Opposition — Del-AWARE Unlimited, Inc. v. Baldwin

DEL-AWARE UNLIMITED, INC., ET AL., PETITIONERS

v.

ROGER M. BALDWIN, ETC., ET AL.

. ON PETITION FOR A WRIT OF CERTIORARI TO THE

<5 UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

we Bh ee age ae

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

4

+S

Teen a

@ oD) et bie

—* C

1

woh

ji”

+.

.

‘

4

‘

;

a

A

i)

E

ie -t

ane

QUESTIONS PRESENTED

1. Whether the district court improperly excluded

evidence proffered by petitioners at the preliminary

injunction hearing.

2. Whether the Corps of Engineers complied with

Section 110(f) of the National Historic Preserva-

tion Act, 16 U.S.C. 470h-2(f), before issuing a per-

mit for construction on the Delaware River.

(I)

TABLE OF CONTENTS

Page

I EEE RM CI Se NS Ne Rie TH ]

EI ONO Ser ee rene SE 1

SEALER RIOR eT ee Ce Fe Seam FEE: 2

a GT EE SR Oe Ae RR Ee oer FS iY 3 2

I te Oe asaeulasgeesioniiiladaamesiaiaaeund 11

I a ae 18

TABLE OF AUTHORITIES

Cases :

American Construction Co. v. Jacksonville, T. &

tid: UE its MTU sintecinansptaiandstnoibcnneoveineneacethiheg 11

CR a UU, GRE CIE, BO cncerciscesiccsetivccoatorsoncheeonnes 12

Citizens to Preserve Overton Park, Inc. v. Volpe,

I a i Ei 12

Delaware Water Emergency Group Vv. Hansler, 536

F. Supp. 26, aff’d, 681 F.2d 806 ...................... 8, 5, 6, 8, 9

Environmental Coalition of Nuclear Power vy. NRC,

No. 75-1421 (8d Cir. Nov. 12, 1975) .................... 5

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.,

ee ee OE 11

Louisiana Environmental Society, Inc. V. Coleman,

I a alt 15

Vermont Yankee Nuclear Power Corp. v. NRDC,

485 U.S. 519 12

Statutes:

Administrative Procedure Act, 5 U.S.C. 701 et seq... 9

Delaware River Basin Compact, Pub. L. No. 87-

828, 75 Stat. 688 et seq. 8

Ss RTT UM Soe) | Seeeeeememranaan 16

Department of Transportation Act §4(f), 49

U.S.C. 1653 (f) 15

Endangered Species Act of 1973, 16 U.S.C. 1531

et seq. 9

(m1)

Statutes—Continued : Page

Federal Water Pollution Control Act § 404, 33

ra IS. IN cscs detuidesiescineyebssionstioimecliaian 2

Fish and Wildlife Coordination Act, 16 U.S.C. 661

SII Dabtinclacdasc dicate Aclunctte awncecpettetiiphlianctdnaednscinginebddbadenieatiions 8

National] Environmental Policy Act, 42 U.S.C. 4321

IS saith Gicctascecestearsicchimcbinds 5

National Historic Preservation Act, 16 U.S.C. 470

RR SIRI IRE AIRE SS ORR a SN 8

§ 110(f), 16 U.S.C. 470h-2(f) _.......... 2, 10, 14, 15, 16

Rivers and Harbors Appropriation Act of 1899

te Bt ERRMSG? RS 2 Rees 2

Re EE SEES eid 4

Miscellaneous:

Fowler, Federal Historic Preservation Law: Na-

tional Historic Preservation Act, Executive Or-

der 11593 and Other Recent Developments in

Federal Law, 12 Wake Forest L. Rev. 31 (1976).. 15

H.R. Rep. 96-1457, 96th Cong., 2d Sess. (1980) ...... 15

NRC, NUREG 0974, Draft Environmental State-

ment Related to Operations of Limerick Generat-

ing Station, Units I and II (June 1988) .............. 6

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-740

DEL-AWARE UNLIMITED, INC., ET AL., PETITIONERS

Vv.

