Sierra Club v. Salazar

177 F.Supp.3d 512

Sierra Club, et al., Plaintiffs,

v.Ken Salazar, et al., Defendants.

Civil Action No. 10-1513 (RBW)

United States District Court, District of Columbia.

Signed April 11, 2016

Andrea C. Ferster, Washington, DC, Aaron Isherwood, Sierra Club Environmental, San Francisco, CA, for Plaintiffs.

Ty Bair, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The legal battle in this case traces its roots to a historical battle over organized labor.¹ In late August and early September 1921, Blair Mountain, located in Logan County, West Virginia, played host to an armed conflict between coal miners and strikebreakers. This battle, known as the Battle of Blair Mountain, is the largest armed labor conflict in United States history. The Battle of Blair Mountain was the culmination of a labor union's unsuccessful years-long struggle to unionize miners in southwestern West Virginia coalfields, as well as to liberate miners living under martial law. As the miners marched toward Mingo County, they encountered 3,000 strikebreakers forming a miles-long defensive front across Spruce Fork Ridge on Blair Mountain. The strikebreakers entrenched themselves, dropped homemade bombs, and opened fire from mounted machineguns. The miners returned fire and the battle raged on for several days, causing numerous casualties. The miners surrendered upon the arrival of federal troops. The site of the battle is known as Blair Mountain Battlefield (“Blair Mountain”).

The legal battle before the Court arises from the efforts of various environmental and historical preservation organizations (“Organizations”) to preserve Blair Mountain, including protecting it from surface coal mining. After decades of setbacks, their efforts recently paid dividends; the Keeper of the National Register of Historic Places (“Keeper”) listed Blair Mountain on the National Register of Historic Places (“National Register”). But the Organizations' success was short-lived. At the urging of coal companies owning land on Blair Mountain, the Keeper delisted Blair Mountain from the National Register.

Thereafter, the Organizations instituted this lawsuit to challenge the Keeper's decision to delist Blair Mountain. The Organizations are: Sierra Club; Ohio Valley Environmental Coalition; Friends of Blair Mountain, Inc.; West Virginia Labor History Association; National Trust for Historic Preservation in the United States; and West Virginia Highlands Conservancy.

The Court refers to these Organizations collectively as “the plaintiffs.” The plaintiffs assert a claim under the Administrative Procedure Act (“APA”), alleging that the Keeper's decision “was arbitrary, capricious, [and] an abuse of discretion.” Am. Compl. ¶ 1, ECF No. 11; see also 5 U.S.C. § 706(2)(a) (2012). In support of their APA claim, the plaintiffs allege that the Keeper's delisting decision was “contrary to the regulations” that implement the National Historic Preservation Act (“Preservation Act”), 16 U.S.C. § 470 et seq.(2006).²

The plaintiffs named the following parties as defendants: Ken Salazar, in his official capacity as Secretary of the United States Department of the Interior; the United States Department of the Interior; Jon Jarvis, in his official capacity as Director of the National Park Service; and Carol Shull, in her official capacity as Keeper of the National Register of Historic Places. Unless otherwise noted, the Court refers to the defendants hereafter collectively as “the Keeper.”

Pending before the Court are the plaintiffs' Motion for Summary Judgment (“Pls.' Mot. for Summ. J.”), ECF No. 24-1, and the Keeper's Cross-Motion for Summary Judgment (“Defs.' Cross-Mot. for Summ. J.”), ECF No. 28. Upon careful consideration of the parties' submissions and the entire record in this case, the Court concludes that it must grant the plaintiffs' Motion for Summary Judgment and deny the Keeper's Cross-Motion for Summary Judgment.³

I. BACKGROUND

A. Statutory and Regulatory Framework

The Preservation Act authorizes the Secretary of the Interior (“Secretary”) “to expand and maintain a [National Register] composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 16 U.S.C. § 470a(a)(1)(A) (2006). To this end, the Preservation Act directs the Secretary to

establish ... criteria for properties to be included on the National Register and ... [to] promulgate regulations as may be necessary for [the following pertinent purposes]—

(A) nominating properties for inclusion in, and removal from, the [Register] and the recommendation of properties by certified local governments; ...

(C) considering appeals from such recommendations, nominations, removals, and designations (or any failure or refusal by a nominating authority to nominate or designate); ...

