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Sierra Club v. Salazar

United States District Court, District of Columbia

April 11, 2016

SIERRA CLUB, et al., Plaintiffs,
v.
KEN SALAZAR, et al., Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The legal battle in this case traces its roots to a historical battle over organized labor.[1] In late August and early September 1921, Blair Mountain, located in Logan County, West Virginia, played host to an armed conflict between coal miners and strikebreakers. This battle, known as the Battle of Blair Mountain, is the largest armed labor conflict in United States history. The Battle of Blair Mountain was the culmination of a labor union’s unsuccessful years-long struggle to unionize miners in southwestern West Virginia coalfields, as well as to liberate miners living under martial law. As the miners marched toward Mingo County, they encountered 3, 000 strikebreakers forming a miles-long defensive front across Spruce Fork Ridge on Blair Mountain. The strikebreakers entrenched themselves, dropped homemade bombs, and opened fire from mounted machineguns. The miners returned fire and the battle raged on for several days, causing numerous casualties. The miners surrendered upon the arrival of federal troops. The site of the battle is known as Blair Mountain Battlefield (“Blair Mountain”).

The legal battle before the Court arises from the efforts of various environmental and historical preservation organizations (“Organizations”) to preserve Blair Mountain, including protecting it from surface coal mining. After decades of setbacks, their efforts recently paid dividends; the Keeper of the National Register of Historic Places (“Keeper”) listed Blair Mountain on the National Register of Historic Places (“National Register”). But the Organizations’ success was short-lived. At the urging of coal companies owning land on Blair Mountain, the Keeper delisted Blair Mountain from the National Register.

Thereafter, the Organizations instituted this lawsuit to challenge the Keeper’s decision to delist Blair Mountain. The Organizations are: 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. The Court refers to these Organizations collectively as “the plaintiffs.” The plaintiffs assert a claim under the Administrative Procedure Act (“APA”), alleging that the Keeper’s decision “was arbitrary, capricious, [and] an abuse of discretion.” Am. Compl. ¶ 1, ECF No. 11; see also 5 U.S.C. § 706(2)(a) (2012). In support of their APA claim, the plaintiffs allege that the Keeper’s delisting decision was “contrary to the regulations” that implement the National Historic Preservation Act (“Preservation Act”), 16 U.S.C. § 470 et seq. (2006).[2]

The plaintiffs named the following parties as defendants: Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; the United States Department of the Interior; Jon Jarvis, in his official capacity as Director of the National Park Service; and Carol Shull, in her official capacity as Keeper of the National Register of Historic Places. Unless otherwise noted, the Court refers to the defendants hereafter collectively as “the Keeper.” Pending before the Court are the plaintiffs’ Motion for Summary Judgment (“Pls.’ Mot. for Summ. J.”), ECF No. 24-1, and the Keeper’s Cross-Motion for Summary Judgment (“Defs.’ Cross-Mot. for Summ. J.”), ECF No. 28. Upon careful consideration of the parties’ submissions and the entire record in this case, the Court concludes that it must grant the plaintiffs’ Motion for Summary Judgment and deny the Keeper’s Cross-Motion for Summary Judgment.[3]

I. BACKGROUND

A. Statutory and Regulatory Framework

The Preservation Act authorizes the Secretary of the Interior (“Secretary”) “to expand and maintain a [National Register] composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 16 U.S.C. § 470a(a)(1)(A) (2006). To this end, the Preservation Act directs the Secretary to

establish . . . criteria for properties to be included on the National Register and . . . [to] promulgate regulations as may be necessary for [the following pertinent purposes]-
(A) nominating properties for inclusion in, and removal from, the [Register] and the recommendation of properties by certified local governments; . . .
(C) considering appeals from such recommendations, nominations, removals, and designations (or any failure or refusal by a nominating authority to nominate or designate); . . .
(F) notifying the owner of a property, . . . and the general public, when the property is being considered for inclusion on the National Register, for designation as a National Historic Landmark . . . .

Id. § 470a(a)(2).

Additionally, the Preservation Act requires the Secretary to promulgate regulations allowing property owners in a district that may be included on the Register to concur in, or object to, the inclusion. Specifically, the Preservation Act provides:

[B]efore any property or district may be included on the National Register or designated as a National Historic Landmark, the owner or owners of such property, or a majority of the owners of the properties within the district in the case of [a] historic district, shall be given the opportunity . . . to concur in, or object to, the nomination of the property or district for such inclusion or designation.

Id. § 470a(a)(6).

Generally, the Preservation Act prohibits the inclusion of the district on the Register if a majority of the owners within the district object to the inclusion. More specifically, the Act states:

If the owner or owners of any privately owned property, or a majority of the owners of such properties within the district in the case of [a] historic district, object to such inclusion or designation, such property shall not be included on the National Register or designated as a National Historic Landmark until such objection is withdrawn.

Id.