ROGER M. BALDWIN, ETC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The judgment order of the court of appeals (Pet.

App. Al-A2)* is not reported. The bench opinion of

the district court (Pet. App. A7-A64)? is not reported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

A2) was entered on July 5, 1983. A petition for re-

hearing was denied on August 2, 1983 (Pet. App.

! Petitioners have filed two differently paginated copies of

the Appendix. The page numbers herein refer to the xeroxed,

169 page version.

2 The district court adopted (Pet. App. A35-A36) almost

all of the Proposed Findings of Fact of the Neshaminy Water

Resources Authority reprinted at Pet. App. A71-A113.

(1)

2

A3-A4), and the petition for a writ of certiorari was

filed on October 31, 1983. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

STATUTE INVOLVED

The National Historic Preservation Act §110(f),

16 U.S.C. 470h-2(f) (NHPA), provides:

Prior to the approval of any Federal under-

taking which may directly and adversely affect

any National Historic Landmark, the head of the

responsible Federal agency shall, to the maxi-

mum extent possible, undertake such planning

and actions as may be necessary to minimize

harm to such landmark, and shall afford the Ad-

visory Council on Historic Preservation a rea-

sonable opportunity to comment on the under-

taking.

STATEMENT

Petitioners instituted this action in the United

States District Court for the Eastern District of

Pennsylvania on November 2, 1982, seeking review

of the issuance by the United States Corps of En-

gineers (Corps) of a permit to the Neshaminy

Water Resources Authority (Neshaminy) for the

construction of a water intake structure and pump-

ing station on the Delaware River at Point Pleasant,

Pennsylvania. The permit was issued pursuant to

the Rivers and Harbors Appropriation Act of 1899

§ 10, 33 U.S.C. 403, and the Federal Water Pollution

Control Act § 404, 33 U.S.C. (Supp. V) 1344 (Clean

Water Act). Petitioner also requested a preliminary

injunction to prevent the planned commencement of

construction in January 1983.

1. The Corps permit covers but one small part of

a comprehensive plan for the construction of facili-

ties for the withdrawal, diversion and use of water

from the Delaware River that has been developed

3

by the Delaware River Basin Commission (Commis-

sion) over the last 20 years in order to meet the water

resources needs of the De!aware River Basin area.’

The basic plan approvei by the Commission is for

water to be diverted from the Delaware River by

means of a pumping facility and intake structure at

Point Pleasant, Pennsylvania. This water is to be

used to supplement water supplies in Bucks and Mont-

gomery Counties, Pennsylvania, and to provide water,

when that becomes necessary, to the Limerick Gen-

erating Station in Montgomery County.

The Commission’s overall plan has been subjected

to extensive administrative and judicial review over

the last 20 years. The present project is the result

of a 1966 study of the Neshaminy Creek Basin by

the Pennsylvania Department of Environmental Re-

sources, the United States Soil Conservation Service,

Bucks County and Montgomery County. The plan for

this project was approved by the Commission and in-

cluded in the Delaware River Basin Comprehensive

Plan on October 26, 1966. In 1971, the Commission

plan was amended to include an enlarged Point

Pleasant Pumping Station supplying approximately

150 million gallons per day (mgd) for Limerick

* The Commission was created by the Delaware River Basin

Compact, Pub. L. No. 87-828, 75 Stat. 688 et seq., of which the

United States and the States of New York, New Jersey, Penn-

sylvania and Delaware are signatories. Pursuant to that com-

pact, the Commission is granted “broad responsibility and con-

trol over planning and allocating the water resources of the

entire Delaware River Basin, including both surface and

ground waters.” Delaware Water Emergency Group Vv. Hans-

ler (Delweg), 536 F. Supp. 26, 28 (E.D. Pa. 1981), aff’d, 681

F.2d 805 (3d Cir. 1982).

