# Opposition Brief — People for Responsible Omaha Urban Development v. Army Corps of Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1301%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 957 ## Text »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 | x ~ 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. ii TABLE OF CONTENTS Page Questions Presented For Review................... i Puen OE FO oe eo sing va 55 sh 2s tase iv RUE pou sabe ne sh sae sec tekne deen creep eee 1 eeeeenee OF Tee Ge... 2. on cnt cedanaedeeneeee l RY OE ONE oi sino ev owes een ee pee 6 PIE oo nc cnvetenbcktiss eae eee 7 Cores ee ili 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 iv 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 ee 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 J! vi TABLE OF AUTHORITIES - Continued Pa 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 ge 21 oe 19 15 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). i. _ SUMMARY OF ARGUMENT 1. This proceeding is moot because there is no longer any case or controversy. nN 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. ,% vr ARGUMENT I. 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) 10 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). 11 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) (c) Whena... United States court of ap- 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 12 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 13 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. 14 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. 15 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 16 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 17 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 18 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 19 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). 20 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 21 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. 22 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 23 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 24 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 25 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). * 26 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 27 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: N 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). a 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. A 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. I A. 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. B. 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. c 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- oe 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 A 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 Register. The City of Omaha’s National Register nomina- 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. B. 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. of 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 D. 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 E. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1301%3A2. Public record. Not legal advice.