Opposition Brief — People for Responsible Omaha Urban Development v. Army Corps of Engineers

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»uprems Court, U,

In The RIVED

Supreme Court of the United StfatesPR 26 1999

October Term, 1989 JOSEPH F. SPANIOL,

e a CLERK

PEOPLE FOR RESPONSIBLE OMAHA URBAN

DEVELOPMENT (PROUD),

)

state oY

Petitioner

ARMY CORPS OF ENGINEERS, NATIONAL PARK

SERVICE, INTERSTATE COMMERCE COMMISSION

CONAGRA, INC., OMAHA DEVELOPMENT FOUNDA

TION, CITY OF OMAHA, COUNTY OF DOUGLAS

»> ———_—

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

— _—— —-—&— — ——— - -

NON-FEDERAL RESPONDENTS’ BRIEF IN OPPOSI-

TION TO PETITION FOR WRIT OF CERTIORARI

QUenene ¢ —---—--

JouHN E. Norrn”® Henry L. W

*Counseil of Record MicHiagen W. Am

Ropert G. DaILey Omaha/ Douglas Civic Center

McGratH, Norru, M \ 1819 Farnam Street

& Kratz, P.C Omaha, Nebraska 68183

Suite 1100

One Central Park Plaza

222 South Fifteenth Street M VR. A

Omaha, Nebraska 68102 FRANK |

(402) 341-3071 \BRAHAMS, Ka

. 8712 W. Dodge Rd

forneys for ‘

Omaha, Nebrask 8114

CHaries K. Bus

Omaha/ Douglas Civic Center

1819 Farnam Street, Ste. 804

Omaha, Nebraska 68183

ney r City of O |

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arn me

al shat aan”? Valen LL aa. & A

QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioner’s cause of action is moot.

2. Whether the decision cf the District Judge sitting

as a finder of fact was so clearly wrong that the decision

may be overturned by appellate standards of review.

3. Whether any of the reasons set forth in Rule 10 of

the Supreme Court of the United States are present to

warrant a review of this case.

TABLE OF CONTENTS

Page

Questions Presented For Review................... i

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APPENDIX

Description

Order and Memorandum and

Order Denying Motion For Tem-

porary Restraining Order and

Preliminary Injunction

Magistrate’s Findings & Recom-

mendations

District Court’s Memorandum

on Plaintiffs’ and Intervenor’s

Objections to the Magistrate’s

Findings of Law and Fact and

Their Motion to Reject Part of

the Magistrate’s Recommenda-

tions

Omaha Development Founda-

tion’s Motion and Memoran-

dum to Dissolve the Injunction

Dated March 1, 1989, or to Re-

quire the Plaintiffs and Inter-

venor to Post a Sufficient Surety

Bond

Date

4/13/88

1/20/89

2/14/89

3/28/89

Page

App. 1

App. 17

App. 115

App. 133

TABLE OF AUTHORITIES

Page

Cases CITED

Bereny v. District Director, Immigration and Naturaliza-

tion Service, 385 U.S. 630, 87 S. Ct. 666 (1967) ....10, 25

Biderman v. Morton, 497 F.2d 1141 (2nd Cir. 1974)

KUM EAL Va Oh GSS COGN NER Meare ge hone eee oan ae 12, 16, 17

Brockington v. Rhodes, 396 U.S. 41, 90 S. Ct. 206

ae rer re. eyo eRe eae ry Pe 7

Bywater Neighborhood Association v. Tricarico, 879

eo eM Re Oren Pare eer aee yer re 8

Chick v. Hills, 528 F.2d 445 (1st Cir. 1971)........... 18

Citizens for Responsible Area Growth v. Adams, 680

eo ey as PPR C eRe eT eT eee 18

Crounse Corp. v. I.C.C., 791 F.2d 1176 (6th Cir. 1986) .... 20

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

RE re Pee POE CT ee Tere er 20

Foundation on Economic Trends v. Heckler, 756 F.2d

ae eR ee ee err ee 12, 16

Graver, Inc. & Manufacturing Co. v. Linde Air Prod-

ucts Co., 336 U.S. 271, 69 S. Ct. 535 (1949)..... 10, 25

Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200 (1969)....... 7

Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440,

Pe i le, ER A he veeva bee hvaieeeces see es 10, 25

Layne & Bowler Corporation v. Western Well Works,

inc., 261 US. 367, 43 S. Ct. 422 925)... ........ 24

Marsh v. Oregon Natural Resources Council, 109 S.

CRs Cee MN ew Gerda lsh s ee ese bs eRe ee mes

Maryland Conservation Council v. Gilchrist, 808 F.2d

ee Bo Ree re ne ey ll, 16

TABLE OF AUTHORITIES - Continued

Page

Missouri Coalition For The Environment v. Corps of

Engineers, 866 F.2d 1025 (8th Cir. 1989)............ 21

Morris County Trust for Historic Preservation v.

Pierce, 714 F.2d 271 (3rd Cir. 1983)......... 11, 14, 15

N.A.A.C.P. v. Medical Center, Inc., 584 F.2d 618 (3d

Le Rl RR rah or 19

Natural Resources Defense Council, Inc. v. U.S. Envi-

ronmental Protection Agency, 822 F.2d 104 (D.C.

Js BGR et is ioe ZS ah i aa 21

North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402,

ge ER Ag | Sag pa ee 7

Rice v. Stoux City Memorial Park Cemetery, Inc., 349

Me a Me 2) 24

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

UES ence rr nea s wee dase e ese ee 4k oes osu .13, 20

Robertson v. Methow Valley Citizens Council, 109 S.

a ee er ee 22, 23

Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (5th

8 ae er a ee a 19

Save the Bay, Inc. v. United States Corps of Engineers,

610 F.2d 322, cert. denied, 449 U.S. 900, 101 S.Ct.

ie ER I oo 6 6 hs om evn edeneweeccvecces Pn

Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988)

ket VRE eae CARPET Ree Eee Se eke s KS's acne 8s ca, 32, 20

Southern Power Co. v. North Carolina Public Service

Co., 263 U.S. 508, 44 S. Ct. 164 (1924)....... 10, 2

TABLE OF AUTHORITIES - Continued

Sylvester v. U.S. Army Corps of Engineers, 884 F.2d

394 (Sth Cig. PORRPp. cee eevee essa. sess tm te

United States v. Johnston, 268 U.S. 220, 45S. Ct. 496

(1925) . . .. .:..«-0:0%/e pare ie aera Col os ag 10

Vieux Carre Property Owners, Residents and Associ-

ates, Inc. v. Brown, 875 F.2d 453 (5th Cir. 1989) ..8

WATCH v. Harris, 603 F.2d 310 (2nd Cir. 1979) ...12,

Winnebago Tribe of Nebraska v. Ray, 620 F.2d 269

(8th Cir, 19GRR.

16 U.S.C. § 470f

42 U.S.C. § 4332

RULES

Rule 10 of U.S. Supreme Court ............... 6, 11

ie.

—*

OPINIONS

Respondents accept the Opinions attached to Peti-

tioner’s Petition for Writ of Certiorari and contained in

the Appendix attached thereto. Respondents also attach

as an Appendix to this brief the Magistrate’s Findings &

Recommendations dated January 20, 1989, the District

Court’s Memorandum dated February 14, 1989, and the

District Court’s Order and Memorandum denying Mo-

tions for Temporary Restraining Order and Preliminary

Injunction dated April 13, 1988 (See Appendix attached

hereto).

sé.

—

STATEMENT OF THE CASE

This case involved a six block warehouse district

located in a 113-acre redevelopment project (the “Re-

development Project”) located between the Missouri Riv-

er and the center of downtown Omaha. The broad area

from 10th Street on the west to the river on the east, and

Douglas Street on the north to Jackson Street on the

south, contain the project and its related environment.

Going east to west one finds the following: the Missouri

River, a federally controlled navigable river; the City’s

levee for flood control; the Union Pacific-Burlington

Northern Railroad tracks; a large area of vacant and

undeveloped land, part of which is owned by Douglas

County and held for park purposes; and the former site

of Jobber’s Canyon located in a six-block area from 8th to

10th Streets and from Farnam to Jackson Streets.

The buildings in Jobber’s Canyon, which were the

subject of this litigation, originally consisted of 21 build-

ings, all of which have been demolished.

In January of 1988, the City of Omaha generated a

Riverfront Redevelopment Plan which set forth the pro-

posed redevelopment of separate parts of the area de-

fined above. The plan envisioned the cooperative efforts

of Douglas County, City of Omaha, Omaha Development

Foundation (“ODF”) and ConAgra in constructing a $280

million redevelopment project in downtown Omaha. The

plan formed the basis for the Redevelopment Agreement,

which represents the guidelines for the implementation

of the Redevelopment Project. The Redevelopment Agree-

ment defines the cooperative obligations of ConAgra, the

City, the County, ODF and the Peter Kiewit Foundation

with respect to the implementation of the Redevelopment

Plan and concept. It is clear from the Redevelopment Plan

and the Redevelopment Agreement that the Redevelop-

ment Project was a local and cooperative undertaking.

In the Redevelopment Agreement, each party re-

tained its independence to develop its separate project in

a manner consistent with its legal obligations, prior com-

mitments, and responsibility to its constituents. Nowhere

in the Redevelopment Agreement does it set forth a need

for or intent to obtain any federal funding or licensing.

(Petitioner’s Appendix, pp. 3-4). In fact, the parties to the

Redevelopment Agreement testified that the Redevelop-

ment Agreement did not call for, nor did it contemplate,

federal involvement of any kind. (Petitioner’s Appendix,

pp. 3-4). The Redevelopment Agreement is the vehicle by

tate

which the downtown redevelopment concept was accom-

plished by local political subdivisions, non-profit

charitable corporations and private companies without

any federal involvement or aid.

One of the projects carried out for the development

was the demolition of 21 buildings located in Jobber’s

Canyon. The land in Jobbers Canyon was cleared and

now contains a series of recently constructed buildings,

owned and operated by ConAgra as its home offices.

Though the Redevelopment Agreement and Re-

development Project did not call for nor require any

federal funding or aid or permits of any kind (Petitioner’s

Appendix, pp. 3-4), Petitioner has attempted to prove

federal involvement in connection with a flood wall lo-

cated four blocks from Jobbers Canyon, a spur railroad

track located one or two blocks from Jobbers Canyon and

a county park, at the closest point across the street from

Jobbers Canyon.

For instance, Petitioner attempted to show that a

permit was needed from the United States Army Corps of

Engineers since the Redevelopment Project contemplated

that the City would reroute some of its own sewers.

According to Petitioner’s argument, since these sewers

eventually lead to connections running under the levee

originally built by the Corps of Engineers, a permit

would be required from the Corps of Engineers before the

City could reroute its own sewers. The court below af-

firmed findings of fact that the Corps of Engineers had no

approval authority with respect to these sewers. (Peti-

tioner’s Appendix, pp. 28-31; 85-86; 115).

hearers

The Redevelopment Project also contemplated the

relocation of some railroad side track to make room for

additional development. Petitioner claimed that the re-

routing of this railroad track would require approva

from the Interstate Commerce Commission. The court

below affirmed that the trial court’s finding of fact that

the “side hill lead” two blocks from Jobbers Canyon was

an “industrial” track which could be relocated withou

ICC approval, and it was. (Petitioner’s Appendix, pp. 26

81; 83; 115).

Finally, Petitioner claims that the National Park Ser

vice was involved since Douglas County’s park land wa:

originally acquired partially with National Park Servic:

money, and the park land had been converted and the

contract for federal funds had been violated, among othe:

things. The courts below affirmed findings of fact agains

Petitioner on all the issues relating to the park, whicl

would require National Park Service approval for devel

opment and use of the park. (Petitioner’s Appendix, pp

31-68; 95-105; 115; Appendix attached hereto, pp. 78-112

125-132).

Petitioner sought to enjoin demolition of warehouse

in Jobbers Canyon. However, all Petitioner’s claims an

evidence related to places outside of Jobbers Canyon - ,

railroad “industrial” track; a city levee and seawall; and |

county park. Petitioner sought to prove that changes i

those areas under the Redevelopment Project in Omah

would trigger federal involvement and the requirement

for federal control. However, even with respect to th

places outside of Jobbers Canyon that Petitioner sough

to establish federal control, Petitioner failed in its proo:

The magistrate found, and the District Judge and Circui

—

Court affirmed the findings of fact that relocation of the

“industrial” railroad track was not subject to I.C.C. ap-

proval (Petitioner’s Appendix, pp. 26; 81; 83; 115); that

the incidental changes in the City sewer system were not

subject to Corps of Engineers’ approval (Petitioner’s Ap-

pendix, pp. 28-31; 85-86; 115); and that the development

and completion of the County Park as projected was not

subject to National Park Service approval. (Petitioner’s

Appendix, pp. 54; 115). On the basis of these findings,

Petitioner has failed to lay a factual basis to present any

legal issue to this Court, to say nothing of a legal issue

creating a conflict between circuits or a conflict with

decisions of this Court.

The profound “off-site impact issue” which Petitioner

evidently seeks to raise does not exist in this case. There

cannot be an off-site impact of federal inaction unless

there is an on-site right for the federal government to act.

The findings below are that the federal government had

no control over the local action taken with respect to the

railroad track, the sewers and the park.

Oblivious to the foregoing, Petitioner seeks to argue

before this Court the off-site impact of the federal control,

found not to exist, of the railroad track, the sewers and

the park on the warehouses in Jobbers Canyon. Factually,

the impact is none. Legally, it could hardly be more than

that.

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

§ 470f (“NHPA”) and the National Environmental Protec-

tion Act, 42 U.S.C. § 4332 (“NEPA”) require consultation

procedures and an environmental review only in the case

of a federally assisted undertaking (NHPA) or major fed-

eral action (NEPA), where the action may affect historic

properties. Petitioner has pointed to nonexistent federal

involvements as being federally assisted undertakings or

federal actions implicating the NHPA and NEPA, despite

the fact that there is no federally assisted undertaking or

major federal action in connection with the activities car-

ried out pursuant to the Redevelopment Agreement;

there is no federally assisted undertaking or major feder-

al action which in any way affects Jobber’s Canyon; and

there is no federally assisted undertaking or major feder-

al action, which, if enjoined, could prevent ODF from

demolishing Jobber’s Canyon (which has long since oc-

curred).

Petitioner twice requested the District Court to im-

pose a preliminary injunction enjoining Omaha Develop-

ment Foundation from demolishing Jobber’s Canyon. On

both occasions, the District Court denied this request

(Appendix attached hereto, pp. 1-16; Petitioner’s Appen-

dix, pp. 106-107).

SUMMARY OF ARGUMENT

1. This proceeding is moot because there is no longer

any case or controversy.

Petitioner has failed to show any facts indicating that

the Redevelopment Project was a federally-assisted

undertaking or major federal action implicating the

NHPA or NEPA.

3. This proceeding is not proper for certiorari under

U.S. Supreme Court Rule 10.

ARGUMENT

MOOTNESS.

This action was instituted by Petitioner to enjoin the

demolition of warehouse buildings located in a six block

area in Omaha, Nebraska. The buildings have been total-

ly demolished. As Petitioner referring to the warehouse

buildings so aptly puts it: “Now nothing remains.” Peti-

tion for Writ, p. 20. This case is moot.

This Court has uniformly refused to assume jurisdic-

tion when a case is moot because no case or controversy

exists under Article III of the United States Constitution.

North Carolina v. Rice, 404 U.S. 244, 92S. Ct. 402, 404, 30 L.

Ed. 2d 413 (1971); Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200

(1969); Brockington v. Rhodes, 396 U.S. 41, 90 S. Ct. 206

(1969).

The warehouse area which Petitioner sought to

“save” has been completely demolished, replatted, re-

graded, redesigned and reconstructed into an office park

consisting of five office buildings. No vestige, historical

or otherwise, remains where the demolished warehouses

once stood. Petitioner’s action for an injunction to re-

strain demolition of the warehouses is moot.!

1 In two comprehensive decisions, the Magistrate found

no evidentiary support for Petitioner’s factual claims (Peti-

tioner’s App., pp. 1-73; Appendix attached hereto, pp. 17-114).

On four occasions the District Judge found the same (Peti-

tioner’s Appendix, pp. 74-105; 106-107; Appendix attached

hereto, pp. 1-16; 115-132). Similarly the Court of Appeals found

(Continued on following page)

(Continued from previous page)

the same (Per Curiam Opinion of Eighth Circuit Court, Peti-

tioner’s Appendix, pp. 112-15). Upon representations of coun-

sel for Petitioner, including the National Trust for Historic

Preservation, that they did not have funds for a bond, the

Eighth Circuit Court granted a limited injunction without re-

quiring Petitioner to put up a bond. (Order of Eighth Circuit

Court, Petitioner’s Appendix, pp. 108-109). Shortly after the

Eighth Circuit Court’s attention was directed to the fact that

the National Trust had uncommitted assets in the amount of

$18,000,000 (Omaha Development Foundation’s Motion and

Memorandum to Dissolve the Injunction Dated March 1, 1989,

or to Require the Plaintiffs and Intervenor to Post a Sufficient

Surety Bond, filed March 30, 1989, see Appendix attached

hereto, p. 133), the injunction was dissolved (Order of Eighth

Circuit Court, Petitioner’s Appendix, pp. 110-111). Although

there have been at least seven different determinations that

Petitioner’s cause of action below was without merit, Peti-

tioner continues to harass Respondents. When the time to

request certiorari from this Court was about to expire, counsel

for The National Trust for Historic Preservation requested an

extension of time to file its petition for certiorari. After The

National Trust filed and received its Request for Extension, it,

declined to file a Petition for Certiorari (though PROUD did

file its Petition). Counsel for Petitioner are well aware G-avci-

sions indicating that only federal agencies are subject to NHPA

and not defendants like the City of Omaha, Douglas County,

The Omaha Development Foundation and ConAgra. Vieux Car-

re Property Owners, Residents and Associates, Inc. v. Brown, 875

F.2d 453 (Sth Cir. 1989); Bywater Neighborhood Association v.

