PRESERVATION PITTSBURGH v. CONTURO

US District Court, W.D. Penn., No. 2:11cv889, Sept. 9, 2011: Allows redevelopment demolition of building eligible for inclusion in the National Register of Historical Places to proceed by dismissing claims under National Historic Preservation Act, Department of Transportation Act and National Environmental Policy Act because Court found no evidence of federal action.

At issue is the proposed demolition of the Pittsburg Civic Arena, owned by the Sports and Exhibition Authority of Pittsburgh and Allegheny County (SEA). In 2007, SEA and other governmental entities entered into an agreement with the owner of the Penguins hockey team to make the Civic Arena site available for redevelopment. SEA’s plan involved demolition of the Arena.  Because the Pennsylvania Historical and Museum Commission (PHMC) had determined in 2001 that the Civic Arena was eligible for inclusion in the National Register of Historical Places, SEA was required by the Pennsylvania Historic Preservation Act, 37 PA. CONS. STAT. ANN. § 508(a)(1), to consult with the PHMC prior to “demolishing, altering, or transferring” the Civic Arena property. The City Planning Commission unanimously approved the plan. On the same day, Plaintiff Preservation Pittsburgh filed a Historic Nomination of the Civic Arena with the City’s Historic Review Commission to have the Arena designated as a “City Designated Historic Structure.” The petition was rejected at every level of review.

Preservation Pittsburgh contended that the demolition is an integral part of a plan to redevelop the site using federal-aid highway funds from the Federal Highway Administration (FHWA), that such funding would require approval of FHWA, and therefore such approval requires compliance with Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470f, Section 4(f) of the Department of Transportation Act (“DOTA”), 23 U.S.C. § 138, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2), none of which had been complied with by the Defendants.

The Court found “no evidence … that federal action, let alone ‘major’ federal action, has occurred in this case…” or “any fact that establishes federal agency participation in the redevelopment of the Civic Arena site,” merely the contention that “federal funding is the ‘only realistic option for securing the funds needed to underwrite the significant site work costs.’” The Court concluded, “The mere possibility of federal funding in the future is too tenuous to convert a local project into federal action.”

The Court said it has no jurisdiction under NEPA because: “(1) there is no evidence of federal involvement by the FHWA; (2) there is no evidence that, even if there is future federal funding, the redevelopment will be a ‘major federal action’; and (3) there is no final agency action required for judicial review under the APA.” It rejected the DOTA Section 4(f) claim because that section “does not provide a private a private right of action, so claims thereunder can only be brought under the APA” which in turn requires final agency action before judicial review. Similarly, sue to the absence of any federal involvement with the demolition and redevelopment project, the claim under the NHPA also fails.

Decision available at http://docs.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2011cv00889/197937/57/.

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