4

and Neshaminy’s municipal water users. The Com-

mission filed an environmental impact statement

(EIS) in 1973, which concluded that the proposed

project would be beneficial to the watersheds of both

creeks involved and not detrimental to the Dela-

ware River, provided that various express conditions

concerning the control and use of water contained

therein were followed. Pet. App. A73-A75.

During the late 1970’s, study of the present and

the contemplated future water needs of the area con-

tinued. Although the contours of the project re-

mained basically the same, population projections

compiled by the Commission in 1978 led Neshaminy

to prepare a new environmental report in order to

reevaluate the project as then constituted. As a re-

sult, Neshaminy submitted to the Pennsylvania De-

partment of Environmental Resources an applica-

tion to modify the previously granted permit because

of a decreased need for supplemental water, reduc-

ing the Point Pleasant withdrawal from 150 mgd to

approximately 95 mgd. In 1978, this permit was is-

sued, along with an extensive report by the Penn-

sylvania Department of Environmental Resources

analyzing and justifying the issuance of the permit.

Pet. App. A75-A77.

Meanwhile, aspects of this project had also been

undergoing review by the federal government. In

1973, the Atomic Energy Commission (AEC). pre-

pared an EIS regarding the proposed Limerick Gen-

erating Station, including the Point Pleasant Pump-

ing Plant and the transmission lines needed to trans-

port water to Limerick. In 1974, the Nuclear Reg-

ulatory Commission (NRC), which had succeeded

to the licensing functions of the AEC (88 Stat.

1233), granted a construction permit to Philadelphia

ae

:

5

Electric for the Limerick plant. The validity of this

permit was affirmed after judicial review. Environ-

mental Coalition of Nuclear Power v. NRC, No. 75-

1421 (3d Cir. Nov. 12, 1975). Finally, in 1976, the

United States Soil Conservation Service prepared

a final EIS encompassing the entire water plan for

the Delaware River Basin area. Pet. App. A77-

A78.

2. In 1979, Philadelphia Electric and Neshaminy

filed with the Commission applications for approval

of their portions of the proposed transmission sys-

tem, including the Point Pleasant Pumping Station.

After the preparation of an extensive environmental

assessment, the Commission issued a “negative dec-

laration,” finding that the proposed project would

have no significant adverse effect on the environment

and that the preparation of a separate EIS was

not necessary. In August 1980, the Commission pub-

lished its “Final Environmental Assessment for the

Neshaminy Water Supply System” and granted the

applications of Philadelphia Electric and Neshaminy,

subject to certain express conditions and limitations.

Pet. App. A78-A80.*

These Commission approvals were challenged in

the Delweg litigation. Plaintiffs there claimed that

there had been a failure to comply with the Na-

tional Environmental Policy Act, 42 U.S.C. 4821 et

seg. (NEPA). The district court disagreed, find-

ing that the numerous environmental assessments

*In May 1981, the Commission completed an additional

environmental study—the Delaware River Basin Compre-

hensive (Level B) Study—which also encompassed the plans

for the Point Pleasant Pumping Station to withdraw 95 mgd

for use at Limerick and the North Branch Water Treatment

Plant. Delweg, 536 F. Supp. at 48-44.

6

of the proposed project were thorough, reliable and

up-to-date. Delaware Water Emergency Group v.

Hansler, 536 F. Supp. 26, 48-49 (E.D. Pa. 1981).°

This decision was approved on appeal without opinion

(681 F.2d 805 (3d Cir. 1982) ).

