*fn9,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,SIERRA CLUB, ET AL. PLAINTIFFS, v. KEN SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANTS." />

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Sierra Club, et al. v. Ken Salazar

October 2, 2012 *fn9

SIERRA CLUB, ET AL. PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs in this case-Sierra Club, Ohio Valley Environmental Coalition, Friends of Blair Mountain, Inc., West Virginia Labor History Association, National Trust for Historic Preservation in the United States, and West Virginia Highlands Conservancy-challenge the decision by the Keeper of the National Register to remove the Blair Mountain Battlefield from the National Register of Historic Places in violation of the Administrative Procedure Act, 5 U.S.C. § 706 (2006). This matter is before the Court on the parties' cross-motions for summary judgment. See Pls.' Mot. for Summ. J. ("Pls.' Mot."); Defs.' Opp'n To Pls.' Mot. for Summ. J. and Defs.' Cross-Mot. for Summ. J. ("Defs.' Mot."). Upon careful consideration of the submissions in this case,*fn1 the Court concludes that it must grant the defendants' motion for summary judgment and deny the plaintiffs' motion for the reasons set forth below.

I. STATUTORY AND REGULATORY BACKGROUND

A.National Historic Preservation Act

In 1966, Congress enacted the National Historic Preservation Act ("Preservation Act"), finding that the preservation of the nation's 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)(4) (2006). Under the Preservation Act, Congress authorized the Secretary of the Interior to create and maintain "a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." Id. § 470a(a)(1)(A). A state with an approved State Historic Preservation Program may nominate properties that meet this criteria for inclusion on the National Register of Historic Places ("National Register"). Id. § 470a(a)(3). Before a property may be included on the National Register, the owner or owners of the property, or a majority of the owners of the properties within a historic district, must be given an opportunity to object to the property or district's nomination to the National Register. Id. § 470a(a)(6). If a majority of owners of properties within a historic district object to the property's inclusion on the National Register, "such property shall not be included on the National Register . . . until such objection is withdrawn." Id.

B.Nomination, listing, and removal of a property from the National Register Pursuant to the provisions in the Preservation Act, the Secretary of the Interior promulgated regulations governing the process for nomination of a property to the National Register. 36 C.F.R. § 60.1(a) (2012). If a state has an approved State Historic Preservation program, it is the responsibility of the State Historic Preservation Officer ("Preservation Officer") to identify and nominate eligible properties for inclusion in the National Register. Id. § 60.6(a). In order to nominate a property, the Preservation Officer must submit the proposed nomination to the State Review Board, which "shall determine whether or not the property meets the National Register criteria for evaluation and make a recommendation to the State Historic Preservation Officer to approve or disapprove the nomination." Id. § 60.6(j). "At least 30 but not more than 75 days before the State Review Board meeting," the Preservation Officer must provide notice of the intent to nominate the property to the owner or owners of the property and "shall give the owner(s) at least 30 but not more than 75 days to submit written comments and concur in or object in writing to the nomination of such property." Id. § 60.6(c). If a property has more than fifty owners, the Preservation Officer may provide notice to the owners by publication in at least one newspaper of general circulation in the area. Id. § 60.6(d). The list of property owners required to receive notice "shall be obtained from either official land recordation records or tax records, whichever is more appropriate, within 90 days prior to the notification of intent to nominate." Id. § 60.6(c).

An owner of the property who wants to object to the nomination of the property to the National Register "shall submit to the State Historic Preservation Officer a notarized statement certifying that the party is the sole or partial owner of the private property, as appropriate, and objects to the listing." Id. § 60.6(g). In the case of an individual who submits an objection but whose name does not appear on the Preservation Officer's previously compiled list of owners, "such owner shall be counted by the State Historic Preservation Officer in determining whether a majority of owners has objected" if the owner "certifies in a written notarized statement that the party is the sole or partial owner of a nominated private property." Id. In accordance with § 470a(a)(6), a property will not be listed in the National Register if a majority of owners of the property object to such listing. Id. The Preservation Officer is responsible for determining if a majority of property owners object to listing the property in the National Register. Id.

