Petition for Writ of Certiorari — Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown

7 = HO. JR.

ce &. SPANIOL,

IN THE ma CLERK

Supreme Court of the United a

OCTOBER TERM, 1989

VIEUX CARRE PROPERTY OWNERS, RESIDENTS

& ASSOCIATES, INC.,

. Petitioner,

COLONEL LLOYD KENT Brown, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN H. BEISNER

Counsel of Record

BARBARA L. STRACK

STUART L. FULLERTON

O’MELVENY & MYERS

555 13th Street, N.W.

Washington, D.C. 20004-1109

(202) 383-5300

JAMES G. DERBES

DERBES & WALDRUP

610 Poydras Street

Suite 318

New Orleans, LA 70130

(504) 525-9538

JAMES R. LOGAN IV

650 Poydras Street

2850 Poydras Center

New Orleans, LA 70130

(504) 524-7604

Counsel for Petitioner

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Relying on Church of the Holy Trinity v. United States,

143 U.S. 457 (1892), the United States Court of Appeals

for the Fifth Circuit has disregarded the concededly

“literal construction” of a federal statute in favor of a

contrary interpretation with purportedly “great practical

appeal.” The resulting question presented by the decision

below is:

Does section 470f of the National Historic Preserva-

tion Act, 16 U.S.C. § 470f (1982), which requires federal

agencies to consider the effect of “any” federally licensed

activities on historic properties, apply to all federally

licensed activities?

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner is Vieux Carre Property Owners, Residents

& Associates, Inc., the plaintiff below.* Respondents are

Colonel Lloyd Kent Brown, District Engineer, New Or-

leans District, United States Army Corps of Engineers;

the City of New Orleans; the Audubon Park Commission;

the Board of Commissioners of the Port of New Orleans;

and the Board of Commissioners of the Orleans Levee

District. The National Trust for Historic Preservation

in the United States, the Louisiana Council for the Vieux

Carre, and Patricia B. Rittiner appeared as amicus

curiae in support of the plaintiff below.

* As required by Rule 28.1 of this Court, petitioner states that

it has no parent companies, subsidiaries, or affiliates,

TABLE OF CONTENTS

S| |

PARTIES TO THE PROCEEDING ..........000................

TABLE OF CONTENTS OF APPENDIX ...................

pe A igs 6 6 | -

i cos sash apensinewannotemssnestancassonenemnpne

JURISDICTION ......................... “FL er PRESS Aa RO

STATUTES AND FEDERAL REGULATIONS IN-

ra

Neen sek caanslcninnnasacuanisotesuamees

REASONS FOR GRANTING THE WRIT ..................

I. THIS COURT’S INTERVENTION IS NEC-

ESSARY TO RESOLVE A THREE-WAY

DIVISION OF THE CIRCUITS WHICH

COULD THWART CONGRESSIONALLY

MANDATED EFFORTS TO PROTECT HIS-

po yy | ee

II. THE DECISION BELOW SANCTIONS JUDI-

CIAL REJECTION OF UNAMBIGUOUS

STATUTORY LANGUAGE IN FAVOR OF

INTERPRETATIONS WITH “GREAT[ER]

tS EGS 6 y S| Fd Sa eeeeen

dani ees wan eincimnatonicinsaseennsnneucsnacavnnsers

(iii)

Page

iv

TABLE OF CONTENTS OF APPENDIX

Opinion of the United States Ccurt of Appeals for the

Fifth Circuit in Vieux Carre Property Owners,

Residents & Associates, Inc. v. Colonel Lloyd Kent

Brown, et al., 875 F.2d 453 (5th Cir. 1989) .............

Order of the United States Court of Appeals for the

_ Fifth Circuit on Petition for Rehearing and Sugges-

tion for Rehearing En Banc, No. 87-3854 (5th Cir.

ER a ee

Order and Reasons of the United States District Court

for the Eastern District of Louisiana in Vieux Carre

Property Owners v. Col. Lloyd Kent Brown, No. 87-

I Es OUI SIE pop iccieecciesnse taht ceerencancdeesorcinimuseaies

Statutes and Federal Regulations Involved ..................

Page

la

28a

v

TABLE OF AUTHORITIES

CASES: Page

Ashley, Drew & N. Ry. Co. v. United Transp.

Union, 625 F.2d 1357 (8th Cir. 1980) -.......20000... 13

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 887 (1984) -..020002. eee. 7,11

Church of the Holy Trinity v. United States, 143

eR ___, eee AS ener Re EO 5, 11,15

Ciampa v. Secretary ef Health & Human Serv.,

687 F.2d 518 (1st Cir. 1982) ..............0...00000002.. iss 12

Crooks v. Harrelson, 282 U.S. 55 (1930) ......000....... 11

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976)... 14

Friends of the Earth v. Consolidated Rail Corp.,

Ton Ee oe Cee cee See... 12

Garcia v. United States, 469 U.S. 70 (1984) ........... 11

Henry T. Patterson Trust by Reeves Banking &

Trust Co. v. United States, 729 F.2d 1089 (6th

BNI dnkceseecsosneuetesst dh ceceie calabceeecia cies 12

Howe v. Smith, 452 U.S. 473 (1981) .......202...2... 11

In re Forfeiture Hearing as to Caplin & Drysdale,

837 F.2a G37 (4th Cir. 1068) ................................. 12

In re Sinclair, 870 F.2d 1340 (7th Cir. 1989)........ 12

National Center for Preservation Law v. Landrieu,

496 F. Supp. 716 (D.S.C.), aff'd, 6385 F.2d 324

(4th Cir. 1980) (per curiam) —.......0....000....2..2222... 7

National Freight, Inc. v. Larson, 760 F.2d 449 (3d

+ _, Retna rr ee. De arer inet meme 12

Oklahoma ex rel. Dep’t of Human Serv. v. Wein-

berger, 741 F.2d 290 (10th Cir. 1983) .......00000..... 12

Ringsred v. City of Duluth, 828 F.2d 1305 (8th

i, IED canuscen lait Ss cpsnckhnrstdenten team enicnada tains memtos 8-9

Riverside Irrigation Dist. v. Andrews, 758 F.2d

Ue CI Sas OD wit cncicecneneserccscceetnnnnecaaeeced 8, 9,13

Smith v. Bowen, 815 F.2d 1152 (7th Cir. 1987)...... 13

Trailer Train Co. v. State Bd. of Equalization, 697

F.2d 860 (9th Cir.}, cert. denied, 464 U.S. 846

PI soo cbacincclasstatte ecchaanonitel aaa ie cantare cena ee 13

United States v. Fountain, 840 F.2d 509 (7th Cir.),

cert. denied, 109 S. Ct. 5383 (1988) 2.000000. 15

vi

TABLE OF AUTHORITIES—Continued

. Page

United States v. Locke, 471 U.S. 84 (1985) ............ 15

United States v. 162.20 Acres of Land, More or

Less, 639 F.2d 299 (5th Cir.), cert. denied, 454

Seis MY UNTER denenscotidechetaicecinsGbenmabablinndiiieinanianie 7

STATUTES AND FEDERAL REGULATIONS:

Endangered Species Act, 16 U.S.C. § 1536 (1982)... 8

National Historic Preservation Act,

16 U.S.C. §§ 470 to 470w-6 (1982 & Supp. V —

TT ccsichisse nce kseeleaetaatasisnitnenhanpincesnianditnas 2

16 U.S.C. § 470(b) (8) (1982) —.....202 9

16 U.S.C. § 470(b) (4) (1982) -...002220. ee... 6

16 U.S.C. § 470a(a) (1982) ................................ 8

16 U.S.C. § 470f (1988) ........................ RUG ey: passim

16 U.S.C. § 470h-2(d) (1982) .......0002 ee. 6, 7, 14

16 U.S.C. § 470h-2(f) (1982) ...................00.0... 3, 6, 7

gre Fee Ff). BURR ERe Ei mNnORae nN maNEreE: 4, 6, 7,10

Re ers Oe CID weckn si centcench cc cktesca ce csccean cca 10

RR Ee 2); ORONO SE eRe Ieee 7

Rivers and Harbors Act of 1899, 33 U.S.C. § 403

IIT iL. cies ve. ocala. sahunguacskeinetohenaaeiestabasesiesniaainns 4,138

33 C.F.R.

RE i Ne tas MNOS SAS 4,13

nt ctasnicanretencanadanannalitaciones 8,10

IIE MIIID ua sninncassescccaveccsncrsennicssuakinbaaaen 10

36 C.F.R.

EES Se a On Oe 3

I I OED FRUIIED vskntccsccnsicnecsateenesnnnescounce 7

ca i aes nicnnentialarenidess 7,14

I a aocs cask ctinknimnnainialwcsiisnbicbe uate 8

I ine ae ald ngs dale 8

LEGISLATIVE MATERIALS:

H.R. Rep. No. 1916, 89th Cong., 2d Sess. 7, re-

printed in 1966 U.S. Code Cong. & Admin. News

SEINE shanqunicncaihinsiesihobiahicsicsieansasaapseaahideeiipaiadndinaiiiaaieiiaiiink 6

vii

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 1457, 96th Cong., 2d Sess. 37, 45,

reprinted in 1980 U.S. Code Cong. & Admin.

News 6878 .......... Guid cenabiiacaiehadinsaecissuaeaiadaceamaenialanioe 14

113 Cong. Rec. 25,942 (1966) 20.0... cece eee weeeeeeeeeeee 9

MISCELLANEOUS:

46 Fed. Reg. 48,892 (1981) ...................................... 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-

VIEUX CARRE PROPERTY OWNERS, RESIDENTS

& ASSOCIATES, INC.,

Petitioner,

We

COLONEL LLOYD KENT Brown, et al.,

Respondenis.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Vieux Carre Property Owners, Residents &

Associates, Inc., hereby petitions this Court for issuance

of a writ of certiorari to review the decision of the United

States Court of Appeals for the Fifth Circuit entered in

this proceeding on June 14, 1989.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 875 F.2d 453 (5th Cir.

1989), and is reprinted in the attached Appendix (1la).*

The decision of the United States District Court for the

1 Citations to material printed in the attached Appendix appear

as ‘a.

2

Eastern District of Louisiana is not reported and is also

reprinted in the attached Appendix (30a).

JURISDICTION

The decision of the United States Court of Appeals for

the Fifth Circuit was entered on June 14, 1989. A timely

petition for rehearing was denied on July 12, 1989 (28a).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) (1982).

STATUTES AND FEDERAL REGULATIONS INVOLVED

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

to 470w-6 (1982 & Supp. V 1987).

Rivers and Harbors Act of 1899, 33 U.S.C. § 403

(1982).

33 C.F.R. Part 330 (1988) (U.S. Army Corps of Engi-

neers’ Nationwide Permit Regulations).

36 C.F.R. Part 800 (1988) (Advisory Council on His-

toric Preservation Regulations).

The statutory and federal regulatory provisions in-

volved are reprinted in the Appendix (37a).

STATEMENT

This case presents important questions of statutory con-

struction arising under the frequently litigated National

Historic Preservation Act, 16 U.S.C. §§ 470 to 470w-6

(1982 & Supp. V 1987) (the “NHPA”). First and fore-

most, the litigation involves the question of what (if any)

federally licensed activities are exempt from the NHPA’s

historic impact review requirements. But more broadly,

the case also concerns the circumstances under which a

federal court may disregard unambiguous statutory lan-

guage in favor of what it deems to be a preferable in-

terpretation. The Fifth Circuit’s handling of these issues

reflects a substantial departure from the literal language

3

of the NHPA and longstanding precepts of statutory in-

terpretation, and its ruling is in conflict with decisions of

this Court and other Circuits. The decision therefore

warrants examination by this Court.

On August 6, 1987, petitioner Vieux Carre Property

Owners, Residents & Associates, Inc., filed suit against

the United States Army Corps of Engineers (“Army

Corps” or “Corps”) and others to challenge the proposed

construction of the New Orleans Aquarium and River-

front Park (the “Aquarium Project”) in the Vieux Carre

National Historic Landmark District.2 The Vieux Carre,

also known as the French Quarter, is the original section

of New Orleans, Louisiana. Laid out in 1721, the Vieux

Carre was one of the first planned urban areas in the

Americas. See 46 Fed. Reg. 43,892, 43,893-94 (1981). It

features a unique mix of Creole and various American

styles of architecture, and it has substantially retained

its original integrity from its 18th and 19th century his-

toric period. The Vieux Carre is listed in the National

Register of Historic Places and has been designated a

National Historic Landmark District. See 16 U.S.C.

§§ 470a(a), 470h-2(f) (1982); 36 C.F.R. § 65.2(a) (1988).

