Friends of St. Frances Xavier Cabrini Church v. Paulson

Decision Date26 July 2010
Docket NumberCivil Action No.: 07-2713
Citation728 F.Supp.2d 820
PartiesFRIENDS OF ST. FRANCES XAVIER CABRINI CHURCH v. R. David PAULSON, in his official capacity as administrator of FEMA.
CourtU.S. District Court — Eastern District of Louisiana

James R. Logan, IV, Logan & Soileau, LLC, New Orleans, LA, for Friends of St. Frances Xavier Cabrini Church.

Jason M. Bigelow, U.S. Attorney's Office, New Orleans, LA, for R. David Paulson.

ORDER AND REASONS

LEMELLE, District Judge.

Before the Court is Plaintiff's Motion for Summary Judgment (Rec. Doc. No. 76) and Defendant's Cross Motion for Summary Judgment (Rec. Doc. No. 79). Defendant in intervention filed an opposition to Plaintiff's motion (Rec. Doc. No. 80). Plaintiff filed reply (Rec. Doc. No. 82). For reasons discussed during oral argument and for the following reasons Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED.

BACKGROUND

On August 29, 2005 and September 24, 2005, President George W. Bush, at the request of Louisiana Governor KathleenBlanco, declared two major disasters due to severe damage from Hurricanes Katrina (DR-1603-LA) and Rita (DR-1607-LA). Holy Cross College, Inc. ("Holy Cross"), located at 4950 Dauphine Street, New Orleans, Louisiana in the Lower Ninth Ward, sustained severe damage as a result of the hurricanes. Administrative Record ("AR") 2294. Holy Cross School subsequently applied for and was deemed eligible for FEMA Public Assistance funds to construct a new campus on the site of Cabrini Church and the St. Frances Xavier Cabrini and Redeemer School ("School") in the Gentilly neighborhood of New Orleans. Cabrini Church and the School also sustained severe damage as a result of the hurricanes. Cabrini Church and the School are both owned and operated by the Roman Catholic Church of the Archdiocese of New Orleans ("Archdiocese") and the Congregation of St. Frances Xavier Cabrini Roman Catholic Church ("Parish Corporation"). AR 2294. Pursuant to 44 C.F.R. §§ 206.221 and 206.226(g), Federal Emergency Management Agency ("FEMA") may fund the relocation of eligible destroyed facilities such as private nonprofit and educational facilities. FEMA is prohibited from providing Federal disaster assistance funds for repair, restoration, or reconstruction of a facility that is dedicated to or primarily used for religious purposes at the time of the disaster. 42 U.S.C. § 5170c, 44 C.F.R. § 206.226. Cabrini Church is not an eligible facility, and no Federal disaster funds were requested for demolition of Cabrini Church. AR 2294, 2295.

A. The Section 106 Process at the Cabrini Church Site in Gentilly

Because FEMA funded the construction of a school that potentially affected historic properties (namely Cabrini Church), FEMA was required to comply with the Section 106 review process under the National Historic Preservation Act ("NHPA"). At the time of this Undertaking, a Programmatic Agreement for FEMA funded undertakings in the State of Louisiana was in effect among FEMA, State Historic Preservation Office ("SHPO"), Louisiana Office of Homeland Security and Emergency Preparedness ("LOHSEP"), and Advisory Council on Historic Preservation ("ACHP"). See Exhibit A. Section 106 and the Programmatic Agreement required FEMA to follow a four-step process.

First, FEMA determined that its action to fund the relocation and construction of Holy Cross School to the Gentilly neighborhood was an "Undertaking" which had the potential to affect historic properties ( i.e., Cabrini Church). See AR 2296; 36 C.F.R. § 800.3(a); see also Exhibit A, p. 6. In making this determination, FEMA consulted with the SHPO and determined that Cabrini Church was eligible for listing in the National Register "for its innovative and complex structural design, exemplifying an exceptional singular design for a house of worship in New Orleans erected during the post-World War II period, and because the Church represents the work of the preeminent Modern local architecture firm of Curtis and Davis ..." See AR 2296; 36 C.F.R. § 800.3(c). FEMA also involved local government officials and the public in the process. See AR 2295-96; 36 C.F.R. § 800.3(f)(1).