Tricarico, 879 F.2d 165 (5th Cir. 1989). However, The National

Trust, by requesting the extension to file, and PROUD, by filing

the present Petition, continue to harass defendants and waste

local taxpayers’ (Omaha and Douglas County) funds by need-

lessly prolonging litigation which is not only frivolous, but

moot.

Il.

PETITIONER FAILED TO CARRY ITS BURDEN

OF PROOF BEFORE THE DISTRICT COURT.

As the decisions of the United States Magistrate and

District Court indicate, Petitioner failed to show any facts

indicating that the Redevelopment Project was a federally

assisted undertaking or major federal action implicating

the NHPA or NEPA.

Before Petitioner could have shown that the demoli-

tion of Jobbers Canyon was a federally-assisted undertak-

ing or major federal action implicating the NHPA or

NEPA, Petitioner would have had to establish factually

that the demolition of Jobbers Canyon was under the

control of a federal agency because it was accomplished

with federal funding or would have required, prior to

demolition, some federal authorization, permit or license.

The District Court correctly found there was no showing

of any kind on the part of Petitioner that ODF was

assisted in the demolition of Jobbers Canyon by federal

funds or that ODF had to obtain some sort of federal

authorization, permit or license to demolish Jobbers Can-

yon.?

2 Petitioner has made several statements regarding agency

control over the Redevelopment Project which Respondents

perceive to be misstatements of law and fact. In its Petition,

Petitioner claims that: (1) the federal agencies involved had

approval power over the Redevelopment Project (Petition for

Writ, p. i); (2) the abandonment of the Side Hill Lead and

shared line agreement were subject to ICC approval (Petition

for Writ, p. 12); (3) changes in the park design were subject to

National Park Service approval (Petition for Writ, pp. 12-13);

(Continued on following page)

This factual determination by the District Court was

upheld by the Eighth Circuit which said that none of the

factual determinations made the District Court were

clearly erroneous. This Court has long held that it does

not grant certiorari to review evidence and discuss spe-

cific facts. United States v. Johnston, 268 U.S. 220, 227, 45 S.

Ct. 496, 497 (1925). See also, Houston Oil Co. of Texas v.

Goodrich, 245 U.S. 440, 38 S. Ct. 140 (1918); Southern Power

Co. v. North Carolina Public Service Co., 263 U.S. 508, 44 S.

Ct. 164 (1924). Where the District Court and Circuit Court

have reviewed the facts and reached the same conclusion,

the Supreme Court will find no reason to review those

facts itself. “A court of law, such as this Court is, rather

than a court for correction of errors and fact finding,

cannot undertake to review concurrent findings of fact by

two courts below in the absence of a very obvious and

exceptional showing of error.” Graver, Inc. & Manufactur-

ing Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S. Ct.

535, 538 (1949); Bereny v. District Director, Immigration and

Naturalization Service, 385 U.S. 630, 635, 87 S. Ct. 666, 670

(1967).

(Continued from previous page)

and (4) sewer lines could not be relocated without Corps of

Engineers’ approval (Petition for Writ, p. 13). However, the

Magistrate and the District Judge ruled that: (1) there was no

federal agency that had approval power over the Redevelop-

ment Project (Petitioner’s Appendix, pp. 72; 93; 94; 105; Ap-

pendix attached hereto, pp. 20; 113); (2) the abandonment of

the Side Hill Lead and the shared line agreement were not

subject to ICC approval (Petitioner’s Appendix, pp. 26; 81; 83);

(3) any changes made in the Park design were not subject to

National Park Service approval (Petitioner’s Appendix, p. 54);

and (4) the sewer lines could be relocated without the Corps of

Engineers’ approval (Petitioner’s Appendix, pp. 28-31; 85-86).

III.

NOT PROPER FOR CERTIORARI UNDER

U.S. SUPREME COURT RULE 10.

Whether a review on writ of certiorari will be

granted is controlled by U.S. Supreme Court Rule 10

which states:

-1. A review on writ of certiorari is not a mat-

ter of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only when

there are special and important reasons therefor. The

following, while neither controlling nor fully

measuring the Court’s discretion, indicate the

character of reasons that will be considered

(a) When a United States court of appeals

has rendered a decision in conflict with the

decision of another United States court of

appeals on the same matter;

(b)

peals has decided an important question of

federal law which has not been, but should be,

settled by this Court, or has decided a federal

question in a way that conflicts with applicable

decisions of this Court. [emphasis added]

1. No conflict of Circuit Court decisions

Petitioner claims that the decision of the Eighth Cir-

cuit in this case conflicts with the following decisions

from other circuit courts: Morris County Trust for Historic

Preservation v. Pierce, 714 F.2d 271 (3rd Cir. 1983); Sierra

Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988); Maryland

Conservation Council v. Gilchrist, 808 F.2d 1039 (4th Cir

1986); Foundation on Economic Trends v. Heckler, 756 F.2d

143 (D.C. Cir. 1985); Biderman v. Morton, 497 F.2d 1141

(2nd Cir. 1974); and WATCH uv. Harris, 603 F.2d 310 (2nd

Cir. 1979).

Though Petitioner never articulates why there is a

conflict between these decisions, it apparently believes

that the Eighth Circuit’s interpretation of the statutory

term “federally-assisted undertaking” as it applies to

nonfederal projects that require federal approval or li-

censing was too narrow as compared to these other Cir-

cuit decisions. Petitioner apparently believes that the

Eighth Circuit was too restrictive when determining the

extent to which federal agencies are required to consider

indirect or “off-site” impacts of their actions under the

NHPA and the NEPA.

Before analyzing these other Circuit decisions to

show why they are entirely consistent with the Eighth

Circuit’s decision in this case, it is helpful to outline the

general analysis developed by various circuit courts

when assessing off-site impacts.

The best analysis so far of the extent to which an

agency must consider off-site impacts of their actions was

rendered in Sylvester v. U.S. Army Corps of Engineers, 884

F.2d 394 (9th Cir. 1989). In that case, the court said an

agency should not draw an analogy comparing environ-

mental impacts to ripples following the casting of a stone

in a pool. To do so would suggest that the entire pool

must be considered each time a substance heavier than a

hair lands upon its surface. 884 F.2d at 400. The Sylvester

Court said that a better image is that of scattered bits of a

broken chain, some segments of which contain numerous

links, while others have only one or two. Each segment

stands alone, but each link within each segment does not.

If two separate portions of a project should be considered

two links of a single chain, then the agency should con-

sider the off-site impacts. However, if the two separate

segments are not two links of a single chain, then the

agency is not required to look to the off-site impact. 884

F.2d at 400.

The decision in this case, as well as previous Eighth

Circuit cases, is entirely consistent with the Sylvester case.

The Eighth Circuit previously ruled on the extent to

which a federal agency must consider indirect or off-site

impacts of their actions under the NHPA and NEPA. See

Winnebago Tribe of Nebraska v. Ray, 620 F.2d 269 (8th Cir.

1980) and Ringsred v. City of Duluth, 828 F.2d 1305 (8th Cir.

1987). The Winnebago and Ringsred analysis is that in

determining whether or not the NEPA or NHPA is impli-

cated, one cannot look at the effect of the entire project on

the environment, but only the effect of the federal portion

of the project. If the federal portion of the project does

not have an effect on the environment, then the Acts are

not implicated. The analysis then is what portion of the

project is “federal”. To make this determination, the

Court must study the federal agency’s statutory duties to

determine whether federal action is a legal condition

precedent to completing the project. In both cases, the

Eighth Circuit ruled that there was no federal action

required which was a legal condition precedent to any

portion of the project which affected the environment.

These cases define the extent to which the NEPA requires

compliance in a nonfederal portion of fundamentally

nonfederal projects.

Respondents do not dispute the statement of Peti-

tioner that generally nonfederal projects are considered

federal actions for NEPA and NHPA purposes if they

cannot “begin or continue without prior approval of a

federal agency” (Petition for Writ, p. 16), or that the six

purportedly “conflicting” circuit decisions stand for this

proposition. However, in each case where these courts

have stated this proposition, the respective courts recog-

nized that the NEPA or NHPA only applied where the

activity sought to be enjoined was to be accomplished

with federal funds or could not proceed forward without

a federal permit or license. This is entirely different from

the case at hand where ODF sought to demolish buildings

it owned with its own money and did not need to obtain

a federal permit to demolish such buildings.

One of the “conflicting” Circuit decisions cited by the

Petitioner, Morris County, presents an entirely different

scenario. In Morris County, HUD provided funds to the

town of Dover, New Jersey to facilitate a redevelopment

plan. Some of these funds were to be used directly for the

demolition of a historic structure. Even though the funds

had been disbursed prior to the demolition of the historic

structure, the plaintiffs claimed HUD was still involved

in the project since under the HUD loan contract, HUD

still had the authority to require alteration of the plan.

3 Respondents do object to any implication by Petitioner

that a federal court would have authority under the NEPA or

NHPA to enjoin the actions of a private party when the NEPA

and NHPA speak only to the actions of federal agencies. See

Footnote 1, page 7, supra.

The court agreed and ruled that there was federal in-

volvement in a project where the federal agency had

authority to require alteration to the plan where such

alteration would enhance the environment (NEPA) or

modify its impact on historic properties (NHPA). This is

an important distinction between the Morris County case

and the present case. In Morris County, the federal agency

could require a modification to the plan which would

preserve a historic building since the demolition of the

building was the subject of the HUD funding contract. In

the present case, even if the National Park Service for

instance could require an alteration to Douglas County’s

plan for acquisition and construction of the Park, such an

alteration would only operate within the borders of the

Park and would not reach into Jobber’s Canyon which is

entirely outside the Park.

The facts in WATCH v. Harris, 603 F.2d 310 (2nd Cir

1979) are virtually identical to the facts in Morris County.

In WATCH, HUD funds were to be used directly for the

demolition of historic structures. All of the HUD funds

had not yet been disbursed. As a result, HUD still had the

authority to require alteration of the project before dis-

bursing any more funds.

In Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988),

county officials proposed constructing a road through

federal lands. The court determined that the Bureau of

Land Management was obligated, pursuant to the Federal

Land Policy and Management Act, to insure that the

county’s construction of that road did not unnecessarily

degrade the condition of the federal property. As a result,

under the Federal Land Policy and Management Act, the

Bureau of Land Management had direct regulatory con-

trol over how the county constructed its road.

In Maryland Conservation Council, the Fourth Circuit

Court ruled that the NEPA did apply where the defen-

dant sought to construct a highway through a state park

which was originally acquired partially with federal

funds. It was very clear that the National Park Service

would have to issue a permit before the county could

construct a road through this park. Therefore, the activity

sought to be enjoined could never occur without action

on the part of a federal agency. The Maryland Conservation

Council case presents an interesting comparison to the

case at hand. For the case at hand to be analogous to

Maryland Conservation Council, it would have been neces-

sary for Jobbers Canyon, not the Douglas County Park, to

have been acquired with the National Park Service funds.

Under that fanciful scenario, ODF would have to obtain

permission from the National Park Service to demolish

buildings acquired with federal money.

In Foundation on Economic Trends ». Heckler, 756 F.2d

143 (D.C. Cir. 1985), the plaintiffs sought to enjoin an

experiment proposed by University ot California scien-

tists to release genetically engineered organisms into the

open environment. Before the scientists could release

these organisms into the open environment, they first had

to obtain approval from the National Institutes of Health.

As a result, the scientists had to obtain a permit from the

federal government to conduct this activity.

Biderman v. Morton is actually an odd case for Peti-

tioner to cite. In that case, the plaintiffs sought to enjoin

the local municipal authorities from issuing building per-

mits and zoning variances. The plaintiff’s theory in the

Biderman case revolved around Congress’ Fire Island Na-

tional Seashore Act, which authorized the appropriation

of funds to condemn beachfront properties in the area of

these municipalities in order to preserve the natural state

of these sites. The National Park Service was to carry out

these condemnations and prepared a master plan for

determining which sites to acquire. The National Park

Service itself determined that the preparation of the mas-

ter plan constituted a major federal action and therefore

undertook preparation of an environmental impact state-

ment in conjunction with the development of the master

plan. At the time the action was commenced, the National

Park Service had not yet completed the environmental

impact statement. As a result, the plaintiffs’ claimed that

the municipal authorities, which were subject to neither

the Fire Island National Seashore Act nor the NEPA,

could not issue any permits or zoning variances until the

environmental impact statement was complete.

The Circuit Court in Biderman ruled that the agency’s

authority under the Fire Island National Seashore Act did

not give that agency “go ahead” power over the zoning

and permitting decisions of the municipalities. The va-

lidity and operative effect of the !ocal zoning and permit

ordinances did not depend upon any approvals to be

granted by the federal agency pursuant to the Fire Island

National Seashore Act. As a result, the Court ruled that

the local municipalities’ acts of granting construction per-

mits and zoning variances did not trigger the NEPA, even

though such acts had an obviously detrimental effect on

the very environment which the Fire Island National

Seashore Act sought to protect. Similarly, ODF did not

need to obtain any permits from the National Park Ser-

vice, the I.C.C. or the Army Corps of Engineers to demol-

ish Jobbers Canyon.

In all of the “conflicting” decisions cited by the Peti-

tioner, it was the very act sought to be enjoined which the

federal agency had direct regulatory control over or con-

tributed funds to. There is no conflict between circuits.

All of the circuit courts which have considered this issue

have followed the same standard as the Eighth Circuit in

this case.

First Circuit. In Citizens for Responsible Area Growth v.

Adams, 680 F2d 835 (1st Cir. 1982), land leased from an

airport to build a hangar did not trigger NEPA even

though the original airport facilities were federally

funded. The trial court was led to believe that any expan-

sion of the airport was enjoinable under NEPA whether

or not there was federal involvement in that expansion.

The circuit court vacated the injunction because “NEPA

applies only to ‘federal’ actions” and “a project such as

this one, which is not itself federally funded nor signifi-

cantly bound up in a federally funded project, is not

‘federal.’ ” 680 F.2d 835, 839. Chick v. Hills, 528 F.2d 445

(Ist Cir. 1971), involved a tract of land that had been

segmented and separated from a HUD financed project.

Plaintiffs insisted that it should have been included in the

project. The district court found there was no planned

federal participation in the segmented portion of the

project. The court of appeals affirmed saying the “plain-

tiffs had the burden to show that the federal government

had plans to participate in future projects on excluded

segments of the parcel.” The court pointed out that the

question of whether a project is federal for NEPA pur-

poses is one of fact and the district court’s findings can

only be set aside if they are clearly erroneous. 528 F.2d

448.

Third Circuit. In N.A.A.C.P. v. Medical Center, Inc., 584

F.2d 618 (3d Cir. 1978), the existence of required minis-

terial approval by the Secretary of H.E.W. of capital ex-

penditures by a private hospital did not trigger NEPA.

The Secretary’s Section 1122 approval action was not

“major” because “(1) the agency only had ministerial

responsibilities relating to the relocation plan, (2) the

agency gave no direct financial aid to the project, and (3)

the overall federal involvement in the project was not

sufficient to turn essentially private action into federal

action.”

Fifth Circuit. In Save Our Wetlands, Inc. v. Sands, 711

F.2d 634 (5th Cir. 1983), plaintiffs filed suit to enjoin

construction of a 25-mile electric transmission line along

the west bank of the Mississippi River. The federal agen-

cy involved decided not to develop an impact statement.

The trial court denied the injunction and the court of

appeals affirmed. The court noted: “the record in this case

does not show that this permitting process is sufficient to

‘federalize’ this action thus requiring an environmental

impact statement...” A private act does not become a

federal act, albeit a major one, merely because of some

incidental federal involvement. 711 F.2d at 644, note 9. See

also Vieux Carre Property Owners, Residents & Associates,

inc. v. Brown, 875 F.2d 453 (5th Cir. 1989) and Save the Bay,

Inc. v. United States Corps of Engineers, 610 F.2d 322, cert.

denied, 449 U.S. 900, 101 S.Ct. 269 (5th Cir. 1980).

Sixth Circuit. The court of appeals approved an I.C.C.

authorization for merger of a railroad and a barge line.

With respect to the environmental impact, the court said:

“we do not believe that, in assessing the environmental

impact of the merger, the Commission was obligated to

assess the impact of contemplated projects which the

Commission has no power to approve, which are not an

inherent component of the proposed merger, and which

will be subject to environmental review should they ever

reach the actual proposal stage.” Crounse Corp. v. I.C.C.,

781 F.2d 1176 (6th Cir. 1986).

Seventh Circuit. In Edwards v. First Bank of Dundee, 534

F.2d 1242 (7th Cir. 1976), the court concluded that a

private entity could demolish a historic building it owned

even though the Comptroller of Currency must approve

an application by the private party to move its bank to

the site of the demolished building. The court pointed

out: “the Bank’s project of demolishing the privately

owned structure for clearance of the property to facilitate

the construction of a new building is a private act over

which the Comptroller has no authority, either expressed

or implied...” 534 F.2d 1246.

