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NATIONAL MINING ASSOCIATION v. SLATER
September 18, 2001
NATIONAL MINING ASSOCIATION, PLAINTIFF,
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.
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.
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.
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
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:
(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
(2) encourage, in cooperation with the National
Trust for Historic Preservation and appropriate
private agencies, public interest and participation in
(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
(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
* 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.
* 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
* 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 . . . .
III. Section 106 Rulemaking
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.
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.
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 §
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).
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.
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 ...