The Preservation Act also contemplates a role for states in carrying out its objectives. Pertinently, the Act directs the Secretary to promulgate regulations providing for the “designation and appointment . . . of a ‘State Historic Preservation Officer.’” Id. § 470a(b)(1)(A). Under the Preservation Act, the State Historic Preservation Officer (“State Agency”) has the “responsibility” to “identify and nominate eligible properties to the National Register and otherwise administer applications for listing historic properties on the National Register.” Id. § 470a(b)(3)(B).

In turn, the Preservation Act authorizes states to delegate responsibility to local governments to help determine whether inclusion in the National Register is appropriate. Under § 470a(c)(1), the State Agency “shall provide a mechanism for the certification . . . of local governments to carry out the purposes [of the Preservation Act].” “The regulations governing the procedures for [including] properties on the National Register are set forth at 36 C.F.R. pt. 60.” Moody Hill Farms Ltd. P’ship v. U.S. Dep’t of Interior, 205 F.3d 554, 556 (2d Cir. 1999).[4] Generally, the regulations divide the inclusion process into two stages: nomination and listing. As further explained below, nomination is the process by which the State Agency selects property for potential inclusion in the National Register. See 16 U.S.C. § 470a(a)(2)(A) (2006). Listing, by contrast, refers to the addition of “[n]ominations . . . submitted by the [State Agency] and approved by the [Keeper]” for inclusion in the National Register. See 36 C.F.R. § 60.1(b)(3) (2015).

Regarding the nomination component of the statute, the State Agency “is responsible for identifying and nominating eligible properties to the National Register.” Id. § 60.6(a). The State Agency “shall consult with local authorities in the nomination process.” Id. § 60.6(b). Such consultation includes providing “notice of the intent to nominate a property and [soliciting] written comments especially on the significance of the property and whether or not it meets the National Register criteria for evaluation.” Id.

The regulations implement a scheme of notice regarding the nomination. Under 36 C.F.R. § 60.6(c), “[a]s part of the nomination process, [the State Agency] is required to notify in writing the property owner(s) . . . of the [State Agency’s] intent to bring the nomination before the State Review Board.” 36 C.F.R. § 60.6(c) (2015). “The list of owners shall be obtained from either official land recordation records or tax records, whichever is more appropriate, within [ninety] days prior to the notification of intent to nominate.” Id. “For a nomination with more than [fifty] property owners, . . . [the State Agency] shall provide general notice to property owners concerning the [State Agency’s] intent to nominate.” Id. § 60.6(d). “The general notice shall be published at least [thirty] days but not more than [seventy-five] days before the State Review Board meeting . . . .” Id. Further, the general notice must “provide an opportunity for the submission of written comments and provide [a majority of owners] of private property . . . an opportunity to concur in or object in writing to the nomination.” Id.

In addition, the regulations provide a process for objecting to the nomination. Under 36 C.F.R. § 60.6(g), “[u]pon notification, any owner or owners of a private property who wish to object shall submit to the [State Agency] a notarized statement certifying that the party is the sole or partial owner of the private property . . . and objects to the listing.” “In nominations with multiple ownership . . . of districts, the property will not be listed if a majority of the owners object to [the] listing.” Id.

Generally, the regulations require the State Agency to determine whether a majority of owners have objected to the nomination. Under 36 C.F.R. § 60.6(g), “[u]pon receipt of notarized objections respecting a district . . . with multiple owners, it is the responsibility of the [State Agency] to ascertain whether a majority of owners of private property have objected.” “If an owner whose name did not appear on the list certifies in a written notarized statement that the party is the sole or partial owner of a nominated private property[, ] such owner shall be counted by the [State Agency] in determining whether a majority of owners [have] objected.” Id. “If the . . . majority of [private property] owners for a district . . . have objected to the nomination prior to the submittal of a nomination, the [State Agency] shall submit the nomination to the Keeper only for a determination of eligibility . . . .” Id. § 60.6(n) (emphasis added).[5]

Further, the regulations govern the approval of a nomination by the State Agency and State Review Board (“Board”). Pursuant to 36 C.F.R. § 60.6(j), “[c]ompleted nomination forms . . . and comments concerning the significance of a property and its eligibility for the National Register are submitted to the [Board].” Upon receipt of these documents, “[t]he [Board] shall determine whether or not the property meets the National Register criteria for evaluation and make a recommendation to the [State Agency] to approve or disapprove the nomination.” Id. The regulations also provide that “[n]ominations approved by the [Board] and comments received are then reviewed by the [State Agency] . . . .” Id. § 60.6(k). If the State Agency “finds the nominations to be adequately documented and . . . procedurally correct . . ., the nominations are submitted to the [Keeper].” Id. “Notice will [then] be provided in the F[ederal] R[egister] that the nominated property is being considered for listing in the [National Register] . . . .” Id. § 60.6(q).

Nominations so received by the Keeper are “included in the National Register within [forty-five] days of receipt by the Keeper” unless otherwise prohibited. Id. § 60.6(r). Specifically, such nominations are not included in the National Register if “the Keeper disapproves a nomination, an appeal is filed, or . . . the majority of [private property] owners . . . object[] by notarized statements received by the Keeper prior to [the] listing.” Id.

