Coliseum Square Ass'n, Inc. v. Jackson, 03-30875.

• Citation: 465 F.3d 215
• Decision Date: 18 September 2006
• Docket Number: No. 04-30522.,No. 03-30875.,03-30875.,04-30522.
• Parties: COLISEUM SQUARE ASSOCIATION, INC., Smart Growth for Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association and the Urban Conservancy, Inc., Plaintiffs-Appellants, v. Alphonso JACKSON, etc.; et al., Defendants, Alphonso Jackson, Acting Secretary, U.S. Department of Housing and Urban Development and Housing Authority of New Orleans, Defendants-Appellees. Coliseum Square Association, Inc., Smart Growth for Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association and the Urban Conservancy, Inc., Plaintiffs-Appellants, v. Housing Authority of New Orleans, an agency of the State of Louisiana, Alphonso Jackson, Acting Secretary, United States Department of Housing and Urban Development, Defendants-Appellees, v. Historic Restoration, Inc., Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

465 F.3d 215 COLISEUM SQUARE ASSOCIATION, INC., Smart Growth for Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association and the Urban Conservancy, Inc., Plaintiffs-Appellants,
v.
Alphonso JACKSON, etc.; et al., Defendants,
Alphonso Jackson, Acting Secretary, U.S. Department of Housing and Urban Development and Housing Authority of New Orleans, Defendants-Appellees.

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Coliseum Square Association, Inc., Smart Growth for Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association and the Urban Conservancy, Inc., Plaintiffs-Appellants,
v.
Housing Authority of New Orleans, an agency of the State of Louisiana, Alphonso Jackson, Acting Secretary, United States Department of Housing and Urban Development, Defendants-Appellees,
v.
Historic Restoration, Inc., Intervenor-Appellee. No. 03-30875. No. 04-30522. United States Court of Appeals, Fifth Circuit. September 18, 2006.

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James R. Logan, IV (argued), Logan & Soileau, George Hugh Penn, Law Offices of George H. Penn, William E. Borah, Camille Jones Strachan, New Orleans, LA, Michael Stephen Rolland (argued), Law Offices of Michael S. Rolland, Metairie, LA, for Plaintiffs-Appellants.

Jennifer Lynn Scheller (argued), Todd Steven Aagaard, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Jackson.

Henry W. Kinney, III (argued), Tara Elizabeth Clement, Kinney & Ellinghausen, New Orleans, LA, Glenn L. Unterberger, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, for Housing Authority of New Orleans.

Bruce A. Morrison, Great Rivers Environmental Law Ctr., St. Louis, MO, for Great Rivers Envir. Law Ctr., Amicus Curiae.

Elizabeth Sherrill Merritt (argued), Nat. Trust for Historic Preservation, Washington, DC, for American Planning Ass'n, Nat. Trust for Historic Preservation in the U.S., Sierra Club and Institute for Local Self-Reliance, Amici Curiae.

Gary J. Elkins, Yvonne Chalker, Elkins & Associates, New Orleans, LA, Richard Louis Traina, Seale & Ross, Hammond, LA, for Historic Restoration Inc.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this case, we are called upon to decide whether the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f, and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470f-470x-6, require the United States Department of Housing and Urban Development (HUD) to cease federal funding for the St. Thomas Housing Development revitalization project in the City of New Orleans until the agency completes further evaluation of the project's environmental and historic preservation impacts. Because it does not appear that HUD has acted arbitrarily, capriciously or contrary to law in its study, consideration, and findings regarding the project's environmental impacts, we conclude that these statutes impose no further requirements on HUD at this time.

I.

A brief overview of the statutes and regulations creating the administrative framework, terminology and objectives helps to understand the case. After describing the bureaucratic order, we then turn to the factual and procedural background.

