Pye v. USA.

• Decision Date: 05 May 1999
• Docket Number: No. 98-2229,98-2229
• Citation: 269 F.3d 459
• Parties: (4th Cir. 2001) RUSS PYE; LEE PYE, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; UNITED STATES ARMY CORPS OF ENGINEERS, Defendants-Appellees. NATIONAL TRUST FOR HISTORIC PRESERVATION; SOCIETY FOR HISTORICAL ARCHAEOLOGY; AMERICAN CULTURAL RESOURCES ASSOCIATION, Amici Curiae. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 459

269 F.3d 459 (4th Cir. 2001)

RUSS PYE; LEE PYE, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; UNITED STATES ARMY CORPS OF ENGINEERS, Defendants-Appellees.

NATIONAL TRUST FOR HISTORIC PRESERVATION; SOCIETY FOR HISTORICAL ARCHAEOLOGY; AMERICAN CULTURAL RESOURCES ASSOCIATION, Amici Curiae.

No. 98-2229

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: May 5, 1999

Decided: October 22, 2001

Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, District Judge.

(CA-97-431-2-12)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: C. C. Harness, III, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Charleston, South Carolina, for Appellants. Cornish F. Hitchcock, Washington, D.C., for Amici Curiae. John Thompson Stahr, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Perrin Q. Dargan, III, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Charleston, South Carolina, for Appellants. Elizabeth S. Merritt, Associate General Counsel, Edith M. Shine, Associate General Counsel, Laura S. Nelson, Assistant General Counsel, NATIONAL TRUST FOR HISTORIC PRESERVATION, Washington, D.C., for Amici Curiae. Lois J. Schiffer, Assistant Attorney General, David C. Shilton, David L. Weigert, Lyn Jacobs, Environment and Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Frank Jordan, District Counsel, UNITED STATES ARMY CORPS OF ENGINEERS, Charleston, South Carolina, for Appellees.

Before WILKINSON, Chief Judge, and WIDENER and MOTZ, Circuit Judges.

Vacated and remanded by published opinion. Judge Widener wrote the opinion, in which Chief Judge Wilkinson and Judge Motz concurred.

OPINION

WIDENER, Circuit Judge:

This is a suit brought by Russ and Lee Pye, seeking to require the Corps of Engineers to conform to statutory and regulatory requirements before issuing a permit to construct a road crossing within the waters of the United States. The Pyes own adjoining land to the land on which the road crossing is constructed. Their land also adjoins what is known as Tract M of the Sheppard Tract on which an eighteenth century plantation house connected to the Hayne family is situated and is near to, a matter of several hundred feet, the site of an African-American cemetery owned by Westvaco. The cemetery itself adjoins the Pyes' land and is probably partly on the Pyes' land. The old plantation house is eligible for the National Register of Historic Places, as is the African-American cemetery.

The district court dismissed the Pyes' complaint for lack of standing. We are of opinion such dismissal was error, and we vacate and remand for consideration of the merits of the Pyes' complaint.

I.

The series of events giving rise to this litigation stems from the County's proposal to improve an existing dirt access road (the road) leading from United States Highway 17¹ to the southwest corner of an approximately 750-acre tract of the County's land called the Sheppard Tract. See Ex. A. to this opinion. The improvements affect all of the access road, which is owned by the County and open to private use only with County permission. A .23-acre segment of the road is covered by waters of the United States. The road runs along the west side of the Sheppard Tract and cuts through it at its southwest corner, northwest corner, and northern end. The road leads directly from U.S. Highway 17 to a 33-acre field, designated Area M, at the southwest corner of the Sheppard Tract. Area M contains the remains of an eighteenth century plantation home site. The Pyes' property is adjacent to Area M and contains part of an historic African American cemetery. Both the plantation home site and that of the cemetery have been declared eligible for entry on the National Register of Historic Places. The Sheppard Tract, the Pyes' property, and other adjacent property are all part of a larger area known as Encampment Plantation. Encampment Plantation has historic significance because in addition to containing the eighteenth century plantation home remains, the graveyard, and other historic sites, it may have been the location where troops were stationed during the Revolutionary War to guard South Carolina's state government which met across the Edisto River during the British occupation of Charleston.

