923 F.2d 1011 (3rd Cir. 1991), 90-1040, Boarhead Corp. v. Erickson

Docket Nº:90-1040.
Citation:923 F.2d 1011
Party Name:BOARHEAD CORPORATION, Appellant, v. Edwin B. ERICKSON, Region Administrator, United States Environmental Protection Agency, Region III, Appellee.
Case Date:January 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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923 F.2d 1011 (3rd Cir. 1991)



Edwin B. ERICKSON, Region Administrator, United States

Environmental Protection Agency, Region III, Appellee.

No. 90-1040.

United States Court of Appeals, Third Circuit

January 16, 1991

Argued June 1, 1990.

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Robert J. Shusterman (argued), Philadelphia, Pa., for appellant.

Richard B. Stewart, Asst. Atty. Gen., Evelyn S. Ying (argued), David C. Shilton, Mary Elizabeth Ward, U.S. Dept. of Justice Land & Natural Resources Div., Washington, D.C., Lawrence E. Starfield, Atty., Office of Gen. Counsel, U.S. E.P.A., Washington, D.C., and Brian Nishitani, Asst. Regional Counsel, U.S. E.P.A., Philadelphia, Pa., for appellee.

Andrea C. Ferster (argued), David A. Doheny, Vice-President and Gen. Counsel, Elizabeth S. Merritt, Asst. Gen. Counsel, Nat. Trust for Historic Preservation, Washington, D.C., and Katherine L. Niven, Chief Counsel Pennsylvania Historical and Museum Com'n, Harrisburg, Pa., for amici curiae Nat. Trust for Historic Preservation in the U.S. and the Pennsylvania Historical and Museum Com'n.

Before BECKER, HUTCHINSON and GARTH, Circuit Judges,


HUTCHINSON, Circuit Judge.

This appeal presents the conflicting demands two federal statutes--the National Historic Preservation Act of 1966 (Preservation Act), as amended, 16 U.S.C.A. Secs. 470 to 470w-6 (West 1985 & Supp.1990), and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C.A. Secs. 9601-9675 (West 1983 & Supp.1990)--place upon the Environmental Protection Agency (EPA) when the EPA decides to conduct preclean-up studies on a Superfund 1 site that is also eligible to be listed as a historic place. We must determine whether the district court had jurisdiction to hear a property owner's request,

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brought pursuant to the Preservation Act, to stay the EPA's CERCLA-related preclean-up activities until the EPA conducts appropriate review under Sec. 106 of the Preservation Act, 16 U.S.C.A. Sec. 470f. 2 The property owner, Boarhead Corporation (Boarhead), owns a farm. American Indians who once roamed the region used part of the farm as a burial ground. In this century, Boarhead exposed parts of the farm to toxic waste. Boarhead now says the Indian remains and artifacts should be protected before work can begin to remove the poisons now present on its land.

The district court dismissed Boarhead's complaint against Edwin B. Erickson, Regional Administrator of the EPA, for lack of subject matter jurisdiction. See Boarhead Corp. v. Erickson, 726 F.Supp. 607 (E.D.Pa.1989). It held that the complaint must be dismissed because it did not meet the timing procedures for judicial review specified in Sec. 113(h) of CERCLA, 42 U.S.C.A. Sec. 9613(h). 3 Relying on the reasoning of Bywater Neighborhood Ass'n v. Tricarico, 879 F.2d 165 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990), the district court concluded that the Preservation Act did not trump Sec. 113(h)'s jurisdictional limitations and that any claim Boarhead may have against the EPA or its officials under the Preservation Act can be asserted only in accordance with Sec. 113's review procedures. Boarhead says this ruling desecrates the remains of the Indians who first inhabited the region and risks destruction of the farm's historical and archaeological value.

Although the argument in favor of protecting our Indian heritage does not lack force even when advanced by a polluter, we hold that the district court did not err when it dismissed Boarhead's complaint against Erickson for lack of subject matter jurisdiction. While a district court normally has federal question jurisdiction pursuant to 28 U.S.C.A. Sec. 1331 (West Supp.1990) in a complaint arising under the Preservation Act and while the Administrative Procedures Act (APA), 5 U.S.C.A. Secs. 701-706 (West 1977), establishes a presumptive right to judicial review, these normal means of review are not available when CERCLA is involved. The plain language of CERCLA Sec. 113 shows that Congress intended to deny the district courts jurisdiction to hear complaints challenging the EPA's Superfund clean-up or preclean-up activities, even if a statute other than CERCLA ordinarily

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would create a federal claim. Similarly, the presumptive right to judicial review under the APA disappears because Sec. 113 clearly precludes such review at this time.

