National Min. Ass'n v. Slater

167 F.Supp.2d 265

NATIONAL MINING ASSOCIATION, Plaintiff, v. Cathryn SLATER, et al., Defendants.

Cellular Telecommunications & Internet Association, Plaintiff, v. Cathryn Slater, et al., Defendants.

No. CIV. A. 00-00288 (ESH).

No. CIV. A. 01-00404 (ESH).

United States District Court, District of Columbia.

September 18, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David G. Leitch, Gregory G. Garre, Catherine E. Stetson, Hogan & Hogan, L.L.P., Susan Virginia Cook, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Plaintiff.

Stacy M. Ludwig, Daria Jean Zane, U.S. Attorney's Office, Silas R. DeRoma, U.S. Department of Justice Environmental & Natural Resources Div., Washington, DC, for Defendants.

Martin P. Willard, Perkins, Coie, LLP, Washington, DC, for Movant.

MEMORANDUM OPINION

HUVELLE, District Judge.

This case involves a challenge under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), to the Final Rule promulgated by the Advisory Council on Historic Preservation ("ACHP" or the "Advisory Council") pursuant to section 106 of the National Historic Preservation Act of 1966 ("NHPA" or the "Act"), 16 U.S.C. §§ 470—470w. Defendants have moved to dismiss on grounds of standing and ripeness. In the alternative, defendants have moved for summary judgment. Plaintiffs National Mining Association ("NMA") and Cellular Telecommunications & Internet Association ("CTIA") have cross-moved for summary judgment. Having considered the pleadings and the entire record therein, the Court finds that plaintiffs have standing to bring suit, and that the action is ripe for adjudication. In addition, the Court finds that two provisions of the Final Rule, 36 C.F.R. §§ 800.4(d)(2) and 800.5(c)(3) (2000), violate the plain language of the Act, and therefore grants plaintiffs' summary judgment motion in part. As to all other claims, summary judgment is granted for defendants.

BACKGROUND

I. The Parties

Plaintiff NMA is a non-profit trade association of the producers of most of America's coal, metals, and industrial and agricultural minerals; mineral processors; manufacturers of mining and mineral processing machinery, equipment, and supplies; and engineering and consulting firms, financial institutions, and various other groups serving the mining industry. Many NMA members conduct activities on or near properties affected by the Final Rule, including projects requiring federal or state permits, approvals, licensing, funding, or assistance.

Plaintiff CTIA is the international organization of the wireless communications industry for both wireless carriers and manufacturers. Membership in the organization covers all Commercial Mobile Radio Service ("CMRS") providers and manufacturers, as well as providers and manufacturers of wireless data services and products. Its members include Sprint PCS, Verizon Wireless, AT & T Wireless, Cingular Wireless, VoiceStream Wireless, Qwest Wireless, and Nextel Communications. CTIA's members provide wireless telecommunications services via a nationwide network of towers and antennas. As Federal Communications Commission ("FCC") licensees, CTIA members are subject to FCC regulations that require compliance with the NHPA and the Advisory Council's regulations. 47 C.F.R. §§ 1.1301, et seq.

The twenty-member Advisory Council is an independent agency established pursuant to the Act. 16 U.S.C. § 470i. Eighteen members are appointed by the President, while the other two members — the Chairman of the National Trust for Historic Preservation and the President of the National Conference of State Historic Preservation Officers — are not. 16 U.S.C. §§ 470i(a)(7), (8). The Council's operations are governed by the APA. 16 U.S.C. § 470q. Defendant Cathryn Slater is the chair of the ACHP, and John Fowler is the Executive Director of the Council.

II. The NHPA

In 1966, Congress passed the NHPA "to accelerate [the federal government's] historic preservation programs and activities, to give maximum encouragement to agencies and individuals undertaking preservation by private means, and to assist State and local governments [and] Indian tribes ... to expand and accelerate their historic preservation programs and activities." 16 U.S.C. §§ 470(b)(7), 470-1. Congress based the Act on a finding that "historic properties significant to the Nation's heritage [were] being lost or substantially altered, often inadvertently, with increasing frequency, [and that] the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans ...." 16 U.S.C. §§ 470(b)(3)(4). The Act was intended to encourage historic preservation in the face of expanding "urban centers, highways, and residential, commercial, and industrial developments ...." 16 U.S.C. § 470(b)(5). Congress has amended the NHPA several times, including most recently in 1992.

Four provisions of the Act are particularly relevant to this action.

• Section 202 of the Act establishes the functions of the ACHP. It provides:

The Council shall —

(1) advise the President and the Congress on matters relating to historic preservation; recommend measures to coordinate activities of Federal, State, and local agencies and private institutions and individuals relating to historic preservation; and advise on the dissemination of information pertaining to such activities;

(2) encourage, in cooperation with the National Trust for Historic Preservation and appropriate private agencies, public interest and participation in historic preservation;

(3) recommend the conduct of studies in such areas as the adequacy of legislative and administrative statutes and regulations pertaining to historic preservation activities of State and local governments and the effects of tax policies at all levels of government on historic preservation;

(4) advise as to guidelines for the assistance of State and local governments in drafting legislation relating to historic preservation;

(5) encourage, in cooperation with appropriate public and private agencies and institutions, training and education in the field of historic preservation (6) review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this subchapter; and

(7) inform and educate Federal agencies, State and local governments, Indian tribes, other nations and international organizations and private groups and individuals as to the Council's authorized activities.

16 U.S.C. § 470j(a).

• Section 106 of the Act sets out the requirements for federal agencies in considering the impact of a federally-funded or federally-assisted undertaking on historic preservation.

The head of any federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.¹ The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking.

16 U.S.C. § 470f.

• Section 211 of the Act authorizes the Advisory Council

"to promulgate such rules and regulations as it deems necessary to govern the implementation of [section 106 of the Act] in its entirety. The Council shall, by regulation, establish such procedures as may be necessary to provide for participation by local governments in proceedings and other actions taken by the Council with respect to undertakings referred to in [section 106] which affect such local governments."

16 U.S.C. § 470s.

• Finally, section 110 harmonizes the roles of the Council and the federal agencies with regard to the requirements of section 106. Section 110(a) mandates that all federal agencies ensure that their

procedures for compliance with [section 106] -

(i) are consistent with regulations issued by the Council pursuant to [section 211]

(ii) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered ....

16 U.S.C. § 470h-2(a)(2)(E). Section 110(k) prohibits federal agencies from funding or licensing projects for applicants who intend to avoid the requirements of section 106. 16 U.S.C. § 470h-2(k). And section 110(l) mandates that, when there is a disagreement between the federal agency and the Council over the impact of an undertaking on an historic property, the head of that agency must document his or her decision.² 16 U.S.C. § 470h-2(l)

III. Section 106 Rulemaking

A. History

Since the NHPA was enacted, the Advisory Council has promulgated four sets of regulations to implement section 106 of the Act. The original regulations took effect in 1979. These were revised in 1986. A third set of rules was promulgated on May 18, 1999. In response to the 1999 Final Rule, the NMA filed the original complaint in this action. The ACHP then reopened the rulemaking proceedings and subsequently...