Moody Hill Farms v. U.S. Dept. Interior

• Decision Date: 25 January 1999
• Docket Number: Docket No. 98-6052
• Citation: 205 F.3d 554
• Parties: (2nd Cir. 1999) MOODY HILL FARMS LIMITED PARTNERSHIP, DOUGLAS DURST, SUSANNE DURST, RAYMOND McENROE, FRANK S. PEROTTI, and DORIS PEROTTI, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF THE INTERIOR, NATIONAL PARKS SERVICE, Defendant-Appellant. August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 554

205 F.3d 554 (2nd Cir. 1999)

MOODY HILL FARMS LIMITED PARTNERSHIP, DOUGLAS DURST, SUSANNE DURST, RAYMOND McENROE, FRANK S. PEROTTI, and DORIS PEROTTI, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF THE INTERIOR, NATIONAL PARKS SERVICE, Defendant-Appellant.

Docket No. 98-6052

August Term 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: January 25, 1999

Decided: April 20, 1999

Appeal from the judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge), granting summary judgment to plaintiffs-appellees on their claim that the Keeper of the National Register of Historic Places acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., when she denied plaintiffs-appellees' petition to remove Coleman Station Historic District from the National Register.

Reversed and remanded for entry of judgment for defendant-appellant.

ROBERT W. SADOWSKI, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, on the brief) New York, NY for Defendant-Appellant.

GARY M. ROSENBERG, (Norman Flitt, Todd E. Soloway, Alan Garten on the brief) Rosenberg & Estis, P.C. New York, NY for Plaintiffs-Appellees.

NATIONAL TRUST FOR HISTORIC PRESERVATION IN THE UNITED STATES and PRESERVATION LEAGUE OF NEW YORK STATE (Paul W. Edmondson, General Counsel, Elizabeth S. Merritt and Edith M. Shine, Assistant General Counsel, National Trust for Historic Preservation, Washington, D.C.), filed a brief as Amici Curiae in support of defendant-appellant.

FRIENDS OF COLEMAN STATION, INC. (Whitney North Seymour, Jr. and Peter James Clines of Landy & Seymour, New York, NY) filed a brief as Amicus Curiae in support of defendant-appellant.

Before: NEWMAN, WALKER, and CALABRESI, Circuit Judges.

WALKER, Circuit Judge:

Plaintiffs-appellees, residents of the hamlet of Coleman Station in New York state, claimed in the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge) that the Keeper of the National Register of Historic Places, an officer of the National Park Service, acted arbitrarily and capriciously, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., when she denied plaintiffs-appellees' petition to remove Coleman Station Historic District from the National Register. After the district court granted summary judgment to plaintiffs-appellees, see Moody Hill Farms Ltd. Partnership v. United States Dep't of Interior, 976 F. Supp. 214, 222-23 (S.D.N.Y. 1997), the Park Service appealed.

At the heart of this case is a dispute between neighboring landowners about the future of Coleman Station, a hamlet in the Town of Northeast in Dutchess County, New York. Plaintiffs either are associated with Moody Hill Farms Limited Partnership which operates a composting facility and organic farm on property within Coleman Station, or own farms within or adjacent to Coleman Station. The movement to list Coleman Station on the state and national registers of historic places was initiated by other landowners within Coleman Station who have made no secret of their opposition to Moody Hill Farms' composting activities, which they see as a threat to the district's traditional character.

In 1993, the latter group succeeded in obtaining listing for Coleman Station on the New York State Register of Historic Places. The New York State Office of Parks, Recreation and Historic Preservation ("NYHP"), pursuant to federal regulation, simultaneously nominated Coleman Station for listing on the National Register, and Coleman Station was placed on the National Register. Soon thereafter, plaintiffs challenged the New York listing on procedural grounds in state court and succeeded in having the listing removed. Plaintiffs then petitioned the Keeper to have the national listing annulled. After the Keeper denied their petition, plaintiffs filed the present suit, alleging violations of the APA and their due process rights.