Eighth Circuit. In Ringsred v. City of Duluth, 828 F.2d

1305 (8th Cir. 1987), a citizen sought to enjoin construc-

tion of a parking ramp next to gambling facility operated

by the Indian Commission. The injunction was denied

because the Secretary of Interior’s actions in approving a

contract between the Indians and the City concerning the

parking ramp to be constructed next to bingo facility was

too incidental to the parking ramp project to constitute

major federal action requiring environmental assessment.

The court pointed out that no federal action was a legal

condition precedent to construction of the parking lot.

The court also relied on the following three factor test: (1)

the degree of discretion exercised by the agency over the

federal portion of the project; (2) whether the federal

government has given any direct financial aid to the

project; and (3) whether “the overall federal involvement

with the project is sufficient to turn essentially private

action into federal action.” 828 F.2d at 1308. In Winnebago

Tribe of Nebraska v. Ray, 620 F.2d 269, cert. denied, 449 U.S.

836, 101 S. Ct. 110 (8th Cir. 1980) and ‘Missouri Coalition

For The Environment v. Corps of Engineers, 866 F.2d 1025

(8th Cir. 1989), the Eighth Circuit Court of Appeals ap-

plied the same standard.

Ninth Circuit. In Sylvester v. U.S. Army Corps of Engi-

neers, 884 F.2d 394 (9th Cir. 1989), the court reviewed

recently adopted Corps of Engineers regulations relating

to the segmentation of projects and concluded the broken

chain rule applies. Each segment stands alone, but each

link within a segment does not. The court ruled that a

golf course and a resort were unconnected segments, not

connected links within a segment. 884 F.2d 400.

Tenth Circuit. Sierra Club v. Hodel, 848 F.2d 1068 (10th

Cir. 1988), expresses the rule, in this manner: “The touch-

stone of major federal action, .. . is an agency’s authority

to influence significant nonfederal activity.” This influ-

ence must be more than the power to give nonbinding

advice to the nonfederal action.

D.C. Circuit. A permit to discharge waste requirement

does not give the agency authority to regulate construc-

tion of the building from which the discharge will ulti-

mately come. Natural Resources Defense Council, Inc. v.

U.S. Environmental Protection Agency, 822 F.2d 104 (D.C.

Cir. 1987). The court said: “NEPA, as a procedural device,

does not work a broadening of the agency’s substantive

powers . . . whatever action the agency chooses to take

must, of course, be within its province in the first in-

stance. In the circumstances at hand, the ‘major federal

action’ which is subject to environmental review is the

issuance of a permit to discharge pollutants; it is not the

authorization of construction.” 822 F.2d 129.

The circuits are unanimously agreed that the agency

must have authority over some aspect of the federal

portion of the project which would directly impact the

nonfederal portion. In the case at hand, development of

the park, relocating the railroad, and altering the sewers

are not only not subject to any federal agency control,

they have no bearing, immediate or remote, on ODF’s

demolition of the warehouses in Jobbers Canyon — which,

in fact, has already occurred.

2. No conflict with applicable decisions of this

Court.

Petitioner claims that certiorari should be granted

pursuant to U.S. Supreme Court Rule 10.1(c) since the

decision of the Eighth Circuit in this case conflicts with

this Court’s decisions in Robertson v. Methow Valley Citi-

zens Council, 109 S. Ct. 1835 (1989) and Marsh v. Oregon

Natural Resources Council, 109 S. Ct. 1851 (1989). Petitioner

claims that this Court recently acknowledged the duty to

consider off-site impacts and that the Eighth Circuit dis-

regarded this doctrine. However, this case does not even

share any issues with the Robertson and Marsh cases. The

case for which certiorari is now sought by Petitioner dealt

with whether or not federal agencies are required to

consider indirect or off-site impacts of the activities of a

private developer when determining whether or not

NEPA was applicable to the project. In the Robertson case,

there was no issue as to whether or not the NEPA ap-

plied. The federal defendant in that case, the Forest Ser-

vice, made its own determination that the permit it issued

was a major federal action and that NEPA did apply. The

issues in Robertson dealt with what had to be contained in

the environmental impact statement after it was deter-

mined that the NEPA applied.

Therefore, there is no relationship at all between this

case and the Robertson case, and the ruling in this case

certainly does not conflict with the Robertson case.

Respondents cannot determine for what purpose Pe-

titioner has cited the Marsh case, which only involved the

activities of a federal agency (no private developer was

involved) which made its own decision that the NEPA

was implicated by its activities. There was no discussion

of the off-site impact at all in the Marsh case. As a result,

it is hard to imagine how the Eighth Circuit’s decision in

this case is at odds with the Marsh case.

3. No important question of federal law which has

not been, but should be, settled by this Court.

Given the fact that there is no conflict concerning this

issue between the various circuit courts or with this

Court, there is no question of federal law, much less

important question, which has not been, but should be,

settled by this Court.

4. No special or important reasons for granting

writ of certiorari.

U.S. Supreme Court Rule 10.1 first and foremost re-

quires that before review on writ of certiorari will be

granted there must exist special and important reasons

therefor. Generally, the importance arises out of issues

affecting the public in general as distinguished from im-

portance to the particular parties involved. See for in-

stance, Layne & Bowler Corporation v. Western Well Works,

Inc., 261 U.S. 387, 393, 43 S. Ct. 422, 423 (1923) where this

Court originally granted certiorari then dismissed the

same despite the fact that there was a conflict in the

decisions of the 5th and 9th Circuit Courts. This Court

stated that it was very important that it be consistent in

not granting a writ of certiorari except in cases involving

principles, the settlement of which is important to the

public, as distinguished from that of the parties, and in

cases where there is a real and embarrassing conflict of

opinion and authority between the circuit courts. See also,

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70,

79, 75 S. Ct. 614, 619-620 (1955).

Further, though an issue may be important in the

sense that it is interesting, this Court has ruled that

importance implies a reach to a problem beyond the

academic or the episodic. Rice, 349 U.S. at 74, 75 S. Ct. at

616.

In its ruling in this case, the Eighth Circuit stated that

none of the Appellants’ arguments persuaded the Eighth

—s

Circuit that any of the federal defendants had the degree

of de jure or de facto control over Jobbers Canyon neces-

sary to trigger consultation procedures and environmen-

tal review under the NEPA or NHPA. Nonetheless,

Petitioner claims the involvement of the federal defen-

dants was sufficient to invoke the requirements of the

NEPA and NHPA. As a result, Petitioner is simply claim-

ing that the district court and circuit court considered the

factual evidence incorrectly. However, this Court has pre-

viously stated that it does not grant certiorari to review

evidence and discuss specific facts. United States v. John-

ston, 268 U.S. 220, 227, 45 S. Ct. 496, 497 (1925). See also,

Houston Oil Co. of Texas v. Goodrich, 245 U.S. 440, 38 S. Ct.

140 (1918); Southern Power Co. v. North Carolina Public

Service Co., 263 U.S. 508, 44 S. Ct. 164 (1924).

Where the district court and circuit court have re-

viewed the facts and reached the same conclusion, this

Court ordinarily will find no reason to review those facts

itself. “A court of law, such as this Court is, rather than a

court for correction of errors and fact finding, cannot

undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and excep-

tional showing of error.” Graver, Inc. & Manufacturing Co.

v. Linde Air Products Co., 336 U.S. 271, 275, 69 S. Ct. 535,

538 (1949); Bereny v. District Director, Immigration and Nat-

uralization Service, 385 U.S. 630, 635, 87 S. Ct. 666, 670

(1967).

CONCLUSION

The trial Court clearly acted properly as did the

Eighth Circuit Court and their decisions should not be

disturbed. Petitioner failed to establish any state of facts

indicating that the demolition of Jobbers Canyon required

or involved any federal funding, approvals, permits or

licenses which might establish that the demolition of

Jobbers Canyon was a federally assisted undertaking or

major federal action.

Respectfully submitted,

NONFEDERAL RESPONDENTS,

CONAGRA, INC., CITY

OF OMAHA, DOUGLAS

COUNTY AND OMAHA

DEVELOPMENT FOUNDATION

By Joun E. NortH

Rosert G. DaltLey

McGratH, NortH, MuLtin

& Kratz, P.C.

One Central Park Plaza

222 South Fifteenth Street

Omaha, Nebraska 68102

(402) 341-3070

Attorneys for ConAgra, Inc.

and

By Mitton R. AsRatiams

FRANK F. PospisHit

ABRAHAMS, Kastow & CAssMAN

8712 West Dodge Road

Suite 300

Omaha, Nebraska 68114

Attorneys For Omaha Development

Foundation

and

By Cnarves K. BUNGER

Assistant City Attorney

Suite 804

Omaha/Douglas Civic Center

Omaha, Nebraska 68183

Attorney For City Of Omaha

and

By Micnaet W. Ampor

Henry L. WeNptT

Deputy Douglas County

Attorney

Suite 909

Omaha/Douglas Civic Center

Omaha, Nebraska 68183

Attorneys For Douglas County

APPENDIX

Description

Order and Memorandum and

Order Denying Motion For Tem-

porary Restraining Order and

Preliminary Injunction

Magistrate’s Findings & Recom-

mendations

District Court’s Memorandum

on Plaintiffs’ and Intervenor’s

Objections to the Magistrate’s

Findings of Law and Fact and

Their Motion to Reject Part of

the Magistrate’s Recommenda-

tions

Omaha Development Founda-

tion’s Motion and Memoran-

dum to Dissolve the Injunction

Dated March 1, 1989, or to Re-

quire the Plaintiffs and Inter-

venor to Post a Sufficient Surety

Bond

Date

4/13/88

1/20/89

2/14/89

3/28/89

App. 1

App. 17

App. 115

App. 133

App. 1

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

PEOPLE FOR RESPONSIBLE ) CV88-0-247

OMAHA URBAN

DEVELOPMENT, et al., ) ORDER ON

visitas. ) MOTIONS FOR

) TEMPORARY

vs. ) RESTRAINING

INTERSTATE COMMERCE ) ORDER AND

COMMISSION et al. ) PRELIMINARY

: ) INJUNCTION

Defendants. )

) (Filed

) Apr. 13, 1988)

In accordance with the memorandum of today,

IT IS ORDERED that the plaintiffs’ motion for tempo-

rary restraining order and preliminary injunction, filing

6, are denied.

Dated April 13, 1988.

BY THE COURT

/s/ Warren K. Urbom

United States District Judge

App. 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

PEOPLE FOR RESPONSIBLE

OMAHA URBAN

DEVELOPMENT, et al.,

Plaintiffs,

CV88-0-247

)

) MEMORANDUM

) AND ORDER

) ON MOTIONS

os. ) FOR TEMPORARY

INTERSTATE COMMERCE RESTRAINING

COMMISSION et al., .

)

Defendants.

ORDER AND

PRELIMINARY

INJUNCTION

(Filed

April 13, 1988)

EVIDENCE

At the hearing on these motions on April 12, 1988,

eighty-four documents were submitted on behalf of the

plaintiffs and seven on behalf of the defendants. | de-

clined to rule on receipt of the exhibits because of the

press of time, but reserved ruling. I now make the evi-

dentiary rulings, although the parties must understand

that i have studied, at least to the extent that appeared to

be necessary for a proper ruling on the motions, all the

documents presented. The formal rulings are as follows:

1. these exhibits are received in evidence and

the objections overruled: plaintiffs’ Exhibits

8, 12, 14, 16, 17, 18, 19, 21, 27, 82, 83, and 84;

and defendants’ Exhibits 101, 102, 103, 104,

105, 106, and 107:

objections on grounds of foundation, reie-

vancy and hearsay are sustained as to the

remaining documents.

App. 3

I note only briefly that the plaintiffs are correct in

suggesting that there should be a looser standard at a

hearing on preliminary motions than at the trial, but the

standard cannot be so loose that weight is given to docu-

ments neither athenticated [sic], nor shown to have any

effect on anything done or planned to be done, nor to be

the product of someone having personal knowledge of

‘he contents. Such is the nature of many of the documents

Otiered by the plaintiffs. For example, the only support

offered for Exhibits 31 through 54 is the affidavit of Mark

Himes, Exhibit 82, which says:

“These Exhibits came from three sources. One

was an examination and copying by Ed Fogarty

of the file of Oliver Wolf, Federal Benefits Coor-

dinator at the State Park and Game Commission

in Lincoln, Nebraska in about mid-March 1988.

Other documents came during informal discov-

ery by Ed Fogarty with County Property Direc-

tor Hogan in the presence of Deputy County

Attorney Henry Wendt on 4/6/88. The other

documents in this group came from an examina-

tion and copying of documents by Edward F.

Fogarty at the National Park Service office at

Braiker-Brandeis Building, Omaha, Nebraska,

on or about 4/6/88.”

That gives absolutely no ground for any weight to be

given tc such documents. It provides neither authenticity

nor a likelihood of personal knowledge of facts stated.

The one case drawn to my attention by the plaintiffs’

counsel is Asseo v. Pan American Grain Co., Inc., 805 F.2d

23 (Ist Cir. 1986). It says that a trial court committed no

error in receiving as evidence for purposes of a prelimi-

nary injunction transcripts from a hearing before an ad-

ministrative law judge, which were claimed on appeal to

App. 4

have been hearsay but which may not have been objected

to on the grounds of hearsay at the time of the hearing

before the district court. The court said:

“Affidavits and other hearsay materials are of-

ten received on preliminary injunction proceed-

ings. The dispositive question is not their

classification as hearsay but whether, weighing

all the attendant factors, including the need for

expedition, this type of evidence was appropri-

ate given the character and objectives of the

injunctive proceedings... .”

The plaintiffs also call my attention to the Notes of the

Advisory Committee on Rules to the 1966 amendment of

Rule 65(a)(2) which says:

“Subdivision(a)(2) — This new subdivision pro-

vides express authority for consolidating the

hearing of an application for preliminary injunc-

tion with a trial on the merits. The authority can

be exercised with particular profit when it ap-

pears that a substantial part of the evidence

offered on the application will be relevant to the

merits and will be presented in such form as to

qualify for admission on the trial proper.”

This has to do with consolidation of the hearing on the

preliminary injunction with the trial on the merits. There

is no indication that any of the parties wanted a consol-

idation and the subject has not been discussed with the

court. Suffice it to say, however, that in my judgment

there is not a likelihood that can be based on anything

other than pure speculation that most of the excluded

exhibits would be presented at a trial in a form that

would make those documents admissible. It is conceiv-

able, of course, that information in some of the docu-

ments could be presented by live witnesses, but the

App. 5

documents themselves would for the most part be inad-

missible. In any event, a consideration of the substance of

all those documents would not change the outcome of my

ultimate ruling on the motion now before me.

I have exercised some liberality in putting into evi-

dence some of the matters offered. For example, the de-

position of Richard Niedergeses, Exhibit 84, is in

evidence, although it has not been signed by the depo-

nent, the reading and signing of the deposition have not

been waived by anyone, and there was no stipulation

waving any of those requirements. The affidavit of Mark

Himes, Exhibit 82, also is in evidence although lacking

any declaration that he has personal knowledge of the

source of the documents mentioned and saying nothing

that tends to establish any feature of the admissibility of

the documents.

Il. BACKGROUND

This action was prompted by development plans af-

fecting the Jobbers Canyon Historic District, a six and

one-quarter block warehouse district in downtown

Omaha that is included in the National Register of His-

toric Places. On February 2, 1988, the City Council of

Omaha adopted a “Riverfront Redevelopment Plan” ap-

proving a redevelopment project that includes Jobbers

Canyon. On March 15, 1988, the Omaha City Council

approved a redevelopment agreement between the City

of Omaha, the Omaha Development Foundation (ODF),

ConAgra, Inc., Douglas County, and the Peter Kiewit

Foundation. Completion of the redevelopment project

App. 6

will require demolition of the buildings in Jobbers Can-

yon. The plaintiffs allege that ‘his demolition “will

represent the largest single destruction of historic register

properties in the twenty years that the National Trust for

Historic Preservation has been [mlJonitoring these mat-

ters.” Complaint ¥ 21.

The area included in the $275 million redevelopment

project is bounded by Tenth Street on the west, the Mis-

souri River on the east, Farnam Street and Interstate 480

on the north, and Leavenworth Street on the south. Job-

bers Canyon lies within the redevelopment project area

between Tenth and Eighth Streets on the west and east,

and Farnam and Jackson Streets on the north and south.

The plaintiffs include People for Responsible Omaha

Urban Development (PROUD), a not-for-profit corpora-

tion dedicated to historic preservation, Mercer Manage-

ment Company (Mercer), the “main developer” of the

Old Market Historical District adjacent to Jobbers Can-

yon, and Roger Durand, who resides in the Old Market.

The defendants include parties to the redevelopment

agreement (the City of Omaha, Douglas County, ODF,

and ConAgra), the mayor of Omaha (Bernie Simon), and

several federal agencies (Interstate Commerce Commis-

sion, National Park Service, Army Corps of Engineers,

Federal Aviation Agency) and their heads.

