Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown

• Decision Date: 14 June 1989
• Docket Number: No. 87-3854,87-3854
• Citation: 875 F.2d 453
• Parties: 19 Envtl. L. Rep. 21,077 VIEUX CARRE PROPERTY OWNERS, RESIDENTS & ASSOCIATES, INC., Plaintiffs-Appellants, v. Colonel Lloyd Kent BROWN, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 453

875 F.2d 453

19 Envtl. L. Rep. 21,077

VIEUX CARRE PROPERTY OWNERS, RESIDENTS & ASSOCIATES, INC. Plaintiffs-Appellants, v. Colonel Lloyd Kent BROWN, etc., et al., Defendants-Appellees.

No. 87-3854.

United States Court of Appeals Fifth Circuit.

June 14, 1989.

Oliver A. Houck, New Orleans, La., for amicus curiae Louisiana council.

James R. Logan, IV, James G. Derbes, Derbes, Waldrup & Thompson, New Orleans La., for Vieux Carre Property Owners, Residents & Associates, Inc.

Patricia B. Rittiner, Covington, La., pro se.

John H. Beisner, Elizabeth S. Merritt, Nat. Trust for Historic Preservation, David A. Doheny, Rebecca K. Troth, Washington, D.C., for amicus curiae Nat. Trust.

Richard J. McGinity, New Orleans, La., for Bd. of Com'rs of New Orleans Levee Dist.

Elizabeth Ann Peterson, Martin W. Matzen, Justice Dept., Washington, D.C., for Col. Brown.

Charles M. Lanier, Sheila T. Walet, New Orleans, La., for Bd. of Com'rs.

Henry W. Kinney, III, John W. Ellinghausen, Kinney & Marshall, New Orleans, La., for Audobon Park Com'rs.

Mark Gallinghouse, Asst. U.S. Atty., New Orleans, La., for Col. Lloyd Kent Brown.

Phillip A. Wittmann, Steven W. Usdin, Okla Jones, II, Eleanor K. Roemer, New Orleans, La., for Audobon Park Com'rs and City of New Orleans.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, GARWOOD, and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

This dispute focuses the Court's attention on a private plaintiff's enforcement of the National Historic Preservation Act (NHPA) against the United States Army Corps of Engineers (the Corps). Vieux Carre Property Owners, Residents & Associates, Inc. (the Vieux Carre), the plaintiffs-appellants in this case, is made up of landowners within the Vieux Carre National Historic Landmark District--popularly referred to as the French Quarter--on the Mississippi River in New Orleans, Louisiana. The Vieux Carre ultimately seeks to arrest the construction of an aquarium and riverfront park currently being erected on and just landward of the Bienville Street Wharf at the foot of Bienville Street. This appeal comes from the district court's summary dismissal of the Vieux Carre's suit on jurisdictional grounds.

The Vieux Carre first claims that the Rivers and Harbors Act, 33 U.S.C. Sec. 403(RHA) and the Corps' regulations found in 33 C.F.R. Secs. 320 through 330 (1987), require the Corps to issue a permit for the aquarium phase of the project, and that such permitting in turn requires the Corps to submit the project to the NHPA historic impact review process dictated by 16 U.S.C. Secs. 470f and 470h-2(f). The Vieux Carre then claims that the park phase required an individual permit, but that even if it complied with the Corps' nationwide permit that itself triggered section 470f and required the Corps to follow the historic impact review procedures detailed in 36 C.F.R. Secs. 800 et seq. The Corps failed to submit any of the project to the NHPA review process. Thus, the Vieux Carre sued for a declaratory judgment against the Corps and an injunction against those developing or otherwise authorizing the project, namely, the Audubon Park Commission, the City of New Orleans, the Board of Commissioners of the Port of New Orleans, and the Board of Commissioners of the Orleans Levee District. We find that the dismissal of the Vieux Carre's aquarium phase claim was proper, though for different reasons than those stated by the district court. We reverse the court's dismissal of the Vieux Carre's riverfront park claim against the Corps and remand for further legal and factual findings in relation to that claim. We affirm the court's dismissal of the Vieux Carre's request to enjoin the other appellees from proceeding with the project.

