Camden Cnty. Historical Soc'y v. State

• Citation: 371 F.Supp.3d 187
• Decision Date: 01 March 2019
• Docket Number: Civil No. 17-5270 (RMB/AMD)
• Parties: CAMDEN COUNTY HISTORICAL SOCIETY, Plaintiff, v. State of New Jersey DEPARTMENT OF TRANSPORTATION, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

371 F.Supp.3d 187

CAMDEN COUNTY HISTORICAL SOCIETY, Plaintiff,

v.State of New Jersey DEPARTMENT OF TRANSPORTATION, et al., Defendants.

Civil No. 17-5270 (RMB/AMD)

United States District Court, D. New Jersey, Camden Vicinage.

Signed March 1, 2019

Filed March 6, 2019

POSTERNOCK APELL, P.C., By: Matthew R. Litt, Esq., 400 N. Church Street, Suite 250, Moorestown, New Jersey 08057, Counsel for Plaintiff Camden County Historical Society

OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, By: Brad M. Reiter, Esq., Fredric R. Cohen, Esq., Michael R. Sarno, Esq., Richard J. Hughes Justice Complex, 25 Market Street, P.O. Box 114, Trenton, New Jersey 08625, Counsel for Defendants the New Jersey Department of Transportation, Richard T. Hammer, and David C. Mudge

OFFICE OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW JERSEY, By: Elizabeth A. Pascal, Esq., 401 Market Street, P.O. Box 2098, Camden, New Jersey 08101, Counsel for U.S. Department of Transportation; Secretary of the U.S. Department of Transportation, Elaine L. Chao; the Federal Highway Administration; and Former Acting Director of the Federal Highway Administration, Walter Waidelich, Jr.

BUMB, UNITED STATES DISTRICT JUDGE:

Plaintiff, the Camden County Historical Society, considers the Harrison House "a national, regional, and local historic treasure." (Amend. Compl. ¶ 1)¹ The State of New Jersey demolished it in the early morning hours of March 3, 2017 to make room for "a federally funded highway reconstruction project." (Id.) The Historical Society had sought emergent relief before the State Court to prevent the destruction of such a treasure, but the Historical Society alleges that the State ignored its application and instead, "initiated a furtive and expedited demolition" of the house. (Id. ¶ 20) While the Historical Society has asserted many claims under federal and state law² , this Opinion addresses one discrete issue raised in Defendants' Motions to Dismiss: Does the National Historic Preservation Act, 54 U.S.C. § 306108 ("NHPA"), create a private right of action? Applying the analytical framework established by the United States Supreme Court in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), which precedent the Third Circuit followed in Wisniewski v. Rodale, Inc., 510 F.3d 294 (3d Cir. 2007) and McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009), among other cases, the Court holds the NHPA does not create a private right of action. Accordingly, Defendants' Motion to Dismiss Count 1 of the Amended Complaint will be granted.³

I.

As alleged in the Amended Complaint, "[i]n or about 2001, Defendants [New Jersey Department of Transportation] and the Federal Highway Administration ("FHWA") announced they were preparing to undertake ... a major reconstruction of the intersections of federal highway 295 and State highway 42 located in Bellmawr, New Jersey." (Amend. Compl. ¶ 74) "The geographic area affected by the Construction Project encompassed the Harrison House." (Id. ¶ 75)

In December 2003, historians Elizabeth Amisson and Paul Schopp allegedly concluded that the Harrison House was eligible for listing in the National Register of Historic Places. (Amend. Compl. ¶ 79) The Amended Complaint alleges that in May 2005, those same historians "suddenly concluded" that the features that had originally made the Harrison House eligible for the National Register "had been so obscured or removed that the Harrison House was incapable of interpreting its history and [was] now ineligible." (Amend. Compl. ¶ 88) Specifically, the Amended Complaint alleges that

the survey process and the independence of the historians was [sic] compromised by misinterpretations of the building's architecture by the NJDOT cultural resources assessment project manager, divergences between the NJDOT project manager and the independent cultural resource consultants, and contrived analyses. Defendants' inaccuracies would have been identified and corrected had the process followed the regulations of the [NHPA]. Instead, Defendants hid and obscured their intentions by neglecting their obligation to notify the required consulting parties of their plans to demolish Harrison House.

