Norton v. Beasley, Civil Action 5:17-cv-351-CHB

CourtU.S. District Court — Eastern District of Kentucky
Writing for the CourtCLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.
PartiesTHOMAS NORTON, et al., Plaintiffs, v. JOY BEASLEY, in her official capacity as Keeper of the National Register of Historic Places, et al., Defendants.
Docket NumberCivil Action 5:17-cv-351-CHB
Decision Date30 September 2021

THOMAS NORTON, et al., Plaintiffs,
v.

JOY BEASLEY, in her official capacity as Keeper of the National Register of Historic Places, et al., Defendants.

Civil Action No. 5:17-cv-351-CHB

United States District Court, E.D. Kentucky, Central Division, Lexington

September 30, 2021


MEMORANDUM OPINION AND ORDER

CLARIA HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.

This matter is before the Court on Plaintiffs' Motion for Summary Judgment, [R. 47], to which Defendants responded and filed a Cross-Motion for Summary Judgment, [R. 51].[1] Plaintiffs filed a response to Defendants' motion, [R. 54], and a reply to Defendants' response, [R. 55].[2] Defendants have filed a reply to Plaintiffs' response, [R. 56]. For the reasons set forth herein, the Court will deny Plaintiffs' Motion for Summary Judgment, [R. 47], and grant Defendants' Cross-Motion for Summary Judgment, [R. 51].

I. BACKGROUND

A. The National Historic Preservation Act

1. Powers and Responsibilities of the Secretary of the Interior and the State Historic Preservation Officer

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The National Historic Preservation Act (“NHPA”) authorizes the Secretary of the Interior (“Secretary”) to “expand and maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 54 U.S.C. § 302101. To achieve this, the Secretary is tasked with “establish[ing] criteria for properties to be included on the National Register and criteria for National Historic Landmarks.” Id. § 302103(1). The Secretary must also promulgate regulations for, among other things, “nominating properties for inclusion on, and removal from, the National Register and the recommendation of properties by certified local governments, ” designating or delisting properties, considering appeals, and notifying owners, local governments, and the general public that a property is being considered for inclusion on the National Register. Id. § 302103(2).

The Secretary is also required to promulgate regulations allowing for owner participation in the nomination process. Specifically, the Secretary must promulgate regulations

requiring that before any property may be included on the National Register or designated as a National Historic Landmark, the owner of the property, or a majority of the owners of the individual properties within a district in the case of a historic district, shall be given the opportunity (including a reasonable period of time) to concur in, or object to, the nomination of the property for inclusion or designation. The regulations shall include provisions to carry out this section in the case of multiple ownership of a single property

Id. § 302105(a).

The NHPA “also contemplates a role for states in carrying out its objectives.” Sierra Club v. Salazar, 177 F.Supp.3d 512, 517 (D.D.C. 2016), rev'd on other grounds by Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014). For example, the Act directs the Secretary to promulgate regulations for State Historic Preservation Programs. 54 U.S.C. § 302301. A State Historic Preservation Program must provide for the designation and appointment of a State Historic

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Preservation Officer (“SHPO”) to administer the program. Id. § 302301(1). The Act directs the SHPO to undertake various responsibilities, including “identify[ing] and nominat[ing] eligible properties to the National Register and otherwise administer[ing] applications for listing historic properties on the National Register.” Id. § 302303(b)(2).

2. Regulations Governing the Nomination and Listing of Properties

“The regulations governing the procedures for [including] properties on the National Register are set forth at 36 C.F.R. pt. 60.” Salazar, 177 F.Supp.3d at 517 (quoting Moody Hill Farms Ltd. P'ship v. U.S. Dep't of Interior, 205 F.3d 554, 556 (2d Cir. 1999)) (internal quotation marks omitted). These regulations “divide the inclusion process into two stages: nomination and listing.” Id. The nomination process “is the process by which the [SHPO] selects property for potential inclusion in the National Register.” Id. (citation omitted); see also 54 U.S.C. § 302104(a). The listing process “refers to the addition of ‘[n]ominations . . . submitted by the [SHPO] and approved by the [Keeper of the National Register of Historic Places]' for inclusion in the National Register.” Salazar, 177 F.Supp.3d at 517 (quoting 36 C.F.R. § 60.1(b)(3)).