The Aquarium Project involves construction of both

a new aquarium and a new park along the Mississippi

River. See 875 F.2d at 455 (3a). The aquarium build-

ing itself will be a 360-by-150 foot ultra-modern edifice

which the Louisiana State Historic Preservation Officer

has determined would be at odds with the traditional

architectural styles of the Vieux Carre and would en-

danger the historic character of the Vieux Carre with

long-term traffic congestion, pollution, noise, and vibra-

2 Petitioner is a non-profit Louisiana corporation organized over

50 years ago to encourage the preservation of the distinctive char-

acter of the Vieux Carre. Many of its members reside or own

property in the Vieux Carre National Historic Landmark District.

4

tion. The Army Corps has jurisdiction over at least a

portion of the project under section 10 of the Rivers and

Harbors Act of 1899 (the “RHA”), 33 U.S.C. § 403

(1982) (37a), which requires that a permit be obtained

from the Army Corps before commencing any construc-

tion that may affect navigable waters. See 875 F.2d at

463 (21a).

In its complaint, petitioner alleged that the project was

proceeding in violation of several federal statutes, in-

cluding the NHPA. The NHPA requires federal agencies

to consider in advance the effects on historic properties of

“any” activities they license or permit and to consult

about those effects with the Advisory Council on Historic

Preservation (“Advisory Council”), an independent fed-

eral agency established by the NHPA. See 16 U.S.C.

$$ 470f, 470i. In the proceedings below, the Army Corps

admitted that it did not comply with the historic impact

review procedures mandated by section 470f with respect

to the Aquarium Project. 875 F.2d at 455, 465 (2a, 24a).

The Corps maintained that although it had licensed at

least a portion of the project under RHA section 10, the

permit involved was a so-called “nationwide permit” (as

opposed to an individual permit).* See id. at 463-64

(21a-23a). The Corps resisted petitioner’s argument that

such a nationwide permit is a license or permit which

triggers historic impact review obligations under NHPA

section 470f. See id. at 464-65 (23a-24a).

The District Court dismissed petitioner’s claims, rea-

soning in part that “[t]he obligations under the NHPA

apply only to proposed federal or federally assisted proj-

3 Individual permits are issued by the Army Corps for specific

projects, while a “nationwide permit is a form of general permit

which . . . allow[s] certain activities to occur with little, if any,

delay or paperwork.” 33 €.F.R. § 330.1 (1988) (40a).

5

ects or to projects where a license is to be issued by a

federal agency.” (34a-35a.) The District Court then con-

cluded that “neither circumstance is involved here”

(35a), making no comment on petitioner’s argument that

the nationwide permit itself constituted a license that

triggered NHPA obligations.

On appeal, a panel of the United States Court of Ap-

peals for the Fifth Circuit affirmed in part and reversed

in part. The panel agreed with petitioner’s argument

that the Corps’ nationwide permit for the Aquarium

Project was a license or permit within the meaning

of NHPA section 470f. 875 F.2d at 464 (23a). Further,

the court acknowledged that interpreting NHPA section

470f to require historic impact analysis for all projects

undertaken pursuant to Army Corps nationwide permits

(i) would be “true to the NHPA statutory language” and

(ii) would reflect the NHPA’s statutory purpose of

“widespread agency responsibility for the protection of

historic interests.” Id. at 465 (24a). Nevertheless, find-

ing that the “Corps’ position that nationwide permits do

not trigger section 470f .. . has great practical appeal,”

and relying on Church of the Holy Trinity v. United

States, 143 U.S. 457 (1892), the Fifth Circuit rejected

what it described as the “literal constructicn of section

470f” and held that nationwide permits authorizing

“truly inconsequential activities” do not trigger the re-

quirements of section 470f. 875 F.2d at 465 (24a-25a).

The panel thus remanded the case for further proceedings,

including a determination whether the Aquarium Project

is “so inconsequential that it escapes section 470f’s his-

toric impact review requirements.” Jd. at 466 (26a).

On June 28, 1989, petitioner filed a petition for re-

hearing and a suggestion for rehearing en banc. Both

were denied on July 12, 1989. (28a.)

6

REASONS FOR GRANTING THE WRIT

In 1966, Congress enacted the NHPA to promote a

broad national policy of preserving and protecting Amer-

ica’s historic and cultural resources. In so doing, Con-

gress declared that our nation’s “irreplaceable heritage”

is a “vital legacy” to be “maintained and enriched for

future generations of Americans.” 16 U.S.C. § 470(b)

(4). The Fifth Circuit opinion threatens that leg-

acy by allowing federal agencies to establish at whim

exceptions to Congress’ command that they assume re-

sponsibility for the effects of their actions on historic

nroperties. See 16 U.S.C. §§$ 470f, 470h-2(d), (f), 470i

(1982). The most immediate result of the Fifth Circuit’s

decision is that the Army Corps will be free to license

thousands of projects without engaging in the brief, sim-

ple review process mandated by the NHPA to determine

whether those projects will adversely affect historic

properties.

‘In electing to ignore the unambiguous language of

section 470f in favor of an interpretation with purport-

edly “great practical appeal,” the Fifth Circuit also has

adopted a standard for statutory interpretation that con-

flicts with long-standing precedent. By drafting an “in-

consequential” exception into section 470f, the Fifth Cir-

cuit has substantially expanded the circumstances in

which alternate statutory constructions may be substi-

tuted by federal courts for the unambiguous language

enacted by Congress.

I. THIS COURT’S INTERVENTION IS NECESSARY

TO RESOLVE A THREE-WAY DIVISION OF THE

CIRCUITS WHICH COULD THWART CONGRES-

SIONALLY MANDATED EFFORTS TO PROTECT

HISTORIC PROPERTIES.

In order to create “the most effective [historic] pres-

ervation program possible,’* Congress’ established

through the NHPA the principle that all federal agencies

4H.R. Rep. No. 1916, 89th Cong., 2d Sess. 7, reprinted in 1966

U.S. Code Cong. & Admin. News 3307, 3309.

7

should consider relevant information about historic pres-

ervation issues and consult with preservation officials be-

fore they license any project. See 16 U.S.C. §§ 470f,

470h-2(d), (f) (39a-40a). More specifically, NHPA sec-

tion 470f requires that “prior to the issuance of any

license,” the “head of any Federal department or inde-

pendent agency having authority to license any under-

taking shall... take into account the effect of the under-

taking on any district, site, building, structure, or object

that is included in or eligible for inclusion in the Na-

tional Register [of Historic Places].” 16 U.S.C. § 470f

(39a). Further, section 470f requires the department or

agency to afford the Advisory Council on Historic Preser-

vation, an “independent agency of the United States

Government” established by the NHPA, id. § 470i,

a “reasonable opportunity to comment with regard to

such undertaking.” Jd. § 470f (39a).

“While [the NHPA] may seem to be no more than a

‘command to consider,’ . . . the language is mandatory

and the scope is broad.” United States v. 162.20 Acres of

Land, More or Less, 689 F.2d 299, 302 (5th Cir.), cert.

denied, 454 U.S. 828 (1981). A federal agency is barred

from issuing “any license” or permit® until it considers

the effects of that action on historic properties and gives -

the Advisory Council an opportunity to comment. 16

U.S.C. § 470f (39a) (emphasis added). The procedures

5 The Advisory Council, the agency formally charged by Congress

to implement section 470f of the NHPA, see 16 U.S.C. § 470s,

has issued regulations interpreting the statutory term “license”

to include permits. See 36 C.F.R. § 800.1(c) (2) (ii) (1988) (44a).

The same regulations define “undertaking” to “mean[{] any project,

activity or program that can result in changes in the character or

use of historic properties” which are “under the direct or indirect

jurisdiction of a Federal agency or licensed ... by a Federal

agency.” 36 C.F.R. § 800.2(0) (1988) (44a). These interpretations

are entitled to considerable deference. Sce, e.g., Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45

(1984); National Center for Preservation Law v. Landrieu, 496

F. Supp. 716, 742 (D.S.C.), afi’d, 635 F.2d 324 (4th Cir. 1980)

(per curiam),

8

the Advisory Council has established by regulation to

satisfy this consider-and-consult requirement are neither

complicated nor onerous.®

In the proceedings below, the Fifth Circuit confronted

the question whether the NHPA’s consider-and-consult

obligations are triggered by the Army Corps’ issuance of

nationwide permits. As is discussed further below (see

pp. 13-14 infra), such permits authorize private parties

to proceed with conducting various types of specified ac-

tivities without notifying the Army Corps or obtaining

further approbation, provided that certain conditions

stated in the nationwide permit regulations are satisfied

in advance. See 33 C.F.R. § 330.5 (1988) (41a-42a).

In approaching this issue, the Fifth Circuit panel noted

that other courts of appeals had embraced two divergent

positions. First, the panel observed that in Riverside

Irrigation Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir.

1985), the Tenth Circuit, interpreting similar statutory

language,’ held that “the Corps must consider the en-

vironmental impact of each act that it authorizes, both

major and minor” and that “simply allowing a party to

proceed under the nationwide permit is an action by the

Corps triggering its obligations to consider environmental

impacts.” See 875 F.2d at 464 (23a). In contrast, the

panel noted that in Ringsred v. City of Duluth, 828

®6In a nutshell, if an agency finds that a proposed project would

have no adverse effect on historic properties, the agency’s section

470f obligations are concluded, and the project may go forward. See

36 C.F.R. § 800.5(b) (1988) (45a). If the agency finds that ad-

verse impacts would occur (or if the State Historic Preservation

Officer or the Advisory Council objects to the agency’s finding of no

adverse impact), however, the agency must consult with the Ad-

visory Council and seek ways to avoid or mitigate the potential ad-

verse impact. Jd. §800.5(e) (45a).

7The court in Andrews was addressing jurisdictional language

parallel to NHPA section 470f in the Endangered Species Act. The

environmental assessment requirements of that Act, like those in

the NHPA, are triggered by “any action” authorized by a federal

agency. 16 U.S.C. § 1536(a) (3) (1982).

9

F.2d 1305, 1309 (8th Cir. 1987), the Eighth Circuit

viewed the NHPA’s section 470f consider-and-consult re-

quirements to be triggered only by “major Federal ac-

tions” and therefore never applicable to nationwide per-

mits. See 875 F.2d at 460, 464-65 (18a, 23a-24a). After

considering these two conflicting interpretations, the Fifth

Circuit opted for yet a third, holding that although na-

tionwide permits generally trigger the NHPA’s consider-

and-consult requirements, section 470f should be read

as providing an exemption for “nationwide permits au-

thorizing truly inconsequential activities.” 875 F.2d at

465 (25a).

Thus, in the wake of the Fifth Circuit’s decision, the

courts of appeals appear to be of three minds on NHPA

section 470f: (1) the Tenth Circuit would apply the

NHPA’s consider-and-consult requirements to all Army

Corps nationwide permits, (2) the Eighth Circuit appar-

ently would treat all nationwide permits as exempt from

the NHPA’s requirements, and (3) the Fifth Circuit

finds section 470f generally applicable to nationwide per-

mits, except those authorizing only “inconsequential” ac-

tivities. This Court’s intervention is necessary to resolve —

this conflict of the Circuits and to confirm that the Tenth

Circuit’s Andrews interpretation should be followed. As

the Fifth Circuit panel itself observed, the Andrews con-

struction “reflects the NHPA’s statutory purpose, which

contemplates widespread agency responsibility for the

protection of historic interests,” and “is also true to the

NHPA statutory language itself.” 875 F.2d at 465

(24a).

Congress did not enact an “inconsequential” project ex-

ception to the historic review requirements of section 470f

for a very simple reason. The NHPA was premised on a

finding that “all too often it was not a lack of desire to

preserve historic properties that was causing their loss. . .,

it was simply a lack of knowledge.” 113 Cong. Rec.

25,942 (1966) (statement of Sen. Widnall). See also 16

U.S.C. § 470(b) (3) (88a). In other words, activities

10

which lay persons considered “inconsequential” were

having the very consequential effect of destroying or dam-

aging historic or cultural treasures.* Congress thus

created the Advisory Council on Historic Preservation,

an independent federal agency with historic preservation

expertise, see 16 U.S.C. §§ 470i, 470j, and required

in section 470f that the Advisory Council be consulted

by federal agencies in determing whether any activi-

ties they proposed to license would have more than an

“inconsequential” effect on historic properties.

If the “inconsequential” exception the Fifth Circuit

has appended to section 470f is allowed to stand, private

citizens, under the aegis of Army Corps nationwide per-

mits, will be allowed to conduct what they deem to be “‘in-

consequential” activities without even informing the

Army Corps in advance. With no consideration of these

activities by the licensing agency and certainly without

any expert input from the Advisory Council, hundreds

of historic properties may be damaged or destroyed.