3. In December 1980, Neshaminy submitted to

the Corps applications for approval of two aspects

of the planned pumping facilities and associated sys-

tems—the construction of the Point Pleasant intake

structure and the rechannelization of Pine Run

Creek. In connection with its consideration of these

applications, the Corps received numerous comments

from the public and from federa! and state agencies.®

5In that decision, the district court did not, as petitioners

claim (Pet. 7-8), rely on the assumption that further EISs

would be compiled by the Corps and the NRC in connection

with this project. The court rejected the claim of plaintiffs

that the sighting of shortnose sturgeon, an endangered species,

in the Delaware subsequent to the Commission’s environmental

assessment mandated the preparation of an EIS. The court

noted that the record did not show that the project would

jeopardize the habitat of such species. The court pointed

out in addition that the effect of the project on the short-

nose sturgeon could be assessed by the Corps in consider-

ing the permit for the intake structure. Finally, the court

noted that the NRC would prepare an EIS in connection with

the Limerick operating permit, which could also consider

that matter. Delweg, 536 F. Supp. at 46. As predicted by the

district court in Delweg, the Corps did fully consider the

effect of the project on shortnose sturgeon in connection with

its issuance of the permit for the intake structure (Pet. App.

A124). These effects were also considered by the NRC in

connection with its review of a request for an operating per-

mit for Limerick. NRC, NUREG 0974, Draft Environmental

Statement Related to Operation of Limerick Generating Sta-

tion, Units I and IJ, at 4-51, 5-36 (June 19838).

* Comments and opinions were received from the Environ-

mental Protection Agency, the National Marine Fisheries

Service of the National Oceanic and Atmospheric Adminis-

&

7

In addition, the Corps consulted with the Pennsyl-

vania Historic Preservation Office and the Advisory

Council on Historic Preservation.’

After reviewing these comments and all previous

environmental reviews that were before the Com-

mission, the Corps issued its environmental assess-

ment of October 14, 1982 (Pet. App. A142-A160).

It determined that the issuance of the permit did

not constitute a major federal action and that the

installation and operation of the water intake, con-

duit and pumphouse would not significantly affect

the human environment. Therefore, on October 25,

1982, on the basis of its Statement of Findings, the

Corps issued permit No. NAPOP-R-80-534-3 to

Neshaminy (Pet. App. Al14-A141). The Commis-

sion reserved action on Neshaminy’s application for

a permit for the rechannelization of Pine Run

Creek.

tration, the Fish and Wildlife Service of the Department of

the Interior, and the Advisory Council on Historic Preserva-

tion (Pet. App. A128-A125). The Pennsylvania Department

of Environmental Resources referred to the Corps a detailed

environmental assessment on the project in connection with

its issuance to Neshaminy, on September 2, 1982, of Dams

Safety and Encroachment permits for the Point Pleasant

intake structure construction. Comments were also received

from the Pennsylvania Fish Commission and the Pennsylvania

State Historic Preservation Office. Pet. App. A125-A126.

™This consultation resulted in a Memorandum of Agree-

ment with those agencies that sets out steps to be taken by

Neshaminy and the Corps in order to limit the effect of the

intake structure’s construction and operation on the historic

values of the area. The Pennsylvania Canal, which will be

crossed by the project, is a national historic landmark, and

Point Pleasant has been nominated to the National Register of

Historic Places (Pet. 42).

8

4. Petitioners’ complaint in the instant action

named as defendants numerous federal, state, and

Commission officials. It challenged the issuance of

the construction permit by the Corps, alleging, inter

alia, violations of NEPA, the Nationai Historic Pres-

ervation Act, 16 U.S.C. 470 et seg., and the Fish and

Wildlife Coordination Act, 16 U.S.C. 661 et seq., and

sought a preliminary injunction against constru¢tion

of the intake structure. After initial briefing, includ-

ing various motions by the defendants to dismiss por-

tions of the complaint, to deny the motion for prelimi-

nary injunction, and to limit the evidentiary record,

the preliminary injunction hearing commenced on No-

vember 30, 1982, and continued through December 10,

1982. As an initial matter, the court ruled that re-

view would be limited to the administrative record

(Pet. App. A164):

to determine whether or not, under either a

reasonableness standard or an arbitrary and

capricious standard the agency somehow mis-

applied the law, misinterpreted the evidence,

overlooked certain testimony, or unreasonably

reached no significant impact determinations.

