Norton v. Beasley

• Decision Date: 01 December 2022
• Docket Number: 21-6053
• Parties: THOMAS NORTON, et al. Plaintiffs-Appellants, v. JOY BEASLEY, in her official capacity as Keeper of the National Register of Historic Places, et al. Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

THOMAS NORTON, et al. Plaintiffs-Appellants,
v.
JOY BEASLEY, in her official capacity as Keeper of the National Register of Historic Places, et al. Defendants-Appellees.

No. 21-6053

United States Court of Appeals, Sixth Circuit

December 1, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

Before: SUTTON, Chief Judge; BATCHELDER and DONALD, Circuit Judges.

OPINION

ALICE M. BATCHELDER, CIRCUIT JUDGE

Thomas Norton and other interested property owners in Kentucky sued to have their real properties unlisted from the National Register of Historic Places. The district court rejected their challenges on the merits and granted summary judgment to the defendants. Because the district court lacked subject-matter jurisdiction, we VACATE the judgment of the district court and REMAND.

I.

Kentucky is home to the "Upper Reaches of Boone Creek Historic District"-a rural and agriculturally significant district of properties spanning approximately 10,000 acres of land in central Kentucky. When the district was nominated in 2008 to be listed in the National Register of Historic Places, a large number of property owners in the district objected. Others, though, either supported the nomination outright or were silent as to their preference. After a year-long

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contest, the objecting property owners narrowly failed to reach the required majority vote, and the district was listed in the National Register.

Many perceived aspects of the nomination process, however, troubled the objecting property owners: the official count of objectors and property owners within the district repeatedly and suspiciously fluctuated, there was no mechanism in place for owners to stop the nomination process once it had begun, and-reminiscent of a dystopian novel-only the "Keeper" of the National Register knew when the tally of objectors and owners would end.^[1]

For instance, the objecting property owners first presented what they claimed were 129 objections in September 2008. By June 2009, they presented 103 objections, but only 91 of them were found valid under the regulatory criteria. Over the course of the summer, the total number of property owners increased from 182 to 184, and the official count of objections fluctuated: down to 84, back up to 88, and eventually up to 90 by September 2009. Additionally, the number of property owners fluctuated at least twice more, totaling 182 by November 2009. In the objecting owners' views, no matter what they did, the nomination process could not be stopped, and they were left uncertain when the Keeper would finalize the objector count or determine the district's eligibility.

Seven years later, after litigating these and related issues in Kentucky state court, the objecting property owners filed a petition to "delist" the district due to "procedural irregularities" in the nomination process, as permitted under the relevant regulations. The Keeper denied that request, and the objecting property owners brought this suit. They allege that the procedural

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deficiencies in the nomination and listing process requires the district's delisting and violated their constitutional due-process rights.

A. National Register of Historic Places

The National Register of Historic Places was established by the National Historic Preservation Act of 1966 ("NHPA"), 54 U.S.C. § 300101, et seq. It comprises "districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." Id. § 302101. The NHPA declares it a "national policy to preserve [these places] for public use." Id. § 320101.

Relevant here, under the NHPA, an historic property (or a district of historical properties) that meets certain requirements may be listed in the National Register and thus designated for protection and preservation. Id. § 302102; see §§ 300308, 300311, 300315(1); 36 C.F.R. § 60.4. To accomplish these ends, once a property is listed, or eligible to be listed, in the National Register, the NHPA requires any federal agency to "take into account the effect of" its "undertaking" on the "historic property." 54 U.S.C. § 306108; see id. § 300308. In this way, the National Register is considered an authoritative "planning tool" to help private citizens and federal, state, and local governments identify historic places that "should be considered for protection from destruction or impairment." 36 C.F.R. § 60.2; see 54 U.S.C. § 306108. But the mere listing of a private property in the National Register "does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property." 36 C.F.R. § 60.2.

The Keeper of the National Register is responsible for maintaining the National Register and for determining whether properties are eligible to be listed in the National Register.^[2] Id. § 60.3(f).