Further, relying on the decision below, other federal

agencies may, without consulting the Advisory Coun-

cil, ignore the NHPA and proceed with purportedly “in-

consequential” projects that could jeopardize historic prop-

erties. The Fifth Circuit’s NHPA interpretation thus

threatens to eliminate an effective statutory mechanism

for bringing historic preservation expertise to bear be-

fore historic resources are irreparably damaged or de-

stroyed, and it sends a signal to all federal agencies that

they may pretermit their congressionally mandated roles

as guardians of historically significant properties.

8 The examples of “inconsequential” activities cited by the Fifth

Circuit—“repainting and reroofing .. . structures,” 875 F.2d at 465-

66 (24a) (citing 33 C.F.R. § 330.5(a) (3) (1988) )—illustrate this

point. In many instances, these activities would have no adverse

effect. If the structure is historically and architecturally signifi-

cant, however, repainting and reroofing are precisely the kinds of

activities that could adversely affect the integrity of the property.

11

II. THE DECISION BELOW SANCTIONS JUDICIAL

REJECTION OF UNAMBIGUOUS STATUTORY

LANGUAGE IN FAVOR OF INTERPRETATIONS

WITH “GREAT[ER] PRACTICAL APPEAL.”

In creating an exception to section 470f for “nation-

wide permits authorizing truly inconsequential activi-

ties,” the Fifth Circuit has substantially broadened the

range of circumstances in which a federal court may re-

ject the plain meaning of unambiguous statutory lan-

guage. The court below acknowledged that the “literal

construction” of section 470f would require that historic

impact reviews be made in advance for all activities con-

ducted pursuant to Army Corps nationwide permits. 875

F.2d at 465 (24a-25a). However, relying on a faulty read-

ing of this Court’s decision in Church of the Holy Trinity

v. United States, 143 U.S. 457 (1892), the court below ig-

nored that plain meaning of section 470f and rewrote

the NHPA to include an “inconsequentiai” projects ex-

ception which the court viewed as having “great practical

appeal.” 875 F.2d at 465 (24a).

This Court has consistently maintained that in con-

struing statutes, the primary focus should be on the lan-

guage of the statute itself. See, e.g., Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-43 (1984); Howe v. Smith, 452 U.S. 473, 480

(1981) (“[a]s in every case involving the interpretation

of a statute, analysis must begin with the language em-

ployed by Congress”). This Court has also held with

equal consistency that where the terms of a statute are

clear and unambiguous, judicial inquiry is complete ex-

cept in “rare and exceptional circumstances.” Craoks v.

Harrelson, 282 U.S. 55, 60 (1930): Garcia v. United

States, 469 U.S. 70, 75 (1984).

In practice, other Circuits have uniformly declared this

“rare and exceptional circumstances” exception to allow

deviation from a literal reading of a statute in only two

situations: (1) where enforcement of the literal language

12

of the statute would lead to “absurd” consequences, or

(2) where enforcement of the literal language would

contravene clearly expressed legislative intent. See, e.g.,

In re Sinclair, 870 F.2d 1340, 1342-44 (7th Cir. 1989) ;

In re Forfeiture Hearing as to Caplin & Drysdale, 837

F.2d 637, 641 (4th Cir. 1988); Friends of the Earth v.

Consolidated Rail Corp., 768 F.2d 57, 62-68 (2d Cir.

1985); National Freight, Inc. v. Larson, 760 F.2d 499,

503 (3d Cir. 1985); Henry T. Patterson Trust by Reeves

_ Banking & Trust Co. v. United States, 729 F.2d 1089,

1094 (6th Cir. 1984); Ciampa v. Secretary of Health &

Human Serv., 687 F.2d 518, 524 (1st Cir. 1982).

For example, in Oklahoma ex rel. Dep’t of Human

Serv. v. Weinberger, 741 F.2d 290 (10th Cir. 1983),

plaintiff sought a declaration that a Department of De-

fense regulation contravened the literal language of the

Randolph-Sheppard Act, 20 U.S.C. §107-107f (1982).

That Act mandates that income from vending machines

located on federal property be shared with blind persons,

except income from machines located “within retail sales

outlets” under the control of armed forces exchange

stores. Plaintiff argued that the Act restricted this ex-

emption to vending machines physically located within

exchange stores, whereas the DOD regulation applied the

exemption to vending machines “within the control’ of

the exchanges, regardless of whether the machines were

physically within the stores. The Tenth Circuit declined

to enforce plaintiff’s literai reading of the statute, con-

cluding that to do so would “lead to absurd results” and

“thwart the obvious purposes of the statute.” 741 F.2d at

292-93. The court cited the legislative history of the

exemption, which clearly indicated that Congress in-

tended to exempt all vending machines operated by the

exchanges and reasoned that since less than two percent

of vending machines on military bases are actually lo-

cated within exchange stores, a literal interpretation of

13

the Act would clearly lead to an absurd result, negating

one of the purposes of the Act. See also Smith v. Bowen,

815 F.2d 1152 (7th Cir. 1987) (statute governing award

of fees to attorney representing social security claimant

cannot be read to require court to determine amount of

fee at time of judgment since amount of fee cannot be

known at that time); Trailer Train Co. v. State Bd. of

Equalization, 697 F.2d 860, 866 (9th Cir.) (avoiding

“absurd” results reached by literal reading of Railroad

Revitalization and Regulatory Reform Act), cert. denied,

464 U.S. 846 (19838); Ashley, Drew & N. Ry. Co. v.

United Transp. Union, 625 F.2d 1357, 1365-66 (8th

Cir. 1980) (avoiding “absurd” results reached by literal

reading of Norris-LaGuardia Act).

“Rare and exceptional circumstances” of this sort are

not present in this case. In the first place, the “literal

construction” of NHPA section 470f does not yield an

“absurd” result. The Fifth Circuit apparently perceived

that adherence to the plain meaning of section 470f could

have the “unreasonable and unintended” result of disrupt-

ing the Army Corps’ nationwide permit program. 875 F.2d

at 465 (25a). But that program is merely a device of

administrative convenience through which the Army

Corps, with minimal “paperwork,” see 33 C.F.R. § 330.1

(1988) (40a), satisfies section 10 of the RHA, which re-

quires that certain river-related construction activities

may not be undertaken without advance authorization—

i.e, a permit—from the Army Corps. 33 U.S.C. § 403

(1982) (37a).° The fact that the Army Corps has uni-

laterally elected, without specific congressional direction or

imprimatur, to use a short-cut regulatory scheme (i.e., na-

tionwide permits) to issue statutorily mandated RHA

®The nationwide permits are “automatic in that if [a party]

qualifies, no application is needed before beginning” the activity

authorized thereby. Andrews, 758 F.2d at 511,

14

licenses provides no basis for uisregarding Congress’ clear

direction that “any” such license, without exception, be

subject to the requirements of NHPA section 470f. See,

e.g., Ernst & Ernst v. Hochfeider, 425 U.S. 185, 213-14

(1976) (“rulemaking power granted to an administrative

agency ... is not the power to make law’’).”

Equally apparent is the absence of any indicia of leg-

islative intent that would be contravened by a literal read-

ing of section 470f. As discussed previously, the NHPA’s

express directive “contemplates widespread agency re-

sponsibility for the protection of historic interests.” 875

F.2d at 465 (24a).

10 There is no indication that Congress intended the NHPA to be

subordinate to agency regulatory programs. To the contrary, Con-

gress has commanded that “[c]onsistent with the agency’s missions

and mandates, all Federal agencies shall carry out agency programs

and projects (including those under which .. . any Federal license,

permit, or other approval is required) in accordance with” the

NHPA. 16 U.S.C. § 470h-2(d) (39a). The House Report on this

provision notes that “most Federal agencies have a primary pur-

pose other than historic preservation; however, it is reasonable

to expect that they also view themselves as multipie resource man-

agers responding to diverse economic, social and environmental con-

cerns—including the concerns of historic preservation.” H.R. Rep.

No. 1457, 96th Cong., 2d Sess. 37, reprinted in 1980 U.S. Code

Cong. & Admin. News 6378, 6400.

11 The Fifth Circuit’s conclusory opinion that Congress “clearly

did not intend” that section 470f apply to “inconsequential proj-

ects,” see 875 F.2d at 465 (24a), is not supported by the NHPA’s

language or legislative history. The opinion below cites to one

page of legislative history, H.R. Rep. No. 1457, 96th Cong., 2d

Sess. 45, reprinted in 1980 U.S. Code Cong. & Admin. News 6378,

6408, but that passage simply does not support the court’s conclu-

sion. In fact, the House Report cited by the panel specifically en-

dorses the Advisory Council’s broad regulatory definition of the

term “undertaking,” see 36 C.F.R. § 800.2(0) (1988) (44a), which

allows no exception such as that created by the panel. (See p. 7 n.5

15

Relying on Church of the Holy Trinity, the Fifth Cir-

cuit has thus created a third category of circumstances

in which a court may depart from the unambiguous

language of a statute, establishing precedent for judicial

revision of a clear statute whenever the court identifies an

alternate construction it finds more palatable. This posi-

tion is plainly inconsistent with the views of this Court

and the other Circuits. See, e.g., United States v. Locke,

471 U.S. 84, 95 (1985) (“the Judiciary [is not] licensed

to attempt to soften the clear import of Congress’ chosen

words whenever a court believes those words lead to a

harsh result”) ; United States v. Fountain, 840 F.2d 509,

519 (7th Cir.) (“judicial discomfort with a surprisingly

harsh rule is not enough to permit its revision’), cert.

denied, 109 S. Ct. 533 (1988). This new precedent, which

sanctions the substitution of judicial judgment for the

congressional policy decisions reflected in the selection of

statutory language, should be addressed and overturned

by this Court.

supra.) The report makes clear that even in the case of a federal

agency’s minor involvement in a project, Congress expects the

agency to “take into account the effects on historic properties,” as

required by NHPA section 470f. 1980 U.S. Code Cong. & Admin.

News at 6408,

16

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

JOHN H. BEISNER

Counsel of Record

BARBARA L. STRACK

STUART L. FULLERTON

O’MELVENY & MYERS

555 13th Street, N.W.

Washington, D.C. 20004-1109

(202) 383-5300

JAMES G. DERBES

DERBES & WALDRUP

610 Poydras Street

Suite 318

New Orleans, LA 70130

(504) 525-9538

JAMES R. LOGAN IV

650 Poydras Street

2850 Poydras Center

New Orleans, LA 70130

(504) 524-7604

Dated: Octover 6, 1989 Counsel for Petitioner

APPENDIX

a

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 87-3854

VIEUX CARRE PROPERTY OWNERS,

RESIDENTS & ASSOCIATES, INC.,

Plaintiffs-A ppellants,

V.

COLONEL LLOYD KENT BROWN, ETC., et al.,

Defendants-A ppellees.

June 14, 1989

Appeal from the United States District Court

for the Eastern District of Louisiana

Before POLITZ, GARWOOD, and SMITH. Circuit

Judges.

GARWOOD, Circuit Judge:

This dispute focuses the Court’s attention on a private

plaintiff’s enforcement of the National Historic Preserva-

tion Act (NHPA) against the United States Army Corps

of Engineers (the Corps). Vieux Carre Property Owners,

Residents & Associates, Inc. (the Vieux Carre), the

plaintiffs-appellants in this case, is made up of land-

2a

owners within the Vieux Carre National Historic Land-

mark District—popularly referred to as the French Quar-

ter—on the Mississippi River in New Orleans, Louisiana.

The Vieux Carre ultimately seeks to arrest the construc-

tion of an aquarium and riverfront park currently being

erected on and just landward of the Bienville Street

Wharf at the foot of Bienville Street. This appeal comes

from the district court’s summary dismissal of the Vieux

Carre’s suit on jurisdictional grounds.

The Vieux Carre first claims that the Rivers and Har-

bors Act, 33 U.S.C. §403(RHA) and the Corps’ regula-

tions found in 33 C.F.R. §§ 320 through 330 (1987),

require the Corps to issue a permit for the aquarium

phase of the project, and that such permitting in turn

requires the Corps to submit the project to the NHPA

historic impact review process dictated by 16 U.S.C.

$$ 470f and 470h-2(f). The Vieux Carre then claims that

the park phase required an individual permit, but that

even if it complied with the Corps’ nationwide permit that

itself triggered section 470f and required the Corps to

follow the historic impact review procedures detailed in

36 C.F.R. §§ 800 et seg. The Corps failed to submit any

of the project to the NHPA review process. Thus, the

Vieux Carre sued for a declaratory judgment against the

Corps and an injunction against those developing or oth-

erwise authorizing the project, namely, the Audubon

Park Commission, the City of New Orleans, the Board

of Commissioners of the Port of New Orleans, and the

Board of Commissioners of the Orleans Levee District.

We find that the dismissal of the Vieux Carre’s aquarium

phase claim was proper, though for different reasons than

those stated by the district court. We reverse the court’s

dismissal of the Vieux Carre’s riverfront park claim

against the Corps and remand for further legal and

factual findings in relation to that claim. We affirm the

court’s dismissal of the Vieux Carre’s request to enjoin

the other appellees from proceeding with the project.