The court further held that the burden would be

on petitioners to show that the Corps’ environmental

impact study was improperly prepared or issued. It

accordingly held that testimony or evidence outside

the administrative record might be introduced, in

the court’s discretion, to support petitioners’ allega-

tions that the administrative record was deficient

(Pet. App. Ai65-A166). Furthermore, the court

adopted as binding the decision in Delweg, and ruled

that its consideration would be limited to those is-

sues that had not been considered in the Commis-

sioner’s environmental assessment approved in Del-

weg (Pet. App. A166).

9

The court heard extensive arguments of counsel,

and received as evidence numerous documents re-

lating to issues that petitioners contended had not

been adequately considered by the Corps. In addi-

tion, Fichard McCoy, an employee of the Fish and

Wildlife Service proffered by petitioners, testified

regarding the concerns of that agency about the con-

struction of the Point Pleasant intake structure

(C.A. App. 2536-2584). Finally, after determining

from petitioners’ counsel that there was no further

evidence that petitioners wished to present at this

preliminary stage, the court reviewed and ruled upon

the exhibits offered by the parties (C.A. App. 2997-

3123).

On December 15, 1982, the district court issued its

decision (Pet. App. A7-A64) from the bench. The

court dismissed petitioners’ claims under the National

Historic Preservation Act, and Endangered Species

Act of 1973 (16 U.S.C. 1531 et seq.), the Clean Water

Act, and the Rivers and Harbors Appropriation Act

of 1899, as well as against certain named individuals

and state agencies (Pet. App. A5-A6, A11-A14).*

Assuming (Pet. App. Al0) that petitioners could

amend their complaint to assert a claim under the

Administrative Procedure Act, 5 U.S.C. 701 et seq.

(APA), the court then denied the motion for a pre-

liminary injunction resting on the NEPA and APA

claims (Pet. App. A6, A15), finding no abuse of dis-

cretion or failure to consider adequately other agency

views (Pet. App. Al5-A16).° Accordingly, the court

® Petitioners do not here challenge these dismissals.

*The court found that many of petitioners’ claims had

been before the court in Delweg, and that petitioners were

estopped from relitigating those claims (Pet. App. A16-A17).

It found the new issues raised by petitioner to be without

10

found that petitioners were not entitled to a prelimi-

nary injunction because they had shown no likelihood

of success on the merits, and respondents had shown

that they and the public would be severely harmed if

the project did not go forward as scheduled (Pet.

App. A36-A37).

5. Petitioners appealed only the denial of the pre-

liminary injunction, presenting the same substantive

issues raised in the district court. In addition, pe-

titioners challenged the district court’s evidentiary

rulings, claiming the court improperly had limited its

review to the Corps’ administrative record, and had

refused to permit them to present evidence not in the

Corps’ record to show that the Corps’ environmental

assessment was inadequate. The court of appeals af-

firmed the district court’s decision by judgment order

(Pet. App. Al-A2).

merit, concluding, inter alia, that the Corps had not violated

Section 110(f) of the NHPA. Because the Corps properly

relied on the Commission’s determination, based on an ade-

quate consideration of alternatives, that the location of the

intake structure at Point Pleasant was the only feasible one,

the court found that the Corps was not required by Section

110(f) to consider again alternatives outside that area.

Accordingly, the Corps’ only responsibility under Section

110(f) had been to take adequate action to minimize impact

on the Pennsylvania Canal, located at Point Pleasant, which

the court found it had done (Pet. App. Al8-Al19, A26-A27,

A46-A52). The court also found that the Corps had ade-

quately consulted with the Fish and Wildlife Service. The

Fish and Wildlife Service had raised no new concerns, and its

failure to refer the matter to a higher authority to resolve

such disagreements (as provided in a Memorandum of Under-

standing between the Corps and Interior) indicated that it

did see any significant adverse impacts on fish from the

project (Pet. App. A25, A27).

Il

ARGUMENT

Petitioners have not shown any reason why this

Court should depart from its usual practice of de-

clining to review interlocutory orders of the courts

below. In any event, the decision below is correct,

and does not conflict with any decision of this Court

or of any other court of appeals. Accordingly, further

review by this Court is not warranted.