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To do so, the Keeper works closely with its state counterparts, called State Historic Preservation Officers (an "SHPO"). 54 U.S.C. § 302303. Each SHPO must, among other things, identify and nominate eligible properties for listing in the National Register. Id. § 302303(b)(2); see 36 C.F.R. § 60.6(a). But before an SHPO officially nominates a property, it must first submit its proposed nomination to the State Review Board, a group of professionals such as historians, architects, and archeologists. 36 C.F.R. § 60.3(o); id. § 60.6(j). The State Review Board evaluates the historic property (or district) and issues a recommendation on eligibility. Id. § 60.3(o); id. § 60.6(j). If a nomination is approved by the State Review Board, the SHPO will submit it to the Keeper. Id. § 60.6(k).

Before submitting a nomination, the SHPO must also notify the affected property owners that their property is being considered for inclusion in the National Register. 54 U.S.C. §§ 302103(2)(F), 302105(a). That way, the property owners have a "reasonable period of time" to "concur in, or object to, the nomination of the[ir] property." Id. § 302105(a). That opportunity is essential to objecting property owners because if "a majority of the owners of privately owned properties" within the proposed district object to the listing, the district "shall not" be listed in the National Register "until the objection is withdrawn." Id. § 302105(b).

The NHPA's accompanying regulations provide more detail on these points. For nominations concerning more than fifty property owners, the SHPO is not required to individually notify the owners in writing of its intent to nominate their properties. 36 C.F.R. § 60.6(c)-(d). It may, instead, publish a notice in local newspapers at least 30 days prior to the State Review Board meeting. Id. The notice must provide property owners with the opportunity to submit written comments and object to the nomination in writing. Id. § 60.6(d). For counting purposes, "[e]ach owner of private property in a district has one vote regardless of how many properties or what part

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of one property that party owns." Id. § 60.6(g). The SHPO is responsible for counting objections. Id. But even if a majority of owners do object, the SHPO nevertheless submits the nomination to the Keeper for the Keeper to determine whether the property is eligible for listing. Id. § 60.6(n); 54 U.S.C. § 302105(c).

Once a property is nominated to the Keeper, it will typically be included in the National Register within 45 days, unless the Keeper disapproves the nomination, an appeal is filed, or a majority of owners object to the listing. 54 U.S.C. § 302104(a); 36 C.F.R. § 60.6(r). After a property is listed in the National Register, a property owner may petition for its removal. 54 U.S.C. § 302104(d); 36 C.F.R. § 60.15(c). One of the four enumerated grounds for removal is a "[p]rejudicial procedural error in the nomination or listing process." 36 C.F.R. § 60.15(a)(4). If a property is removed on this ground, the property "shall be reconsidered for listing by the Keeper after correction of the error or errors" and "shall automatically be considered eligible for inclusion in the National Register without further action and will be published as such in the Federal Register." Id. Once a property is listed, neither the NHPA nor the regulations allow the Keeper to consider new objections, even when a removal petition is filed.

B. Factual Background

Nomination of the District. The Clark County-Winchester Heritage Commission manages historic properties in Clark County, Kentucky, and assists the Kentucky Heritage Council (which serves as the Kentucky SHPO) with preparing nominations to the National Register. 2008, the Commission began drafting a nomination package for the Upper Reaches of Boone Creek Historic District (the "district"), a district located in Clark and Fayette Counties of Kentucky.

In July 2008, the SHPO sent individual notification letters to the affected property owners within the district. As required by the regulations, it solicited public comment and informed the

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property owners that the district would not be listed "if a majority of the owners object." That next month, the SHPO held a public meeting to provide property owners with more information about the National Register. But after some property owners expressed their opposition at the meeting, the State Review Board tabled the nomination and asked the SHPO to resubmit the nomination after further public outreach.

Another month went by, and the SHPO sent a second round of notification letters to the property owners in the district, hoping that the State Review Board would reconsider the district's nomination at the Board's December 2008 meeting. At the end of the month, in September 2008, the attorney for some of the property owners sent a letter to Marty Perry, the Kentucky SHPO's National Register Coordinator. The attorney demanded that the...