A

3a

Facts and Proceedings Below

In July 1986, the Louisiana Legislature authorized the

Audubon Park Commission—a local governmental entity

then in charge of operating a New Orleans park and zoo

—to acquire riverfront property for a world-class aquar-

ium and riverfront park. As authorized by this legisla-

tion, in November 1986, an election was held in which

New Orleans voters approved a millage tax necessary to

fund bonds for construction of the project. No federal

funds will be involved. Following local governmental ap-

provals—including those by the City of New Orleans’

Vieux Carre Commission, the New Orleans City Planning

Commission, and the New Orleans City Council—of the

proposed site at the foot of Bienville Sireet, in April 1987,

the Audubon Park Commission submitted tentative plans

to the Corps to determine whether permitting would be

required. The plans describe the project in two phases:

Phase A involves construction of the aquarium just land-

ward of and overlapping slightly onto the Bienville Street

Wharf; Phase B shows a park on top of the wharf, re-

serving the riverward face of the wharf for continued

maritime use.

Near its landward edge, the Bienville Street Wharf

sits atop a three-sided box levee that runs alongside the

Mississippi River. The riverward vertical of the levee

currently serves as the Ordinary High Water Line

(OHWL) of the river, and as such is the Corps’ bench-

mark for determining its jurisdiction under the RHA.

This riverward vertical of the levee consists of a concrete

and steel bulkhead. In order to achieve a desirable factor

of safety against embankment failure, the foundation

piles of the aquarium must be augmented by a new bulk-

head, consisting of piles and sheet pile, installed just

landward of the existing bulkhead. The new bulkhead

admittedly will achieve the desired factor of safety.

Though the existing bulkhead will be undisturbed, it ap-

4a

pears that the primary available post-construction bulk-

head support will be attributable to the new bulkhead.

The second, riverfront park phase of the project calls

for removal of large metal sheds atop the wharf and the

placement of sod, trees, and benches.

After reviewing the plans, the Corps concluded in May

1987 that its regulations did not require a permit for the

aquarium because the entire project is to be built land-

ward of the OHWL. Thus, the project is not within the

navigable waterways of the United States and is therefore

outside the Corps’ RHA jurisdiction. The Corps found

that the park, which will be located atop the wharf com-

pletely riverward of the OHWL and therefore indis-

putably within the Corps’ jurisdiction, is already within

a nationwide Corps permit promulgated under the RHA.

It falls within this permit, the Corps asserts, because the

plan submitted for review does not involve modifications

that would change the dimensions of the wharf and be-

cause the riverward edge of the wharf would still be

dedicated to maritime use.

The Corps informed the Audubon Park Commission of

its conclusions by letter dated May 14, 1987. The Corps

did not submit the project to the NHPA review process.

The Vieux Carre filed this suit on August 6, 1987. Fol-

lowing an evidentiary hearing, the district court dismissed

the suit, finding that the Vieux Carre had no direet right

of action under the RHA, sections 10 and 14, 33 U.S.C.

§§ 403, 408, to compel the Corps to require permitting,

and that the Administrative Procedure Act (APA) does

not provide for federal court review of these specific Corps

decisions because they are committed to the Corps’ discre-

tion. 5 U.S.C. § 701(a) (2). As of May 1988, the plans

for the aquarium had been finalized and the foundation

had been poured.

We affirm the district court’s dismissal of the Vieux

Carre’s requested injunction, finding that neither the

APA nor the NHPA give a private plaintiff a right of

5a

action against any of the defendants other than the Corps.

We reverse the district court on both of its findings as

they pertain to the Vieux Carre’s claims against the

Corps, but we approve the Corps’ determination that the

aquarium phase of the project did not require a permit.

We remand to the district court to determine whether the

riverside park in fact falls within the claimed nationwide

Corps permit, and, if so, whether, inter alia, the nation-

wide permitting of the park triggers the NHPA proce-

dures.

Jurisdiction

The Vieux Carre correctly notes that this Circuit in

Orleans Audubon Society v. Lee, 742 F.2d 901, reh’g

denied, 750 F.2d 69 (5th Cir. 1984), identified the APA

as a route through which private plaintiffs can obtain

federal court review of the decisions of federal agencies.'

As noted in Lee, this route also provides the Vieux Carre

something of a way around the Supreme Court’s decision

in California v. Sierra Club, 451 U.S. 287, 101 S.Ct.

1775, 68 L.Ed.2d 101 (1981), which held that according

1The district court, however found that it did not have juris-

diction under the APA because the Corps’ decisions at issue are

“committed to agency discretion by law.” 5 U.S.C. § 701(a) (2).

The courts have applied this APA reviewability exception primarily

to situations in which agencies have chosen not to enforce or prose-

cute violations of their regulations, rather than to agency decisions

on whether or not to approve activities governed by a statute that

sets guidelines for determining when such approval should and

should not be given. Heckler v. Chaney, 470 U.S. 821, 105 S.Ct.

1649, 1655, 84 L.Ed.2d 714 (1985). Thus, because the NHPA, the

RHA, and relevant Corps regulations dictate the circumstances in

which the Corps is required to issue the permits in question here,

we assume that the Corps’ decision not to permit the aquarium or

park is not immune from judicial review under section 701(a) (2).

This case is distinguishable from Harmon Cove Condominium Ass'n,

Inc. v. Marsh, 815 F.2d 949 (3d Cir. 1987), in which the court

refused to review the Corps’ decision not to enforce the conditions

of a previously issued RHA dredging permit.

nts

6a

to the criteria announced in Cort v. Ash, 422 U.S. 66,

95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), a private party has

no implied right of action for violations of the RHA.

Lee, 742 F.2d at 911, n.18. We fail to understand, how-

ever, how APA-dictated reviewability of the Corps’ deci-

sions allegedly violating the RHA gives the district court

jurisdiction to enjoin such nonfederal entities as the

Audubon Park Commission.

The Vieux Carre has cited a recent Tenth Circuit case

that allows plaintiffs to do approximately what the Vieux

Carre attempts to do here. In Sierra Club v. Hodel, 848

F.2d 1068 (10th Cir. 1988), the court ruled that it could

review federal agency action—of the Bureau of Land

Management (BLM)—through the APA, and that it

would simultaneously enjoin the county from proceeding

with a road improvement project that the private plain-

tiff claimed endangered a wilderness study area. The

court noted that by its terms the APA does not authorize

suits against nonagency defendants who benefit from an

agency’s violation of a statute; therefore, the plaintiff

apparently lacked a right of action against the county.

Still, the court allowed the injunction, reasoning that the

county was a necessary party under Fed. R. Civ. P. 19(a)

because the BLM was bound by statute to take any

action required to protect wilderness study areas, and

this would include impleading the county in order to

enjoin it.?

2 The Hodel court relied in part on League to Save Lake Tahoe v.

Tahoe Regional Planning Agency, 558 F.2d 914 (9th Cir. 1977),

which allowed injunction of private developers by way of Fed.R.

Civ.P. 20(a) permissive joinder. Noting that Rule 20(a) requires

that the plaintiff must assert a right of relief against each defend-

ant, the Ninth Circuit found thot a local governmental entity’s

violation of an interstate compac-: »y granting illegal construction

approvals to developers makes those approvals invalid and gives

a “right of relief against the developers to prohibit any construction

on their projects.” 558 F.2d at 917. Without approving or dis-

approving this holding, we conclude that such a private right of

7a

As applied against the nonfederal appellees in this

case, Hodel’s reasoning is faulty for at least three rea-

sons. First, such a holding obviously negates the Supreme

Court’s decision in Sierra Club. As long as the private

plaintiff joined the federal agency in the action, the

former could reach a nonagency defendant even without

having a cause of action against that party. Second, un-

like the situation in Hodel as to the BLM, no statute

requires the Corps to enforce the RHA provision the

Vieux Carre claims was violated here. In fact, 33 U.S.C.

§ 406 explicitly vests that authority in the Attorney Gen-

eral. So, the Corps had no duty to implead or enjoin the

Audubon Park Commission or the other nonfederal de-

fendants, and a right of action against them cannot be

manufactured in this way.

Finally, it is implicit in Rule 19(a) itself that before

a party will be joined as a plaintiff it must have a cause

of action against the defendants, McNeil Construction Co.

v. Livingston State Bank, 160 F. Supp. 809, 813 (D.

Mont. 1957), and before it will be joined as a defendant

the plaintiff must have a cause of action against it. See

Dunn v. Carey, 110 F.R.D. 439, 440 (S.D. Ind. 1986)

(citing to the language in Rule 19(a) that a party will

not be joined if joinder deprives the court of subject mat-

ter jurisdiction), aff'd on other grounds, 808 F.2d 555

(7th Cir. 1986); Melanson v. Rantoul, 421 F. Supp. 492,

501 (D.R.I. 1976), aff'd on other grounds, 561 F.2d 409

(1st Cir. 1977).

In addition to Hodel, pre-Sierra Club Fifth Circuit

cases discuss a private party’s right to enjoin a nonagency

defendant for an alleged violation of the RHA provision

at issue here. In Tatum v. Blackstock, 319 F.2d 397, 399-

400 (5th Cir. 1963), the Court allowed such an injunc-

action does not arise against nonfederal developers when a federal

agency violates the RHA. Any other conclusion, we believe, would

be too at odds with Sierra Club.

8a

tion under the authority of a 1928 Fifth Circuit case and

a partial quotation from 33 U.S.C. $406 (omitting the

delegation of enforcement to the Attorney General). In

a later opinion, this Circuit limited those cases to their

facts: building a dam over a navigable waterway with-

out first obtaining the consent of Congress or the approval

of the Corps. Intracoastal Transportation, Inc. v. Decatur

County, 482 F.2d 361, 366 n.14 (5th Cir. 1973). Regard-

less, these cases are substantially overruled by Sierra

Club. We also observe that the Third Circuit, simply

purporting to follow Sierra Club without discussing ac-

cess through the APA, recently found that a private

plaintiff has no right to enjoin or sue a nonagency defend-

ant for damages under the RHA. Harmon Cove Con-

dominium Ass’n v. Marsh, 815 F.2d 949, 958 (3d Cir.

1987).

It would not help the Vieux Carre to argue that the

Corps violated the NHPA in addition to the RHA. Al-

though courts have allowed private plaintiffs to enjoin

nonagency defendants where agencies have not complied

with the NHPA, these opinions do not explain how the

right of action against the nonagency defendant arises.

See, e.g., Morris County Trust for Historic Preservation

v. Pierce, 714 F.2d 271 (3d Cir. 1983); cf. D. C. Federa-

tion of Civic Associations v. Adams, 571 F.2d 1310 (4th

Cir. 1978) (indicating that it would be willing to enjoin

nonagency actions if it were not ruling that the agency

had in fact complied with the NHPA). Rather than

through APA review, a private right of action against

an agency arises under 1€ U.S.C. § 470w-4, which pro-

vides for the NHPA to be enforced “in any civil action

brought in any U.S. District Court by any interested

person.” See United States v. 162.20 Acres of Land, More

or Less, 639 F.2d 299, 305, reh’q denied, 644 F.2d 34 (5th

Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.

2d 103 (1981). Courts that have considered the issue

have explicitly ruled that this claim does not extend to

: 9a

actions against nonagency defendants. See, e.g., Edwards

v. First Bank of Dundee, 534 F.2d 1242, 1245 (7th Cir.

1976); Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971). By

its terms, only a federal agency can violate section 470f.

The Vieux Carre has no federal claim against appellees

other than the Corps.

Standing Against the Corps

The APA, 5 U.S.C. § 702, grants federal court stand-

ing to any “person suffering legal wrong because of

agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute.”

The Supreme Court has interpreted this to require that

the interest the plaintiff seeks to protect or advance in his

complaint “is arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question.” Association of Data Processiny

Service Organizations, Inc. v. Camp, 397 U.S. 150, 90

S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). This Court gen-

erally applies this zone of interests test for standing.

See, e.g., Baker v. Bell, 630 F.2d 1046, 1051 (5th Cir.

1980).

it is perhaps arguable that if the Vieux Carre sought

review of the Corps’ actions as they relate only to the

RHA, it would not have APA standing because appellant’s

concern is historic preservation rather than the naviga-

bility of the Mississippi River.* We need not and do

* We note, however, that regulations promulgated by the Corps

to effectuate the RHA make a “public interest review” part of its

permitting process. 33 C.F.R. § 320.4(a). This “general balancing

process” includes a consideration of a proposed project’s cumu-

lative effects on historic properties. And section 320.4(c) states

that “[{flull evaluation o. the general public interest requires

-that due consideration be given to the effect which the proposed

structure or activity may have on values such as those associated

with wild and scenic rivers, historic properties and National Land-

marks, ....” The Vieux Carre could argue, then, that its concerns

10a

not decide that issue. Even if the Vieux Carre is not

within the RHA’s zone of interests, however, it may have

standing if the NHPA is one of the “relevant statutes”

implicated by the Corps’ complained of inaction. The D.C.

