominate eligible properties for inclusion in the National Register. See 16 U.S.C. § 470a(b). *fn1" In addition, financial assistance for the preservation of historic structures is available in the form of direct grants to states for historic surveys and plans, see 16 U.S.C. § 470c; loan insurance for maintenance of National Register properties, id. § 470d; and funding for renovation and restoration projects, id. § 470b-1. The Act also establishes the Advisory Council on Historic Preservation (Advisory Council), an independent federal agency entirely devoted to historic preservation through coordination of public and private ventures, education of members of the public and advice to Congress and the President. 16 U.S.C. §§ 470i & 470j.

 Finally -- and most important for purposes of this case -- NHPA also imposes a number of preservation requirements on federal agencies. One of these is contained in section 106 of Act. It provides that, prior to the expenditure of funds for any "Federal or federally assisted undertaking," a federal agency with direct or indirect jurisdiction over the undertaking must (1) take into account the effect of the undertaking on any building or object that is included in or eligible for inclusion in the National Register and (2) provide the Advisory Council with a reasonable opportunity to comment with regard to such undertaking. 16 U.S.C. § 470f. Two additional requirements are contained in section 110 of NHPA for federal agencies that own or control historic properties. Section 110(b) states that, when a historic property is to be substantially altered or demolished, the agency must take timely steps to make "appropriate records" of the property and to deposit those records in the Library of Congress for further use and reference. 16 U.S.C. § 470h-2(b). And section 110(d) compels agencies to carry out their programs and projects "in accordance with the purposes" of the Act. Id. § 470h-2(d).

 II. The CTF and Gallinger Hospital

 In December 1985, Congress appropriated $ 30 million for the design and construction of a prison facility within the District of Columbia. *fn2" After studying several possibilities, Mayor Marion Barry, Jr. formally announced on April 11, 1986 that he had selected a 10.5 acre site on the grounds of the D.C. General Hospital in Southeast Washington, D.C. for construction of a new forensic treatment facility that would house 700-800 prisoners. See 33 D.C. Register 2,297 (April 11, 1986). An additional $ 20 million in funding was authorized in October 1986, see Pub. L. 99-591, 100 Stat. 3341-181 (1986), but the Senate Committee on Appropriations imposed a moratorium in September 1987 on the expenditure of any previously-authorized funds until a study of alternative sites, to be conducted by the General Accounting Office, was completed. *fn3" In May 1988, the Mayor was informed that the moratorium had been lifted and that construction of the CTF could proceed on the site he had selected. Design plans were released to the public on July 26, 1988.

 At the heart of this case are three historic properties located on or near the site chosen by the District of Columbia. The first is Congressional Cemetery, a Historic Landmark included in the National Register that is immediately adjacent to the CTF site. Located directly on the CTF land is a prehistoric archeological site eligible for inclusion in the National Register. Gallinger Hospital is also located on the property where the CTF will be built. On December 2, 1988 the Keeper of the National Register, an official within the Department of Interior, ruled that Gallinger was eligible for inclusion in the National Register. See Plaintiffs' Exhibit D. *fn4" In determining that Gallinger was eligible to be nominated because of its local historical and archeological importance, the Keeper noted:

 
The four-building complex, constructed between 1920-22 in the Colonial Revival Style advocated by the U.S. Commission of Fine Arts for public buildings in the Nation's capital, is associated with the important early 20th century movement which modernized the treatment of the mentally ill. The ward, reflecting the most modern medical opinion of the 1920s, was constructed as a "home pavilion" facility with individual short term care for the mentally ill. Designed by the Municipal Architect in 1919 and constructed under the control of the District of Columbia's Board of Charities, the psychopathic ward reflects the movement to coordinate the Federal government's subsidy of the local system of charitable aid and medical services to the indigent. [Gallinger] was an early and important component of the larger health care facility that developed into the District of Columbia General Hospital. Its construction and history of health care provided to the mentally ill reflects the humane impulses of the Progressive Era reforms and was a significant advance for the District of Columbia in the areas of health and medicine, social history, and architecture.

 Id. After this decision was issued, the District of Columbia's State Historic Preservation Officer nominated Gallinger for inclusion on the National Register on January 13, 1989, see Plaintiffs' Exhibit E, and the Keeper published a notice in the Federal Register to that effect on February 7, 1989. See 54 Fed. Reg. 6,036, 6,037 (1989). *fn5"

 III. The Instant Case

 Plaintiffs are several individuals who reside in the neighborhood adjacent to the site chosen for the CTF and three unincorporated associations committed to historic preservation of the area. They filed this action on February 16, 1989 against Attorney General Richard Thornburgh, Secretary of the Interior Manuel Lujan, Jr., the District of Columbia, its Mayor, Marion Barry, Jr., and John Touchstone, Director of the District of Columbia's Department of Public Works. *fn6" The complaint alleges that defendants violated section 106 of NHPA by failing to take into account the effects of the CTF on the three historical properties at the CTF site and by failing to provide the Advisory Council with an opportunity to comment on the project; violated section 110(d) of the Act by failing to carry out the CTF project in a manner consistent with the statute; and violated section 110(b) of NHPA by failing to gather appropriate records prior to the demolition of Gallinger. *fn7" In addition to declaratory relief, plaintiffs sought an injunction that would preclude defendants from taking any actions that would have any adverse affects on the three historic properties until after all of the requirements of NHPA have been complied with. Complaint at 18-19. *fn8"

 Simultaneously with the filing of their complaint, plaintiffs filed a motion for a temporary restraining order and a preliminary injunction. The Court held a scheduling conference that same date and, because of the important issues involved and imminent demolition of Gallinger, *fn9" urged the parties to proceed promptly to a final disposition on the merits. Although this proposal was originally unacceptable to the District of Columbia, see February 21, 1989 Order, all of the parties subsequently agreed at the hearing held on February 24, 1989 that this Court's decision would serve as the final disposition of this case.

 IV. Discussion

 Resolution of this case turns on the question whether the proposed demolition of Gallinger Hospital is governed by section 106 ...


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