The plaintiffs allege that the defendants are violating

the National Environmental Policy Act (NEPA) and the

National Historic Preservation Act (NHPA) by proceed-

ing with the redevelopment project without following the

review procedures in those acts. They seek to enjoin the

imminent demolition of buildings in Jobbers Canyon

App. 7

pending a ruling on the merits of the case. The de! en-

dants contend that the plaintiffs lack standing to bring

this action. Responding to the merits of the plaintiffs’

legal argument, the defendants argue that the redevelop-

ment project does not require the federal involvement

necessary to trigger the review requirements of either

NEPA or the NHPA.

I]. STANDING

The power of this court to decide this matter is

granted by Article III of the constitution. To ensure that

federal courts assume jurisdiction only over Article III

“cases and controversies,” Supreme Court decisions have

instructed that

at an irreducible minimum, Art. III requires the

party who invokes the court’s. authority to

“show that he personally has suffered some ac-

tual or threatened injury as a result of the put-

atively illegal conduct of the defendant,”

. and that the injury “fairly can be traced to

the challenged action” and “is likely to be re-

dressed by a favorable decision. . . .”

Valley Forge Christian College v. Americans United for Sep-

aration of Church and State, Inc., 454 U.S. 464, 472 (1982)

(citations omitted).

A. PROUD

PROUD’s primary purpose is “advocat[ing] preserva-

tion of sites, buildings and objects of cultural and historic

significance as part of responsible urban planning for the

City of Omaha and to conduct public education programs

through lectures, tours and publications.” Complaint J 1.

App. 8

Of its “approximately 200 members, some. . . own prop-

erty in the Old Market historic district, and some

. reside in the Old Market and the Jobbers Canyon

Historic Districts, and all... derive benefit from Jobbers

Canyons’ significance as a cultural and historic land-

mark.” Id. PROUD alleges that it will suffer “injury in

fact” from the defendants’ noncompliance with NEPA

and the NHPA. Id.

PROUD’s allegations do not establish that it has

standing to assert its own interests in this case. It has not

shown how the challenged actions will injure its ability to

pursue its objectives. See Sierra Club v. Morton, 405 U.S.

727, 735, 735 n.8 (1972) (requiring that association allege

that “it or its members would be affected” in “their

activities or pastimes by the. . . development”; an asso-

ciation must have more than an interest in a problem).

Nevertheless, “[e]ven in the absence of injury to itself, an

association may have standing solely as the representa-

tive of its members.” Warth v. Seldin, 422 U.S. 490, 511

(1975).

“{A]n association has standing to bring suit on

behalf of its members when: (a) its members

would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are

germane to the organization’s purpose; and (c)

neither the claim asserted nor the relief request

requires the participation of individual mem-

bers in the lawsuit.”

International Union, United Automobile, Aerospace and Agri-

cultural Implement Workers of America v. Brock, 54 U.S.L.W.

4764, 4766 (U.S. June 25, 1986), quoting and reaffirming

Hunt v. Washington Apple Advertising Comm'n, 432 U.S.

553, S43 (VST 7}.

App. 9

The second two elements of the three-part Hunt test

easily are satisfied in the present case. Concerning the

first element, the complaint alleges that some members

own land immediately adjacent to Jobbers Canyon and

that some live in Jobbers Canyon or immediately adja-

cent. Yet, while the complaint contains generalized alle-

gations of harm to PROUD, it says nothing about the

injury to its members. CF. Weintraub v. Rural Electrification

Administration, 457 F. Supp. 78, 88 (M.D.Pa. 1978) (asso-

ciation has standing under NHPA because it alleged that

“the aesthetic and cultural well-being of the area in

which” its members resided “will be damaged”). PROUD,

therefore, lacks standing both in its individual and repre-

sentative capacities.

B. Durand

Roger Durand alleges that he resides “in the Old

Market Historic District which is immediately adjacent

to... Jobbers Canyon,” and that his “use and enjoyment

of the Jobbers Canyon National Historic District will be

adversely affected by the actions of the Defendants. . . .”

Complaint 7 3. His other allegations add nothing material

for purposes of analyzing standing. He fails to show a

relevant interest and how it might be injured by the

defendants’ alleged statutory noncompliance.

C. Mercer

Mercer Management Company alleges that it “owns

property within the Old Market Historic District, located

immediately adjacent to . . . Jobbers Canyon,” and is the

App. 10

“main developer of Omaha’s ‘Old Market’. . . .” Com-

plaint J 2. It alleges that it will suffer injury from non-

compliance with NEPA and the NHPA, and that the “the

destruction of Jobber[s] Canyon will change adversely

the ambience of the Old Market.” I/d.

The defendants argue that the only injury alleged by

Mercer is economic, not aesthetic or environmental, and

that allegations only of economic injury do not bring it

within the “zone of interests” protected by NEPA and the

NHPA. There are at least two problems with the defen-

dants’ attack. First, their arguments are based solely on

unfavorable inferences from the complaint. Mercer does

not allege economic injury, and there is no basis for

concluding that it is motivated solely by pecuniary inter-

ests. See Monarch Chemical Works, Inc. v. Exon, 452 F. Supp.

493, 499 (D. Neb. 1978), aff’d sub nom. Monarch Chemical

Works, Inc. v. Thone, 604 F.2d 1083 (8th Cir. 1979).

Second, even assuming that Mercer’s concerns large-

ly are economic does not take it outside the zone of

interests of the NEPA and the NHPA. The zone of inter-

ests requirement is a prudential principle, not an Article

III limit on federal court jurisdiction. Valley Forge, 454

U.S. at 475. The Supreme Court recently explained that,

although sometimes generally listed as a prudential con-

sideration, zone of interests analysis primarily is applied

in cases involving claims under the Administrative Pro-

cedure Act, and that “the test is most usefully understood

as a gloss on the meaning of § 702.” Clarke v. Securities

Industry Ass'n, 55 U.S.L.W. 4111, 4114 n.16 (U.S. Jan. 14,

1987).

App. 11

The cases cited by the defendants for the proposition

that Mercer is not within the zone of interests of NEPA

are distinguishable on their facts. See Robinson v. Knebel,

550 F2d 422 (8th Cir. 1977); Churchill Truck Lines, Inc. v.

United States, 533 F.2d 411 (8th Cir. 1976); Monarch, 452 F.

Supp. 493. Similarly, I do not read Weintraub, 457 F. Supp.

78, to support the defendants’ contention that Mercer is

outside the zone of interests to be protected by the

NHPA. Thus, Mercer’s allegations are barely sufficient to

establish that its interest in the ambiance of the Old

Market will be injured by the defendants’ failure to seek

review of its plans for Jobbers Canyon, and that that

injury is within the zone of interests protected by NEPA

and the NHPA.

Ill. WHETHER AN INJUNCTION SHOULD ISSUE

It is the plaintiff’s burden to show that it is entitled to

have demolition of the buildings in Jobber’s Canyon en-

joined.

Whether a preliminary injunction should issue

involves consideration of (1) the threat of irrepa-

rable harm to the movant; (2) the state of the

balance between this harm and the injury that

granting the injunction will inflict on other par-

ties litigant; (3) the probability that movant will

succeed on the merits; and (4) the public inter-

est.

Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109,

113 (8th Cir. 1981).

App. 12

A. Harm to the Litigants

“[T}he act of demolition is irrevocable.” Boston Water-

front Residence Ass'n v. Romney, 343 F. Supp. 89, 91

(D.Mass. 1972). The plaintiff stresses that, unless en-

joined, ODF immediately will begin demolition of Jobbers

Canyon, resulting in the irretrievable loss of a “historic

and cultural resource,” Plaintiffs’ brief at 19, affecting the

“ambience” of the area.

Balanced against the interests asserted by the plain-

tiff are the defendants’ interests. Delay of the redevelop-

ment project may result in its abandonment. Exhibit 107.

ODF estimates that if the redevelopment plan is not im-

plemented, it will incur a loss of at least $10 million.

Exhibit 106. ConAgra estimates that delays will cost it

approximately $8.5 million per year in product research

and development revenues, $4.178 million in aggregate

annual duplicate rentals, and probable loss of key person-

nel. Exhibit 107. The litigants on both sides assert signifi-

cant interests.

B. The Public Interest

Similarly, the public interests advanced by both the

plaintiff and the defendants are important. The plaintiff

seeks to protect Jobbers Canyon “so that its vital legacy of

cultural, educational, aesthetic, inspirational, economic,

and energy benefits will be maintained and enriched for

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

Although omitted from the plaintiffs’ assertions, the

court takes notice of the strong national policy, embodied

in NEPA, of environmental protection.

App. 13

The defendants argue that this case illustrates the

public interest in guarding the proper working of federal-

ism so that local authorities may choose to pursue proj-

ects without federal involvement. They argue that the

City of Omaha has sought for nearly two decades to

develop the “blighted and undeveloped” area included in

the redevelopment plan, and that it is in the interest of

the city and its inhabitants that the plan not be aban-

doned. Defendants’ brief at 40. Both the plaintiff and the

defendants assert weighty public interests.

C. Probability of Success on the Merits

The National Environmental Policy Act requires that

an environment impact statement be prepared for “major

Federal actions significantly affecting the quality of the

human environment... .” 42 U.S.C.A. § 4332(2)(C). “Ma-

jor Federal action,” as used in NEPA,

includes actions with effects that may be major

and which are potentially subject to Federal con-

trol and responsibility. Major reinforces but does

not have a meaning independent of significantly

(§ 1508.27 [defining “significantly” as it applies

to impact]). Actions include the circumstances

where the responsible officials fail to act and

that failure to act is reviewable by courts or

administrative tribunals under the Administra-

tive Procedure Act or other applicable law as

agency action.

(a) Actions include new and continuing

activities, including projects and programs en-

tirely or partly financed, assisted, conducted,

regulated, or approved by federal agencies; new

NS ee

App. 14

or revised agency rules, regulations, plans, poli-

cies, or procedures; and legislative pro-

posals....

(b) Federal actions tend to fail within one

of the following categories:

* + +

(4) Approval of specific projects, such as

construction or management activities located in

a defined geographic area. Projects include ac-

tions approved by permit or other regulatory

decision as well as federal and federally assisted

activities.

40 C.RR. § 1508.18 (1987).

There is absolutely no evidence in this case of any

“major Federal actions” involved in the redevelopment

plan, and all of the evidence on this point affirms that no

federal involvement is contemplated. Exhibits 102-107.

The defendants, therefore, have no NEPA obligations in

connection with the redevelopment plan. See Citizens for

Responsible Area Growth v. Adams, 680 F.2d 835 (1st Cir.

1982); Ely v. Velde, 497 F.2d 252 (4th Cir. 1974); Biderman v.

Morton, 497 F.2d 1141 (2d Cir. 1974); Bradford Township v.

Illinois State Toll Highway Authority, 463 F.2d 537 (7th Cir.),

cert. denied, 409 U.S. 1047 (1972); cf. Proetta v. Dent, 484

F.2d 1146 (2d Cir. 1973). The plaintiff's arguments of

speculative future federal involvement does not trigger

the review requirements of NEPA for this redevelopment

project. See, e.g., City of Oak Creek v. Milwaukee Metro-

politan Sewerage Dist., 576 F. Supp. 482 (E.D.Wis. 1983);

O’Brien v. Brinegar, 379 F. Supp. 289 (D.Minn. 1974).

There is, therefore, no likelihood of success on the

merits of the NEPA claim.

App. 15

The National Historic Preservation Act requires that

The head of any Federal agency having direct or

indirect jurisdiction over a proposed Federal or

federally assisted undertaking in any State and

the head of any Federal department or indepen-

dent agency having authority to license any un-

dertaking shall, prior to the approval of the

expenditure of any Federal funds on the under-

taking 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

[and] .. . shall afford the Advisory Council on

Historic Preservation . . . a reasonable oppor-

tunity to comment with regard to such under-

taking.

16 U.S.C.A. § 470. For purposes of the NHPA,

“Undertaking” means any project, activity, or

program that can result in changes in the char-

acter or use of historic properties, if any such

historic properties are located in the area of

potential effects. The project, activity, or pro-

gram must be under the direct or indirect juris-

diction of a Federal agency or licensed or

assisted by a Federal agency. Undertakings in-

clude new and continuing projects, activities, or

programs and any of their elements not previ-

ously considered under section 106.

36 C.F.R. § 800.2(0)(1987).

There is no evidence that the redevelopment project

will utilize federal funds or require federa! licenses or

permits. The evidence on this point is to the effect that

the defendants intentionally designed the plan to exclude

federal involvement and that none is necessary. Exhibits

102-107. The plaintiffs efforts to argue possible and past

App. 16

federal connections either are too speculative or removed.

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

1976); Weintraub, 457 F. Supp. 78 (M.D.Pa. 1978).

As with the NEPA claim, there is no likelihood of

success on the merii» 9 the plaintiff's NHPA claim. Al-

though asserting significant harm to itself and to the

public interest, the plaintiff has not shown any proba-

bility of success on the merits, thus failing to meet its

burden of proving that it is entitled to the extraordinary

relief sought.

Dated April 13, 1988.

BY THE COURT

/s/ Warren K. Urbom

United States District Judge

App. 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

PEOPLE FOR RESPONSIBLE ) CV88-0-247

OMAHA URBAN

DEVELOPMENT, (PROUD),

et al.,

Plaintiffs, FINDINGS AND

NATIONAL TRUST FOR RECOMMENDATIONS

HISTORIC PRESERVATION

IN THE UNITED STATES, (Filed

Intervenor, Jan. 20, 1989)

VS.

INTERSTATE COMMERCE

COMMISSION et al.,

Defendants.

Presented to me in my capacity as a magistrate and a

court-appointed master (filing 108) for determination at

trial commencing on December 5, 1988 and concluding on

December 8, 1988 were the last three issues necessary for

the final resolution of this case. The three questions were

framed in a supplemental progression order (filing 275)

and in the pretrial order (filing 429). No party appealed

from the progression order issued in August of 1988,

which first framed these issues:

1. whether the plaintiffs and the intervenor have

standing and capacity to sue in this case,

2. whether all indispensable, proper or necessary

parties have been joined in this case such that the court

can provide adequate relief, and

App. 18

3. whether title to the Central Park East is defec-

tive, thereby causing a conversion under the Land and

Water Conservation Fund Act resulting in some basis by

which the court may generally take remedial measures as

to Jobbers Canyon or the Redevelopment Project. (Filing

429).

Also for resolution by me are the dispositive motions

held in abeyance pursuant to my previous findings and

recommendations (filing 261, part VII) submitted on July

28, 1988 (which findings and recommendations resolved

all other issues except those set for trial in December or

otherwise explicitly held in abeyance), and the disposi-

tive motions asserted in connection with the December 5,

1988 trial, with respect to which I took under advisement

All evidence previously received regarding the issues

described in the previous findings and recommendations

(filing 261) was considered by me, pursuant to the pre-

trial order (filing 429), regarding the three issues tried in

December of 1988. Posttrial briefs have been received,

and oral argument has been heard. These findings and

recommendations are considered by me to constitute

findings of fact and conclusions of law interchangeably,

and are not intended to modify, alter or amend the prior

findings and recommendations (filing 261) except to the

extent explicitly stated, if at all, in these findings and

recommendations.

People for Responsible Urban Development

(“PROUD”), Mercer Management Company (“Mercer”),

App. 19

and Roger Durand, collectively referred to as the plain-

tiffs, filed this case on March 25, 1988. (Filings 1, 30 and

325). The plaintiffs wanted to stop the demolition of a

part of downtown Omaha, Nebraska referred to as “Job-

bers Canyon.” Jobbers Canyon consists of about six and

one-quarter square blocks and includes a number of

large-scale, primarily early twentieth-century, ware-

houses having historic significance. Jobbers Canyon is

listed on the National Register of Historic Places (“Na-

tional Register”), 16 U.S.C. § 470a, by nomination of the

City of Omaha, Nebraska on December 4, 1986. (Exhibits

284, 285 and 286).

The plaintiffs sued various federal defendants, in-

cluding the Interstate Commerce Commission (“ICC”),

the National Park Service (“Park Service”), and the Army

Corps of Engineers (“Corps”), collectively referred to as

the federal defendants. The plaintiffs also sued the City

of Omaha (“City”), the County of Douglas, Nebraska

(“County”), the Omaha Development Foundation

(“ODF”), and ConAgra, Inc., collectively referred to as

the nonfederal defendants. On April 13, 1988, Judge Ur-

bom denied the plaintiffs’ request for a temporary re-

straining order and preliminary injunction. (Filing 25).

On April 28, 1988, the National Trust for Historic

Preservation in the United States (“Trust”) requested

leave to intervene (filing 32), asserting a position similar

to that of the plaintiffs (Intervenor’s Complaint, filing 32,

attachment; filing 326). This request was granted on May

20, 1988. (Filing 98). The Trust should not be confused

with the Advisory Council on Historic Preservation (“Ad-

visory Council”); the Trust is a corporation created by

Congress, while the Advisory Council is an independent

App. 20

agency of the United States. Compare 16 U.S.C. § 468 with

id. § 470i. The Advisory Council did not attempt to be-

come a party to this litigation.