(F) notifying the owner of a property, ... and the general public, when the property is being considered for inclusion on the National Register, for designation as a National Historic Landmark ....

Id.§ 470a(a)(2).

Additionally, the Preservation Act requires the Secretary to promulgate regulations allowing property owners in a district that may be included on the Register to concur in, or object to, the inclusion. Specifically, the Preservation Act provides:

[B]efore any property or district may be included on the National Register or designated as a National Historic Landmark, the owner or owners of such property, or a majority of the owners of the properties within the district in the case of [a] historic district, shall be given the opportunity ... to concur in, or object to, the nomination of the property or district for such inclusion or designation.

Id.§ 470a(a)(6).

Generally, the Preservation Act prohibits the inclusion of the district on the Register if a majority of the owners within the district object to the inclusion. More specifically, the Act states:

If the owner or owners of any privately owned property, or a majority of the owners of such properties within the district in the case of [a] historic district, object to such inclusion or designation, such property shall not be included on the National Register or designated as a National Historic Landmark until such objection is withdrawn.

Id.

The Preservation Act also contemplates a role for states in carrying out its objectives. Pertinently, the Act directs the Secretary to promulgate regulations providing for the “designation and appointment ... of a ‘State Historic Preservation Officer.’ ” Id.§ 470a(b)(1)(A). Under the Preservation Act, the State Historic Preservation Officer (“State Agency”) has the “responsibility” to “identify and nominate eligible properties to the National Register and otherwise administer applications for listing historic properties on the National Register.” Id.§ 470a(b)(3)(B).

In turn, the Preservation Act authorizes states to delegate responsibility to local governments to help determine whether inclusion in the National Register is appropriate. Under § 470a(c)(1), the State Agency “shall provide a mechanism for the certification ... of local governments to carry out the purposes [of the Preservation Act].”

“The regulations governing the procedures for [including] properties on the National Register are set forth at 36 C.F.R. pt. 60.” Moody Hill Farms Ltd. P'ship v. U.S. Dep't of Interior, 205 F.3d 554, 556 (2d Cir.1999).⁴ Generally, the regulations divide the inclusion process into two stages: nomination and listing. As further explained below, nomination is the process by which the State Agency selects property for potential inclusion in the National Register. See 16 U.S.C. § 470a(a)(2)(A) (2006). Listing, by contrast, refers to the addition of “[n]ominations ... submitted by the [State Agency] and approved by the [Keeper]” for inclusion in the National Register. See 36 C.F.R. § 60.1(b)(3) (2015).

Regarding the nomination component of the statute, the State Agency “is responsible for identifying and nominating eligible properties to the National Register.” Id.§ 60.6(a). The State Agency “shall consult with local authorities in the nomination process.” Id.§ 60.6(b). Such consultation includes providing “notice of the intent to nominate a property and [soliciting] written comments especially on the significance of the property and whether or not it meets the National Register criteria for evaluation.” Id.

The regulations implement a scheme of notice regarding the nomination. Under 36 C.F.R. § 60.6(c), “[a]s part of the nomination process, [the State Agency] is required to notify in writing the property owner(s) ... of the [State Agency's] intent to bring the nomination before the State Review Board.” 36 C.F.R. § 60.6(c) (2015). “The list of owners shall be obtained from either official land recordation records or tax records, whichever is more appropriate, within [ninety] days prior to the notification of intent to nominate.” Id.“For a nomination with more than [fifty] property owners, ... [the State Agency] shall provide general notice to property owners concerning the [State Agency's] intent to nominate.” Id.§ 60.6(d). “The general notice shall be published at least [thirty] days but not more than [seventy-five] days before the State Review Board meeting ....” Id. Further, the general notice must “provide an opportunity for the submission of written comments and provide [a majority of owners] of private property ... an opportunity to concur in or object in writing to the nomination.” Id.

In addition, the regulations provide a process for objecting to the nomination. Under 36 C.F.R. § 60.6(g), “[u]pon notification, any owner or owners of a private property who wish to object shall submit to the [State Agency] a notarized statement certifying that the party is the sole or partial owner of the private property ... and objects to the listing.” “In nominations with multiple ownership ... of districts, the property will not be...