Circuit, in Committee for Auto Responsibility v. Solomon,

603 F.2d 992, 997 (D.C. Cir. 1979), cert. denied, 445

U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980), noted

that the Supreme Court has defined a section 702 “rele-

vant statute” as a statute plaintiff alleges was violated.

The Solomon court ruled that the National Environmental

Policy Act (NEPA) was the statute allegedly violated

where the parties did not dispute that an action of the

General Services Administration had triggered the NEPA

requirement to prepare an environmental impact state-

ment.

Similarly, in its complaint, the Vieux Carre alleges the

Corps’ violations of the NHPA undiluted by any claimed

prerequisite violations of the RHA, asserting that the

Corps violated 16 U.S.C. § 470f because “the Corps’ re-

view of preliminary plans and reservation of final ap-

proval for this project constitute the requisite federal as-

sistance to compel application of the NHPA,” and because

it did not submit the park phase to the section 470f proc-

ess when it determined that the project fell under the na-

tionwide permit created by 33 C.F.R. 330.5(a) (3). The

Vieux Carre also asserts that the Corps violated its own

regulation, 33 C.F.R. 330.5(b) (9), which directs it to

evaluate the historic impact of certain projects that fall

under nationwide permits. The Vieux Carre is arguably

within the zone of interests sought to be protected by

both the NHPA and this particular Corps regulations.

Cf. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405,

are within the zone of interests sought to be protected by the

RHA. Cf. Citizens Committee for Hudson Valley v. Volpe, 425

F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27

L.Ed.2d 256 (1970) (similar provision under the Department of

Transportation Act).

lla

2415 n.13, 37 L.Ed.2d 254 (1973) (‘‘zone-of-interests”

test satisfied because environmental group plaintiffs have

an environmental interest that the NEPA seeks to pro-

tect); Cady v. Morton, 527 F.2d 786, 791 (9th Cir.

1975) (an interest in widely shared aesthetic and envi-

ronmental concerns falls within the zone of interests to

be protected by NEPA); Citizens Committee for Hudson

Valley v. Volpe, 425 F.2d 97, 105 (2d Cir.), cert. denied,

400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970).

We therefore hold that the Vieux Carre’s historic pres-

ervation concerns are arguably within the zone of inter-

ests Congress sought to protect through the interrelation

of the various statutes and regulations that the Vieux

Carre has claimed were violated in this action. The Sec-

ond Circuit made a similar finding in Volpe, in which it

ruled that a resident citizens’ committee had standing to

challenge the Corps’ issuance, without prior approval of

the Secretary of Transportation or consent from Con-

gress, of a permit to the State of New York to dredge

and fill the Hudson River for construction of a proposed

expressway. The Volpe court found that the plaintiffs

were aggrieved within the meaning of at least three rele

vant statutes. Jd. at 104. First, because part of the

project was a causeway, the Corps should have secured

consent for the project from the Secretary of Transporta-

tion as required by the Department of Transportation

Act. Plaintiff’s environmental interests were within the

zone of interests sought to be protected by this statute

because the Act required the Secretary to consider histori-

cal values before approving a project under its jurisdic-

tion. The Volpe court also found other, more directly

relevant statutes that provided those plaintiffs with stand-

ing. These included the Hudson River Basin Compact

Act, which instructed all agencies to consider the im-

mense economic, natural, scenic, historic, and recreational

value of Hudson River Basin resources before approving

activities affecting the area. Finally, the court found that

12a

the plaintiffs had standing under the Corps’ own regula-

tions, which directed it to evaluate factors such as envi-

ronmental effects before issuing such permits. Jd. at 105.

In summary, although the Vieux Carre cannot enjoin

the Audubon Park Commission’s project, it has standing

to assert its claim for a declaratory judgment against

the Corps.

Consideration of Aquarium Plans

The Vieux Carre argues that the Corps’ May 14, 1987

response to inquiries about necessary permits for the

Audubon Park project triggered the historical impact

evaluation procedures of the NHPA, 16 U.S.C. § 470f, in

four different ways: through the Corps’ continuing su-

pervision over the aquarium phase of the project even if

no license was required; through the allegedly erroneous

determination that no license was necessary for the

aquarium despite the requirements of the RHA; because

an individual license should have been issued for the park

phase; and, even if no new license were necessary, by its

determination that the park fell under a nationwide per-

mit. The proper interpretation of section 470f is there-

fore relevant to all four assertions.

This provision of the NHPA provides:

“The head of any Federal agency having direct or

indirect jurisdiction over a proposed Federal or fed-

erally 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.

The head of any such Federal agency shall afford the

13a

Advisory Council on Historie Preservation established

under sections 470i to 470v of this title a reasonable

opportunity to comment with regard to such under-

taking.” (Emphasis added.)

In effect, the Vieux Carre claims that the Corps’ re-

served final approval of plans for the aquarium phase

constitutes indirect jurisdiction requiring the Corps to

subject the project to the requirements of section 470f.

We disagree. This is simply too attenuated.

Regardless of the projects arguably included in the

first clause of the first sentence of section 470f, the sec-

ond clause thereof makes it clear that the agency need

not act unless it is about to approve an expenditure of

federal funds or issue a license. The scant legislative

history verifies this understanding of the scope of section

470f: “The committee agreed that Federal agencies hav-

ing direct or indirect jurisdiction over various undertak-

ings, either through Federal funding or through their

licensing powers, should recognize these [preservation]

values.” H.R. No. 1916, reprinted in 1966 U.S. Code

Cong. & Admin. News, 3307, 3310. Although no cases

have been found that interpret section 470f federal assist-

ance as broadly as the Vieux Carre proposes, at least one

gives it a very restrictive meaning. See Ringsred v. Du-

luth, 828 F.2d 1305, 1309 (8th Cir. 1987), (equating sec-

tion 470f federal assistance with the explicit triggering

requirement for action under the NEPA—“major federal

undertaking”’).

We conclude that section 470f is not triggered by ei-

ther the Corps’ instructions for the project developers to

submit final plans of the aquarium phase, or by its sur-

veillance of the project to ensure that no permits become

necessary. Significantly, circuit courts have ruled that

federal environmental protection statutes do not enlarge

the Corps’ jurisdiction. See, e.g., Riverside Irrigation

Dist. v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985)

14a

(stating that the Endangered Species Act does not en-

large the jurisdiction of the Corps under the Clean Water

Act); United States v. Stoeco Home, Inc., 498 F.2d 597,

607 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct.

1124, 43 L.Ed.2d 397 (1975) (such statutes do not en-

large the Corps’ jurisdiction under the RHA).

Permitting the Aquarium

The parties do not dispute that an RHA section 10

permit is a “license” under section 470f. See 36 C.F.R.

§§ 800.1(c) (2) (ii) and 800.2(9) (1987). They do dis-

pute whether the Corps was required to issue a section 10

permit for the aquarium phase. That section provides in

relevant part:

“The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall not be lawful to build or commence the

building of any wharf, pier . . . breakwater, bulk-

head, jetty, or other structures in any port, ... navi-

gable river, or other water of the United States...

except on plans recommended by the Chief of Engi-

neers....” 33 U.S.C. § 403.

Before looking at the regulations and case law on the

scope of the Corps’ jurisdiction under the RHA, we must

determine the applicable standard for our review of an

agency’s jurisdictional determination. The APA, 5 U.S.C.

§ 706(2), allows courts to set aside agency actions, find-

ings, and conclusions found to be:

“(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

“(B) contrary to constitutional right, power, priv-

ilege, or immunity;

“(C) in excess of statutory jurisdiction, author-

ity, or limitations, or short of statutory right;

ee Cowen

15a

“(D) without observance of procedure required by

law;

“(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency hear-

ing provided by statute; or

“(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the reviewing

court.”

The Supreme Court interpreted this statute in Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

91 S.Ct. 814, 822-25, 28 L.Ed.2d 136 (1971), stating that

review under the substantial evidence test is proper only

when agency action is taken pursuant to a rulemaking

provision of the APA itself, or when it is based on a

public adjudicatory hearing. Jd. 91 S.Ct. at 822-23. The

Corps’ action in this case falls into neither of these cate-

gories.

This Circuit, in Avoyelles Sportsmen’s League, Inc. v.

Marsh, 715 F.2d 897 (5th Cir. 1983), considered its

standard of reviewing an agency’s alleged failure to exer-

cise its permitting jurisdiction as extensively as it should

have. We held that under the APA’s section 706 and

Volpe, we could overturn an agency’s determination of

the extent of its jurisdiction only when the agency deter-

mination was arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law; that is,

when the agency failed to consider relevant factors or

made an error in judgment. Jd. at 905.4 One year after

* However, the Avoyelles opinion distinguishes situations in

which “the court must determine whether the property falls under

the agency’s jurisdiction at all before it may deterr ine whether

the exercise of the agency’s jurisdiction is appropriate,” id. at 906,

citing as support Federal Power Commission v. Transcontinental

Gas Pipe Line Corp., 423 U.S. 326, 96 S.Ct. 579, 582, 46 L.Ed.2d

533 (1976), which, citing Volpe, used the substantial evidence

test to review the ‘sufficiency of the factual predicate necessary

l6a

Avoyelles, this Circuit applied the section 706(2)(A)

arbitrary and capricious standard of review to an agen-

cy’s determination that it had no RHA-permitting juris-

diction. Lee, 742 F.2d at 907 n.11 (citing to Avoyelles

and section 706(2)(A-D)). Thus, the Lee Court carried

Avoyelles one step further—applying the section 706

(2)(A) arbitrary and capricious standard of review to

pure jurisdictional determinations.

Thus, this Court must decide whether the Corps’ de-

termination that it had no permitting authority over the

aquarium was arbitrary and capricious in light of RHA

section 10 and the cases and regulations that define the

scope of the Corps’ RHA section 10 jurisdiction. See 33

C.F.R. §§ 320-330. Section 322.3(a) requires the Corps

to issue permits under section 10 for “structures and/or

work in or affecting navigable waters of the United

States,” but then states that certain activities are per-

mitted instead by 33 C.F.R. § 330 as nationwide permits.

“Navigable waters of the United States” is defined in

33 C.F.R. § 329. Section 322.3(a) provides that struc-

tures and work must be permitted if they are in such

waters, or “affect the course, location, or condition of the

waterbody in such a manner as to impact on its naviga-

ble capacity.”

The general definition of navigable waters is found in

33 C.F.R. § 329.4:

“Navigable waters of the United States are those

waters that are subject to the ebb and flow of the

tide and/or are presently used, or have been used in

the past, or may be susceptible for use to transport

interstate or foreign commerce. A determination of

navigability, once made, applies laterally over the

for the agency’s exercise of its jurisdiction. The Natural Gas Act,

however, rather than the APA, provided the Transcontinental

Court with jurisdiction to review the Federal Power Commission’s

action. r

17a

entire surface of the waterbody, and is not extin-

guished by later actions or events which impede or

destroy navigable capacity.”

Section 329.11(a)(1) specifically identifies the bound-

aries of navigable waters in rivers and lakes as “all the

land and waters below the ordinary high water mark,”

which

“on non-tidal rivers is the line on the shore estab-

lished by the fluctuations of water and indicated by

physical characteristics such as a clear, natural line

impressed on the bank; shelving; changes in the char-

acter of soil; destruction of terrestrial vegetation;

the presence of litter and debris; or other appropri-

ate means that consider the characteristics of the

surrounding areas.”

Finally, section 329.3 states that precise definitions of

“navigable waters of the United States” are dependent on

judicial interpretation. Although no Fifth Circuit cases

spec'fically approve section 329.11(a), other courts have

explicitly approved the regulation as the proper limit of

the Corps’ RHA section 10 jurisdiction, see, e.g., Swan-

son v. United States, 789 F.2d 1368, 1371 (9th Cir.

1986); Buttrey v. United States, 573 F. Supp. 283, 297-

98 (E.D.La. 1983), and the regulation comports with the

Supreme Court’s determination that federal regulatory

power under the commerce clause “extends to the entire

stream and the stream bed below ordinary high-water

mark.” United States v. Rands, 389 U.S. 121, 88 S.Ct.

265, 267, 19 L.Ed.2d 329 (1967).

The Corps determined that the aquarium phase of the

Audubon Park project was “beyond the ordinary high

water line of the Mississippi River, 7.e., all construction

is landward of the box levee.”” Because the Vieux Carre

does not challenge the Corps’ treatment of this marker as

the OHWL at the Bienville Street Wharf, and because

the Vieux Carre stipulated that the foundation of the

18a

aquarium will be entirely landward of the existing levee,

the second clause of RHA section 10 does not require

permitting of the aquarium. We must therefore deter-

mine whether the Corps’ implicit conclusion that the

aquarium project will not affect navigable capacity in

waters of the United States—that is, will not create an

“obstruction” under the first clause of RHA section 10—

is arbitrary and capricious.