With respect to the APA claim, the district court concluded that, because the criteria for the state and national registers are identical, eligibility for listing on the national register was destroyed once the state listing was voided. The district court further concluded that the procedural errors in the state listing contaminated the national nomination. Finally, the district court concluded that the Keeper erred in failing to consider an opinion by a Deputy Commissioner of the NYHP, forwarded along with plaintiffs' petition to remove Coleman Station from the National Register, that the property may lack historic integrity. The district court also denied summary judgment to defendant on plaintiffs' due process claim.

We disagree with the district court's conclusions regarding the APA claim. Because the Keeper has independent authority to determine the eligibility of properties and to add them to the National Register, the annulment of the state listing did not automatically void the national listing. Therefore, we reverse and remand for entry of judgment for defendant-appellant.

BACKGROUND

The National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq., authorizes the Secretary of the Interior to expand and maintain a National Register of "districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering and culture." Id. § 470a(a)(1)(A). The regulations governing the procedures for listing properties on the National Register are set forth at 36 C.F.R. pt. 60. Properties may be added to the National Register in several ways, including nomination by an approved state historic preservation program, as in this case, or by a federal agency, by an individual in a state where there is no approved historic preservation program, by act of Congress or Executive Order, or by a declaration by the Secretary of the Interior. All nominations to the National Register, except those made by Act of Congress, Executive Order, or declaration by the Secretary of the Interior, must be approved by the Park Service. See 36 C.F.R. § 60.1(b).

On June 8, 1993, the New York State Review Board for Historic Preservation voted unanimously to nominate Coleman Station for listing on the state and national registers. The Review Board's decision was sent to the NYHP, New York's approved Historic Preservation Program, which, on August 12, 1993, approved the recommendation without written opinion and forwarded the nomination to the Keeper of the National Register. More than two months later, on October 25, 1993, property owners within the Coleman Station district received notification of the state listing.

On August 31, 1993, the Park Service published notice in the Federal Register that Coleman Station was under consideration for entry in the National Register. On September 30, 1993, Coleman Station was listed in the National Register, and the Park Service notified the NYHP of the national listing. Approximately one year later, on December 30, 1994, the NYHP notified property owners within the district of the national listing.

Following the state listing, plaintiffs filed an Article 78 proceeding in the New York Supreme Court in Dutchess County. They sought an annulment on various grounds, including that the state listing was accomplished in violation of the procedures set forth at N.Y. Comp. Codes R. & Regs. tit. 9, § 427.5. These regulations provide, inter alia, that the NYHP must notify each owner of privately owned property of a decision relating to the listing of a property on the State Register no later than 45 calendar days after the decision has been made. See id. § 427.5(f)(1). The regulations also provide that the NYHP must issue its decision in writing, setting forth the findings in support of the decision. See id. § 427.5(d). By opinion dated June 29, 1994, the state court held for plaintiffs that the NYHP's failure to comply with these procedures vitiated the state listing. See In re Moody Hill Farms Ltd. Partnership v. New York State Office of Parks, Recreation and Historic Preservation, No. 94/0324, slip op. at 3-4 (N.Y. Sup. Ct. June 29, 1994). The state court did not reach the merits of whether Coleman Station met the criteria for eligibility for listing.

Plaintiffs then petitioned the Keeper to delist Coleman Station from the National Register. In conformity with the regulations set forth at 36 C.F.R. § 60.15(c), plaintiffs filed their petition with the NYHP, which reviewed the petition and, at plaintiffs' request, forwarded it to the Keeper. In a March 9, 1995, letter to plaintiffs, which was included with the materials sent to the Keeper, the NYHP set forth its analysis of the petition. Regarding the merits of Coleman Station's eligibility for listing, the letter noted that questions had been raised at the meeting of the State Review Board regarding the historic integrity of the district that "should be evaluated by the Keeper of the National Register." Regarding the procedural errors in the state listing, the letter concluded that

[t]he allegations in the petition about "procedural deficiencies" do not appear to be a basis for removal. The State Court in the proceeding referred to in the petition found that the Agency failed to follow certain procedures relating to the listing on the State Register. These procedural errors are not related to the listing of Coleman Station Historic District on the National Register. In response to the other procedural issues raised in the petition, the Agency sent out notices of the listing on the National Register on December 30, 1994, to all the property owners in the district; the federal rules do not require that notice be sent to property owners adjacent to a proposed district.

By letter dated August 18, 1995, the Keeper notified plaintiffs that...