Second, FEMA, through consultation with the SHPO, defined the APE (the APE is always defined before identification efforts are undertaken) of the Undertaking as the site of Cabrini Church and School in the Gentilly neighborhood. AR 2295-96; 36 C.F.R. § 800.4(a)(1); Exhibit A, p. 6. FEMA and the SHPO agreed not to include the existing Holy Cross School campus in the Lower Ninth Ward in the APE because at the time the MOA was executed it was not certain what FEMA fundedwork would be performed at the site. AR 2296. Section 106 allows for "phased identification and evaluation" where alternatives under consideration consist of large land areas or if the agency official provides for it in an MOA. 36 C.F.R. § 800.4(b)(2). FEMA would conduct appropriate review whenever Holy Cross School submitted proposed project plans to FEMA. AR 2296. Because the APE involved a historic property (Cabrini Church), FEMA notified and sought input from the consulting parties on the effects of the Undertaking. AR 2296; 36 C.F.R. § 800.4(d)(2).

Third, FEMA, in consultation with the SHPO, determined that the Undertaking would have an adverse effect on Cabrini Church because it would result in demolition of the church which was eligible for the National Register. AR 2296; 36 C.F.R. § 800.4(a). Accordingly, FEMA and the SHPO developed a plan to include the public in the Section 106 review process to seek and consider public views on the Undertaking-specifically, to discuss the project and identify alternatives to avoid, minimize and/or mitigate any potential adverse effects from the Undertaking. AR 2295. FEMA held five consultation meetings with the consulting parties on February 7, 15, 26 and March 5 and 16, 2007. Id. The February 26, 2007 consultation meeting included Parish Corporation, St. Frances Xavier Cabrini Parish Council, National Trust for Historic Preservation, City of New Orleans, City Council, Office of Recovery Management, New Orleans Planning District (District Six), Friends of Cabrini Church, Mississippi Band of Choctaw Indians, Oak Park Civic Association, Vista Park Civic and Improvement Association (hereinafter "consulting parties"). AR 2296.

Fourth, after further consultations with the consulting parties, FEMA reached agreement in developing and evaluating alternatives to avoid, minimize, or mitigate adverse effects of the Undertaking. 36 C.F.R. § 800.6. During the Section 106 consultation process, Plaintiff and the ACHP urged FEMA to consider placing the existing Holy Cross School campus within the APE of the Undertaking because of the "reasonably foreseeable" effects to the school itself and the surrounding community. AR 1624-26, 1986-87. After further consideration, FEMA decided to utilize a "phased approach" regarding the APE because Holy Cross School had not submitted any proposed plans for the existing campus. AR 2296. Using a "phased approach," FEMA would conduct Section 106 review for the Gentilly site first and then conduct subsequent Section 106 review after it received proposed plans from Holy Cross School on the existing campus. AR 2296. All signatory parties, including the SHPO and ACHP, concurred with FEMA's approach and executed the MOA, which also contained an Agreement outlining measures to avoid, minimize, and mitigate adverse effects on Cabrini Church. AR 2294-2311. The executed MOA governs the Undertaking at the new Holy Cross School site and all of its parts. Id.; see 16 U.S.C. § 470h-2. On June 5, 2007, the Archdiocese demolished Cabrini Church. AR 2849-56.

B. The Section 106 Process at the Old Holy Cross Site in The Lower Ninth Ward

Ultimately, Holy Cross informed FEMA of its intention to "mothball" all structures at the Lower Ninth Ward Holy Cross site (Undertaking). In response, FEMA initiated consultation with the SHPO pursuant to the Programmatic Agreement to determine whether the structures were individually eligible for listing in the National Register of Historic Places or contributing elements to the National Register Historic District referred to as Holy Cross Historic District. Supp. AR 4733-46. After consultationwith the SHPO, FEMA determined that the structures at the Holy Cross School campus, with the exception of the school's Administration Building, were "non-contributing elements to the [Holy Cross] historic district as they were built after the historic district's period of significance." Supp. AR 4733. Because Holy Cross' Scope of Work indicated "no ground disturbing activities associated with the mothballing of the buildings at Holy Cross School," FEMA determined that there would be "No Adverse Effect on historic properties as a result of the Undertaking." Supp. AR 4734. Accordingly, on January 24, 2008, FEMA, with the SHPO's concurrence, determined that the Undertaking would not adversely affect historic properties within the Holy Cross Historic District. Supp. AR 4781-82.

After FEMA made this determination, Holy Cross approached FEMA regarding changing the proposed Undertaking to include demolishing and removal of seven structures (including foundations) plus the swimming pool at the Holy Cross School campus. Supp. AR 4809. The Administration Building was excluded from demolition but would be "mothballed." Id. On May 28, 2008, FEMA reinitiated consultation with the SHPO regarding Holy Cross' change in the proposed Undertaking and determined that the applicant's request would have "No Adverse Effect to historic properties" based on a number of factors, including: 1) all the buildings proposed for demolition were not individually eligible for listing in the National Register of Historic Places and were non-contributing to the Holy Cross National Register Historic District; 2) the Undertaking was limited to demolition and slab removal and did not include reconstruction; and 3) FEMA placed...

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