A. 1.

"NEPA establishes a `national policy [to] encourage productive and enjoyable harmony between man and his environment,' and was intended to reduce or eliminate environmental damage and to promote `the understanding of the ecological systems and natural resources important to' the United States." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). "`NEPA itself does not mandate particular results' in order to accomplish

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these ends." Pub. Citizen, 541 U.S. at 756, 124 S.Ct. 2204 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Instead, NEPA imposes procedural requirements on federal agencies, requiring agencies to analyze the environmental impact of their proposals and actions. Pub. Citizen, 541 U.S. at 756-57, 124 S.Ct. 2204. NEPA's central requirement is that federal agencies must:

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of longterm productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2); see also Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204.

Federal agencies receive guidance in their preparation of this detailed "Environmental Impact Statement", or "EIS", from the Council of Environmental Quality ("CEQ"). Established by NEPA with the authority to issue regulations interpreting that statute, the CEQ has promulgated regulations determining what actions are subject to that statutory requirement. See 40 C.F.R. § 1500.3; see also Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204. According to these regulations, the agency may instead prepare a more limited document, called an Environmental Assessment ("EA"), if the proposed action is categorically excluded from the requirement to produce an EIS or does not clearly require the production of an EIS. Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(a),(b)). An EA, as compared to an EIS, should be a "concise public document . . . that serves to . . . [b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS]." 40 C.F.R. § 1508.9(a). "If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a `finding of no significant impact' (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment." Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(e), 1508.13).

2.

"The National Historic Preservation Act (`NHPA'), 16 U.S.C. §§ 470-470x-6, `requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation . . . to administer the Act.'" Nat'l Mining Ass'n v. Fowler, 324 F.3d 752, 755 (D.C.Cir.2003) (citations omitted). Section 106 of the NHPA requires that:

[t]he head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking . . . shall, prior to the approval of the expenditure of any Federal funds . . ., take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this

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Act a reasonable opportunity to comment with regard to such undertaking.

16 U.S.C. § 470f.

Like NEPA, the NHPA is procedural in nature. See, e.g., Morris County Trust for Historic Pres. v. Pierce, 714 F.2d 271, 278 (3d Cir.1983).

It does not itself require a particular outcome, but rather ensures that the relevant federal agency will, before approving funds or granting a license to the undertaking at issue, consider the potential impact of that undertaking on surrounding historic places. As such, courts have sometimes referred to Section 106 as a "stop, look, and listen" provision.

Business and Residents Alliance of East Harlem v. HUD, 430 F.3d 584, 591 (2d Cir.2005) (citing Ill. Commerce Comm'n v. Interstate Commerce Comm'n, 848 F.2d 1246, 1260-61 (D.C.Cir.1988); Pres. Coal., Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir. 1982)). Much like the EA/EIS process under NEPA, section 106 upholds the NHPA's objectives "neither by forbidding the destruction of historic sites nor by commanding their preservation, but instead by ordering the government to take into account the effect any federal undertaking might have on them." United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th Cir.1981).

When a project will adversely affect a National Historic Landmark, however, section 110f of the NHPA requires an agency to "undertake such planning and actions as may be necessary to minimize harm to such landmark" to the maximum extent possible and to allow the Advisory Council on Historic Preservation ("ACHP") time to comment. 16 U.S.C. § 470h-2(f). "Federal regulations also have been promulgated to guide the historic preservation review process, including consultation with the [State Historic Preservation Officer, or `SHPO'] and an opportunity to comment by the [ACHP]." Vieux Carre Property Owners Residents and Associates, Inc. v. Pierce, 719 F.2d 1272, 1281 (5th Cir.1983) (citing to 36 C.F.R. §§ 800-100.13).

B. 1.

We now turn to the factual and procedural background of this case. The plaintiffs, Coliseum Square Ass'n, Inc., Smart Growth For Louisiana, Louisiana Landmarks Society, Inc., Historic Magazine Row Association, and The Urban Conservancy, non-profit organizations representing citizens, residents and merchants in the City of New Orleans ("plaintiffs"), brought this action against HUD for judicial review, seeking declaratory judgment that HUD failed to comply with NEPA and NHPA in funding the St. Thomas Housing...