(Id. ¶¶ 89-90) This alleged "bad faith section 106 ‘review’ " (Id., Section Heading, p. 17) is the basis of the Historical Society's NHPA claim. (See Id. ¶ 174, "The Federal Highway Administration and/or United States Department of Transportation and/or New Jersey Department of Transportation violated their obligations under section 106 by failing to exercise good faith in concluding that the Harrison House was ineligible for inclusion on the National Register.").⁴

II.

On a Rule 12(b)(6) motion, the Court must decide whether the complaint "contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In evaluating plausibility, the Court "disregard[s] rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Hassen v. Gov't of V.I., 861 F.3d 108, 114–15 (3d Cir. 2017) (internal citations and quotations omitted).

III.

A.

Before this Court reaches its analysis concerning an NHPA private right of action, it must answer a threshold question: Do principles of stare decisis and binding precedent allow this Court to reach the NHPA private right of action issue in light of the Third Circuit's decision in Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991) ?

In Boarhead, the Third Circuit, relying upon the attorney fee shifting provision of the NHPA, concluded that "we agree with the arguments advanced by Boarhead and amici that Congress must have intended to establish a private right of action to interested parties, such as Boarhead" under the NHPA. 923 F.2d 1011, 1017 (3d Cir. 1991) (citing the holding of Vieux Carre Prop. Owners, Residents & Assocs. v. Brown, 875 F.2d 453 (5th Cir. 1989), "that a private right of action existed under the Preservation Act against a federal agency."⁵ ). Neither the Supreme Court, nor the Third Circuit, has overruled Boarhead, and so, it is therefore the law of this Circuit that a private right of action exists under the NHPA. This Court well recognizes that as the lowest court in the vertical hierarchy of federal courts, it is powerless to overrule Boarhead. However, the fair question remains whether, under principles of vertical stare decisis⁶ , this Court is bound to follow Boarhead in light of the subsequent decision by the Supreme Court in Sandoval, and subsequent Third Circuit decisions applying Sandoval.

For the reasons illustrated infra , the Court agrees with Defendants' argument that it is not possible to follow faithfully, and apply properly, the mode of analysis established by Sandoval while simultaneously adhering to the holding of Boarhead—a decision that was issued ten years before Sandoval.⁷ Indeed, as Defendants correctly point out, subsequent to Sandoval, the Third Circuit, in Wisniewski and McGovern as well as other decisions, applied Sandoval's mode of analysis to hold in some cases that Congress had not created a private right of action because there was no "rights-creating language" in the statutes. See infra p. 192 and n.10. Accordingly, the Court concludes for the reasons explained below that, in this rare circumstance where Boarhead cannot be reconciled with Sandoval and other binding precedent, this Court by such subsequent rulings, is relieved of its obligation to follow Boarhead's holding concerning the existence of a private right of action under the NHPA. See Bryan A. Garner, et al., The Law of Judicial Precedent , 491 (Bryan A. Garner ed., 2016) ("A federal district court ... must follow decisions of the court of appeals in the same circuit in preference to the decisions of all other courts, state or national, unless there is a contrary decision by the U.S. Supreme Court.") (emphasis added)⁸ ; cf. U.S. Airways, Inc. v. McCutchen, 663 F.3d 671, 678 (3d Cir. 2011) ("While we recognize that the District Court may have considered itself bound by [previous Third Circuit precedent], each [case] came before the Supreme Court's decisions in Knudson and Sereboff which ... undermined the reasoning and holdings of our prior decisions.... These cases are therefore inapposite in light of the Supreme Court's intervening decisions."). Accordingly, the Court now turns to the merits of the NHPA issue.⁹

B.

Sandoval emphasized the principle that "[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress." 532 U.S. at 286, 121 S.Ct. 1511. Thus, to determine whether a statute creates a private right of action, "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. In Sandoval, the Court examined "the text and structure of Title VI" to reach the conclusion that Congress did not "inten[d] to create a freestanding private right of action to enforce regulations promulgated under § 106 [of the Act]." Id. at 288, 293, 121 S.Ct. 1511.

In the almost 20 years since Sandoval, the Third Circuit has applied the two step " Sandoval test,"-- i.e. , "(1) Did Congress intend to create a personal right?; and (2) Did Congress intend to create a private remedy?" Wisniewski, 510 F.3d at 301 -- to various statutes.

In Wisniewski, for example, the Third Circuit applied the Sandoval test to hold that § 3009 of the Postal Reorganization Act "provides no implied right of action." 510 F.3d at 301. First, considering "whether the statute contained ‘rights-cre...