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NATIONAL MINING ASSOCIATION v. SLATER

September 18, 2001

NATIONAL MINING ASSOCIATION, PLAINTIFF,
v.
CATHRYN SLATER, ET AL., DEFENDANTS. CELLULAR TELECOMMUNICATIONS & INTERNET ASSOCIATION, PLAINTIFF, V. CATHRYN SLATER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.

        MEMORANDUM OPINION

This case involves a challenge under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), to the Final Rule promulgated by the Advisory Council on Historic Preservation ("ACHP" or the "Advisory Council") pursuant to section 106 of the National Historic Preservation Act of 1966 ("NHPA" or the "Act"), 16 U.S.C. § 470 — 470w. Defendants have moved to dismiss on grounds of standing and ripeness. In the alternative, defendants have moved for summary judgment. Plaintiffs National Mining Association ("NMA") and Cellular Telecommunications & Internet Association ("CTIA") have cross-moved for summary judgment. Having considered the pleadings and the entire record therein, the Court finds that plaintiffs have standing to bring suit, and that the action is ripe for adjudication. In addition, the Court finds that two provisions of the Final Rule, 36 C.F.R. § 800.4(d)(2) and 800.5(c)(3) (2000), violate the plain language of the Act, and therefore grants plaintiffs' summary judgment motion in part. As to all other claims, summary judgment is granted for defendants.

BACKGROUND

I. The Parties

Plaintiff NMA is a non-profit trade association of the producers of most of America's coal, metals, and industrial and agricultural minerals; mineral processors; manufacturers of mining and mineral processing machinery, equipment, and supplies; and engineering and consulting firms, financial institutions, and various other groups serving the mining industry. Many NMA members conduct activities on or near properties affected by the Final Rule, including projects requiring federal or state permits, approvals, licensing, funding, or assistance.

Plaintiff CTIA is the international organization of the wireless communications industry for both wireless carriers and manufacturers. Membership in the organization covers all Commercial Mobile Radio Service ("CMRS") providers and manufacturers, as well as providers and manufacturers of wireless data services and products. Its members include Sprint PCS, Verizon Wireless, AT&T Wireless, Cingular Wireless, VoiceStream Wireless, Qwest Wireless, and Nextel Communications. CTIA's members provide wireless telecommunications services via a nationwide network of towers and antennas. As Federal Communications Commission ("FCC") licensees, CTIA members are subject to FCC regulations that require compliance with the NHPA and the Advisory Council's regulations. 47 C.F.R. § 1.1301, et seq.

The twenty-member Advisory Council is an independent agency established pursuant to the Act. 16 U.S.C. § 470i. Eighteen members are appointed by the President, while the other two members — the Chairman of the National Trust for Historic Preservation and the President of the National Conference of State Historic Preservation Officers — are not. 16 U.S.C. § 470i (a)(7), (8). The Council's operations are governed by the APA. 16 U.S.C. § 470q. Defendant Cathryn Slater is the chair of the ACHP, and John Fowler is the Executive Director of the Council.

II. The NHPA

In 1966, Congress passed the NHPA "to accelerate [the federal government's] 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 [and] Indian tribes . . . to expand and accelerate their historic preservation programs and activities." 16 U.S.C. § 470(b)(7), 470-1. Congress based the Act on a finding that "historic properties significant to the Nation's heritage [were] being lost or substantially altered, often inadvertently, with increasing frequency, [and that] the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans . . . ." 16 U.S.C. § 470(b)(3)-4). The Act was intended to encourage historic preservation in the face of expanding "urban centers, highways, and residential, commercial, and industrial developments . . . ." 16 U.S.C. § 470(b)(5). Congress has amended the NHPA several times, including most recently in 1992.

Four provisions of the Act are particularly relevant to this action.

* Section 202 of the Act establishes the functions of the ACHP. It provides:

The Council shall —

(1) advise the President and the Congress on matters relating to historic preservation; recommend measures to coordinate activities of Federal, State, and local agencies and private institutions and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities;
(2) encourage, in cooperation with the National Trust for Historic Preservation and appropriate private agencies, public interest and participation in historic preservation;
(3) recommend the conduct of studies in such areas as the adequacy of legislative and administrative statutes and regulations pertaining to historic preservation activities of State and local governments and the effects of tax policies at all levels of government on historic preservation;
(4) advise as to guidelines for the assistance of State and local governments in drafting legislation relating to historic preservation;
(5) encourage, in cooperation with appropriate public and private agencies and institutions, training and education in the field of historic preservation;
(6) review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this subchapter; and
(7) inform and educate Federal agencies, State and local governments, Indian tribes, other nations and international organizations and private groups and individuals as to the Council's authorized activities.