1. Petitioners ask this Court to review the denial

of a preliminary injunction. This Court will not un-

dertake such interlocutory review “unless it is neces-

sary to prevent extraordinary inconvenience and em-

barrassment in the conduct of the cause.” American

Construction Co. v. Jacksonville, T. & K.W. R.R., 148

U.S. 372, 384 (1893); accord, Hamilton-Brown Shoe

Co. v. Wolf Brothers & Co., 240 U.S. 251, 258 (1916).

Petitioners have made no such showing. They raise

only two issues here—whether the district court at

the preliminary injunction hearing improperly ex-

cluded evidence which was not part of the Corps’ ad-

ministrative record (Pet. 16-39), and whether the dis-

trict court properly interpreted the Corps’ duties un-

der the NHPA (Pet. App. 39-56). Neither issue is

foreclosed by the denial of the preliminary injunction

—instead, both can be raised at the trial on the

merits, and, if necessary, on appeal from a final de-

cision on the merits. Ultimately, petitioners will be

able to present their contentions to this Court, to-

gether with any other claims they may have, in a pe-

tition for a writ of certiorari seeking review of any

final judgment against them.

2. In any case, the decision below is correct. Despite

petitioners’ claim to the contrary (Pet. 20-21), the

12

district court here did not exclude all evidence out-

side the administrative record. Instead, it adopted

petitioners’ view that extra-record evidence is ad-

missible to identify important matters not considered

by the agency.” After noting that judicial review in

cases such as this is generally limited to the adminis-

trative record, the court held (Pet. App. A165):

Testimony outside of the administrative record

is not precluded in my opinion as a matter of

law; the Court has discretion to permit it, where

it would tend to advance specific allegations by

the plaintiffs that the administrative record is

deficient, so as to render the decision made by

the administrative agency without evidence and

without consideration of the various environ-

mental considerations imposed under the regula-

tions and statute upon the agency to review,

analyze and consider.

Furthermore, although petitioners baldly assert

otherwise (Pet. 20), the record amply demonstrates

that the district court admitted almost all their ex-

1° Petitioners incorrectly suggest that the district court, in

environmental cases, should permit a more extensive use of

extra-record evidence in reviewing agency adjudicatory de-

cisions not based on an adversary record (Pet. 16-20). This

Court has consistently stated that such review must be based

on “the administrative record already in existence, not some

new record made initially in the reviewing court.” Camp v.

Pitts, 411 U.S. 188, 142 (1978). See Vermont Yankee Nuclear

Power Corp. Vv. NRDC, 435 U.S. 519, 549 (1978) ; Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-420

(1971). Even where the administrative record is found inade-

quate to support the ageacy’s decision, this Court has prohib-

ited remedial evidentiary proceedings in the reviewing court,

holding instead that inadequate records must be remanded to

the agency for supplementation. Vermont Yankee Nuclear

Power Corp. v. NRDC, supra; Camp v. Pitts, supra.

13

trinsic evidence. Petitioners offered 91 documents as

evidence: only 20 were excluded. Of these 20, only 7

apparently were excluded solely because they were

not part of the Corps’ record." Petitioners do not

assert that any of these documents was critical.”

The district court admitted 60 of the documents

offered by petitioners,” 15 of them over the objection

of the government that they were not part of the

11 Nos. 25 (C.A. App. 3023-3026); 30 (C.A. App. 3028-

8029) ; 35 (C.A. App. 3032-3033) ; 87 (C.A. App. 3034-3036) ;

53 (C.A. App. 3054-3064) ; 54 (C.A. App. 3064-3065) ; and 74

(C.A. App. 3086-3087).