Facts and Proceedings Below

In July 1986, the Louisiana Legislature authorized the Audubon Park Commission--a local governmental entity then in charge of operating a New Orleans park and zoo--to acquire riverfront property for a world-class aquarium and riverfront park. As authorized by this legislation, in November 1986, an election was held in which New Orleans voters approved a millage tax necessary to fund bonds for construction of the project. No federal funds will be involved. Following local governmental approvals--including those by the City of New Orleans' Vieux Carre Commission, the New Orleans City Planning Commission, and the New Orleans City Council--of the proposed site at the foot of Bienville Street, in April 1987, the Audubon Park Commission submitted tentative plans to the Corps to determine whether permitting would be required. The plans describe the project in two phases: Phase A involves construction of the aquarium just landward of and overlapping slightly onto the Bienville Street Wharf; Phase B shows a park on top of the wharf, reserving the riverward face of the wharf for continued maritime use.

Near its landward edge, the Bienville Street Wharf sits atop a three-sided box levee that runs alongside the Mississippi River. The riverward vertical of the levee currently serves as the Ordinary High Water Line (OHWL) of the river, and as such is the Corps' benchmark for determining its jurisdiction under the RHA. This riverward vertical of the levee consists of a concrete and steel bulkhead. In order to achieve a desirable factor of safety against enbankment failure, the foundation piles of the aquarium must be augmented by a new bulkhead, consisting of piles and sheet pile, installed just landward of the existing bulkhead. The new bulkhead admittedly will achieve the desired factor of safety. Though the existing bulkhead will be undisturbed, it appears that the primary available post-construction bulkhead support will be attributable to the new bulkhead.

The second, riverfront park phase of the project calls for removal of large metal sheds atop the wharf and the placement of sod, trees, and benches.

After reviewing the plans, the Corps concluded in May 1987 that its regulations did not require a permit for the aquarium because the entire project is to be built landward of the OHWL. Thus, the project is not within the navigable waterways of the United States and is therefore outside the Corps' RHA jurisdiction. The Corps found that the park, which will be located atop the wharf completely riverward of the OHWL and therefore indisputably within the Corps' jurisdiction, is already within a nationwide Corps permit promulgated under the RHA. It falls within this permit, the Corps asserts, because the plan submitted for review does not involve modifications that would change the dimensions of the wharf and because the riverward edge of the wharf would still be dedicated to maritime use.

The Corps informed the Audubon Park Commission of its conclusions by letter dated May 14, 1987. The Corps did not submit the project to the NHPA review process. The Vieux Carre filed this suit on August 6, 1987. Following an evidentiary hearing, the district court dismissed the suit, finding that the Vieux Carre had no direct right of action under the RHA, sections 10 and 14, 33 U.S.C. Secs. 403, 408, to compel the Corps to require permitting, and that the Administrative Procedure Act (APA) does not provide for federal court review of these specific Corps decisions because they are committed to the Corps' discretion. 5 U.S.C. Sec. 701(a)(2). As of May 1988, the plans for the aquarium had been finalized and the foundation had been poured.

We affirm the district court's dismissal of the Vieux Carre's requested injunction, finding that neither the APA nor the NHPA give a private plaintiff a right of action against any of the defendants other than the Corps. We reverse the district court on both of its findings as they pertain to the Vieux Carre's claims against the Corps, but we approve the Corps' determination that the aquarium phase of the project did not require a permit. We remand to the district court to determine whether the riverside park in fact falls within the claimed nationwide Corps permit, and, if so, whether, inter alia, the nationwide permitting of the park triggers the NHPA procedures.

Jurisdiction

The Vieux Carre correctly notes that this Circuit in Orleans Audubon Society v. Lee, 742 F.2d 901, reh'g denied, 750 F.2d 69 (5th Cir.1984), identified the APA as a route through which private plaintiffs can obtain federal court review of the decisions of federal agencies. ¹ As noted in Lee, this route also provides the Vieux Carre something of a way around the Supreme Court's decision in California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), which held that according to the criteria announced in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), a private party has no implied right of action for violations of the RHA. Lee, 742 F.2d at 911, n. 18. We fail to understand, however, how APA-dictated reviewability of the Corps' decisions allegedly violating the RHA gives the district court jurisdiction to enjoin such nonfederal entities as the Audubon Park Commission.

The Vieux Carre has cited a recent Tenth Circuit case that allows plaintiffs to do approximately what the Vieux Carre attempts to do here. In Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.1988), the court ruled that it could review federal agency action--of the Bureau of Land Management (BLM)--through the APA, and that it would simultaneously enjoin the county from proceeding with a road improvement project that the private plaintiff claimed endangered a wilderness study area. The court noted that by its terms the APA does not authorize suits against nonagency defendants who benefit from an agency's violation of a statute; therefore, the plaintiff apparently lacked a right of action against the county. Still, the court allowed the injunction, reasoning that the county was a necessary party under Fed.R.Civ.P. 19(a) because the BLM was bound by statute to take any action...