Following approval of a nomination by the State Review Board, the nomination and any comments on the nomination are reviewed by the Preservation Officer, and if the Preservation Officer "finds the nominations to be adequately documented and technically, professionally, and procedurally correct and sufficient and in conformance with National Register criteria for evaluation," the Preservation Officer forwards the nomination, any comments, and all notarized statements of objection to the Keeper of the National Register of Historic Places ("the Keeper"). Id. § 60.6(k). Upon the Keeper's receipt of the nomination, notice of the nomination is published in the Federal Register. Id. § 60.6(q). Individuals or organizations who support or oppose a nomination may submit comments to the Keeper regarding the nomination. Id. § 60.6(t). The property will be listed in the National Register "within 45 days of receipt by the Keeper or designee unless the Keeper disapproves a nomination, an appeal is filed, or the owner of private property (or the majority of such owners for a district or single property with multiple owners) objects by notarized statements received by the Keeper prior to listing." Id. § 60.6(r).

The Secretary of the Interior's regulations also set forth a procedure for removing properties from the National Register. Grounds for removal of a property from the National Register include "[p]rejudicial procedural error in the nomination or listing process." 36 C.F.R. § 60.15(a)(4) (2012). The Keeper may remove a property from the National Register upon its own motion based upon prejudicial procedural error. Id. § 60.15(k). If the Keeper initiates the removal of a property, "the Keeper will notify the nominating authority, the affected owner(s) and the applicable chief elected local official and provide them an opportunity to comment." Id. Properties that are removed pursuant to prejudicial procedural error "shall automatically be considered eligible for inclusion in the National Register without further action and will be published as such in the Federal Register." Id. § 60.15(a)(4).

C.Effects of listing property in the National Register

Listing of a privately-owned property in the National Register "does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property." Id. § 60.2. However, listing a property in the National Register does have several consequences, only one of which is at issue in this litigation. Under the Surface Mining Control and Reclamation Act of 1977, listing in the National Register "require[s] consideration of a property's historic values in the determination on issuance of a surface coal mining permit." Id. § 60.2(d). Specifically, the Act prohibits surface mining coal operations "which will adversely affect any publicly owned park or places included in the National Register of Historic Sites unless approved jointly by the regulatory authority and the Federal, State, or local agency with jurisdiction over the park or the historic site." 30 U.S.C. § 1272(e)(3) (2006). The statute provides that the prohibition is "subject to valid existing rights" and further exempts coal mining operations in existence on August 3, 1977. Id. § 1272(e).

II. FACTUAL BACKGROUND*fn2

This litigation is the culmination of a lengthy controversy surrounding the nomination of a portion of Blair Mountain, in Logan County, West Virginia, to the National Register. Spruce Fork Ridge, located on Blair Mountain, was "the site of the 1921 Battle of Blair Mountain that ended an unsuccessful three-year struggle to unionize the coal miners of Logan, Mingo, McDowell, and Mercer counties." Administrative Record ("A.R.") at 00193. The confrontation between union and non-union forces was the "largest organized armed uprising in American labor history," id., ending only when federal troops intervened, id. at 00218.

This case concerns the nomination of the Blair Mountain Battlefield to the National Register by the West Virginia Preservation Officer in 2009. First Am. Compl. ("Am. Compl.")

¶¶ 70, 72. The WV Preservation Officer had previously nominated the Blair Mountain Battlefield to the National Register in 2005 and 2008, A.R. at 00001--40, 00124--66, but was unsuccessful in both efforts, id. at 00115 (indicating that 2005 nomination was returned by the National Register staff for deficiencies in the nomination materials), id. at 00175 (withdrawing 2008 nomination from Keeper's consideration).

The WV Preservation Officer submitted the third nomination of the Blair Mountain Battlefield to the Keeper on January 13, 2009. Id. at 00182--224. In preparation for the nomination, on October 24, 2008, at the request of the WV State Historical Preservation Office ("WV Preservation Office"), a Senior Assistant Attorney General of the West Virginia Attorney General's Office conducted research using the Logan County tax records to ascertain the owners of any property included in the proposed historic district. Id. at 00180. The research performed by the Assistant Attorney General yielded a count of 66 owners of property within the proposed historic district. Id. at 00181. On November 24, 2008, the WV Preservation Office placed a legal notice in a local newspaper advising property owners in the proposed district of the WV Preservation Officer's intent to nominate the Blair Mountain Battlefield to the National Register and soliciting comments and/or objections to the nomination. Id. at 00869. The notice stated the following: "Any owner or partial owner who objects to listing should submit a notarized statement (certifying ownership and objection to listing) by December 29, 2008" to the WV Preservation Office. Id. The notice also stated: "Any ...


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