The remaining 13 documents were excluded for other rea-

sons. Nos. 8 and 21 were excluded because they were draft

documents and addressed an issue (the Pine Run rechanneli-

zation) that was not part of the consideration of the Point

Pleasant permit (C.A. App. 3006-3008, 3021-8022). Nos. 24,

63 and 86 were excluded because they were not complete docu-

ments (C.A. App. 3023, 3077-3078, 3115-3117). No. 26 was

excluded because counsel had not presented it to the court

during the preliminary injunction hearing and, therefore, had

laid no foundation upon which the court could rule as to its

admissibility (C.A. App. 3026-8027). No. 39 was excluded

because it was offered on a purely legal issue for which the

taking of evidence was unnecessary (C.A. App. 3038-3040).

No. 40 was excluded as irrelevant (C.A. App. 3040-3041).

Nos. 42 and 75 were excluded as unnecessary and cumulative

(C.A. App. 3042-8048, 3088-3091). No. 62 was excluded as

work product (C.A. App. 3075-3077). No. 85 was excluded

as hearsay (C.A. App. 3106-3115). No. 91 was excluded as

not probative (C.A. App. 3118-3121).

1 Instead, they claim only that “[c]ritical documents which

had not been included in the Corps of Engineers ‘administra-

tive record’ * * *, were refused admittance except by the

largesse of the court” (Pet. 20).

“The remaining 11 documents were not admitted because

they either were missing or were duplicates of other docu-

ments.

14

administrative record.“ Petitioners’ “Hearing Plan”

noted 19 possible witnesses, but indicated that their

testimony would be dupticative of materials presented

to the Corps (C.A. App. 191). Petitioners proffered

only two of these witnesses at the preliminary in-

junction hearing. One of those witnesses, Ricard Mc-

Coy, was heard by the court (page 9, supra). The

other was not heard because his testimony would have

been duplicative of evidence already in the record

(C.A. App. 2393). Thus, the district court allowed

petitioners broad leeway in presenting evidence to

support their contention that the Corps failed to con-

sider important environmental matters.

3. Petitioners’ other claim—that the Corps failed to

fulfill its responsibilities under Section 110(f) of the

NHPA (Pet. 39-56)—is equally without merit. They

contend that the Corps refused to consider any al-

ternative to crossing the Pennsylvania Canal at Point

Pleasant, but instead improperly deferred to the con-

sideration of alternatives previously completed by

the Commission, which chose the Point Pleasant cross-

ing site before the passage of Section 110(f) and,

therefore, could not have applied the required histori-

cal preservation considerations (Pet. App. 45-46, 49-

56). Petitioners also argue (Pet. 46-49) that, even

if the Point Pleasant crossing was the only prudent

and feasible alternative, the Corps failed to minimize

harm to the canal there.

a. The Corps’ consideration of alternatives fully

complied with its responsibilities under Section 110

(f) of the NHPA. That section by its terms requires

only that agencies that take action adversely affecting

a National Historic Landmark “to the maximum ex-

4 Nos. 3, 6, 7, 10, 14, 31, 33, 34, 36, 38, 48, 59, 61, 72, and

80.

15

tent possible, undertake such planning and actions as

may be necessary to minimize harm to such land-

mark” and allow the Advisory Council an opportunity

to comment on the undertaking.” The legislative

history confirms the plain statutory language. It

makes clear that prudent and feasible alternatives

should be considered by the agency, but that Congress

did not require a finding of no such alternative as a

mandatory initial step without which the agency may

not proceed. The House report on this Section states

H.R. Rep. 96-1457, 96th Cong., 2d Sess. 38 (1980):

Although the Committee deleted a mandatory

requirement that an agency first determine that

“no prudent and feasible alternative for such

undertaking exists,” the Committee does intend

for agencies to consider prudent and feasible

alternatives.

Thus, NHPA, like NEPA, is a procedural statute.

