Vieux Carre Property Owners, Residents and Associates, Inc. v. Brown
| Decision Date | 26 December 1991 |
| Docket Number | No. 90-3740,90-3740 |
| Parties | 22 Envtl. L. Rep. 20,497 VIEUX CARRE PROPERTY OWNERS, RESIDENTS AND ASSOCIATES, INC., Plaintiff-Appellant, v. Colonel Lloyd Kent BROWN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James G. Derbes, James R. Logan, IV, New Orleans, La., for plaintiff-appellant.
Andrea Ferster, Chris Gobert, New Orleans, La., Elizabeth S. Merritt, David A. Doheny, Washington, D.C., for amicus curiae, Nat. Trust.
Charles M. Lanier, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for Bd. of Com'rs, Port of N.O.
Henry W. Kinney, Kinney & Marshall, New Orleans, La., for Audubon Park Com'n.
Okla Jones, II, City Atty., Bruce E. Naccari, Dept. of Law, City of New Orleans, City Atty's Office, William D. Aaron, New Orleans, La., for City of New Orleans.
Harry Rosenber, U.S. Atty., S. Mark Gallinghouse, Asst. U.S. Atty., New Orleans, La., Elizabeth A. Peterson, Atty., Dept. of Justice, Appellant Section, Martin W. Matzen, Washington, D.C., for Brown--U.S.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REYNALDO G. GARZA, WIENER, and BARKSDALE, Circuit Judges.
For the second time, this court is asked to resolve the continuing dispute between Vieux Carre Property Owners, Residents and Associates, Inc. (Vieux Carre), an historic building preservation group, and the United States Army Corps of Engineers (the Corps) over the construction of a riverside park in New Orleans. In this appeal, Vieux Carre urges us to overrule the district court's decision on remand dismissing Vieux Carre's suit on various grounds of mootness. We agree with Vieux Carre that in finding the case moot the district court violated the "law of the case" doctrine and determined incorrectly that the historic preservation review required under the National Historic Protection Act was not necessary once a federally-licensed project was completed or substantially completed. Therefore, we reverse the district court's dismissal of Vieux Carre's suit, and remand for disposition consistent with this opinion and our first opinion. 1 At this time, however, we cannot and do not decide whether the case fits the "capable of repetition, yet evading review" exception to the mootness doctrine. On second remand, therefore, if the district court again finds the case moot, we instruct it to consider whether this exception applies given that Vieux Carre is unable to maintain the status quo by enjoining the park project's non-federal developers. Lastly, finding that no reasonable person knowing all the circumstances would harbor doubts about the district judge's impartiality, we agree with the Corps that the district judge was not required under 28 U.S.C. § 455 to recuse himself from the case.
Because the facts and procedural history of this case are discussed fully in Vieux Carre I, we do no more here than summarize those matters. The case originated from the decision of the Audubon Park Commission, a local government entity in the City of New Orleans, to build an aquarium and park on the Mississippi riverfront in New Orleans. Because some structures were to be built on the Bienville Street Wharf (the Wharf), the Audubon Park Commission submitted its plans to the Corps, which has jurisdiction over the Wharf under Section 10 of the Rivers and Harbors Act (RHA). 2 The Wharf is located entirely within the Vieux Carre National Historic Landmark District, which is popularly known as New Orleans's French Quarter and is listed in the National Register of Historic Places.
After consideration of the proposed riverfront project, the Corps concluded that the aquarium would not require a permit because it was to be built entirely landward of the Mississippi's Ordinary High Water Line (OHWL), but that the park would require a permit because it was to be built on the Wharf completely within the OHWL. The Corps determined, however, that because construction of the park would not require changing the Wharf's dimensions or maritime uses and would have no effect on navigation, the project did not require an "individual permit," 3 but could go forward under a regulation, somewhat misleadingly called a "nationwide permit," 4 promulgated by the Corps under RHA § 10. The Corps's belief, later proven to be incorrect, was that the Wharf itself was within the § 330.3(b) nationwide permit, which authorizes, under certain circumstances, structures or work completed before December 18, 1968. 5 The Corps decided that it was not required to undertake the historic review consultation procedures mandated by Congress in Section 106 of the National Historic Preservation Act (NHPA), 6 and the implementing regulations promulgated by the Advisory Council on Historic Preservation (Advisory Council), 7 because activities under a nationwide permit are not "licensed."