The nomination process typically begins with the SHPO, who bears the responsibility of “identifying and nominating eligible properties to the National Register.” 36 C.F.R. § 60.6(a). Toward this end, the SHPO supervises the preparation of the nomination forms and “establishes statewide priorities for preparation and submittal of nominations for all properties meeting National Register criteria for evaluation within the State.” Id. The SHPO must also “consult with local authorities in the nomination process.” Id. § 60.6(b).

Under the regulations, the SHPO must also provide notice to affected property owners. Specifically, the SHPO must provide “notice of the intent to nominate a property and solicit[] written comments especially on the significance of the property and whether or not it meets the

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National Register criteria for evaluation.” Id. The SHPO must also provide the property owners “an opportunity to concur in or object to listing” the property. Id.

The regulations provide additional details about the notice and objection procedures. First, the SHPO must identify the property owners “from either official land recordation records or tax records, whichever is more appropriate, within 90 days prior to the notification of intent to nominate.” Id. § 60.6(c). The SHPO must then notify the property owners in writing of “the State's intent to bring the nomination before the State Review Board, ” unless a nomination involves more than fifty property owners, in which case the SHPO need only provide “general notice” to property owners in the form of a published notice. Id. § 60.6(c)-(d). The owners must be notified that they have “at least 30 but not more than 75 days to submit written comments and concur in or object in writing to the nomination of such property.” Id.

To object to a nomination, a property owner must submit to the SHPO “a notarized statement certifying that the party is the sole or partial owner of the private property, as appropriate, and objects to the listing.” Id. § 60.6(g). When multiple owners are involved, “the property will not be listed if a majority of the owners object to listing.” Id. The regulations further explain that “[e]ach owner of private property in a district has one vote regardless of how many properties or what part of one property that party owns and regardless of whether the property contributes to the significance of the district.” Id. Ultimately, the responsibility of determining whether a majority of owners have objected falls on the SHPO. Id.

Once the nomination form is completed, the form and other documentation (including comments and objections) are submitted to the State Review Board. Id. § 60.6(j). The State Review Board then reviews nomination forms and any comments and “determine[s] whether or not the property meets the National Register criteria for evaluation.” Id. The State Review Board

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then “make[s] a recommendation to the [SHPO] to approve or disapprove the nomination.” Id. If the SHPO “finds the nominations to be adequately documented and technically, professionally, and procedurally correct and sufficient and in conformance with National Register criteria for evaluation, the nominations are submitted to the Keeper of the National Register of Historic Places.” Id. § 60.6(k). In signing the nomination form, the SHPO certifies that “[a]ll procedural requirements have been met, ” and the form is “adequately documented” and “technically and professionally correct and sufficient.” Id. § 60.06(o). The SHPO also certifies that it is his or her opinion that “the property meets the National Register criteria for evaluation.” Id. However, if the SHPO does not believe that the property meets the criteria for evaluation, he or she must explain his or her opinion on eligibility. Id. § 60.06(p). Typically, so long as the Keeper approves the nomination, no appeal is filed, and less than a majority of owners object, the nominated property is listed in the National Register of Historic Places within forty-five days of its receipt by the Keeper. Id. at 60.6(r).

However, if the SHPO determines that a majority of the property owners object, the SHPO “shall submit the nomination to the Keeper only for a determination of eligibility.” Id. at § 60.06(n). Under those circumstances, “the Keeper shall review the nomination and make a determination of eligibility within 45 days of receipt, unless an appeal is filed.” Id. § 60.6(s). A property is considered eligible for listing if it “meets the National Register criteria for evaluation although the property is not formally listed in the National Register.” Id. § 60.3(c). According to the National Register criteria for evaluation, “[t]he quality of significance in American history, architecture, archeology, engineering, and culture is present in” properties that “possess integrity of location, design, setting, materials, workmanship, feeling, and association and” are (1) associated with historical events; (2) associated with significant persons; (3) “embody the

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distinctive characteristics of a type, period, or method of construction” or otherwise “possess high artistic values”; or (4) “have yielded, or may be likely to yield, information important in prehistory or history.” Id. § 60.4. If a property is deemed eligible but is not listed on the National Register, that property may not qualify for certain benefits, such as grants, loans, or tax incentives. Id. §...

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