Boarhead's claim that the Indian remains or the artifacts on the land may suffer irreparable harm from delayed review of its complaint is unavailing. In Sec. 113 Congress explicitly limited a district court's power to hear Boarhead's request for equitable relief while the EPA is continuing to perform clean-up related activities. Boarhead's complaint does not fall within any of the five exceptions enumerated in Sec. 113(h), and therefore the district court had no jurisdiction to entertain Boarhead's action. 4 Because Sec. 113 clearly deprives the district court of jurisdiction, we will affirm the district court's order dismissing Boarhead's complaint.


Boarhead Farm is a 118 acre tract of land Boarhead owns in upper Bucks County, Pennsylvania, near the Delaware Canal. Title to the property traces to a grant from William Penn. A late eighteenth century, largely stone farmhouse is part of the farm, stone field walls traverse the property and there may be archaeological or historical remains on the land. Boarhead says that the farm is eligible to be listed on the National Register of Historic Places. 5

Most of the Boarhead Farm property is used as gamelands, but the developed portion includes a private residence, a horse farm and a machinery servicing/repair shop for construction and transport vehicles. Adjacent to the gamelands are two large automobile graveyards. In the early- and mid-1970's, three or four serious chemical spills from trucks hauling chemicals and waste for Boarhead's president occurred on the property.

On March 31, 1989, after concluding that there was a significant risk that hazardous substances would be released at Boarhead Farm and after giving interested parties the appropriate notice and comment period, the EPA designated the property as a Superfund site on its National Priorities List. Thereafter, on May 18, 1989, the EPA sent Boarhead a letter telling Boarhead that the EPA intended to conduct several studies to determine the extent of the problem and that it considered Boarhead a "potentially responsible party" for the contamination. See Appellant's Appendix (App.) at 22. The intended studies would include a Remedial Investigation and Feasibility Study (RI/FS) for remedial action. Depending on what was discovered, the EPA explained that it could take other responsive steps under CERCLA, including "expedited response actions," "emergency removal actions" and "implementing the EPA-approved remedial option." Id. at 23.

Boarhead told the EPA in its reply that Boarhead Farm was eligible to be listed as a historic place and asked the EPA whether it had performed a Sec. 106 review under the Preservation Act. The EPA told Boarhead in a letter dated September 19, 1989, that although it had not conducted a formal Sec. 106 review, any appropriate historic preservation issues would be duly considered as part of its established CERCLA procedures. 6 See App. at 26.

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Before it received the EPA's response, Boarhead went to court and filed a complaint in the United States District Court for the Eastern District of Pennsylvania on July 10, 1989. In the complaint Boarhead asked the district court to strike Boarhead's name from the National Priorities List and sought a stay of any EPA activities affecting Boarhead Farm. Boarhead asserted that the district court had subject matter jurisdiction to issue such an order pursuant to the Preservation Act because Boarhead Farm was a historic piece of property and met the requirements for listing on the National Register of Historic Places.

The complaint went on to say that the EPA had failed to conduct a Sec. 106 review, as the Preservation Act and regulations promulgated pursuant to the Act, see 36 C.F.R. Secs. 800.1-800.15 (1989), required. Review under Sec. 106 of the Preservation Act was designed to expose federal agencies to expertise the Advisory Council on Historic Preservation and state historic preservation officers provided and to force the agencies to consider alternate approaches to problems in order to minimize the damage to historic property without frustrating the agencies in fulfilling their obligations under federal law. Boarhead asked the district court to prohibit the EPA from taking further action on Boarhead Farm until the EPA completed a Sec. 106 review. 7 Boarhead also requested monetary damages for the EPA's interference with its right to quiet enjoyment of its property and reasonable attorneys' fees pursuant to Sec. 305 of the Preservation Act. 8

Erickson, the EPA's Regional Administrator named as defendant in the suit, moved to dismiss Boarhead's complaint. He asserted that the district court did not have subject matter jurisdiction over Boarhead's claims. 9 Alternately, Erickson argued that Boarhead's complaint was not ripe because the EPA had not yet done

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anything that would damage any historic resource on Boarhead Farm.

On December 15, 1989, the district court issued its order and memorandum opinion granting Erickson's motion to dismiss. The court held that it did not have jurisdiction to hear Boarhead's complaint. It wrote:

[Boarhead's] claims in the present action can be asserted only in accordance with Sec. 9613. To the extent [Boarhead] seeks removal of Boarhead Farms from the [National Priorities List], or damages for the listing of Boarhead Farms on the [list], [Boarhead] seeks review of the [list], and can assert its claim only in the Court of Appeals...

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