Indiana Coal Council, Inc. v. Lujan, Civ. A. No. 87-1016 (JHG)

• Decision Date: 08 October 1991
• Docket Number: Civ. A. No. 87-1016 (JHG),87-1020 (JHG).
• Court: U.S. District Court — District of Columbia
• Parties: INDIANA COAL COUNCIL, INC., et al., Plaintiffs, v. Manuel LUJAN, Jr., et al., Defendants. NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES, et al., Plaintiffs, v. Manuel LUJAN, Jr., et al., Defendants.

774 F. Supp. 1385

INDIANA COAL COUNCIL, INC., et al., Plaintiffs, v. Manuel LUJAN, Jr., et al.,¹ Defendants.

NATIONAL TRUST FOR HISTORIC PRESERVATION IN the UNITED STATES, et al., Plaintiffs, v. Manuel LUJAN, Jr., et al., Defendants.

Civ. A. Nos. 87-1016 (JHG), 87-1020 (JHG).

United States District Court, District of Columbia.

October 8, 1991.

Warner W. Gardner, James R. Bird, Shea & Gardner, Washington, D.C., Mark L. Morgan, Chambersville, Ky., David A. Doheny, VP and Gen. Counsel, Elizabeth S. Merritt, Asst. Gen. Counsel, NTHP, Washington, D.C., for plaintiffs.

Lisa K. Hemmer, Alfred T. Ghiorzi, Attys. U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiffs Indiana Coal Council, Inc., National Coal Association, American Mining Congress, (collectively, "Industry plaintiffs"); National Trust for Historic Preservation in the United States; Society of Professional Archeologists; National Conference of State Historic Preservation Officers; Kentucky Organization of Professional Archeologists; Council for West Virginia Archaeology; Council for the Conservation of Indiana Archaeology, Inc.; and Ohio Archaeology Council (collectively, "National Trust plaintiffs") initiated these consolidated actions for declaratory and injunctive relief against the Secretary of the Interior, the Director of OSM, and the United States Department of the Interior (collectively, "defendants" or "Federal defendants"). Industry plaintiffs contend that the Secretary of the Interior (the "Secretary") has promulgated regulations under the Surface Mining Control and Reclamation Act ("SMCRA" or the "Act"), 30 U.S.C. § 1201 et seq., that place burdensome responsibilities for identifying and evaluating unknown historic and archeological resources on applicants for state mining and exploration permits. In particular, Industry plaintiffs challenge provisions in the rulemaking that a state regulatory authority ("SRA"), in a permit application or as a condition of permit issuance, may require surveys to identify unknown historic sites or may condition a permit to prevent or mitigate damages to those sites. They seek an Order remanding the regulations promulgated on February 10, 1987 to the Secretary in order to replace his preambles with a clear and consistent statement of what the regulations require or to eliminate the duties imposed by said regulations.

In contrast, National Trust plaintiffs² argue that although the regulations are authorized, they do not go far enough in implementing the Secretary's responsibilities under the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470 et seq. Consequently, National Trust plaintiffs seek a declaration that OSM³ has failed to comply with the NHPA and SMCRA by failing to ensure the identification and consideration of historic properties subject to adverse effects from surface mining, a court-supervised plan for protection of historic properties, and an injunction against future unspecified undertakings.

The parties have since filed cross motions for summary judgment.⁴ For the following reasons, Industry plaintiffs' motion is denied, National Trust plaintiffs' motion is granted, and Federal defendants' motion denied.

I. BACKGROUND

A. Statutory Background

1. The NHPA

The NHPA was enacted by Congress in 1966 to implement a congressional policy to encourage the preservation and protection of America's historic and cultural resources. The NHPA also created the Advisory Council on Historic Preservation, an independent federal agency, which is responsible for, among other things, "reviewing the policies and programs of Federal agencies and recommending to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under the NHPA." 16 U.S.C. §§ 470i, 470j.