The Supreme Court has encouraged a broad interpreta-

tion of a section 10 “obstruction,” ruling that it includes

not only activities causing a measurable fluctuation in

the water level, but also clogging of the channel with

deposits of inorganic solids. United States v. Republic

Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 889, 4 L.Ed.2d

903 (1960). This Circuit has held that canal dredging

activities shoreward of the mean high tide line may con-

stitute an obstruction to navigable capacity. United

States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298-

99 (5th Cir. 1976) (citing United States v. Perma Pav-

ing Co., 3382 F.2d 754 (2d Cir. 1964), which found an

obstruction where defendant had overloaded his riparian

land and thereby caused shoaling in a navigable chan-

nel).

The Vieux Carre asserts that two different aspects of

the aquarium project will obstruct navigability in the

Mississippi River: the circulation of water between the

river and the aquarium and the possible failure of the

bank at the box levee caused by construction of the

aquarium. As to the first claimed “obstruction,” the

Corps points out that project plans submitted to the

Corps after its initial determination that a permit was

not required contemplate an internal water flow system

that will not circulate river water. The Vieux Carre

cites no authority that such circulation would constitute

an obstruction to navigable capacity even if it were still

planned.

19a

\

“The Vieux Carre’s second claimed “obstruction” has

mgre arguable substance. The administrative record

sKows that, prior to its initial determination that a per-

mit was not required, the Corps was aware that the bank

stability at the Bienville Street Wharf was about 1.0 or

1.1, though the Corps’ own standards for flood protection

call for a 1.3 stability factor. The Corps’ correspondence

states, however, that the floodwall (which is in place at

the Bienville Street Wharf landward of the aquarium

site) was built seventy feet further landward than other-

wise necessary in order to compensate for low bank sta-

bility. Consequently, the Corps had no objection to the

project.

Correspondence in the administrative record indicates

that this low bank stability is a preexisting condition.

Thus, it is difficult to say that the aquarium constitutes

an obstruction to navigable capacity. However, the Vieux

Carre points out that in a letter dated May 19, 1987 (two

days after the Corps’ initial determination that a permit

was not required), a Corps official in its operations divi-

sion stated that “fi]t is noted that the plans call for the

addition of fill material to the bank landward of the ex-

isting box levee. This will further lower the safety factor

of the existing bank.” A similar statement is found in an

internal memorandum from an official in the Corps’ engi-

neering division.

Assuming that the administrative record shows un-

equivocally that the aquarium construction will to some

extent decrease the stability of the existing box levee, or

that most of the available post-construction bulkhead

bank support will be attributable to the new bulkhead

landward of the existing levee, this does not require the

conclusion that the project will obstruct navigable ca-

pacity. This is true even if we further assume that the

possible dangers that the record suggests could conceiva-

bly at some later time cause an effect on the riverward

side of the existing box levee—such as if a bank failure

20a

toppled the wharf (much of which is concededly river-

ward of the box levee) into the river.°

The RHA’s first section 10 clause, which the Vieux

Carre argues mandates a Corps permit for the aquarium,

states that a party may not create an obstruction to the

navigable capacity of any waters of the United States.

The Corps’ regulations interpret this statute as requiring

a Corps permit for activities that “affect” navigable wa-

ters—those that “affect the course, location, or condition

of the waterbody in such a manner as to impact on its

navigable capacity.” 33 C.F.R. § 322.3(a). The imprecise

statutory language of section 10 leaves the Corps with

quasi-legal authority to determine what “effects” consti-

tute “obstructions” or “impacts” to navigable capacity.

See United States v. Riverside Bayview Homes, Inc., 474

U.S. 121, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985)

(““{a]n agency’s construction of a statute it is charged

with enforcing is entitled to deference if it is reasonable

and not in conflict with the expressed intent of Con-

gress’); American Trucking Associations, Inc. v. I.C.C.,

722 F.2d 1243, 1248 (5th Cir. 1984) (“[elven if an

agency’s interpretation would not be the one we would

adopt if looking at a statute completely afresh, we ordi-

narily accept that agency’s interpretation of its own

statute if the interpretation ‘has a reasonable basis in

law’”’). We find that it is reasonable for the Corps to

determine that the possibility of minor or inconsequential

effects within the OHWL does not impact or obstruct

navigable capacity within the meaning of section 10.

It appears that based on such an understanding of

“impact” or “obstruction,” the Corps here made a juris-

dictional determination that the aquarium construction’s

mere possible future effects in navigable waters were nei-

5A May 22, 1987 letter from a Corps official to the Orleans

Levee District states that “a bank failure could cause significant

damage to the existing wharf, box levee, and facilities landward of

the wharf, ... .” ig

21a

ther sufficiently likely nor severe enough to make the

aquarium’s construction—occurring entirely on land—an

impact on or obstruction of navigable capacity within the

meaning of section 10. We conclude that this decision is

neither arbitrary, capricious, an abuse of discretion, nor ~-

otherwise contrary to law.

Finally, the Vieux Carre claims that the Corps’ failure

to exercise its permitting jurisdiction over the aquarium

flew in the face of the 33 C.F.R. § 320.4 public interest

review policies already discussed. In short, the Vieux

Carre claims that because of the adverse impact on a

historic district, the Corps’ failure to permit was arbi-

trary and capricious. This argument is unpersuasive.

Even if such an adverse impact was obvious, this public

interest review regulation is clearly intended as a pre-

requisite to a decision to permit an activity within the

Corps’ jurisdiction, rather than a factor in the decision

on whether jurisdiction exists at all.

Permitting the Riverside Park

The Corps admits that the park phase of the project

comes under a nationwide permit, but maintains that such

a permit is not subject to the historical impact review pro-

cedures of 16 U.S.C. §§ 470f and 470h-2(f).° The Vieux

® The Vieux Carre has asserted that all of the challenged Corps

decisions trigger the NHPA’s section 470h-2(f) in addition to

section 470f. Section 470h-2(f) states:

“Prior to the approval of any Federal undertaking which

may directly and adversely affect any National Historic Land-

mark, the head of the responsible Federal agency shall, to the

maximum extent possible, undertake such planning and actions

as may be necessary to minimize harm to such landmark, and

shall afford the Advisory Council on Historic Preservation a

reasonable opportunity to comment on the undertaking.”

Because we find that this section is inapplicable when a federal

agency no more than issues a license or permit, we will not address

this provision again.

22a

Carre contends that (1) the park is not permitted by a

nationwide permit and therefore requires an individual

permit; (2) if a nationwide permit covers the park, mak-

ing an individual permit unnecessary, that nationwide

permit is a “license” triggering section 470f’s historic

impact review procedures.

The original Bienville Street Wharf, permitted by the

Corps in 1930, could itself come within only one nation-

wide permit, that under the provisions of 33 C.F.R.

§ 330.3(b) for “[s]tructures or work completed before

December 18, 1968, or in waterbodies over which the

district engineer had not asserted jurisdiction at the time

the activity occurred vrovided, in both instances, there

is no interference with navigation.” The Corps stipulated

that the reconstruction of the wharf pursuant to the 1930

permit affected the navigability of the Mississippi River.

Thus, the original wharf structure does not fall under a

nationwide permit.

That does not mean, however, that the park phase can-

not fall under such a permit. Section 330.5(a) (3) grants

nationwide permits for:

“The repair, rehabilitation, or replacement of any

previously authorized, currently serviceable, struc-

ture or fill, or of any currently serviceable structure

or fill constructed prior to the requirement for au-

thorization, provided such repair, rehabilitation, or

replacement does not result in a deviation from the

plans of the original structure or fill, and further

provided thet the structure or fili has not been put

to uses differing from uses specified for it in any

permit authorizing its original construction. Minor

deviations due to changes in materials or construc-

tion techniques and which are necessary to make re-

pair, rehabilitation, or replacement are permitted.”

This nationwide permit is subject to the section 330.5

(b) (9) requirement that the district engineer give the

23a

advisory council an opportunity to comment if he deter-

mines that historic properties may be adversely affected

by the repair, rehabilitation, or replacement.

If the riverfront park does not fit within this section

330.5(a) (3) nationwide permit, it must be individually

permitted because its location riverward of the box levee

—the OHWL—places it within the navigable waters of

the United States and the Corps’ jurisdiction under the

second clause of RHA section 10. If an individual permit

is necessary, the NHPA section 470f historic impact re-

view procedures would concededly be triggered. Before

discussing whether the park falls within the section

330.5(a) (3) permit, however, we address the relation-

ship between nationwide permits and section 470f.

The Vieux Carre asserts that even if we find that the

park project is covered by the section 330.5(a) (3) na-

tionwide permit, “a permit is a permit,” and nothing in

the wording of section 470f indicates that some federal

agency licensing is exempt from its requirements. The

Corps’ regulations in fact state that permits are either

“in the form of individuai permits or general permits.”

33 C.F.R. § 325.5(a). A “nationwide permit” is simply

“a type of general permit.” See 33 C.F.R. §§ 325.5(c)

(2) and 330.1.

Interpreting the Clean Water Act (CWA), similar in

relevant part to the NHPA, the Tenth Circuit, in An-

drews, 758 F.2d at 512-18, held that by allowing a party

to proceed under a nationwide permit the Corps had trig-

gered provisions of the CWA requiring agencies to issue

environmental impact statements. In so holding, the court

distinguished the CWA from the NEPA, which explicitly

states that it is triggered by “major federal actions.” As

noted above, however, the Eighth Circuit recently ap-

proved the parties’ treatment of the NHPA’s section

470f “undertaking” requirement as “coterminous” with

the NEPA’s “major Federal actions” triggering event.

Ringsred, 828 F.2d at 1809; cf. Lee, 742 F.2d at 901 (re

24a

ferring throughout to activities falling under a nation-

wide permit as “exempt” from permitting requirements).

The Tenth Circuit’s Andrews interpretation, if adopted

for the NHPA, reflects the NHPA’s statutory purpose,

which contemplates widespread agency responsibility for

the protection of historic interests. See, e.g., 16 U.S.C.

§470(b) (4); H.R.Rep. No. 1916, 89th Cong., 2d Sess.

7, reprinted in 1966 U.S.Code Cong. & Admin.News 3307,

3309. It is also true to the NHPA statutory language

itself.

Section 330.5(b)’s incorporation of an accelerated his-

toric review procedure as a precondition to a project fall-

ing under a section 330.5(a) (3) nationwide permit does

not seem to help the Corps’ case. In addition to the fact

that the Corps concedes that it did not evaluate the his-

toric impact of either phase of the project, we note that

through correspondence the Advisory Council has warned

the Corps that section 330.5(b) (9) does not satisfy sec-

tion 470f requirements. Indeed, regulations promulgated

under the NHPA provide for counterpart regulations

only under specific circumstances:

“In consultation with the Council, agencies may

develop counterpart regulations to carry out the

section 106 process. When concurred in by the Coun-

cil, such counterpart regulations shall stand in place

of these regulations for the purposes of the agency’s

compliance with section 106.” 36 C.F.R. § 800.15

(1987).

The Corps’ position that nationwide permits do not

trigger section 470f, however, has great practical appeal,

especially in relation to the nationwide permit described

in 33 C.F.R. § 330.5(a) (3), which unquestionably covers

such activities as repainting and reroofing original struc-

tures. Congress clearly did not intend to require the

Corps to subject such truly inconsequential projects to

the procedural complexities of section 470f. See National

25a

Historic Preservation Act Amendments of 1980, H.R. No.

96-1457, 1980 U.S.Code Cong. & Admin.News 6378, 6408;

cf. 162.20 Acres of Land, 639 F.2d at 302 n. 3. Such a

literal construction of section 470f is unreasonable and

unintended, and as such is a result we must endeavor to

avoid. See, e.g., United States v. Mendoza, 565 F.2d 1285,

1288, on reh’g, 581 F.2d 89 (5th Cir.1978) (citing “the

celebrated” Rector of Holy Trinity Church v. United

States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 ( 1892),

as the seminal case approving judicial avoidance of ab-

surd but literal statutory constructions). Moreover, the

applicability of section 470f should not be at the whim

of the Corps’ subsequent “permit” label; such labeling

does not alter congressional intent.