In order to improve access to Area M, the County proposed to fill the 0.23 acres of wetland occupied by the road, to grade the road, and to install a culvert to permit drainage under the improved road. Because the project involved filling wetlands, the County had to obtain a permit from the Corps under section 404 of the Clean Water Act, 33 U.S.C. S 1344.²

The permitting process began on October 23, 1991 when the County initially applied for a permit to fill the wetlands. At this time, the County intended to use the road in connection with the construction of an ash monofill³ on the Sheppard Tract. The County retired (apparently meaning withdrew) the application for the ash monofill on July 1, 1993. On January 24, 1995, the County applied for a Nationwide Permit 14 under section 404 of the Clean Water Act to improve the road, indicating that it now planned to use the land at the end of the road for a dirt borrow pit⁴ and, later, for training police dogs. On April 20, 1995, the Advisory Council on Historic Preservation (the Advisory Council) notified the Corps that the road improvement might have an effect on Encampment Planation, which would include the eighteenth century plantation home remains, a site that was either included in, or eligible for, the National Register of Historic Places. Additionally, the County had commissioned a cultural resource survey of the Sheppard Tract, obviously to determine the historical value of the area. The survey revealed that the eighteenth century plantation home site could be eligible for listing in the National Register of Historic Places, along with other sites in the area. After receiving the results of the survey in May 1996, the County abandoned its plans to create the dirt borrow pit. As of July 1996, the County intended to use the road to access Area M only for conducting routine maintenance of the land and for training police dogs.

The Corps forwarded the County's permit application on July 31, 1996 to the United States Department of the Interior, Fish and Wildlife Service; the State Historic Preservation Office; the Environmental Protection Agency, Wetlands Regulatory Unit; the South Carolina Department of Natural Resources; the United States Department of Commerce, National Marine Fisheries Service; and the South Carolina Department of Health and Environmental Control, Office of Ocean and Coastal Resource Management. Both the National Marine Fisheries Service and the Fish and Wildlife service responded to the Corps concerning the project's effects, as required under section 7 of the Endangered Species Act. 16 U.S.C. SS 1531-43. The Deputy State Historic Preservation Officer also responded and indicated that the eighteenth century plantation home site was eligible for listing on the National Register of Historic Places. On January 23, 1997, the United States Department of the Interior, National Parks Service, found the Hayne Plantation site and the African-American cemetery site eligible for listing on the National Register of Historic Places and informed the Corps of that decision by copy of that letter. The letter indicated that the Service did not find that the area was eligible for listing as a rural historic district.

The Pyes filed a complaint in the United States District Court, District of South Carolina on February 19, 1997 alleging that the Corps failed to complete all the required steps under federal law prior to granting the County the Nationwide Permit 14. They asserted federal question jurisdiction under 28 U.S.C. S 1331 and because the United States was a defendant. They sued under The Administrative Procedure Act, 5 U.S.C. S 702; The Clean Water Act, 33 U.S.C. S 1251, et seq.; The National Historic Preservation Act, 16 U.S.C. S 470, et seq.; The National Environmental Policy Act, 42 U.S.C. S 4321, et seq.; and The Endangered Species Act, 16 U.S.C. S 1531, et seq. The Corps answered the complaint on April 25, 1997. In response to the litigation, the Corps suspended the permit on May 13, 1997 to confirm that it was properly authorized.

Under this further review, the Corps notified the Fish and Wildlife Service to confine its analysis concerning endangered species to Area M. The Fish and Wildlife Service, later that month, answered that it could not discern any adverse impact on Area M. On November 19, 1997, the Corps reinstated the County's Nationwide Permit 14, allowing it to complete the road improvement project. In reinstating the permit, the Corps did not consider the impact of the improvement on the historic site in Area M, or any other area, instead, confining its analysis to the "footprint"⁵ of the roadway area to be filled, which did not contain any historically relevant sites.

After reinstatement of the permit, the Corps moved for summary judgment on February 10, 1998. The district court granted summary judgment in favor of the Corps and dismissed the complaint, finding that the Pyes did not have standing to bring this action because they did not demonstrate either an injury in fact, causation of an injury by the Corps, or the ability of the court to redress an injury. Pye v. United States, Army Corps of Eng'rs, No. 2:97-00431-2 (D.S.C. July 24, 1998). The County advises us that it has completed the road improvement project, however the Corps freely admits that the wetland fill is easily removed. Having considered the record, and after oral argument, we are of opinion that the Pyes have standing to bring their suit, and we vacate and remand.

Before discussing the question of...