Originally, Vieux Carre brought a declaratory judgement suit against the Corps on grounds that the RHA and the Corps's own regulations required the Corps to issue an individual permit for the aquarium, and that individual permitting, in turn, required that the aquarium project be subjected to the NHPA review process. Vieux Carre also claimed that the park project required an individual permit. Vieux Carre argued alternatively that even if the park project came under a nationwide permit, thus avoiding the need for an individual permit, the nationwide permit is still a license within the meaning of NHPA and therefore triggers NHPA review. Vieux Carre sought a judgment declaring that the Corps must comply with the historic review process, and also sought an injunction to keep the non-federal parties from proceeding with the riverfront project. After an evidentiary hearing on this matter, the district court dismissed Vieux Carre's suit on jurisdictional grounds, finding that Vieux Carre had no private right of action under RHA §§ 10 and 14 to compel the Corps to undertake the permitting process, and concluding that the Corps's decisions made pursuant to those statutes are unreviewable under § 701(a)(2) of the Administrative Procedures Act (APA). Vieux Carre appealed to this court.
In Vieux Carre I, we reversed the district court's determination that the Corps's decisions under the RHA were non-reviewable, explaining that APA § 701(a)(2) is applied "primarily to situations in which agencies have chosen not to enforce or prosecute violations of their regulations, rather than to agency decisions on whether or not to approve activities governed by a statute that sets guidelines for determining when such approval should and should not be given." 8 We did, however, affirm the district court's dismissal of Vieux Carre's suit for an injunction against non-federal parties, reasoning that "neither the APA nor the NHPA give a private plaintiff a right of action against any of the defendants other than the Corps." 9 We also affirmed the dismissal of Vieux Carre's complaints concerning the aquarium phase of the project, albeit for reasons different from those given by the district court. 10 But we reversed the dismissal of Vieux Carre's claims concerning the park project, and remanded the case to the district court with instructions to make specific legal and factual findings, including (1) whether the park project required an individual permit or was within the § 330.5(a)(3) nationwide permit, and, (2) assuming the nationwide permit was found by the district court to be appropriate, whether the permit was valid and the park project triggered NHPA.
As to the second question, whether activities pursuant to the § 330.5(a)(3) nationwide permit can trigger NHPA review, this court concluded that the § 330.5(a)(3) nationwide permit, which the Corps claims is applicable to the park project, is a "license" and therefore subject to the § 330.5(b)(9) requirement that the Corps give the Advisory Council an opportunity to comment if it determines that historic properties may be adversely affected by the permitted activities. We decided, however, to take a middle path between the Corps's position on the one hand, that NHPA's § 106 "undertaking" requirement is coterminous with the "major federal undertaking" requirement in the National Environmental Policy Act (NEPA), 11 and Vieux Carre's argument on the other hand, that all activities covered by a § 330.5(a)(3) nationwide permit trigger the NHPA review process. We held that "nationwide permits authorizing truly inconsequential activities are not triggering 'licenses' under § 470f." 12 Therefore, we remanded the case and instructed the district court to make the following findings of fact and law:
The Corps apparently determined that the park constitutes a "rehabilitation" or "replacement" of the wharf, that the park plans do not deviate from the 1930 plans of the wharf except for minor deviations due to changes in materials or construction techniques that are necessary for the rehabilitation or replacement, and that the park is not a use differing from uses specified in the 1930 wharf permit. The reviewing court must determine whether the Corps' interpretation of its own regulation is reasonable and consistent with the regulations themselves. Because the district court did not address this issue, we remand for an interpretation of the scope of section 330.5(a)(3); a determination of whether the Corps' finding that the riverfront park is covered by this nationwide permit (as the district court defines it) was arbitrary or capricious; and if the park is covered by section 330.5(a)(3), a ruling on whether the project is so inconsequential that it escapes section 470f's historic impact review requirements.
Finally, if the district court finds that the riverfront park does fall under section 330.5(a)(3) and is inconsequential, it must also address the Vieux Carre's...
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