About the time that Judge Urbom denied the motion

for a temporary restraining order and preliminary injunc-

tion, demolition of Jobbers Canyon began. The land and

buildings comprising Jobbers Canyon are under the con-

trol of or are owned by the ODF (Exhibit 202; Vol. I, TR

91:8-92:9), a private nonprofit corporation (Vol. I, TR

84:9-18). The demotion of Jobbers Canyon is a part of the

implementation of a significant effort by the nonfederal

defendants to revitalized downtown Omaha by, among

other things, constructing a corporate office “campus” to

be used by ConAgra, and developing the presently unde-

veloped, but dedicated, county-owned park known as

“Central Park East.” This proposed revitalization is gen-

erally described in the so-called Riverfront Redevelop-

ment Plan” (“Redevelopment Plan”), (Exhibit 201), and

exhaustively detailed in the “Redevelopment Agree-

ment,” (Exhibit 202). The Redevelopment Agreement was

signed by all nonfederal defendants and became effective

about May 3, 1988. The Agreement was not signed by the

federal defendants. (Exhibit 202).

From a plain reading of the Redevelopment Agree-

ment, and from listening to all the testimony and reading

all relevant exhibits, the redevelopment project does not

intentionally or explicitly: (a) call for the use of federal

financial aid to implement the redevelopment, except to

the extent that the use of Central Park East could be

App. 21

characterized as using federal funds expended prior to

the redevelopment project; or (b) call for the issuance of

any federal licenses, permits, or approvals, except to the

extent that federal licenses, permits or approvals, if sub-

sequently required, are required as an unintended and

incidental consequence of some part of the redevelop-

ment. As stated by the nonfederal defendants in their

brief, “the parties to the Riverfront Redevelopment

Agreement have desired from the outset to design and

implement a project totally local in character and absent

federal assistance or involvement.” Trial Brief of Non-

Federal Defendants at 34 (Brief submitted in conjunction

with the trial held an July 11, 1988 through July 14, 1988).

Jobbers Canyon is generally bounded by 8th Street,

10th Street, Farnam Street, and Jackson Street. (Exhibit

201, page 3 and figure 5). One building in the Canyon is

not being demolished, but rather is being developed (Ex-

hibit 284 (map on last page); Vol. I, TR 180:4-181:13). The

ODF requires no federal approvals to demolish the Can-

yon, and has not and will not seek any federal assistance

regarding the Canyon. (Exhibit 106). Central Park East is

located to the east of Jobbers Canyon, and, when devel-

oped, will generally be described as having boundaries

extending east, from the present terminus of the Central

Park Mall (a previously developed park/mall not to be

confused with Central Park East) at 8th Street to the

Burlington Northern riverfront line, and from the north,

bounded by the 1-480 bridge, to the south, corresponding

approximately with the extended south right-of-way line

of Howard Street. (Exhibit 201, page 12, figures 5 and 6).

Exhibit 1026 depicts the park concept. The ConAgra cam-

pus will not be located in Central Park East, but will

App. 22

generally be located to the south and west of the park.

(Exhibit 201, pages 12-13, figures 4, 5 and 6; Exhibit 202,

attached exhibit 4). The park will remain a public park.

(Exhibit 202). Additionally, Central Park East is not lo-

cated on land where Jobbers Canyon sits.

The concept of Central Park East started in 1978

when the State of Nebraska, through the Game and Parks

Commission, acting at the request of, and essentially for,

the County, submitted an application, (Exhibit 217, pages

1-6; Exhibit 221), to what is now known as the Park

Service for federal funds to acquire and develop park

property under the Land and Water Conservation Fund |

Act. 16 U.S.C. § 4601-1-8. Subsequently, the application

was granted on June 16, 1978, and a contract was entered

into by and between the State of Nebraska and the prede-

cessor to the Park Service. (Exhibit 217, pages 1-6).

Prior to the 1978 agreement being entered into, the

predecessor of the Park Service issued a “negative decla-

ration,” indicating that the project — to acquire and devel-

op Central Park East - would not significantly affect the

quality of the environment within the meaning of the

National Environmental Policy Act. (Exhibit 217, page

35). After the negative declaration was issued, the State

Historic Preservation Office advised by letter on May 30,

1978 that the project had been reviewed by that office and

the project would have no effect upon properties enrolled

in or eligible for inclusion on the National Register. (Ex-

hibit 217, page 26). Jobbers Canyon was considered in

this 1978 review. (Vol. IV, TR 800:1-4).

App. 23

The original agreement was divided into two stages:

stage 1 was for acquisition, and stage 2 was for develop-

ment. (Exhibit 217, pages 1-6). The application was

amended six times (Exhibits 217A, 217B, 217C, 217D,

217E and 271F), and the last amendment, dated February

6, 1986, deleted stage 2. (Exhibit 217F). The County ac-

quired the land, about 14.3 acres, with $750,000 from the

LWCFA grant and other sources, and the project was

“closed out” on February 19, 1986 by the Midwest Re-

gional Office of the Park Service, indicating that the proj-

ect was complete. (Exhibit 232).

The concept of Central Park East used in the instant

redevelopment project includes the acquisition of addi-

tional land, without the use of federal funds, and devel-

opment of the park, including the creation of a lake,

without federal funds. (Exhibit 202, section 4; Exhibit

1026). The Central Park East development contemplates a

park where “passive” recreation will take place. (Exhibit

202, attached exhibit 4).

The area to be redeveloped includes old railroad

trackage. Relocation of one Union Pacific industrial track,

the “side hill lead,” will be required. (Exhibit 201, pages

7-8, 21, figure 4; Vol. II, TR 469:19-470:10; 472:1-473:16).

This trackage is not located upon land where Jobbers

Canyon sits.

On the easterly edge of the area to be redeveloped is

the Missouri River, and adjacent to the river, on the

Omaha side, is a levee system providing flood protection.

(Vol. IV, TR 940:25-941:3). The ground upon which the

levee is situated is owned by the City, but the levee is

supervised by the Corps (Vol. IV, TR 986:5-13;

App. 24

940:25-941:3), pursuant to a quite detailed operations and

maintenance manual (Exhibit 293). The levee is not lo-

cated upon land where Jobbers Canyon sits.

Since the demolition of Jobbers Canyon threatened to

make this litigation moot, the parties were placed on an

expedited discovery schedule, and trial on two limited

issues commenced on July 11, 1988. (Filing 104). The two

issues argued at that trial were:

1. whether, based upon the then existing Riv-

erfront Redevelopment Agreement, including all ap-

proved pians, specifications and construction drawings as

of the date of trial, there was any federal funding, federal

licensing or other federal involvement requiring a section

106 hearing under the National Historic Preservation Act

(“NHPA”) or otherwise implicating the National Environ-

mental Policy Act (“NEPA”) or the Land and Water Con-

servation Fund Act (“LWCFA”); and

2. if the answer to the foregoing question was

in the affirmative, whether a section 106, 16 U.S.C. § 470f,

hearing (or other action required under the NHPA, the

NEPA or the LWCFA) could result in a federally required

retention of one or more buildings in Jobbers Canyon.

I submitted findings and recommendations pursuant

to the July, 1988 trial, recommending that judgment on

the limited issues presented be entered for the defendants

and against the plaintiffs and the intervenor. | found that

the answer to the first issue was in the negative, i.e.,

based upon the then existing Riverfront Redevelopment

App. 25

Agreement (including all approved plans, specifications,

and construction drawings as of July 11, 1988), there was

no federal funding, licensing or other involvement re-

quiring a section 106 review under the NHPA, or other-

wise implicating the NEPA or the LWCFA. Also, |

determined that, insofar as the ODF and ConAgra are

concerned, a section 106 review (or other action under the

NHPA, NEPA or LWCFA) could not result in a federally

required retention of one or more buildings in Jobbers

Canyon. (Filing 261). The plaintiffs and the intervenor

moved to reject the above findings and recommendations

(Filing 268 and 269). Judge Urbom denied such motions

and withheld judgment in the matter until all issues are

concluded. (Filing 448).

To restate, the three remaining issues necessary for

the final resolution of this case are:

1. whether the plaintiffs and the intervenor

have standing and capacity to sue in this case;

2. whether all indispensable, proper or neces-

sary parties have been joined in this case such that the

court can provide adequate relief; and

3. whether title to the Central Park East is de-

fective, thereby causing a conversion under the Land and

Water Conservation Fund Act resulting in some basis by

which the court may generally take remedial measures as

to Jobbers Canyon or the Redevelopment Project. (Filing

429).

II.

I turn first to the issues of standing and capacity

Although closely related, the issues of standing and

App. 26

capacity in my view are not the same. | believe that it

may be possible for an entity to have standing under

article III of the Constitution, yet not have the capacity to

institute the suit. I turn then to the issues of standing and

capacity. I shall briefly and generally set out the issues,

and then address the issues in relation to each plaintiff

and intervenor.

As to standing, as Judge Urbom observed when he

denied the motion for a temporary restraining order and

preliminary injunction, the power of a federal court is

both granted and limited by article III of the Constitution

The power of this court to decide this mat-

ter is granted by Article III of the constitution.

To ensure that federal courts assume jurisdiction

only over Article III “cases and controversies,”

Supreme Court Decisions have instructed that

at an irreducible minimum, Art. III requires

the Party who invokes the court’s authority

to “show that he personally has suffered

some actual or threatened injury as a result

of the putatively illegal conduct of the de-

fendant,” ... and that the injury “fairly can

be traced to the challenged action” and “is

likely to be redressed by a favorable deci-

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 472

(1982) (citations omitted).

(Filing 25, pages 4-5).

In a general sense, the “standing” issues in this case turn

on determination of whether the complaining party sut-

fers or will likely suffer any cognizable injury by the acts

App. 27

complained of in the complaint which are alleged to have

been done or threatened by the defendants.

As to capacity, this issue arises with regard to the

meaning and scope of the “sue and be sued” clause of the

congressional enactment creating the nonprofit inter-

venor, the National Trust for Historic Preservation in the

United States (“Trust”), 16 U.S.C. § 468c(b). The question

arises in the context of the Trust’s suit in this case against

federal defendants and nonfederal defendants in an ef-

fort, among other things, to enforce the “anticipatory

demolition” regulations of a federal agency, the Advisory

Council on Historic Preservation (“Advisory Council”) by

forcing a so-called “section 106” consultation with the

Advisory Council. Id. § 470f. The Intervenor’s Amended

Complaint for Declaratory and Injunctive Relief (filing

326) alleges in pertinent part that the Trust brings the

action to require the defendants to comply with federal

law including the “regulations of the Advisory Council

on Historic Preservation implementing the NHPA” and

seeks an injunction preventing “the defendants from un-

dertaking anticipatory demolition within the Jobbers

Canyon Historic District until defendants have complied

fully with the applicable statutory and regulatory re-

quirements.” (Filing 326, page 2)

The Trust is a nonprofit corporation created by Con-

gress, while the Advisory Council is an independent

agency of the United States. Compare id. § 468 with id

§ 470i. The Advisory Council did not seek to become a

party to this litigation, but instead has indicated by way

of affidavit received into evidence that although Congress

granted it the power to litigate, id. § 470m(b), the Adviso-

ry Councii questions its authority to sue sister federal

App. 28

agencies and rather relies upon the Trust to advance in

litigation the interests of Advisory Council. (Exhibit

246(23), Affidavit of John M. Fowler, General Counsel of

the Advisory Council).

Specifically, the capacity issue is whether Congress

has authorized the Trust to sue federal agencies and

nonfederal defendants, where the Trust has no present or

contemplated future interest in the buildings being de-

molished, save for its generalized interest in preservation

of historic buildings, particularly where the Advisory

Council questions whether the Advisory Council’s “suit

powers” extend to other federal agencies. Thus, the court

should determine whether the Trust’s “sue and be sued”

clause must be narrowly construed to prohibit suits

against federal agencies and nonfederal defendants. See

Loeffler v. Frank, 56 U.S.L.W. 4554, 4555-56 (U.S. June 13,

1988) (broadly interpreting the “sue and be used” clause

regarding the United States Postal Service); Federal Hous-

ing Admin. v. Burr, 309 U.S. 242, 245 (1940) (broadly

interpreting the “sue and be sued” clause regarding the

Federal Housing Administration)

This analysis is to be undertaken with the under-

standing that when Congress charters a corporation such

as the Trust and authorized it to engage in business or

commercial ventures with the public, and permits it to be

“sue and be sued,” one cannot lightly assume that restric-

tions on that capacity should be implied. See Burr, 309

U.S. at 245. Rather, if the general authority to “sue and be

sued” is to be impliedly limited, one of the following

must be shown: (1) certain types of suits are not consis-

tent with the statutory or constitutional scheme; (2) an

App. 29

implied restriction is necessary to avoid grave inter-

ference with the performance of a governmental function;

or (3) “for other reasons it was plainly the purpose of

Congress to use the ‘sue and be sued’ clause in a narrow

sense.” Id.

Normally, issues of standing should be dealt with at

an early stage. Gladstone, Realtors v. Village of Bellwood, 441

U.S. 91, 115 n.31 (1979). However, it sometimes remains

to be seen whether the factual allegations of the com-

plaint necessary for standing will be supported ade-

quately by evidence at trial. Id. See Neighborhood Dev

Corp. v. Advisory Council on Historic Preservation, 632 F.2d

21,24 & n.2 (6th Cir. 1989) (stating that a complaint under

the National Historic Preservation Act was sufficient to

withstand a motion to dismiss where “use” of the historic

buildings was alleged, but the plaintiffs would be re-

quired to particularize the use at trial). Accordingly, |

took under advisement the motions to dismiss and mo-

tions for summary judgment directed at the standing

issues. | now recommend that said motions, both oral and

written, be denied, and the issues of standing and capaci-

ty be determined on the evidence adduced at trial

Judge Urbom has not had occasion to rule with re

gard to the issue of standing insofar as the Trust is

concerned. As to the issue of standing, the Trust claims

standing for itself and as a representative of its members

| shall discuss these related standing concepts - standing

for the corporation and as a representative of its members

- separately.

App. 30

(1)

I find that the Trust has standing for itself to assert

the allegations of the Trust’s amended complaint (filing

326).

The Trust has a statutory role in the implementation

of the NHPA by virtue of its membership in the Advisory

Council. 16 U.S.C. § 47011i(a)(8); (Exhibit 4011,

149:7-152:1-15 (Walter Deposition)). Accordingly, I believe

that the Trust has demonstrated a sufficient claim of

“injury in fact,” causation and “redressability” to find

standing.

In a similar situation, the court in Weintraub v. Rural

Electrification Admin., 457 F. Supp. 78 (M.D. Pa. 1978) held

that a state historic preservation officer had standing to

bring an action to enforce the NHPA because of the

statutorily assigned role of state historic preservation

officers in the designation and review process under the

NHPA. /d. at 88. Similarly, in this case, if the consultation

provision of the NHPA, 16 U.S.C. § 470f, is triggered by a

finding that there is a legally significant federal involve-

ment regarding Jobbers Canyon, then the Trust, through

its chairman, 16 U.S.C. § 470i(a)(8), would be entitled to

participate in a consultation designed to preserve Jobbers

Canyon.

Although the Advisory Council, and therefore the

Trust, does not have a veto over the destruction of histor-

ic sites as a result of the consultation, the process of

consultation is the congressional means by which federal

actions involving the destruction of historic sites are rec-

onciled with national historic preservation policy. Id.

ee ee oe

App. 31

§ 470f. Scholars have noted that it a “plaintiff is protest-

ing a claimed invasion of a generalized constitutional

injury, the Court appears to be more reluctant to find

standing .. . than in cases where the plaintiff is arguably

within the zone of interests protected by a federal statute,

or a statute appears to grant standing in the case.” 1 R.

Rotunda, J. Nowak & J. Young, Treatise on Constitutional

Law: Substance and Procedure 129-30 (1986). Thus, the stat-

utory remedy of consultation confers standing on an enti-

ty entitled by statute to participate in the consultation

Weintraub, 457 F. Supp. at 88. See Defenders of Wildlife v

Hodel, 851 F.2d 1035, 1037, 1039-1041 (8th Cir.1988) (hold-

ing that procedural injury may be a judicially cognizable

injury in fact for standing purposes, where conversation

groups claimed, among other things, that they would

suffer harm in fact by increased rates of extinction of

animals because the Secretary of the Interior had failed to

publish regulations requiring federal agency consultation

with the Secretary under the Endangered Species Act,

even though the Secretary could not veto the proposed

federal action as a part of the consultation under 16

U.S.C. § 1536(a)(2)).

The defendants argue that even if injury in fact and

causation have been shown, | must find that all parties

lack standing because I have previously found that the

court would not be authorized to enjoin the purely pri-

vate actions of the ODF and ConAgra (filing 261, part VI)

and thus, it is argued, that the injury is not redressable by

this court. If the injury is not redressable, then there is no

real controversy for the court to decide and standing is

lacking. However, I believe the defendants misunder-

stand the issue of redressability.

App. 32

While I continue to believe that this court is without

authority to en‘oin the purely private action of the ODF

and ConAgra regarding the Canyon, it does not follow

that the claimed injury is not redressable by the Court.

Defendants confuse the merits of the claim with the issue

of standing. As I have previously stated: “Certainly, if the

ODF were required to seek something,—or had sought

something, from a federal agency regarding the Canyon,

the agency and the court would have the power to control

the ODF insofar as the subject of the ODF’s involvement

with the agency.” (Filing 261, page 73). However, I found

on the merits that even if the ICC, the Corps of Engineers

or the Park Service had to conduct a full review of the

project, the agencies and therefore the court had no au-

thority to control the purely private actions of the ODF or

ConAgra. I came to this conclusion after reviewing the

evidence as to what ConAgra and the ODF intended to

do with the project in general and specifically the Can-

yon. After understanding these facts, I was able to deter-

mine that the agencies had no generalized regulatory

power over the ODF and ConAgra, and that the agencies

did not have specialized power to grant or withold

anything from the ODF and ConAgra regarding the Can-

yon because the ODF and ConAgra need not seek any-

thing from the agencies. (Filing 261, pages 72-73). Had

the facts been otherwise, the injury would have been

redressable by an injunction requiring consultation prior

to demolition.