16 U.S.C. § 470j(a).

* Section 106 of the Act sets out the requirements for federal agencies in considering the impact of a federally-funded or federally-assisted undertaking on historic preservation.
The head of any federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, 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.*fn1 The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking.

16 U.S.C. § 470f.

* Section 211 of the Act authorizes the Advisory Council

"to promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106 of the Act] in its entirety. The Council shall, by regulation, establish such procedures as may be necessary to provide for participation by local governments in proceedings and other actions taken by the Council with respect to undertakings referred to in [section 106] which affect such local governments."

16 U.S.C. § 470s.

* Finally, section 110 harmonizes the roles of the Council and the federal agencies with regard to the requirements of section 106. Section 110(a) mandates that all federal agencies ensure that their procedures for compliance with [section 106] —
(i) are consistent with regulations issued by the Council pursuant to [section 211]
(ii) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered . . . .

16 U.S.C. § 470h-2(a)(2)(E). Section 110(k) prohibits federal agencies from funding or licensing projects for applicants who intend to avoid the requirements of section 106. 16 U.S.C. § 470h-2(k). And section 110(l) mandates that, when there is a disagreement between the federal agency and the Council over the impact of an undertaking on an historic property, the head of that agency must document his or her decision.*fn2 16 U.S.C. § 470h-2(l)

III. Section 106 Rulemaking

A. History

Since the NHPA was enacted, the Advisory Council has promulgated four sets of regulations to implement section 106 of the Act. The original regulations took effect in 1979. These were revised in 1986. A third set of rules was promulgated on May 18, 1999. In response to the 1999 Final Rule, the NMA filed the original complaint in this action. The ACHP then reopened the rulemaking proceedings and subsequently promulgated a fourth version of the Final Rule on December 12, 2000. This iteration went into effect on January 11, 2001, superseding the prior regulations in their entirety. 65 Fed. Reg. 77,698 (2000). Throughout the history of the section 106 rulemaking, the fundamental process that federal agencies must follow has remained largely unchanged. Agencies must identify historic properties and assess their significance, evaluate the impacts that their actions might have on these properties, and seek alternatives to avoid or mitigate adverse effects. If they are unable to achieve this final step, the agencies must obtain the ACHP's comments. 36 C.F.R. pt. 800.

The 1999 Final Rule came about as a result of the 1992 amendments to the NHPA.*fn3 Following the amendments, the Advisory Council launched a review of its existing regulations to determine whether its section 106 procedures should be modified based on the changes to the Act. As part of its review, the ACHP queried participants in the section 106 process for their views of the existing system and for ways to improve it.*fn4 On October 3, 1994, the Council issued a Notice of Proposed Rulemaking (NOPR) and published the proposed regulations for comment. Notice of Proposed Rulemaking, 59 Fed. Reg. 50,396 (1994). The Council received 370 comments in response to the proposed rules. Reaction to the proposed rules was mixed, with opponents emphasizing that the new regulations would impermissibly expand the Council's statutory role and unnecessarily complicate the section 106 process.*fn5 Members of Congress expressed displeasure with the proposed rules in reports on H.R. 1977, the fiscal year 1996 appropriation legislation for the Department of the Interior. The House Report stated, "The council has no authority to unilaterally alter Federal actions that will affect historic properties nor . . . impose solutions on non-Federal parties." H.R. Rep. No. 104-173, at 110 (1995). The Senate Appropriations Committee noted that the ACHP "does not have responsibility for . . . overriding other Federal agencies' decisions." S. Rep. No. 104-125, at 104 (1995).*fn6

The Council subsequently abandoned the proposed regulations. In May 1995, the ACHP convened focus groups comprised of representatives of many of the parties who had commented on the October 1994 proposed rules. After considering the views of the focus groups, the Council published a revised set of regulations for comment on September 13, 1996. Notice of Proposed Rulemaking, 61 Fed. Reg. 48,580 (1996). After more comments, consultations, revisions, and approval by the necessary parties within the federal government, the Final Rule was published on May 18, 1999 and went into effect one month later.

On February 15, 2000, NMA filed a lawsuit challenging the 1999 Final Rule. As part of the complaint, NMA attacked the regulations under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2, because of the participation in the promulgation of the Rule by the two members of the ACHP who had not been appointed by the President.*fn7 In light of this potential procedural problem, the Council again commenced the rulemaking process, using the text of the 1999 Rule as the proposed regulation. The ACHP received 59 comments on its proposal. After considering the comments, the Council voted to adopt the draft rule as a final rule, and on December 12, 2000, it promulgated the regulations at issue in this litigation.