It is designed to protect our nation’s cultural heritage

by assuring that a good faith consideration of preser-

vation values is made before agencies take action that

could adversely affect a landmark. See Fowler, Fed-

eral Historic Preservation Law: National Historic

45 Contrary to petitioners’ suggestion (Pet. 44, 47-49), Sec-

tion 110(f) is distinctly different from Section 4(f) of the

Department of Transportation Act, 49 U.S.C. 1658(f). The

latter Section flatly prohibits the agency from approving a

project that crosses public parkland unless it initially makes a

two-part finding: first, that there is no prudent or feasible

alternative; and second, that the program includes all possible

planning to minimize harm to the parkland. In any event, the

Corps’ action here would satisfy even the stringent require-

ments of 49 U.S.C. 1658(f), under which an alternative may

be rejected if it is “reasonably determined” to be imprudent.

Louisiana Environmental Society, Inc. v. Coleman, 587 F.2d

79, 85 (5th Cir. 1976).

16

Preservation Act, Executive Order 11593, and Other

Recent Developments in Federal Law, 12 Wake

Forest L. Rev. 31 (1976). |

Nothing in Section 110(f) prohibits the Corps from

deferring to the decision of the Commission, the

agency with overall responsibility for the project, that

there was no prudent and feasible alternate crossing

site outside of the Point Pleasant area (Pet. App.

A132). The Commission, after extensive study of

environmental and cther factors (see pages 3-6, su-

pra), concluded that there was no other reasonably

possible place to cross the canal than Point Pleasant.

The Corps properly relied on this judgment in issuing

the permit necessary for completion of a part of the

project.* The Corps fulfilled its statutory obligation

to consider alternatives by studying alternatives

within the Point Pleasant area, since alternatives out-

side that area were not prudent or feasible.

Within the Point Pleasant area, the Corps gave full

consideration to alternative ways to protect the his-

toric values of the site. It considered five possibilities

—abandoning the project, relocating the project in

the southwest, southern or northern portions of the

area, and installing an intake conduit over the canal

(Pet. App. A132-A133, A154-A155). Each of these

alternatives was rejected for various reasons as not

16 Deference to the Commission in the overall planning of

the project is required by the Delaware River Basin Compact,

Pub. L. No. 87-8328, § 15.1(s) (1), 75 Stat. 718. However,

the Corps’ deference to the Commission’s determination re-

garding feasible locations for the crossing did not improp-

erly cede its statutory responsibilities under the NHPA to the

Commission, as petitioners suggest (Pet. 49-56). Instead,

having accepted the Commission’s judgment about the im-

practicality of relocating the crossing, the Corps carefully

addressed historic preservation concerns within the area.

17

feasible, and the location proposed by Neshaminy was

found to be “virtually the only feasible one,” and

“the most practicable.” **

b. Furthermore, contrary to petitioners’ claim (Pet.

46-49), having found the Point Pleasant crossing to

be the most feasible, the Corps made extensive efforts

to minimize harm to the canal from the project. Most

significantly, the Corps incorporated into its permit

to Neshaminy a Memorandum of Agreement that it

entered into with the Pennsylvania State Historic

Preservation Officer (representing the owner of the

canal) and the Advisory Council on Historic Preser-

vation (the federal entity charged with responsibility

for ensuring compliance with the NHPA). The

Memorandum outlines extensive efforts that must be

made by Neshaminy during the construction of the

project to minimize harm to the canal (C.A. App.

2042-2050) .*”

Despite petitioners’ attempt to paint this case as

one in which the Corps, through inaction, evaded its

duties under the NHPA, it is clear that the Corps

amply fulfilled its duty to consider historical values

in issuing a permit to Neshaminy.

17 Pet. App. A132-A133.

18 Pet. App. A155. *

19 The Corps thus fulfilled precisely those duties “deferred”

to it by the Commission in its 1980 Environmental Assess-

ment, to which petitioners refer (Pet. 50). In that assessment,

the Commission simply noted that the Corps should be the

lead agency in consultations with the Advisory Council. (See

Pet. App. A95-A96.)

18

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted.

REx E. LEE

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

Davip C. SHILTON

JANET L. STECKEL

Attorneys

JANUARY 1984

® ss. 6. covesmment ramrime orice; 1964 430128 864230