U.S. Court of Appeals, Fifth Circuit, No. 10-30918, September 26, 2011: Denies standing of neighborhood group to challenge National Historic Preservation Act section 106 review of related action in another neighborhood.
Friends of St. Frances Xavier Cabrini Church (Friends) a nonprofit unincorporated association dedicated to protecting a Roman Catholic church located in the Gentilly neighborhood of New Orleans that sustained severe damage from Hurricanes Katrina and Rita. Holy Cross School, part of the same Archdiocese that owns Cabrini Church, applied for, and FEMA granted, federal assistance funds to construct a new school campus on the Cabrini Church site in Gentilly to replace Holy Cross’ old campus six miles away in the Lower Ninth Ward. Pursuant to the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470, et seq., FEMA determined that the project in Gentilly would potentially affect historic properties and therefore required a review process of the Gentilly project under section 106 of NHPA. Because of uncertainty about Holy Cross’s plans for the old Ninth Ward campus, Friends asked FEMA to include that campus in the section 106 review. FEMA refused, saying they’d decide whether a 106 review was required for the old campus when Holy Cross submitted proposed project plans for it. Friends filed a complaint against FEMA (April 2007) alleging that the 106 review process was deficient. (Cabrini Church was demolished that June.)
When Holy Cross submitted a plan late in 2007 to “mothball” the Ninth Ward campus, FEMA conducted a 106 review of those plans, found the proposed work on the old campus included “no ground disturbing activities associated with the mothballing of the buildings,” and determined that there would be “No Adverse Effect” on historic properties. After that determination, Holy Cross revised its plan and proposed demolishing those Ninth Ward buildings that FEMA had determined were “”non-contributing elements to the [Holy Cross] historic district”. FEMA approved. Friends and FEMA each sought summary judgment, and the district court found for FEMA, but did not address issues of standing. Friends of St. Frances Xavier Cabrini Church v Paulson, 728 F. Supp. 2d 820, 2010.
On appeal, the Circuit Court remanded with instructions to dismiss because Friends lacked standing on all counts alleged by Friends.
(1) Failure to include the Lower Ninth Ward property in the “area of potential effects” (APE) for the undertaking in Gentilly: the Court held that because Friends exists to protect a property six miles away, Friends did not have the “sufficient geographical nexus” to the Ninth Ward project required under opinions of other federal Circuit Courts to raise this claim.
(2) Failure to include all the necessary consulting parties: Friends did not allege its own exclusion, so the Court found they lacked the “tangible personal injury” required by US Supreme court decisions to make this claim.
(3) Failure of the FEMA program to fully consider historic preservation when funding projects (violation of NHP section 110): The Court held that this allegation is “tied to the Lower Ninth Ward” with which Friends lacks a geographical nexus, and therefore lacks standing to maintain this claim.
Decision available at http://caselaw.findlaw.com/us-5th-circuit/1581087.html.