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06/27/89 Flossie E. Lee, Et Al. v. Richard Thornburgh

June 27, 1989





Appeal from the United States District Court for the District of Columbia, Civil Action No. 89-0421.


Mikva and Williams, Circuit Judges, and Will,* Senior District Judge.


This appeal requires us to consider when §§ 106, 110(b) and 110(d) of the National Historic Preservation Act , codified at 16 U.S.C. §§ 470f, 470h-2(b) and 470h-2(d) (1982), impose obligations affecting projects undertaken by the District of Columbia. The district court enjoined the federal and District appellants from proceeding with construction of a local prison before complying with these NHPA provisions because it found that the project had received various forms of federal assistance. We vacated that injunction on May 18, 1989 so that the costs to the District caused by the delay would not continue to mount. This opinion is in support of that order vacating the injunction. We conclude that the statute, by its terms, has a narrower reach and is triggered only if a federal agency has the authority to license a project or to approve expenditures for it. As no federal agency has or had such authority over the proposed D.C. prison, we reverse. I. BACKGROUND

The District of Columbia, facing severe prison overcrowding, proposes to build a new Correctional Treatment Facility in southeast Washington, D.C., adjacent to the D.C. General Hospital and south of the D.C. Jail. The project is funded, like many district projects, by direct congressional appropriation. In 1985, Congress appropriated $30 million for a new District prison, providing the District's design and construction plans met Congress' approval. See Joint Resolution of December 19, 1985, Pub.L. 99-190, § 101(c), 99 Stat. 1185, 1224 (incorporating H.R.Conf.Rep.No. 419, 99th Cong., 1st Sess. 3, 4 (1985)). ("Appropriations Act of 1986").

The United States Department of Justice , which bears responsibility for designating the place of confinement for those convicted of District of Columbia offenses, see D.C.Code Ann. §§ 24-402, 24-425 (1981), had been assigning D.C. prisoners to federal facilities in the interim. DOJ also urged Congress to encourage it to appropriate funds for a new D.C. prison. DOJ, however, has no role in the construction and operation of District of Columbia prisons. See D.C.Code Ann. §§ 24-441, 24-442 (1981); Appropriations Act of 1986 at 1224.

The proposed site is owned by the United States. It is part of Reservation 13 of the original City of Washington. There is conflicting evidence over when and why Congress had transferred jurisdiction over this land to the District in the late 19th century, but it is undisputed that Congress granted permission to the District in 1917 to build and operate on the site what is now known as Gallinger Hospital. The existence of the Hospital fuels a large piece of this controversy. Before the District chose this site for the new jail, both the District and DOJ had identified several land parcels under federal jurisdiction as possible sites, but these were rejected as unavailable or unsuitable.

In 1986, Congress approved the jail site chosen by the District government and appropriated an additional $20 million for the project. See Joint Resolution of October 30, 1986, Pub.L. 99-591, 100 Stat. 3341-181 ("Appropriations Act of 1987"). In 1987, Congress placed a moratorium on the use of any of the appropriated funds at the proposed site, pending a study of alternatives by the General Accounting Office. See Joint Resolution of December 22, 1987, Pub.L. 100-202, 101 Stat. 1329-91 ("Appropriations Act of 1988"). In May 1988, the moratorium was lifted.

This suit was brought by three neighborhood community groups and eleven area residents who seek to block the project on the ground that the planning process had not complied with NHPA. They contend that NHPA applies to the project because it has and will receive certain kinds of federal assistance and because the prison's construction would (1) require the demolition of the Gallinger Hospital, which was nominated for the National Register of Historic Places just prior to the lawsuit, (2) disturb an archeological site on the Gallinger grounds, and (3) in some way adversely affect the Congressional Cemetery next door. The hospital was constructed in 1922, in colonial revival style. Appellants acknowledged that the planning process for the prison did not comply with NHPA.

The district court found that NHPA applied because the prison will be built with federal funds, because the site is owned by the United States, because DOJ encouraged Congress to appropriate funds for the project, and because federal approval was a legal condition precedent to using the site. II. ARGUMENT

A. The Statute

NHPA, 16 U.S.C. §§ 470 et seq., encourages historic preservation by establishing an independent advisory agency, authorizing grants and loans, and imposing certain circumstances. It is those circumstances that concern us here. Our review of the statutory text persuades us that Congress intended these provisions to have a limited reach; they are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.

First, NHPA imposes obligations only on federal agencies, a term expressly defined to exclude Congress and the District of Columbia. See 16 U.S.C. § 470w(1); 5 U.S.C. § 551(1), . NHPA imposes no obligations on state governments and includes the District ...

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