Parties may appeal the State Agency’s nomination of private property to the Keeper. Pursuant to the regulations, prior to a listing in the National Register, “[a]ny person or organization which supports or opposes the nomination . . . may petition the Keeper during the nomination process either to accept or reject a nomination.” Id. § 60.6(t). “Such petitions received by the Keeper prior to the listing of a property . . . will be considered by the Keeper and the nomination will be substantively reviewed.” Id.

Parties may also appeal the listing of a property in the National Register. Pursuant to 36 C.F.R. § 60.15(c), “[a]ny person or organization may petition in writing for removal of a property from the National Register by setting forth the reasons the property should be removed on the grounds established in paragraph (a) of this section.” Importantly, paragraph (a) provides that properties may be removed from the National Register for “[p]rejudicial error in the nomination or listing process.” Id. § 60.15(a)(4). “Properties removed from the National Register for procedural error shall be considered for listing by the Keeper after correction of the error or errors by the [State Agency], . . . or by the Keeper, as appropriate.” Id. “The procedures set forth for nominations shall be followed in such reconsiderations.” Id.

B. Factual and Procedural History

The State Agency “nominated Blair Mountain . . . for listing in the National Register [several] times from 1980 to 2008.” Defs.’ Cross-Mot. for Summ. J. at 7; see Pls.’ State. of Mat. Facts ¶ 11. For reasons not specified in the record, these efforts were unsuccessful. See Pls.’ State. of Mat. Facts ¶¶ 11-18.

The tide turned when, on January 13, 2009, Susan Pierce, on behalf of the State Agency, wrote a letter to the Keeper, A.R. at 180-81, stating that “[t]he enclosed nomination has been reprocessed in accordance with [the Preservation Act’s implementing regulations], ” A.R. at 180.

Additionally, Pierce stated that “John Dalporto, Senior Assistant Attorney General of the West Virginia Attorney General’s Office, conducted property owner research in the tax records at the Logan County courthouse on October 24, 2008.” Id. Pierce further stated that “[a] legal notice was . . . placed in the local newspaper, the Logan Banner, on November 24, 2008[, ] notifying the property owners of their right to object to [the] listing and/or comment on the nomination.” Id. Pierce also stated that “[t]he legal notice . . . notified property owners that any objections filed to previous submissions of 2005 and 2008 nominations would be considered for this nomination if the current property owners for that parcel remained the same and if the parcel remained within the current boundary.” Id.

In the same letter, Pierce discussed how the State Agency calculated the number of property owners and objectors in the district at issue in Logan County. Pierce wrote that if “we count only property owners that appear on the current [] list [of Dalporto], there are a total of [sixty-six] property owners with [twenty-five] objections filed with our office.” A.R. at 181; see also A.R. at 180. Pierce also referenced “2005 or 2007-generated property owner lists” and a “list of [thirty-nine] objections with attached notarized affidavits” submitted by “Jackson[]Kelly.”[6] A.R. at 180. Pierce stated that, although “[a] number of the property owners included on Jackson[]Kelly’s List no longer appear on [Dalporto’s] list, ” the State Agency “counted them as property owners and have counted their objections.” A.R. at 181. According to Pierce, “[b]ased on this scenario, there are a total of [seventy-five] property owners and [thirty-three] property owners who have filed objections.” Id. Pierce added that, “in both instances, [the State Agency] has determined that a majority of property owners have not filed objections.” Id. Therefore, Pierce stated that “this current nomination [was] being forwarded to [the Keeper] for [its] review and consideration.” Id.

On February 27, 2009, Blair M. Gardner, an attorney with Jackson Kelly, filed a petition with the Keeper appealing the nomination. A.R. at 236-42. In pertinent part, Jackson Kelly objected to the nomination on the ground that “a majority of the property owners within what the [State Agency] now describes as the boundary proposed for the district object to the listing.” A.R. at 236. Gardner represented that an entity named “Arch Coal . . . digitally recreated the boundary drawing provided by the [State Agency] on a [U.S. Geological Survey] topographical map.” A.R. at 238. Gardner further stated that, “[b]ased upon the map prepared by Arch, we identified a list of tracts, in Tax Map and Parcel number format, found in the proposed historic District boundary.” Id. According to Gardner, based on this information, Jackson Kelly “determined the individuals who are currently listed as the owners of those various parcels.” Id. Gardner added that, “[b]ased on this identification[, ] we prepared our own owners’ list . . . .” Id.

Based on the foregoing research, Gardner stated that Jackson Kelly “found three types of errors with the [State Agency’s April 2008] List.”[7] A.R. at 238. According to Gardner, these errors were the following: (1) “some of the tax parcels claimed by the [State Agency] as being affected by the proposed historic District actually fell outside the boundary of the proposed historic District . . ., which led to a change in net ownership”; (2) “various tax parcels fell inside the boundary of the proposed historic District which the [State Agency] had not recognized as being part of the proposed historic District . . ., which led to a ...


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