The doctrine of standing “eschews evaluation of the

merits,” Coalition for the Environment v. Volpe, 504 F.2d

156, 168 (8th Cir. 1974) (referring to United States v. Stu-

dents Challenging Regulatory Agency Procedures, 412 U.S

App. 33

669, 689 (1973)). More pointedly, our circuit has specifi-

cally held, in the face of an argument that redressability

was not present, that “Congress itself has legislated the

requisite c. sation and redressability” under the Endan-

gered Species Act, where a private party sought injunc-

tive relief requiring the Secretary of the Interior to

publish regulations requiring federal agencies to consult

with the Secretary on actions taken abroad potentially

impacting upon endangered species. The court so held,

(a) even though the consultation might not stop the ac-

tion threatening the endangered species because the Sec-

retary after consultation could not veto the project, (b)

even where particular federal “action” agencies were not

parties to the suit, and (c) even where the foreign govern-

ments would not be required to halt the proposed action

by any steps taken by the Secretary or the agencies.

Defenders of Wildlife, 851 F.2d at 1041-44. The consultation

process examined in Defenders of Wildlife is the Endan-

gered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), which

is very similar to the consultation process provided for in

the NHPA, id. § 470f. The right of individuals to bring

suit for enforcement of the ESA, id. § 1540, is somewhat

similar to the “citizen suit” provisions found in the

NHPA, id § 470w-4. Thus, for essentially the same reasons

that the circuit court found the claimed injury “redress-

able” for standing purposes in Defenders of Wildlife, I find

the claimed injury here redressable for standing pur-

poses.

(2)

As Judge Urbom has observed (filing 25, pages 4-5),

in this case representational, or derivative, standing,

App. 34

wherein an entity asserts the interests of its members,

exists where three circumstances are present: (1) the indi-

vidual members would have standing to bring the action;

(2) the action is germane to the purpose of the entity; and

(3) neither the claim nor relief requires the participation

of the individual members. Hunt v. Washington Apple

Advertising Comm'n, 432 US. 333, 343 (1977); Warth v

Seldin, 422 US. 490, 511 (1975).

The Trust bases its claim to representational standing

on the testimony of two persons. The testimony of George

Haecker (Vol. IV, TR 1049:i-1084:17) establishes the fol-

lowing: he is a member of the Trust and wishes that the

Trust represent him; he is an architect living in Omaha,

Nebraska whose office is within three blocks of Jobbers

Canyon; for some twenty years he has been involved in

preserving historical sites in Omaha, Nebraska through

serving on public boards such as the Nebraska Historic

Preservation Board and the Omaha Landmarks Commis-

sion; he frequently tours Jobbers Canyon; he has held

walking tours of Jobbers Canyon for fellow professionals

and has sought consulting work with regard to buildings

within Jobbers Canyo.: and the adjacent Old Market area;

and as a professional architect, he believes that the loss of

the Canyon threatens him both professionally and per-

sonally, as the Canyon is one of the most important

collections of turn-of-the-century warehouses in the na-

tion.

Likewise, the testimony of Clark Strickland (Vol. IV

TR 1084:22-1132:10) establishes the following: he is a

member of the Trust and wishes that the Trust represent

him: he is a historian employed by the Trust as Regional!

Director of the Trust; while he lives in Denver, Colorado,

App. 35

he has visited Omaha, Nebraska often, both before and

after this litigation, having toured Jobbers Canyon on

each occasion; as a professional historian, he believes that

the loss of the Canyon threatens him both professionally

and personally, as the Canyon is one of the most impor-

tant collections of turn-of-the-century warehouses in the

nation.

Parenthetically, there is no factual dispute about the

historical and architectural significance of Jobbers Can-

yon, as the Canyon is listed on the National Historic

tion form describes the reasons why the Canyon is histor-

ically and architecturally important. (Exhibit 284).

The association need not have a large number of

members. United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669, 689-90 (1973) (holding

that an association of five law students had standing).

Not all members of the association must suffer the injury

for the association to have standing; indeed, if “its mem-

bers, or any one of them, are suffering immediate or threat-

ened injury as a result of the challenged action of the sort

that would make out a justiciable case had the members

themselves brought suit,” standing exists, if other ele-

ments of standing are established. Warth, 422 U.S. at 511

(emphasis added). See Pesticide Pub. Policy Found. v. Vil-

lage of Wauconda, 622 F. Supp. 423, 433-34 (N.D. Ill. 1985),

aff'd, 826 F2d 1068 (7th Cir. 1987) (holding that one

affidavit of one member was sufficient for standing, but

that the association lacked standing because the individu-

al participation of all members in the suit was required);

Action Alliance for Senior Citizens v. Shapp, 400 F. Supp.

1208, 1213-14 (E.D. Pa. 1975) (holding that the interests of

App. 36

six out of three thousand five hundred members were

sufficient to provide standing for an association).

What is difficult to determine is whether the alleged

“use” of Jobbers Canyon by the standing witnesses is the

type of use which makes out a “distinct and palpable”

injury for standing purposes when the use is threatened.

Warth, 422 U.S. at 501. Or stated otherwise: does the

“use” of Jobbers Canyon, which is comprised of privately

owned buildings in which none of the witnesses claim

any ownership interest nor even the legal right to touch

the buildings, create a distinct and palpable injury for

standing purposes, if, as here, the threatened “use,”

which defines the claimed injury, is essentially the ability

to view the private property from a public street?

If | were to write on a clean slate, | would hold that

the denial of the ability to view a privately owned, but

historically significant building, from a public street,

even by architects and historians having a professional

interest therein, is not a “distinct and palpable” injury.

See Landmarks Preservation Council v. City of Chicago, 1988

Ill. LEXIS 122 (Ill. Sup. Ct., Sept. 22, 1988) (holding that

neither a local preservation association nor the Chicago

Chapter of the American Institute of Architects, or the

members of such groups, had standing under state law to

claim injury based upon denial of the right to view histor-

ically significant buildings from a public street, although

also holding that the Trust had standing in its own right

because it was congressionally chartered to assert such

interests). However, I do not write on a clean slate.

App. 37

Our circuit has recognized in an environmental

standing case, based upon a concession of the govern-

ment, that “physical damage to a place an individual

personally visits . . . is a type of injury sufficient to confer

standing under Article III.” Defenders of Wildlife, 851 F.2d

at 1041. The Sixth Circuit Court of Appeals has stated the

following ina NHPA case: “We do not believe that injury-

in-fact is suffered only by residents of the neighborhood

in which the historically and architecturally significant

buildings are located. .. . [T]he [NHPA] created an inter-

est in the preservation of architecturally and historically

significant buildings to be protected by users of such

buildings.” Neighborhood Dev. Corp., 632 F.2d at 24. The

court also made clear its view that “[bly alleging ‘use’ of

the buildings’ aesthetic and architectural value, plaintiffs

met the Sierra Club standard,” id. at 23-24, even where at

least some of the threatened buildings, e.g., the Will Sales

Building, were privately owned. /d. And in another

NHPA case, a federal court found standing where a his-

toric courthouse was threatened based, in part, upon the

prior use of the courthouse by a lawyer who thus “be-

came acquainted with the purported esthetic values of

the Courthouse.” Save the Courthouse Comm. v. Lynn, 408 F.

Supp. 1323, 1332 (S.D.N.Y. 1975).

Here the court is presented with witnesses — an archi-

tect and a historian - who “use” the Canyon, albeit from

the street, and whose “use” of the Canyon is sufficiently

distinct from those who merely pass by the Canyon so

that, according to precedent, one can fairly conclude that

they have been injured in fact by the proposed demoli-

tion. I so find, and in finding so conclude that the mem-

bers of the Trust would have had individual standing to

App. 38

bring this action. The Trust has established that its mem-

bers have or will suffer sufficient injury in fact, the chal-

lenged action may be traced to the defendants, and the

challenged action may be redressed by a favorable deci-

sion. Furthermore, it is obvious that this action is “ger-

mane” to the Trust’s purpose and that neither the claim

nor the relief requires the participation of the individual

members. Accordingly, I conclude that the Trust has rep-

resentational standing.

Judge Urbom found that the plaintiff known as Peo-

ple for Responsible Omaha Urban Development, Inc.

(“PROUD”), a Nebraska nonprofit corporation, lacked

standing because its institutional interests were nothing

more than a generalized interest in the demolition of

Jobbers Canyon, and its members would not otherwise

have standing to sue in their own right. (Filing 25, pages

4-5). Specifically, Judge Urbom found:

PROUD'’s primary purpose is “advocat[ing]

preservation of sites, buildings and objects of

cultural and historic significance as part of re-

sponsible urban planning for the City of Omaha

and to conduct public education programs

through lectures, tours and publications.” Com-

plaint ¥ 1. Of its “approximately 200 members,

some... own property in the Old Market histor-

ic district, and some .. . reside in the Old

Market and the Jobbers Canyon Historic Dis-

tricts, and all . . . derive benefit from Jobbers

Canyons’ [sic] significance as a cultural and his-

toric landmark.” Id. PROUD alleges that it will

suffer “injury in fact” from the defendants’ non-

compliance with NEPA and the NHPA. Id.

App. 39

PROUD ’s allegations do not establish that it

has standing to assert its own interests in this

case. It has not shown how the challenged ac-

tions will injure its ability to pursue its objec-

tives. See Sierra Club v. Morton, 405 U.S. 727, 735,

735 n.8 (1972) (requiring that association allege

that “it or its members would be affected” in

“their activities or pastimes by the . . . deve-

lopment”; an association must have more than

an interest in a problem). Nevertheless, “[e]ven

in the absence of injury to itself, an association

may have standing solely as the representative

of its members.” Warth v. Seldin, 422 U.S. 490,

511 (1975).

“{AJn association has standing to bring suit

on behalf of its members when: (a) its mem-

bers would otherwise have standing to sue

in their own right; (b) the interests it seeks

to protect are germane to the organization's

purpose; and (c) neither the claim asserted

nor the relief requested requires the partici-

pation of individual members in the law-

suit.”

International Union, United Automobile, Aerospace

and Agricultural Implement Workers of America v.

Brock, 54 U.S.L.W. 4764, 4766 (U.S. June 25,

1986), quoting and reaffirming Hunt v. Washing-

ton Apple Advertising Comm'n, 432 U.S. 333, 343

(1977).

The second two elements of the three-part

Hunt test easily are satisfied in the present case.

Concerning the first element, the complaint al-

leges that some members own land immediately

adjacent to Jobbers Canyon and that some live

in Jobbers Canyon or immediately adjacent. Yet,

while the complaint contains generalized allega-

tions of harm to PROUD, it says nothing about

the injury to its members. Cf. Weintraub v. Rural

Electrification Administration, 457 F. Supp. 78, 88

App. 40

(M.D.Pa. 1978) (association had standing under

NHPA because it alleged that “the aesthetic and

cultural well-being of the area in which” its

members resided “will be damaged”). PROUD,

therefore, lacks standing both in its individual

and representative capacities.

(Filing 25, pages 4-5).

Nothing changed at trial which would allow me to

conclude that Judge Urbom’s finding was incorrect re-

garding PROUD’s lack of standing for itself. Specifically,

unlike the Trust, PROUD can claim no statutory right to

participate in the sought-after consultation. Therefore, |

too find that PROUD lacks standing to maintain this

action for itself.

However, PROUD did generally sharpen it’s claim of

representational standing at trial generally, and specifi

cally regarding the first prong of the Hunt test. For exam-

ple, PROUD presented the testimony of Cynthia S. Tooker

Vol. VI. TR 1215:12-1228:10), a member of PROUD and

an Omaha, Nebraska architect who convinced me that she

had both a personal and professional interest in the Can-

von. For further example, PROUD presented the testi

mony of Douglas Meier (Vol VI, TR 1231:25-1268:25) a

member of PROUD and an Omaha, Nebraska structural

engineer with both a personal and professional interest in

jobbers Canyon. Nothing changed at trial to convince me

that Judge Urbom’s finding was wrong — that the second

and third prongs of the Hunt test are satisfied insofar as

PROUD’s claim to representational standing is con-

-erned. Thus, since I now find that the first prong of the

Hunt test was satisfied by PROUD at trial, and for sub-

stantially the same reasons that I found the Trust had

App. 41

representational standing to assert the interests of its

members, see part II(A)(2) of these findings, I also find

that PROUD has representational standing to assert the

interests of its members.

Judge Urbom found that plaintiff Roger Durand lack-

ed standing because Mr. Durand failed to show a relevant

interest in Jobbers Canyon and hew that interest might be

injured by the alleged noncompliance by the defendants

(Filing 25, page 5). Mr. Durand testified at trial (Vol VII,

TR 1612:2-1637:14). I find that Mr. Durand presented at

trial sufficient evidence to allow me to now conclude that

he has standing. I shall briefly summarize his testimony

as follows.

Mr. Durand is an architectural and graphic designer

who has done work on buildings in the so-called “Old

Market” area of Omaha, Nebraska adjacent to Jobbers

Canyon, and he has lived in the area for about twenty

years. Mr. Durand served the City of Omaha as a member

of both the Zoning Board of Appeals and the Landmarks

Heritage Commission. The Landmarks Heritage Commis-

sion exists to advise the City of Omaha on issues involv-

ing historic properties. Mr. Durand is still a member of

the Commission. Mr. Durand testified that as recently as

of April or May of 1988 he had completed for a client a

design for a restaurant to be located in the John Deere

building, which is a building situated in the Canyon. Mr

Durand frequently walks through the Canyon. Mr. Du-

rand testified among other things that the destruction of

jobbers Canyon has injured him in that it “completely

ell

App. 42

alters the environment of [his] home.” (Vol VII, TR

1625:5). He explained that he was damaged because the

adjacent Old Market area in which he lived was a “Na-

tional Registered district” adjacent and contiguous to the

Canyon and that the destruction of the one historic dis-

trict would damage the other historic district, thus dam-

aging Mr. Durand’s home apparently by changing the

aesthetic environment thereof. Mr. Durand also claims

injury to his business in that he will have fewer buildings

available to redesign compared to what existed in the

past when Jobbers Canyon and the Old Market area were

intact and available for renovation. As a member of the

City’s Landmarks Heritage Commission, Mr. Durand has

participated in hearings before the Commission and the

City Council and anticipates that he would participate, 1!

given the opportunity, in federal consultations regarding

the destruction of the Canyon

I believe that Mr. Durand has established himself as a

‘user” of Jobbers Canyon, whose interest in the Canyon

is unique and sufficiently particular that the destruction

of the Canyon will in fact cause him injury in the same

sense that I believed members of the Trust would have

had standing in their own right. See part II(A)(2) of these

findings. Much like the neighbors who “used” the histor-

ic buildings in Neighborhood Dev. Corp., 632 F.2d at 24, or

the lawyer who used the historic courthouse in Save the

Courthouse Comm'n, 408 F. Supp. at 1332 Mr. Durand has

standing in this case

App. 43

Judge Urbom found that the plaintiff Mercer Man-

agement Company, a Nebraska for-profit corporation,

had alleged sufficient factual assertions to find standing

albeit only barely. (Filing 25, page 6). Judge Urbom stat-

ed:

Mercer Management Company alleges that

it “owns property within the Old Market Histor-

ic District located immediately adjacent to .

Jobbers Canyon,” and is the “main developer of

Omaha’s ‘Old Market’... .” Complaint 42. It

alleges that it will suffer injury from noncom-

pliance with NEP and the NHPA, and that “the

destruction of Jobber[s] Canyon will change ad-

versely the ambience [sic] of the Old Market.”

Id.

The defendants argue that the only injury

alleged by Mercer is economic, not aesthetic or

environmental, and that allegations only of eco-

nomic injury do not bring it within the “zone of

interests” protected by NEPA and the NHPA

There are at least two problems with the defen-

dants’ attack. First, their arguments are based

solely on unfavorable inferences from the com-

plaint. Mercer does not allege economic injury.

and there is no basis for concluding that it is

motivated solely by pecuniary interests. See

Monarch Chemical Works, Inc v. Exon, 452 F

Supp. 493, 499 (D. Neb. 1978), aff'd sub nom

Monarch Chemical works, Inc. v Thone, 604 F.2d

1083 (8th Cir. 1979).

Second, even assuming that Mercer’s con-

cerns largely are economic does not take it out-

Side the zone of interests of NEPA and the

NHPA. The zone of interests requirement is a

prudential principle, not an Article II limit on

federal court jurisdiction. Valley Forge, 454 US

App. 44

at 475. The Supreme Court recently explained

that, although sometimes generally listed as a

prudential consideration, zone of interests anal-

ysis primarily is applied in cases involving

claims under the Administrative Procedure Act,

and that “the test is most usefully understood as

a gloss on the meaning of S 702.” Clarke v. Secu-

rities Industry Ass'n, 55 U.S.L.W. 4111, 4114 n.16

(U.S. Jan. 14, 1987).