B. The Final Rule

To achieve its goal of "accommodat[ing] historic preservation concerns with the needs of Federal undertakings," the Final Rule "requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings. The procedures in [the Final Rule] set forth how Federal agencies meet these statutory responsibilities." 36 C.F.R. § 800.1(a). Under these procedures, an agency must first determine whether it is involved in an undertaking. 36 C.F.R. § 800.3(a), 800.16(y). If the agency decides that it is involved in an undertaking, it must then determine whether the action has the potential to affect historic properties. 36 C.F.R. § 800.3(a)(1).*fn8 If so, the agency must then consult with the appropriate State Historic Preservation Officer ("SHPO") or Tribal Historic Preservation Officer ("THPO")*fn9 and identify the historic properties that are potentially affected by the undertaking. Id. at §§ 800.4(a)-(b). If the agency determines that no historic properties are present or that the undertaking will not affect any historic properties, it must document that finding and provide it to the SHPO, as well as notify the public. If there is no objection to the proposed finding, the section 106 process is complete. Id. at § 800.4(d)(1).

Several of the provisions of the Final Rule that regulate the section 106 process itself are pertinent to plaintiffs' challenges. Section 800.2 governs the participants in the section 106 process, requiring federal agencies to consult with SHPOs, THPOs, local government representatives, members of the public, and other interested parties before taking any action on an undertaking. See §§ 800.2(a)(4) & (c). Section 800.3 regulates the initiation of the section 106 process. This provision requires agencies to determine whether the project is an undertaking, identify the parties that must be consulted, and develop a plan for involving the public in the process. See §§ 800.3(a), (c), (e). Section 800.4 governs identification of historic properties by compelling agencies to consult with SHPOs and THPOs to identify existing and potential historic properties. See § 800.4. Section 800.5 focuses on the assessment of adverse effects of the undertaking. Under section 800.5, "[a]n adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property . . . in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association." § 800.5(a)(1). In addition, agencies are required to consult with SHPOs, THPOs, and other interested parties concerning the adverse effects on the historic properties that have been identified. See § 800.5. Section 806 governs the resolution of adverse effects, including procedures for developing alternatives or modifying undertakings to avoid adverse effects. Section 800.6(b) authorizes — and in some instances requires — Council participation in this process, while section 800.6(c) mandates that agencies execute a "memorandum of agreement" for submission to the ACHP as evidence that they have complied with the requirements of section 106. Any failure to resolve these adverse effects is governed by section 800.7, which in some cases requires that the Council comment on the matter, though these comments are non-binding. See § 800.7(a).

The Final Rule also gives the Council power to review the procedures and actions of the agencies. Under section 800.9, the Council is authorized to review an agency's compliance with section 106 of the NHPA. "Where an agency official has failed to complete the requirements of section 106 in accordance with the procedures in this part prior to the approval of an undertaking, the Council's opportunity to comment may be foreclosed. The Council may review a case to determine whether a foreclosure has occurred." § 800.9(b). If the Council determines that foreclosure has occurred, it will transmit the determination to the agency, and will also make the determination available to the public and parties known to be interested. Id. Section 800.14 permits agencies to develop their own procedures to implement section 106 pending approval of the ACHP. § 800.14(a)(1). "If the Council finds the procedures to be consistent with this part, it shall notify the agency official and the agency official may adopt them as final alternate procedures." § 800.14(a)(2).*fn10 The Final Rule thus grants the Council power to define and participate in the section 106 process, as well as to review agency compliance with that process.

LEGAL ANALYSIS

Defendants have moved to dismiss on the grounds that plaintiffs lack standing to bring this action and because the matter is not ripe for adjudication. Alternatively, they have moved for summary judgment, and plaintiffs have filed a cross-motion for summary judgment.

I. Standing

The question of standing involves both constitutional limitations on federal court jurisdiction, as well as prudential limitations on its exercise.*fn11 Bennett v. Spear, 520 U.S. 154 (1997). Article III constitutional standing limits judicial intervention to genuine disputes between adverse parties which are "`in a form . . . capable of judicial resolution,'" Florida Audubon Society v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting Flast v. Cohen, 392 U.S. 83, 101 (1968)), and therefore, it "`is an essential and unchanging' predicate to any exercise of [federal] jurisdiction." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To meet the constitutional requirement of standing, a plaintiff must show: (1) he has suffered an injury which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and conduct that is fairly traceable to the defendant; and (3) it is likely, as ...


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