And, as pointed out by the Corps, the nationwide per-

mits of 33 C.F.R. § 330 are specifically designed to ex-

pedite activities with inconsequential effects on the RHA

concerns. See 33 C.F.R. § 330.1 (stating that nationwide

permits “are designed to allow certain activities to occur

with little, if any, delay or paperwork”). Indeed, “[{t]he

purpose of the nationwide permit system is to allow

certain types of [activities to go forward] without prior

Corps approval.” Lee, 742 F.2d at 909; see also An-

drews, 758 F.2d at 511. Consequently, 33 C.F.R. § 330.1

notes that some of its chapter’s nationwide permits re-

quire notification to the district engineer prior to com-

mencement of the activity in question. Presumably, these

are the more significant projects—those more likely to

have measurable impacts on navigation. We hold that

nationwide permits authorizing truly inconsequential ac-

tivities are not triggering “licenses” under section 470f.

We now turn to whether section 330.5(a) (3) author-

izes such inconsequential activities, for we find that the

regulation’s failure to require notification by the “ner-

mittee” to the Corps is not dispositive of the issue. This

nationwide permit has not previously been interpreted by

a federal court in a published opinion. The Corps ap-

26a

parently determined that the park constitutes a “rehabili-

tation” or “replacement” of the wharf, that the park

plans do not deviate from the 1930 plans of the wharf

except for minor deviations due to changes in materials

or construction techniques that are necessary for the re-

habilitation or réplacement, and that the park is not a

use differing from uses specified in the 1930 wharf per-

mit. The reviewing court must determine whether the

Corps’ interpretation of its own regulation is reasonable

and consistent with the regulations themselves. Lyng v.

Payne, 476 U.S. 926, 106 S.Ct. 2333, 90 L.Ed.2d 921

(1986). Because the district court did not address this

issue, we remand for an interpretation of the scope of

section 330.5(a) (3); a determination of whether the

Corps’ finding that the riverfront park is covered by this

nationwide permit (as the district court defines it) was

arbitrary or capricious; and if the park is covered by

section 330.5(a) (3), a ruling on whether the project is

so inconsequential that it escapes section 470f’s historic

impact review requirements.

Finally, if the district court finds that the riverfront

park does fall under section 330.5(a) (3) and is incon-

sequential, it must also address the Vieux Carre’s argu-

ment that this nationwide permit is invalid because the

Corps did not evaluate the park’s impact on historic prop-

erties as is required by the Corps’ own regulation—sec-

tion 330.5(b) (9). The Audubon Park Commission noti-

fied the Corps (so as to apparently trigger that regula-

tion) when it submitted plans for the project and asked

whether permits would be necessary.

Conclusion

Because we find that the Vieux Carre has no private

right of action under the RHA, and that the APA grants

judicial review only of federal agency actions, we affirm

the district court’s dismissal of the Vieux Carre’s claims

against all defendants except the Corps. We further hold

27a

that the Corps’ determination that the aquarium phase

of the project was outside its RHA section 10 permitting

jurisdiction reflects a reasonable interpretation of the

statute and an evaluation of these specific facts that is

neither arbitrary nor capricious. Finally, we remand to

the district court for a ruling on whether the park phase

falls within the nationwide permit in 33 C.F.R. § 330.5

(a) (3). If the district court determines that the Corps’

interpretation of this nationwide permit regulation, or its

finding that the park is within the regulation, is arbi-

trary and capricious, the project must be individually

permitted because it is within the Corps’ RHA jurisdic-

tion, and thus is subject to section 470f review. If, how-

ever, the district court sustains the Corps’ determination

that the park phase does fall within this nationwide per-

mit regulation, the court is to go on to determine whether

the project is so inconsequential that it nevertheless es-

capes the historic preservation review requirements of

NHPA section 470f; and if it does thus escape section

470f, the district court must address section 330.5(b) (9).

Accordingly, the judgment of the district court is AF-

FIRMED in part and REVERSED in part, and the

cause is REMANDED for further proceedings consistent

herewith.

28a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3854

VIEUX CARRE PROPERTY OWNERS, RESIDENTS &

ASSOCIATES, INC.,

Plaintiffs-A ppellants,

versus

COLONEL LLOYD KENT BROWN, ETC., et al.,

Defendants-A ppellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion JUNE 14, 5 Cir., 1989, —— F.2d ——-)

(Filed July 12, 1989)

Before POLITZ, GARWOOD and SMITH, Circuit Judges.

PER CURIAM:

(“) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc, (Federal Rules of Appellate Pro-

cedure and Local Rule 35) the Suggestion for Rehearing

En Banc is DENIED.

29a

ENTERED FOR THE CourRT:

/s/ Will Garwood

United States Circuit Judge

30a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 87-3700

Section “H”’

VIEUX CARRE PROPERTY OWNERS

vs.

Cot. LLOYD KENT BROWN

ORDER AND REASONS

[Filed September 21, 1987]

Plaintiff Vieux Carre Property Owners, Residents &

Associates, Inc., seeks to enjoin construction of the New

Orleans Aquarium and Riverfront Park adjacent to the

Mississippi River on the ground that the decision by the

defendant U.S. Army Corps of Engineers (“Corps’’) not

to require a Corps permit for said project was unlawful.

For the following reasons, judgment will be entered dis-

missing plaintiff’s suit.

The proposed New Orleans Aquarium building (Phase

A) will be constructed entirely landward of the box levee

vertical at the Bienville Street Wharf, on the river side

of the concrete flood wall constructed several years ago

by the Corps. The Corps treats the box levee vertical as

the ordinary high water mark in the river. The Corps

considers the floodwall, and not the box levee, the main

line levee for flood protection in the area.

The Riverfront Park (Phase B) will be constructed on

the Bienville Street Wharf, owned by defendant Board

3la

of Commissioners of the Port of New Orleans (the “Dock

Board”) ; the wharf is constructed atop the box levee. The

wharf will be resurfaced, trees will be planted on the

wharf, and park benches and other park facilities will

be installed.

There are no genuine issues of material fact, only ques-

tions of law related primarily to the decision of the Corps

that no permit is required for the project. The Corps de-

cision is based upon two undisputed facts: Phase A, the

Aquarium, is entirely landward of the ordinary river

high water line, and Phase B is located entirely upon a

wharf permitted since 1930.

Plaintiff’s complaint alleges seven causes of action. Two

of the claims are based upon the Rivers & Habors Ap-

propriations Act of 1899 (“RHA Act’). Plaintiff con-

tends that Sections 10 and 14 of the RHA Act require

a Corps permit before the construction at issue.

The pertinent provisions of the RHA Act are as fol-

lows:

Section 10.

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall not be lawful to build or commence the

building of any wharf, pier,~dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor, canal, navigable

river, or other water of the United States, outside

established harbor lines, or where no harbor lines

have been established, except on plans recommended

by the Chief of Engineers and authorized by the

Secretary of the Army; and it shall not be lawful

to excavate or fill, or in any manner to alter or

modify the course, location, condition, or capacity of,

any port, roadstead, haven, harbor, canal, lake, har-

bor of refuge, or inclosure within the limits of any

32a

breakwater, or of the channel of any navigable water

of the United States, unless the work has been rec-

ommended by the Chief of Engineers and authorized

by the Secretary of the Army prior to beginning the

same.

33 U.S.C. § 403.

Section 14.

It shall not be lawful for any person or persons

to take possession of or make use of for any purpose,

or build upon, alter, deface, destroy, move, injure,

obstruct by fastening vessels thereto or otherwise, or

in any manner whatever impair the usefulness of

any sea wall, bulkhead, jetty, dike, levee, wharf, pier,

or other work built by the United States, or any

piece of plant, floating or otherwise, used in the con-

struction of such work under the control of the

United States, in whole or in part, for the preserva-

tion and improvement of any of its navigable waters

or to prevent floods, or as boundary marks, tide

gauges, surveying stations, buoys, or other estab-

lished marks, nor remove for ballast or other pur-

poses any stone or other material composing such

works: Provided, That the Secretary of the Army

may, on the recommendation of the Chief of Engi-

neers, grant permission for the temporary occupa-

tion or use of any of the aforementioned public

works when in his judgment such occupation or use

will not be injurious to the public interest: Provided

further, That the Secretary may, on the recommen-

dation of the Chief of Engineers, grant permission

for the alteration or permanent occupation or use of

any of the aforementioned public works when in the

judgment of the Secretary such occupation or use

will not be injurious to the public interest and will

not impair the usefulness of such work.

33 U.S.C. § 408.

33a

In California v. Sierra Club, 101 8.Ct. 1775 (1981),

the Supreme Court dismissed a claim brought under Sec-

tion 10 of the RHA Act by an environmental organiza-

tion and two private citizens concerning water diversion

facilities in California. The Court declined to reach the

merits of whether permits were required for state water

allocation projects: the holding that “there is no private

cause of action permitting respondents to commence this

action disposes of the cases.” Jd. at 1781. Specifically,

the Court held that the language and legislative history

of the RHA Act do not indicate a Congressional intent to

create “federal rights for the especial benefit of a class

of persons but rather that it [the Act] was intended to

benefit the public at large through a general regulatory

scheme to be administered by the then Secretary of War.”

Id. Thus there is no private remedy under Section 10 of

the RHA Act. Consequently, we dismiss plaintiff’s cause

of action under Section 10 of the RHA Act and regula-

tions issued pursuant thereto.

We also dismiss plaintiff’s cause of action under Sec-

tion 14 of the Act. Although the Court in Sierra Club

interpreted only Section 10 of the Act, the Court’s de-

termination in Sierra Club that neither the language nor

the legislative history of the RHA Act indicate Congres-

sional intent to create a private remedy also applies to

Section 14.

In Louisiana v. M/V TESTBANK, 752 F.2d 1019,

1031 (5th Cir. 1985), the Fifth Circuit Court of Appeal

applied the California v. Sierra Club reasoning to Sec-

tion 13 of the RHA Act. The FHtth Circuit’s reasoning

is equally applicable to a claim under Section 14:

While the Court in California v. Sierra Club ad-

dressed only the question whether a private cause of

action should be implied under Section 10, we think

the Court’s decision requires a conclusion that pri-

vate actions may not be brought under Section 13

34a

either. Both sections were enacted to insure the Fed-

eral Government’s ability to prevent the obstruction

of navigable waterways. We find the Court’s analy-

sis of Section 10 under Cort v. Ash, 422 U.S. 66, 95

S.Ct. 2080, 45 L.Ed.2d 26 (1975) equally applicable

to Section 13. 7d. n. 15.

Plaintiff also contends that this court can review the

Corps’ refusal to require a permit under the Administra-

tive Procedures Act (“APA”). 5 U.S.C. § 701-706. In

Heckler v. Chaney, 105 S.Ct. 1649 (1985), the Court

determined the extent to which an administrative agen-

cy’s decision not to undertake enforcement action is sub-

ject to judicial review under the APA. /d. at 1651. The

Court stated that a party seeking review must first clear

the hurdle of Section 701. Under Section 701(a), ju-

dicial review is not available to the extent that “(1) stat-

utes preclude judicial review; or (2) agency action is

committed to agency discretion by law.” 5 U.S.C. § 701

(a) (1), (2).

Even if Section 701(a)(1) is not applicable because

there is no specific prohibition of judicial review in the

text of the RHA Act, Section 701(a)(2) precludes ju-

dicial review of the Corps’ inaction, because an agency’s

decision not to take enforcement action is presumptively

unreviewable by a court. Heckler, 105 S.Ct. at 1656.

In this case, the presumption of unreviewability is not

rebutted. The RHA Act does not withdraw discretion

from the Corps; Sections 10 and 14 clearly grant discre-

tion. Thus, we dismiss plaintiff’s claim seeking judicial

review under the APA of the Corps’ refusal to require

a permit for the proposed project.

Plaintiff further contends that the Corps is obligated

to consult the Advisory Council on Historie Preserva-

tion and the State Historic Preservation Officer pursuant

to the National Historic Preservation Act (“NHPA’’) of

1966, 16 U.S.C. § 470 et seg. The obligations under the

—-

wet oe: %

AA ee %

35a

NHPA apply only to proposed federal or federally as-

sisted projects or to projects where a license is to be is-

sued by a federal agency. 16 U.S.C. § 470f. Neither cir-

cumstance is involved here.

Plaintiff also claims the Corps was required to pre-

pare an environmental impact statement pursuant to the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§ 4332 et seq. This act requires an environmental im-

pact statement for “major Federal actions signi icantly

affecting the quality of the human environment.” 42

U.S.C. § 4332(2) (ce). “Actions” are defined to include

“the circumstance where the responsible officials fail to

act and that failure to act is reviewable by couris or

administrative tribunals under the Administrative Pro-

cedure Act or other applicable law as agency action.”

40 C.F.R. § 1508.18. We have determined that the fail-

ure to act by the Corps is not reviewable by this court

under either the RHA Act or the APA. In addition, Sec-

tion 1508.18(b) states that:

(b) Federal actions tend to fall within one of the

following categories:

*~ *

(4) Approval of specific projects, such as con-

struction or management activities located in a de-

fined geographic area. Projects include actions ap-

proved by permit or other regulatory decision as well

as federal and federally assisted activities.