The cases cited by the defendants for the

proposition that Mercer is not within the zone of

interests of NEPA are distinguishable on their

facts. See Robinson v. Knebel, 550 F.2d 422 (8th

Cir. 1977); Churchill Truck Lines, Inc. v. United

States, 533 F.2d 411 (8th Cir. 1976); Monarch, 452

F. Supp. 493. Similarly, | do not read Weintraub,

457 F.Supp. 78, to support the defendants’ con-

tention that Mercer is outside the zone of inter-

ests to be protected by the NHPA. Thus,

Mercer’s allegations are barely sufficient to es-

tablish that its interest in the ambiance of the

Old Market will be injured by the defendants’

failure to seek review of its plans for Jobbers

Canyon, and that that injury is within the zone

of interests protected by NEPA and the NHPA.

(Filing 25, at page 6).

The testimony at trial of Mark Mercer (Vol VI, TR

1397-1430) did not detract from Judge Urbom’s initial

conclusion that standing existed, and I likewise so find. (1

note that Mercer may not actually “own” buildings in the

Old Market area, but it does manage, under contract,

certain buildings. A trust owns the buildings. This man-

agement interest is real and appears very nearly equiva-

lent to ownership, since the shareholders of the

corporation are the same as the trust beneficiaries who

hold equitable title to the buildings.)

App. 45

Also at issue is the capacity of the Trust, a congres-

sionally chartered corporation, to sue federal agencies

and their head administrators as well as nonfederal de-

fendants. At oral argument, I asked counsel for the feder-

al defendants whether he was authorized to state that the

United States challenged the capacity of the Trust to sue

federal agencies. Counsel for the federal defendants indi-

cated that he had explicitly inquired of the Justice De-

partment and that he was authorized to so state. With this

understanding, I turn to the issue of capacity.

As to capacity, this issue arises with regard to the

meaning and scope of the “sue and be sued” clause of the

congressional enactment creating the nonprofit inter-

venor, the Trust, 16 U.S.C. § 468c(b). The question arises

in the context of the Trust’s suit in this case against

federal defendants and nonfederal defendants in an etf-

fort, among other things, to enforce the “anticipatory

demolition” regulations of a federal agency, the Advisory

Council on Historic Preservation (“Advisory Council”) by

forcing a so-called “section 106” consultation with the

Advisory Council. Id. § 470f. The Intervenor’s Amended

Complaint for Declaratory and Injunctive Relief (filing

326) alleges in pertinent part that the Trust brings the

action to require the defendants to comply with federal

law including the “regulations of the Advisory Council

on Historic Preservation implementing the NHPA” and

seeks an injunction preventing “the defendants from un-

dertaking anticipatory demolition within the Jobbers

Canyon Historic District until defendants have complied

fully with the applicable statutory and regulatory re-

quirements.” (Filling 326, page 2).

App. 46

The Trust is a nonprofit corporation created by Con-

gress, while the Advisory Council is an independent

agency of the United States. Compare id. § 468 with id

§ 470i. The Advisory Council did not seek to become a

party to this litigation, but instead has indicated by way

of affidavit received into evidence that although Congress

granted it the power to litigate, id. § 470m(b), the Adviso-

ry Council questions its authority to sue sister federal

agencies and rather relies upon the Trust to advance in

litigation the interests of Advisory Council. (Exhibit

246(23), Affidavit of John M. Fowler, General Counsel for

the Advisory Council)).

Specifically, the capacity issue 1s whether Congress

authorized the Trust to sue federal agencies and non-

federal defendants, where the Trust has no present or

contemplated future interest in the buildings being de-

molished, save for its generalized interest in preservation

of historic buildings, particularly where the Advisory

Council questions whether the Advisory Council’s “suit

powers” extend to other federal agencies. Thus, the court

should determine whether the Trust’s “sue and be sued”

clause must be narrowly construed to prohibit suits

against federal agencies and nonfederal defendants. See

Loeffler, 56 U.S.L.W. at 4555-56 (broadly interpreting the

“sue and be sued” clause regarding the United States

Postal Service); Burr, 309 U.S. at 245 (broadly interpreting

the “sue and be sued” clause regarding the Federal Hous

ing Administration).

This analysis is to be undertaken with the under-

standing that when Congress charters a corporation such

as the Trust and authorized it to engage in business or

commercial ventures with the public, and permits it to be

App. 47

“sue and be sued,” one cannot lightly assume that restric-

tions on that capacity should be implied. Burr, 309 U.S. at

245. Rather, if the general authority to “sue and be sued”

is to be impliedly limited, one of the following must be

shown: (1) certain types of suits are not consistent with

the statutory or constitutional scheme; (2) an implied

restriction is necessary to avoid grave interference with

the performance of a governmental function; or (3) “for

other reasons it was plainly the purpose of Congress to

sue the “sue and be sued” language in a narrow sense.”

Id.

I find and conclude that the Trust does not have the

Capacity to sue the federal defendants in this case because

the “sue and be sued” clause of the Trust must be nar-

rowly construed in order to avoid grave interference with

significant governmental functions and because this type

of suit which seeks to force consultation by federal agen-

cies with the Advisory Council is not consistent with the

Statutory scheme creating the Trust. I conclude that the

Trust has the capacity to sue the nonfederal defendants in

this case because there has been no showing that such a

suit is inconsistent with the statutory scheme establishing

the Trust, that such a suit against nonfederal defendants

would interfere with a significant federal governmental

interest, or that there are other reasons why Congress

plainly used the “sue and be sued” clause in a narrow

fashion as it regards the nonfederal defendants.

(1)

In this case the Trust has sued the following federal

defendants: the Interstate Commerce Commission,

App. 48

Heather J. Gradison (Chairman of the Interstate Com-

merce Commission), the United States Army Corps of

Engineers, John O. Marsh, Jr. (Secretary of the Army), the

National Park Service, and Donald P. Hodel (Secretary of

the United States Department of the Interior). (Filing

326). As pointed out above, among other things, what the

Trust hopes to accomplish is to prohibit the anticipatory

demolition of Jobbers Canyon prior to the federal deten-

dants being forced to consult with the Advisory Council

pursuant to 16 U.S.C. § 470f. 16 U.S.C. § 470f provides

The head of any Federal agency having di-

rect or indirect jurisdiction over a proposed Fed-

eral or federally assisted undertaking in any

State and the head of the 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 li-

cense, 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 af-

ford the Advisory Council on Historic Preserva-

tion established under sections 470i to 470v of

this title a reasonable opportunity to comment

with regard to such undertaking.

16 U.S.C. § 470F.

The Trust has not claimed and has presented no

evidence to indicate that it has or will have in the future

any contract, lease, loan or grant involving Jobbers Can-

yon, any ownership interest in Jobbers Canyon, or any

other ascertainable interest in Jobbers Canyon from

which it might be concluded that any proprietary or

economic interest of the Trust 1s threatened. Thus, there 1s

App. 49

no question presented here that the property or funds of

the Trust, some of which are provided by Congress, see

e.g., id. § 470a(d)(2), are threatened by the federal defen-

dants. This, then, is not a case where a historic property

in which the Trust has a monetary interest is threatened

by any act or omission of a federal defendant. Under-

standing what this case is not about, one may look to how

the governmental interest will be adversely and signifi-

cantly impacted if the Trust’s “sue and be sued” clause is

interpreted to allow it to sue federal agencies to force

consultation with the Advisory Council.

(a)

It is important to understand the legislative history

of the Trust, and the relationship of the Trust with other

federal instrumentalities, most particularly the Secretary

of the Interior, the Attorney General, and the Advisory

Council. What follows then is an analysis of the legisla-

tive history of the Trust, historic preservation law in

relation to the consultation process, and the part each

relevant federal entity plays in our national policy re-

specting historic preservation.

The Trust is a nonprofit corporation, 16 U.S.C. § 468

with the power “[t]o sue and be sued,” id. § 468c(b), “[t]o

the extent necessary to enable it to carry out the functions

vested in it by sections 468 to 468e [of title 16 of the

United States Code].” Id. § 468c (emphasis added). The

functions of the Trust are expressed in only one place, 16

U.S.C. § 468:

The purposes of the National Trust shall be to

receive donations of sites, buildings, and objects

App. 50

significant in American history and culture, to

preserve and administer them for public benefit, to

accept, hold, and administer gifts of money, se-

curities, or other property of whatsoever charac-

ter for the purpose of carrying out the

preservation program, and to execute such other

functions as are vested in it by sections 468 to

468e of this title.

Id. § 468 (emphasis added).

16 U.S.C. § 468a establishes a principal place of office

for the Trust. 16 U.S.C. § 468b establishes the board of

trustees for the Trust, which includes the Secretary of the

Interior and the Attorney General as ex officio trustees.

16 U.S.C. § 468c describes the powers and duties of the

Trust, without expanding the “functions.” 16 U.S.C.

§ 468d authorizes the Trust to consult with the Advisory

Board on National Parks, Historic Sites, Buildings, and

Monuments (which is not the Advisory Council). 16

U.S.C. § 468e has been repealed. The only description of

“functions,” therefore, occurs in 16 U.S.C. § 468.

The “preservation program” referred to at the end of

section 468 appears to refer to the word “preserve” in the

beginning of the statute. This is because the word “them”

is a pronoun referring to the nearest antecedent nouns

with which it agrees in gender and number, to wit: “sites,

buildings and objects significant in American history and

culture.” Id. § 468. It would appear generally therefore

that the functions of the Trust are, at least primarily,

intended to serve the goal of preservation of historic sites

by acquisition, lease, contract, loan or the like. Indeed the

only place in the statute describing the Trust’s powers

where federal agencies are mentioned authorizes the

App. 51

Trust, not to litigate, but to “contract and make coopera-

tive agreements” with such agencies. Id. § 468c(g).

The statute is simply incapable of being plainly read

to suggest that the Trust may sue federal agencies for the

purposes of forcing a section 106 consultation and enforc-

ing a regulation promulgated by the Advisory Council,

particularly when the Trust has not acquired, and will not

in the future acquire, directly or indirectly by gift, pur-

chase, contract, loan, or otherwise, an interest in the

Property to which the regulation is said to apply.

The legislative history of 16 U.S.C. §§ 468 through

468e, developed between 1949, when the Trust was cre-

ated, to the present, affords not the slightest suggestion

that Congress intended that Trust to have the power to

sue federal agencies in cases such as this. The bill which

became the act creating the Trust, House Report 5170, was

originally proposed in the form of House Report 4671. In

explaining the purpose of the Trust as one consisting of

acquiring and managing historic Properties, the following

was Stated in the Senate and House Reports accompany-

ing House Report 5170:

The purpose of this bill is to supplement the

Federal program for the preservation of impor-

tant historic sites and buildings of America

Many of these historic sites and landmarks

-- are worthy of preservation and commemora-

tion. The Federal Government, however, cannot

afford to assume this responsibility for more

than a limited number of places of major nation-

al importance. . . .

App. 52

_.. Realizing that the Feceral Government

cannot do the whole job, and that the work of

the many local preservation organizations

needed to be coordinated and encouraged on a

national scale, they vigorously support the es-

tablishment of a National Trust for this purpose.

H.R. Rep. No. 855, 81st Cong., Ist Sess., reprinted in 1949

U.S. Code Cong. & Admin. News 2285, 2285-86.

Included in House Report 855 and Senate Report

1110 is a report from the Department of the Interior to the

Chairman of the House Committee on Public Lands both

recommending the passage of and suggesting revisions to

House Report 4671. (The suggested amendments were

incorporated into anew draft of the bill, House Report

5170.) The report from the Department of the Interior

further supports the description of the role of the Trust as

one encompassing a managing and coordinating function,

not a litigation function against federal agencies:

Since the Federal Government obviously

cannot take over all the historic sites and build-

ings proposed for preservation, there is need for

a national organization supported by non-Fed-

eral funds and devoted to the coordination of

the many diverse interests In this field and spe-

cifically to the. preservation of properties which

the Federal Government or other organizations

cannot conserve... -

The proposed National Trust for Historic

Preservation in the United States will supple-

ment the Federal program of preservation estab-

lished by the Historic Sites Act of 1935. It will

mobilize and coordinate public interest and par-

ticipation in the preservation of sites and build-

ings from voluntary resources. It will fill the gap

App. 53

in the present system of Federal legislation in

this field and will establish a systematic and

orderly means of receiving and handling be-

quests, donations, and gifts which no existing

legislation is adequate to do.

Id. at 2287-88 (Letter from J. A. Krug, Secretary of the

Interior, to Hon. J. Hardin Peterson, Chairman, Commit-

tee on Public Lands, House of Representatives (June 14,

1949)).

It appears inconceivable that the Secretary of the

Interior would have supported legislation that authorized

a federally chartered corporation to sue his agency or

other federal agencies without even mentioning such pos-

sibility in his formal presentation to Congress. This is

particularly true when one understands that the Secretary

of the Interior and the Attorney General are designated

ex officio trustees.

Since the enactment of the statute creating the Trust

in 1949 there have been virtually no relevant changes in

the statutory framework which created the Trust. How-

ever, Congress has continued to intertwine the workings

of the Trust with federal agencies in an apparent effort to

promote cooperation, not litigation. And, when Congress

considered litigation between federal entities, it did so

carefully and explicitly.

In 1966 Congress authorized the Secretary of the

Interior to make matching grants-in-aid to the Trust for

‘the purposes of carrying out the responsibilities of the

National Trust.” 16 U.S.C. § 470a(d)(2). Nowhere is there

the slightest indication that Congress intended that Trust

to be able to sue federal agencies when it considered this

App. 54

grant legislation. On the contrary, the statute now pro-

vides that “[njo part of any grant made under this section

may be used to compensate any person intervening in

any proceedings under this subchapter.” Id. § 470(e)

Moreover, it is the Secretary of the Interior, not the Trust,

who in 1966 was authorized to maintain the National

In 1966, no indication whatever was expressed by

Congress or the administration that either branch of gov-

ernment thought it necessary or proper for the Trust to

litigate with federal agencies. Once again, the Secretary of

the Interior, in a letter to the Speaker of the House,

supported the bill assisting the Trust, specifically indi-

cating his support for matching grants to the Trust. H.R

Rep. No. 1916, 89th Cong., 2d Sess., reprinted in 1966 U.S

Code Cong. & Admin. News 3307, 3312-14 (Letter from

Stewart L. Udall, Secretary of the Interior, to Hon. John

W. McCormack, Speaker of the House of Representatives

(Mar. 2, 1966)). The Secretary thought it important to

fund such grants, with no mention of litigation on the

national level against federal agencies, “to encourage on

an accelerated basis the local initiative and support that is

needed for preservation of our historic heritage.” /d. at

1313.

At the same time that Congress was considering

matching grants to the Trust, Congress was also consider-

ing the creation of the Advisory Council which would

have the authority to consult with other federal agencies

on undertaking impacting upon historic properties. /d. at

3307-11. See National Historic Preservation Act, Pub. |

No. 89-665, tit. I, § 106, 80 Stat. 915, 917 (1966) (codified as

amended at 16 U.S.C. § 470f). See also National Historic

App. 55

Preservation Act, Pub. L. No. 89-665, § 201, 80 Stat. 915,

917-18 (1966) (codified as amended at 16 U.S.C. § 470i). It

is this consultation process, or so-called “section 106 re-

view,” which is at the heart of this lawsuit. National

Historic Preservation Act, Pub. L. No. 89-665, § 106, 80

Stat. 915, 917 (1966) (codified as amended at 16 US.C.

§ 470f). It was clear when Congress adopted this legisla-

tion that Congress intended a cooperative spirit to exist

between federal entities.

For example, Congress struck from the legislation

powers that the Advisory Council would have had to

hold hearings under oath, to compel testimony or pro-

duction of records and generally reduced the power of

the Advisory Council “to conform to the purposes for

which it is being created - namely to perform advisory

functions.” H.R. Rep. No. 1916, 89th Cong., 2d Sess.,

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

3310-11. The House report also indicated that it recog-

nized the need for “a high degree of cooperation”; the

house committee felt that “it has provided a means ot

avoiding conflicts and administrative jurisdiction” and

“that the national historic preservation effort should con-

tinue to be, as it has in the past, a function of the Depart-

ment of the Interior.” at 3310. In an apparent effort to

promote cooperation, the statute named, among others,

the Secretary of the Interior, the Chairman of the Trust

and the Attorney General as members of the Advisory

Council. Pub. L. No. 89-665, tit. II, § 201, 80 Stat. 915

917-18 (1966) (codified as amended at 16 U.S.C. § 470i)

The Advisory Council was given no authority to sue in

court in 1966. Pub. L. No. 89-665, tit. II, § 205, 80 Stat. 915,

919 (1966) (codified as amended at 16 USC. § 470m)

App. 56

By 1976, Congress recognized the need to avoid con-

flicts of interest within the Advisory Council, particularly

when the Advisory Council was required to deal with the

Secretary of the Interior. So Congress did three things

First, it allowed the Advisory Council to appoint its own

Executive Director, as opposed to using the Director of

the National Park Service as the Director. Second, it al-

lowed the Advisory Council to hire its own legal counsel,

as opposed to hiring its own legal counsel who was then

required to report to the Solicitor of the Department of

the Interior. Third, it treated the Advisory Council as an

independent executive agency of the United States for

budget purposes, and not as an agency which was re-

quired to seek funding through the Department of the

Interior. S. Rep. No. 94-367, 94th Cong., 2d Sess., reprinted

in 1976 U.S. Code Cong. & Admin. News 2442, 2448-51

(Explanation of Amendments, Amendment 3); Pub L. No

94-422, tit. I], §§ 201 & 205, 90 Stat. 1313, 1320-21 (1966

(codified as amended at 16 U.S.C. §§ 470i & 470m)

Thus, in 1976, for the first time Congress clarified

that the Advisory Council was to have litigation authori-

ty by providing in part that “[t]he Council shall have a

General Counsel... to... represent the Council in courts

of law whenever appropriate, [and to] assist the Depart-

ment of Justice in handling litigation concerning the

Council in courts of law.” Pub. L. No. 94-422, tit. IL § 205

90 Stat. 1313, 1321 (1966) (codified as amended at 16

U.S.C. § 470m). Congress continued to leave the Secretary

of the Interior, the Attorney General, and the Chairman of

the Trust, among others, as members of the Advisory

Council. Id. at 1320

App 57

In 1980, Congress for the first time recognized that

the Advisory Council might have to sue another agency,

and if this was necessary the Council would not be able

to use the services of the Justice Department. In com-

menting upon the Amendments to Title II of the National

Historic Preservation Act, Public Law 96-515, House Re-

port 96-1457 provides:

Section 301(1) clarifies the existing authority

of the Council to institute legal proceedings on

its Own to ensure compliance with the Act. Spe-

cifically added is language that refers to the

enforcement of agreements with Federal agen-

cles under Section 106, other authorities contain-

ed in this Act and implementing regulation. In

most instances it is expected that the Council

will utilize the Services of the Department of

Justice with regard to litigation. However, it is

recognized that situations May arise where a

Federal agency may violate the provisions of

this Act and the only recourse is initiation of

legal Proceedings by the Council in its own

name.