Section 110 of the NHPA, Id. § 470h-2, defines the responsibilities of federal agencies for historic preservation. Section 110(d) requires that all federal agencies carry out their programs and projects, "including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required," in accordance with the purposes of the NHPA and that all agencies give consideration to programs and projects that will further the purposes of the NHPA. Id. § 470h-2(d).

Similarly, Section 106 of the NHPA provides:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State ... shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, 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 sections 470i to 470v of this title a reasonable opportunity to comment with regard to such undertaking.

Id. § 470f. The Advisory Council has promulgated regulations that implement the requirements of the NHPA by setting out a specific consultation process in which federal agencies must engage in order to satisfy their responsibilities under Section 106. See 36 C.F.R. Part 800.

The requirements of Section 106 apply to all federal or federally assisted undertakings that may affect historic properties.⁵ Section 800.2(o) of the Advisory Council's regulations defines the term "undertaking" as:

Any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.

36 C.F.R. § 800.2(o).

One type of undertaking by OSM that may adversely affect historic properties is the Secretary's approval of applications for primacy by SRAs. Another type of undertaking by OSM that may adversely affect historic properties is OSM's periodic approval of amendments to state programs once primacy has been granted to a state, i.e. OSM has delegated its regulatory authority to a state. Similarly, OSM's authorization of the issuance of permits for the surface mining of coal, on federal lands and in those states where OSM is the primary regulatory agency, is also an undertaking.

Pursuant to the Council's regulations, the agency must identify those historic properties that may be affected by the undertaking. The agency is responsible for identifying not only previously recorded properties but also those that are eligible for inclusion in the National Register and yet are unknown or unrecorded prior to the identification process. In order to identify historic properties, agencies initially must review available data and consult with the State Historic Preservation Officer ("SHPO") and other interested parties. Id. § 800.4(a)(1). Based on this review, the agency "should determine any need for further actions, such as field surveys and predictive modeling, to identify historic properties." Id. § 800.4(a)(2).

Once historic properties have been identified, the agency, in consultation with the SHPO, must determine the nature of the effect that the proposed undertaking will have on those historic sites. Id. § 800.5. If the agency and the SHPO agree that the undertaking will have no effect or no adverse effect on any historic properties, then the agency may proceed with the undertaking as planned. Id. § 800.5(b). If, however, the parties agree that there could be an adverse effect on historic property, or if the SHPO or the Advisory Council disagree with the agency's determination of effect, further consultation is required. Id. §§ 800.5(c), (d), (e).

Under 36 C.F.R. § 800.5(e), the agency shall notify the Council and shall consult with the SHPO to seek ways to reduce the effects on historic properties. Any affected person or group may ask to participate in the process, and, at a minimum, the consulting parties include the agency and the SHPO and often the Advisory Council. Id. § 800.5(e)(1).

If the parties to the consultation agree upon how the effects will be taken into account, they may execute a Memorandum of Agreement ("MOA"). Id. § 800.5(e)(4). If the agency carries out the terms of the MOA, the agency will have satisfied its Section 106 responsibilities. However, "failure to carry out the terms of a Memorandum of Agreement requires the Agency Official to resubmit the undertaking to the Council for comment in accordance with § 800.6." Id. § 800.6(c)(1).

In addition to the case-by-case review process described above, there are two alternative methods for agencies to comply with the requirements of Section 106: a Programmatic Agreement or counterpart regulations. A Programmatic Agreement ("PA"), formerly referred to as a Programmatic Memorandum of Agreement ("PMOA"), may be used as an alternative to case-by-case review when an agency is involved in a large and complex project, or when a program involves a class of undertakings that would otherwise require numerous and repetitive individual requests for comments. Id. § 800.13(a). A PA is negotiated between the Advisory Council, the agency, and either the SHPO with jurisdiction over the program or the National Conference of State Historic Preservation Officers in the case of a program that involves more than one state. Id. § 800.13(b). As with the MOA, an approved PA "satisfies the Agency's section 106 responsibilities for all individual undertakings carried out in accordance with the agreement until it expires or is terminated." Id. §...