The Corps has not issued a permit approving the pro-

posed project; the Corps has simply determined that no

permit is required for the project. Also, no federal as-

sistance has been given to the project. Thus, there is no

federal action triggering NEPA’s application.

Plaintiff asserts three other causes of action equally

without merit:

1. The Corps as a licensing agency should have de-

termined the environmental impact of the project

36a

and fulfilled other requirements of Executive Order

No. 11988, 44 F.R. 43239, on floodplain management.

Plaintiff “concedes that it has no private right of

action under that directive ....” (Plaintiff’s pre-

trial memorandum, at 23). See Watershed Associ-

ates Rescue v. Alexander, 586 F.Supp. 978, 987-88

(D.Neb. 1982).

2. If the proposed project will discharge seawater

into the Mississippi River, a Corps permit is re-

quired. Plaintiff has stipulated that the project plans

no longer propose discharge of seawater into the

river.

3. Contrary to plaintiff’s assertion, the Corps’ own

regulations on Nationwide Permits, 33 C.F.R. § 330.5

(b) (9), do not require consultation with the Ad-

visory Council on Historie Preservation.

For a federal agency or court to inject itself here

would impose federal requirements upon a purely local

project. Cf. Citizens for a Better St. Clair City v. James,

648 F.2d 246, 250-51 (5th Cir. 1981). We decline to do

so.

/3/ Adrian G. Duplantier

United States District Judge

September 21, 1987

aed ile He Ss eC” he Ar

37a

STATUTES AND FEDERAL REGULATIONS

INVOLVED

Selected Provision of the Rivers and Harbor Act of

1899, ch. 425, 30 Stat. 1151:

33 U.S.C. § 403 (1982) :

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

and it shall not be lawful to build or commence the

building of any wharf, pier, dolphin, boom, weir,

breakwater, bulkhead, jetty, or other structures in

any port, roadstead, haven, harbor, canal, navigable

river, or other water of the United States, outside

established harbor lines, or where no harbor lines

have been established, except on plans recommended

by the Chief of Engineers and authorized by the

Secretary of the Army; and it shall not be lawful

to excavate or fill, or in any manner to alter or

modify the course, location, condition, or capacity of,

any port, roadstead, haven, harbor, canal, lake, har-

bor or refuge, or inclosure within the limits of any

breakwater, or of the channel of any navigable water

of the United States, unless the work has been rec-

ommended by the Chief of Engineers and authorized

by the Secretary of the Army prior to beginning the

same.

Selected Provisions of the National Historic Preserva-

tion Act, 16 U.S.C. §§ 470 et seg. (1982) :

16 U.S.C. § 470 (1982) :

(a) This subchapter may be cited as the “national

Historic Preservation Act”.

(b) The Congress finds and declares that—

(1) the spirit and direction of the Nation are

founded upon and reflected in its historic heri-

tage;

38a

(2) the historical and cultural foundations of

the Nation should be preserved as a living part

of our community life and development in order

to give a sense of orientation to the American

people;

(3) historie properties significant to the Na-

tion’s heritage are being lost or substantially al-

tered, often inadvertently, with increasing fre-

quency ;

(4) the preservation of this irreplaceable

heritage is in the public interest so that its vital

legacy of cultural, educational, aesthetic, inspir-

ational, economic, and energy benefits will be

maintained and enriched for future generations

of Americans;

(5) in the face of ever-increasing extensions

of urban centers, highways, and residential,

commercial, and industrial developments, the

present governmental and nongovernmental his-

toric preservation programs and activities are

inadequate to insure future generations a genu-

ine opportunity to appreciate and enjoy the rich

heritage of our Nation;

(6) the increased knowledge of our historic

resources, the establishment of better means of

identifying and administering them, and the en-

couragement of their preservation will improve

the planning and execution of Federal and fed-

erally assisted projects and will assist economic

growth and development; and

(7) although the major burdens of historic

preservation have been borne and major efforts

initiated by private agencies and individuals,

and both should continue to play a vital role, it

is nevertheless necessary and appropriate for

the Federal Government to accelerate its historic

——s

39a

preservation programs and activities, to give

maximum encouragement to agencies and indi-

viduals undertaking preservation by private

means, and to assist State and local governments

and the National Trust for Historic Preserva-

tion in the United States to expand and acceler-

ate their historic preservation programs and ac-

tivities.

16 U.S.C. § 470f (1982):

The head of any Federal agency having direct or

indirect jurisdiction over a proposed Federal or fed-

erally 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

Fedeal funds on the undertaking or prior to the is-

suance 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.

The head of any such Federal agency shall afford

the Advisory Council on Historie Preservation estab-

lished under sections 470i to 470v of this title a rea-

sonable opportunity to comment with regard to such

undertaking.

16 U.S.C. § 470h-2/d) (1982):

Consistent with the agency’s missions and man-

dates, all Federal agencies shall carry out agency

programs and projects (including those under which

any Federal assistance is provided or any Federal

license, permit, or other approval is required) in ac-

cordance with the purposes of this subchapter and,

give consideration to programs and projects which

will further the purposes of this subchapter.

40a

16 U.S.C. § 470h-2(f) (1982):

Prior to the approval of any Federal undertaking

which may directly and adversely affect any National

Historic Landmark, the head of the responsible Fed-

eral agency shall, to the maximum extent possible,

undertake such planning and actions as may be nec-~

essary to minimize harm to such landmark, and shall

afford the Advisory Council on Historic Preservation

a reasonable opportunity to comment on the under-

taking.

— eee

Selected Provisions of the Army Corps of Engineers

Nationwide Permit Regulations, 33 C.F.R. Part 330

(1988):

33 C.F.R. § 330.1 (1988) :

The purpose of this regulation is to describe the

Department of the Army’s (DA) nationwide permit

program and to list all current nationwide permits

which have been issued by publication herein. A na-

tionwide permit is a form of general permit which

may authorize activities throughout the nation. (An-

other type of general permit is a “regional permit”

and is issued by division or district engineers on a

regional basis in accordance with 33 CFR Part 325).

Copies of regional conditions and modifications, if

any, to the nationwide permits can be obtained from

the appropriate district engineer. Nationwide per-

mits are designed to allow certain activities to occur

with little, if any, delay or paperwork. Nationwide

permits are valid only if the conditions applicable to

the nationwide permits are met. Failure to comply

with a condition does not necessarily mean the ac-

tivity cannot be authorized but rather that the ac-

tivity can only be authorized by an individual or

4la

regional permit. Several of the nationwide permits

require notification to the district engineer prior to

commencement of the authorized activity. The pro-

cedures for this notification are located at § 330.7 of

this Part. Nationwide permits can be issued to sat-

isfy the requirements of section 10 of the Rivers and

Harbors Act of 1899, section 404 of the Clean Water

Act, and/or section 103 of the Marine Protection, Re-

search and Sanctuaries Act. The applicable author-

ity is indicated at the end of each nationwide permit.

33 C.F.R. § 330.3(b) (1988) :

The following activities were permitted by nation-

wide permits issued on July 19, 1977, and unless

modified do not require further permitting:

* * * *

(b) Structures or work completed before Decem-

ber 18, 1968, or in waterbodies over which the dis-

trict engineer had not asserted jurisdiction at the

time the activity occurred provided, in both instances,

there is no interference with navigation. (Section

10)

33 C.F.R. § 330.5(a) (3) (1988):

Nationwide permits.

(a) Authorized activities. The following activi-

ties are hereby permitted provided they meet the

conditions listed in paragraph (b) of this section

and, where required, comply with the notification

procedures, of § 330.7.

+ + * -

(3) The repair, rehabilitation, or replacement of

any previously authorized, currently serviceable,

structure or fill constructed prior to the requirement

42a

for authorization, provided such repair, rehabilita-

tion, or replacement does not result in a deviation

from the plans of the original structure or fill, and

further provided that the structure or fill has not

been put to uses differing from uses specified for it

in any permit authorizing its original construction.

Minor deviations due to changes in materials or con-

struction techniques and which are necessary to make

repair, rehabilitation, or replacement are permitted.

Maintenance dredging and beach restoration are not

authorized by this nationwide permit. (Sections 10

and 404)

33 C.F.R. § 330.5(b) (9) (1988):

(b) Conditions. The following special conditions

must be followed in order for the nationwide permits

identified in paragraph (a) of this section to be

valid:

” - 7. *

(9) That, if the activity may adversely affect his-

toric properties which the National Park Service has

listed on, or determined eligible for listing on, the

National Register of Historic Places, the permittee

will notify the district engineer. If the district en-

gineer determines that such historic properties may

be adversely affected, he will provide the Advisory

Council on Historic Preservation an opportunity to

comment on the effects on such historic properties

or he will! consider modification, suspension, or revo-

cation in accordance with 33 CFR 325.7. Further-

more, that, if the permittee before or during prose-

cution of the work authorized, encounters a historic

property that has not been listed or determined eli-

gible for listing on the National Register, but which

43a

may be eligible for listing in the National Register,

he shall immediately notify the district engineer.

Selected Provisions of the Advisory Council on Historic

Preservation Regulations, 36 C.F.R. Part 800 (1988):

36 C.F.R. § 800.1(a), (b) (1988) :

Authorities, purposes, and participants.

(a) Authorities. Section 106 of the National His-

toric Preservation Act requires a Federal agency

head with jurisdiction over a Federal, federally as-

] sisted, or federally licensed undertaking to take into

account the effects of the agency’s undertaking on

properties included in or eligible for the National

Register of Historic Places and, prior to approval

of an undertaking, to afford the Advisory Council

on Historic Preservation a reasonable opportunity to

comment on the undertaking. Section 110(f) of the

| Act requires that Federal agency heads, to the maxi-

mum extent possible, undertake such planning and

actions as may be necessary to minimize harm to

i any National Historic Landmark that may be di-

rectly and adversely affected by an undertaking and,

prior to approval of such undertaking, afford the

Council a reasonable opportunity to comment. These

regulations define the process used by a Federa!

agency to meet these responsibilities, commonly called

the section 106 process.

(b) Purposes of the section 106 process. The

Council seeks through the section 106 process to ac-

commodate historic preservation concerns with the

needs of Federal undertakings. It is designed to

identify potential conflicts between the two and to

help resolve such conflicts in the public interes

7 es

44a

36 C.F.R. § 800.1 (c) (2) (ii) (1988) :

(c) Participants in the section 106 process—

* aa * *

(2) Interested persons. Interested persons are

those organizations and individuals that are con-

cerned with the effects of an undertaking on his-

toric properties. Certain provisions in these regula-

tions require that particular interested persons be

invited to become consulting parties under certain

circumstances. In addition, whenever the Agency

Official, the State Historic Preservation Officer, and

the Council, if participating, agree that active par-

ticipation of an interested person will advance the

objectives of section 106, they may invite that person

to become a consulting party. Interested persons may

include:

* * * *

((ii) Applicants for Federal assistance, permits,

and licenses. Where the undertaking subject to re-

view under section 106 is proposed by an applicant

for Federal assistance or for a Federal permit or

license, the applicant may choose to participate in the

section 106 process in the manner prescribed in

these regulations.

36 C.F.R. § 800.2(0) (1988):

“Undertaking” means any project, activity, or.

program that can result in changes in the character

or use of historic properties, if any such historic

properties are located in the area of potential effects.

The project, activity, or program must be under the

direct or indirect jurisdiction of a Federal agency or

licensed or assisted by a Federal agency. Undertak-

ings include new and continuing projects, activities,

-

a ns

45a

or programs and any of their elements not previously

considered under section 106.

36 C.F.R. § 800.5(a), (b) and (e) (1988):

Assessing effects.

(a) Applying the Criteria of Effect. In consulta-

tion with the State Historic Preservation Officer, the

Agency Official shall apply the Criteria of Effect

(§ 800.9(a)) to historic properties that may be af-

fected, giving consideration to the views, if any, of

interested persons.

(b) When no effect is found. If the Agency Offi-

cial finds the undertaking will have no effect on

historic properties, the Agency Official shall notify

the State Historic Preservation Officer and inter-

ested persons who have made their concerns known

to the Agency Official and document the findings,

which shall be available for public inspection. Un-

less the State Historic Preservation Officer objects

within 15 days of receiving such notice, the Agency

Official is not required to take any further steps in

the section 106 process. If the State Historic Preser-

vation Officer files a timely objection, then the pro-

cedures described in § 800.5(c) are followed.

* * * *

(e) When the effect is adverse. If an adverse ef-

fect on historic properties is found, the Agency Offi-

cial shall notify the Council and shall consult with

the State Historic Preservation Officer to seek ways

to avoid or reduce the effects on historie properties.

| Either the Agency Official or the State Historic Pres-

ervation Officer may request the Council to partici-

: pate. The Council may participate in the consulta-

tion without such a request.