H.R. Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in

1980 U.S. Code Cong. & Admin. News 6378, 6405.

Public Law 96-515, tit. ITI, § 301(i), 94 Stat. 2998 2999

(1980), now essentially 16 U.S.C. § 470m(b). Provided the

following litigation authority:

The Council shall have a General Counsel

who shall be appointed by the Executive Direc.

tor. The General Counsel shal] report directly to

the Executive Director and serves as the Coun-

cil’s legal advisor. The Executive Director shal!

appoint such other attorneys as may be neces-

sary to assist the General Counsel, represent the

Council in courts of law whenever appropriate,

including enforcement of agreements to Federal]

App. 58

agencies to which the Council is a party, assist

the Department of Justice in handling litigation

concerning the Council in courts of law, and

perform such other legal duties and functions as

the Executive Director and the Council may di-

rect.

Pub. L. No. 96-515, tit. III, § 301(i), 94 Stat. 2987, 2999

(1980) (amending Pub. L. No. 89-665, tit. II, § 205, 80 Stat.

915. 919 (1966}) (codified as amended at 16 U.S.C.

§ 470m).

At the same time that Congress recognized that the

Advisory Council might have to sue the federal agency,

Congress deleted the Attorney General from the member-

ship of the Advisory Council. Pub. L. No. 96-515, tit. III,

§ 301(a), 94 Stat. 2998 (1980) (codified as amended at 16

U.S.C. § 470i). Yet, Congress allowed the Secretary of the

Interior and the Chairman of the Trust to remain as

members of the Advisory Council. Jd. And Congress fur-

ther expanded the role of the Secretary of the Interior.

First, to “assist the Council” the Secretary, upon request

of the Chairman of the Council, was authorized, in es-

sence, to consult by report to the Council about the

significance of a particular historic property, the esti-

mated impact of a proposed undertaking on the property,

and measures which would avoid, minimize or mitigate

jeopardy. Pub. L. No. 96-515, tit. III, § 302(a), 94 Stat. 2987,

3000 (1980) (codified as amended at 16 U.S.C. § 470u).

The purpose of this amendment was to insure that the

Council’s public interest determination was aided by the

professional assistance supplied by the Secretary. H.R

Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in 1980

U.S. Code Cong. & Admin. News 6378, 6406. Second,

Congress allowed the Council, with the concurrence of

App. 59

the Secretary, to exempt categories of federal programs

from section 106 review. Pub. L. No. 96-515, tit. III,

§ 302(a), 94 Stat. 2987, 3000 (1980) (codified at 16 U.S.C.

§ 470v).

(b)

With the foregoing background in mind, it is evident

that Congress has carefully crafted a statutory scheme

which depends upon a close degree of cooperation be-

tween federal agencies and instrumentalities to function

effectively. Let me be specific.

The Trust was created generally to foster public par-

ticipation in the formulation and implementation of na-

tional historic preservation policy. Quite clearly, Congress

did not intend for the Trust to be independent from other

federal instrumentalities, as Congress provided that the

Secretary of the Interior and the Attorney General, among

other federal representatives, would serve as trustees

From the time of the creation of the Trust to the present.

the legislation and legislative history cannot be read to

explicitly authorize the Trust to take on an adversarial

relationship with federal agencies or instrumentalities

The Advisory Council was created and evolved to

serve as an independent agency with the mission, among

other things, to advise the executive branch, through the

section 106 process, of information pertinent to particular

federal undertakings having the potential of impacting

historic properties. The work of the Advisory Council is

premised upon receiving the unbiased input of its mem-

bers, which members include the Secretary of the Interior

App. 60

as well as the Chairman of the Trust. The litigation au-

thority of the Advisory Council was carefully drafted by

Congress with the presumption that in most cases the

Advisory Council would be represented by the Justice

Department, and only in unusual cases would the Advi-

sory Council proceed to litigate against federal agencies

using independent counsel. It thus does not appear coin-

cidental that at the same time that the Advisory Council

received explicit Congressional authority to litigate

against federal instrumentalities, that Congress removed

the Attorney General as a member of the Council.

The Secretary of the Interior has historically been

viewed by Congress as playing a pivotal role in the

formulation and implementation of historic preservation

policy. The Secretary serves as a Trustee of the Trust and

as a member of the Advisory Council. The Secretary 1s

authorized to make grants to the Trust independent of the

Secretary’s role as a trustee. The Secretary is authorized

to provide professional advice to the Advisory Council

independent of his role as a member of the Advisory

Council.

The Assistant United States Attorney for the District

of Nebraska has been authorized by the Justice Depart-

ment to challenge the capacity of the Trust to sue federal

agencies, including the Secretary of the Interior. The Ad-

visory Council has advised that despite its litigation au-

thority it has never sued a federal agency, but instead

relies upon the Trust to litigate with federal agencies. Mr

Fowler, the General Counsel of the Advisory Council,

stated in his affidavit:

3. In my capacity as General Counsel, | have

been directly involved in decision-making with

App. 61

regard to whether the Advisory Council should

initiate litigation. Although the Advisory Coun-

cil is independently authorized by statute to

bring suit, 16 U.S.C. § 470m(b), this authority

has never been exercised. It is the interpretation

of the Department of Justice that this authority

does not enable the Advisory Council to bring

suit against other Federal agencies. As a matter

of comity wit the Justice Department, the Advi-

sory Council has refrained from attempting to

exercise its litigating authority. Also, the Advi-

sory Council does not have the staff resources to

engage directly in litigation.

4. Because of these practical limitations on the

Advisory Council’s enforcement capabilities, the

Advisory Council has recognized that the Na-

tional Trust for Historic Preservation, as a statu-

tory member of the Advisory Council, advances

the interest of the Advisory Council through the

execution of litigation to ensure that Federal

agencies are in full and proper compliance with

their obligations under Section 106 of the Na-

tional Historic Preservation Act (U.S.C. § 470f).

(Exhibit 246(23) (Affidavit of John M. Fowler, General

Counsel for the Advisory Council), paragraphs 3 &4). Yet,

as will be seen later, the President of the Trust denies that

the Trust serves as the litigating arm of the Advisory

Council, and as a statutory member of the Advisory

Council testifies that neither the Trust nor the Council has

viewed the Trust in such vein.

It is this tension, evidenced by the controversy sur-

rounding Mr. Fowler’s affidavit, created by this lawsuit

between important players in the implementation of na-

tional historic preservation policy, which forces me to

App. 62

conclude that the Trust’s authority to litigate against fed-

eral agencies in an effort to force a section 106 consulta-

tion must be denied. I turn now to my specific reasons.

As to the impact of this suit on the Trust, if the Trust

were allowed to sue in this case, the Trust would be

suing, among others, the Secretary of the Interior, a statu-

tory member of the Trust who would be represented by

an Assistant United States Attorney, who is in turn a

representative of another statutory member of the Trust,

the Attorney General. The testimony in this case is that a

representative of the Attorney General attends the meet-

ings of the trustees of the Trust from “sporadically” to

“frequently,” while the attendance record of representa-

tives of the Secretary of Interior is very good. (Exhibit

4011 (Deposition of J. Jackson Walter, President of the

Trust), 21:8-22-23:1-8). Thus, it is apparent that not only

as a matter of law, but as a matter of fact, the Attorney

General and the Secretary of the Interior, at least through

their representatives, participate in the affairs of the

Trust. Therefore, the practical impact of a suit such as this

is to place two statutory members of the Trust and the

Trust in an adversarial position and renders these statu-

tory trustees unable to fulfill their statutory roles with the

Trust at least insofar as the issues of this case are con-

cerned. This is no slight impediment to the Congressional

scheme that Congress created for the management of the

Trust, since the Secretary and the Attorney General con-

stitute two of the three “public” trustees, with the third

being the Director of the National Gallery of Art. 16

U.S.C. § 468b.

At this juncture, it is important to realize that the

President of the Trust, educated as lawyer, does not in

App. 63

any way agree that the Trust should be allowed to sue

because of the views of Mr. Fowler, the General Counsel

of the Advisory Council, that the Trust is somehow a

litigation surrogate for the Advisory Council. (Exhibit

246(23) (Affidavit of John M. Fowler, General Counsel for

the Advisory Council). Indeed, the President of the Trust,

as a member of the Advisory Council, denied any knowl-

edge that the Advisory Council had a policy that recog-

nized that Trust as the litigating arm of the Advisory

Council. He was in fact upset by Mr. Fowler’s suggestion,

despite the fact that the Trust’s lawyers offered the affi-

davit in support of the Trust’s request to intervene in this

case:

Q: Would you please read that affidavit of John

Fowler.

A: ... All right, sir.

Q. Have you ever seen that affidavit?

A: I have, yes.

Q: Pardon?

A: Yes.

Fine. Was that affidavit ever furnished to the

Board of Trustees?

1 don’t believe so. Not - not to my knowledge.

That affidavit discusses the fact that the advisory

council in “4.” because of the comity agreement

between the Attorney General and other govern-

ment agencies they are not going to sue each

other.

Where you aware of any written document

reflecting that?

A: No, I certainly was not.

App. 64

Did you ever hear of that before?

In fact, but not in any kind of written form nor-

Mr. Fowler here refers to the so-called inter-

pretation of the department as a blanket inter-

pretation and I certainly wasn’t aware of that

until I saw this affidavit.

I frankly find it mistaken, out of place, and

wrong. But that is my opinion. It doesn’t matter

too much.

At least you are not aware of it. You haven't

accepted it and you haven't adopted it as if it

was an existing policy?

Certainly not

And the trustees have not adopted it as thoug|

is an existing policy?

Certainly not.

Would you read “4.”

Yes.

“Because of these practical limitations on

the Advisory Council’s enforcement capa-

bilities, the Advisory Council has recog-

nized that the National Trust for Historic

Preservation, as a statutory member of the

Advisory Council advances the interest of

the Advisory Council through the execution

of litigation to ensure that federal agencies

are in full and proper compliance with their

obligations under section 106 .

That is what it says

Were you aware that the Advisory Council

took that position?

I wasn’t, and I| am still not

App. 65

All right -

I see what Mr. Fowler says but I don’t think

that is -

I am a member, the National Trust - as

the delegate of the Chairman of the Board.

If you will recall the Chairman of the Board

is the statutory member of the Advisory

Council.

Yes.

Chairman of the Board of the National

Trust. And I am delegated - I am his de-

signee. I have been attending the meetings

of this Advisory Council over the past sev-

eral years.

And I am not aware that this theory has

ever been in any formal way a policy of the

Advisory Council. I read this with some

amazement, if I may say.

Well, as a member of the Advisory Council

do you think the statements are false?

False? No.

I think it is the case that the National

Trust litigation program advances the inter-

ests of historic preservation, and I suppose

that means “of the Advisory Council.”

[ don’t know what the phrase “the Ad-

visory Council has recognized” - what that

means. | am not aware of any recognition. |

don’t know how it would do that except by

somehow -

How they would recognize that, | am

not sure. But I am not aware of any kind of

corporate action on the part of the Advisory

Council that recognizes anything about the

National Trusts’s efforts in litigation.

App. 66

Okay, you are not aware of that.

Certainly not.

And in any event no such authority was

ever presented to the Board that the Nation-

al Trust would act on behalf of the Advisory

Council -

No.

- To litigate -

Your statement is correct.

So that whatever is meant in there it is

nothing that has ever been approved or

adopted or accepted by the Board of Trust-

ees

Of the National Trust

Yes, sir

That is true

And it has never been approved or adopted

by the Advisory Council

Not to my knowledge

You are a member of the Advisory Counci

Yes, | am

When did you first become aware of that

affidavit?

In terms of reading it, within the last week

or ten days

In terms of knowing that it existed

have known that Mr. Fowler gave a deposi

tion in this case | suspect since more or

about the time that he did it. Although - it

is the 13th of May. I don’t think I knew it

that soon. But I knew he was going to speak

in this matter

A p p 67

rhis is an issue, as I suspect vou can

tell-from my tone. of some controy

tween the Advisory Council and Nationa

[rust We are not somehow

litigation coun

sel to the Advisory Council and are not n

and have never been

That is why | Say | am not parti

+ Pa4&ctic Uildl®r

happy with this expression of a so

TY) nmMrinm ti

Abii

ous paragraph you read to me, because |

simply not aware that that

formal construction

apreeme it a comity apree

So that this is Mr. Fow] rs interpre

tion, and it r|

IS W nat it

as iS

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nd you uu L avrTree y‘\

\: Well, my views on what ne justice Depart

ment policies are are largely i;

terms of the role of the National Tric:

us purports somehoy ys that tl

1onal Trust acts

+f ¥ | - ‘., a

as BAL‘ it] i ‘ 4 ><

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Advisory Council, that simply ics

case

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ae On > + > ++} .

e National Trust’s pe

state ‘ry hh a r ?

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of weeks. So that not knowing what it said

hardly would have moved to cause it to be

withdrawn

Q: Since standing is an issue and now that y

know it, is it your position that it should

withdrawn?

A: Well, I think that -— it would seem to m«

offhand that 1S Mr Fowler S decisi

mean, this is his affidavit

Q: But it certainly doesn’t -

A: He is not speaking here on behalf of the

National Trust. He is speaking as Genera!

Counsel of the Advisory Council, which is

not us.

Trust introduced that in evidence in su

r its petition for intervention

A: Decisions and exhibits that the Genera!

Counsel introduces | suspect is happily

}

the reason that we have a General! Counse!

Mr. North

I don’t know anything about the trving

of our lawsuits in terms of affidavits and

what would be introduced or not intr

duced

you should intervene

A I do, indeed

xhibit 4011, 106:2-113:16)

| next turn to the impact upon the Advisory Council

Perhaps the main function of the Advisory Council is |

nduct the so-called section 106 consultation. It should

and

—

App. 70

members are about the making of public policy. Indeed

Congress has explicitly recognized that “the Council’s

decisions on preservation questions that come before the

Council represent a public interest determination, that

assures that historic preservation needs are satisfactorily

balanced with other public policy requirements.” H.R

Rep. No. 96-1457, 96th Cong., 2d Sess., reprinted in 1980

U.S. Code Cong. & Admin. News 6378, 6405. Inherent in

the making of salutory public policy is objectivity. It can

scarcely be doubted that federal agencies which consult

with the Advisory Council will have reason to question

the very integrity of the consultative process if a congres-

sionally chartered member of the Council, like the Trust,

absent explicit authority from Congress, is at once litigat-

ing against the federal agencies to force consultation and

at the same time purporting to act as an impartial confer

ee during the consultative process

Finally, the carefully crafted legislative relationship

between federal agencies, the Trust, the Advisory Coun-

cil, the Secretary of the Interior, and the Attorney General

regarding historic preservation matters is a relaticnship

formulated to insure cooperation, not litigation, between

the federal players. The Trust was created not to litigate

against government entities, but rather as “[a] supple-

ment [to] the Federal program of preservation.” H.R. Rep

No. 855, 81st Cong., Ist Sess., reprinted in 1949 U.S. Code

Cong. & Admin. News 2285, 2288 (Letter from J. A. Krug,

Secretary of the Interior, to Hon. J. Hardin Peterson,

Chairman, Committee on Public Lands, House of Repre-

sentatives (June 14, 1949)). Throughout the legislative

history of national preservation law subsequent to the

App. 71

creation of the Trust, Congress “recogniz[ed] the necessi-

ty for a high degree of cooperation and coordination of

Federal activities if the Nation is to enjoy both the fruits

of progress and its heritage from the past.” H.R. Rep. No.

1916, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code

Cong. & Admin. News 3307, 3310. Congress continually

sought to find means of “avoiding conflicts of administra-

tive jurisdiction.” Id. Thus, in addition to the specific

adverse impacts upon the management of the Trust and

the functioning of the Advisory Council, suits such as the

one here, where in a sense the Trust threatens a federally

funded park in order to save federally recognized historic

warehouses, challenge an essential premise of federal

preservation law as between federal entities - “a high

degree of cooperation and coordination

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