Norton et al v. Toothman et al
Filing
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MEMORANDUM OPINION & ORDER: 1) 12 MOTION to Dismiss is GRANTED in part and DENIED in part. 2) Petition for writ of mandamus is DISMISSED with prejudice. All other allegations contained in Count I, Count II, Count IV, and Count V remain pending. Signed by Judge Danny C. Reeves on 3/15/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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Plaintiffs,
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V.
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PAUL LOETHER, in his official capacity )
as Keeper of the National Register of )
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Historic Places, et al.,
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Defendants.
THOMAS NORTON, et al.,
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Civil Action No. 5: 17-351-DCR
MEMORANDUM OPINION
AND ORDER
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This matter is pending for consideration of the defendants’ motion to dismiss the
plaintiffs’ Complaint pursuant to Rules 12(b)(1), and (6) of the Federal Rules of Civil
Procedure. [Record No. 12] The Court will grant in part, and deny, in part, the defendants’
motion.
I.
Plaintiffs Thomas Norton, George Norton, Carl Norton, Clyde Wilcoxson, the Gess
Family Partnership, Ltd., Troy Thompson, Larry White and Brenda White, Patsy A. Bratton,
Mary Louis Bratton Quertermous, Wayne Quertermous, Irene Gerdeman, as Trustee of the
Irene Gerdeman Living Trust, and Jane Greaves Blackford, under the J.H. Graves Trust, are
individuals and entities with principal places of business and/or owners of real property in
Clark and Fayette Counties, Kentucky. [Record No. 1, ¶ 3] In the summer of 2008, they
became aware of the efforts of parties to have the area known as the Upper Reaches of Boone
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Creel (“the Property”) listed on the National Register of Historic Places (“National Register”).
Id. at ¶ 11.
The National Historical Preservation Act (the “Preservation Act”) authorizes the
Secretary of the Interior “to expand and maintain a National Register of districts, sites,
buildings, structures, and objects significant in American history, architecture, archeology,
engineering, and culture.” 36 C.F.R. § 60.1. The Secretary is charged under the Preservation
Act with promulgating regulations for nominating properties to the National Register and
notifying property owners when property is being considered for inclusion on the register. 54
U.S.C. § 302103. Before any property may be included in the National Register, the owners
of such property—or a majority of owners within the district in the case of a historic district—
must be given the opportunity to object to the nomination of the property for inclusion. Id. at
§ 302105. The Preservation Act generally prohibits inclusion of the district on the register if
a majority of the owners in the district object. See id.
The plaintiffs, along with other landowners of property in the area, were notified by the
Kentucky Heritage Counsel through the Kentucky state Historic Preservation Office via a letter
that the Property would be considered by the Kentucky Historic Preservation Review Board
for nomination to the National Register and an informational meeting would take place in
August 2008 in Lexington, Kentucky. Id. at ¶ 12. At the meeting, a Kentucky state official
informed those in attendance that objection letters were required to be submitted to the
Kentucky Review Board at a meeting in Russellville, Kentucky, three hours away from the
Property, at a later date. Id. at ¶ 13. Counsel for the plaintiffs presented a letter at the meeting
stating that they had objection letters from 129 landowners covering 95 parcels of properties
out of the 157 properties listed, and demanded the Board stop the action to submit the
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nomination. Id. at ¶ 14. Following receipt of a letter from the State indicating that, regardless
of whether the majority of landowners object, the nomination must still be forwarded to the
Keeper of the National Register of Historic Places (“the Keeper”) for a determination of
eligibility. Id. at ¶ 15.
The plaintiffs filed suit in the Fayette Circuit Court against the state and local agencies
involved in the nomination process (“the state court defendants”) in late 2008. The suit
challenged the efforts to have the Property listed on the National Register. Protracted litigation
ensured over the next several years. During this time, the Kentucky State Review Board met
and approved the nomination of the Property. It was subsequently listed in the National
Register on November 27, 2009. Id. at ¶¶ 19, 25. The matter worked its way to the Kentucky
Court of Appeals and then back to the Fayette Circuit Court. Id. at ¶¶ 16-31. The circuit court
granted partial summary judgment in the plaintiffs favor in September 2016, concluding that
the state court defendants had violated their due process rights. Id. at ¶ 32.
The plaintiffs’ counsel then submitted a petition to the Kentucky State Historic
Preservation Officer on October 28, 2016, seeking to remove the Property from the National
Register based upon alleged procedural irregularities under 26 C.F.R. 60.15(a)(4). The
plaintiffs relied, in part, on the state court holdings. The petition was then submitted to and
received by the Keeper from the state on January 27, 2017. Id. at ¶ 35. The Keeper
subsequently denied the petition to delist the Property from the National Register on March
13, 2017. Id.
The plaintiffs now seek review of the Keeper’s denial of the petition to delist the
Property under the Administrative Procedure Act, 5 U.S.C. § 702. They assert that they have
been damaged as a result of the actions and inactions of the defendants. [Record No. 1, ¶¶ 38-3-
43] They also allege that the actions and inactions of the defendants violated and continue to
violate their rights to substantive and procedural due process. Id. at ¶¶ 44-46. The plaintiffs
also contend that they are entitled to a writ of mandamus under the Mandamus Act. Id. at ¶¶
47-50. Finally, the plaintiffs seeks permanent injunctive relief and attorneys’ fees. Id. at ¶¶
51-59.
II.
The defendants’ arguments that the plaintiffs’ claims are time-barred and that the
plaintiffs lack of standing to bring this action contests this Court’s subject matter jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Lyshe v. Levy, 854 F.3d 855, 857
(6th Cir. 2017) (citations omitted). A 12(b)(1) motion “can either attack the claim of
jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true,
or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the
evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A facial challenge to the Court’s subject matter
jurisdiction, such as the defendants’ challenge here, “merely questions the sufficiency of the
pleading.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “In
reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which
is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. “[T]he party claiming
jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject
matter.” Id. at 324.
Next, in considering a motion under Federal Rule of Civil Procedure 12(b)(6), the Court
must determine whether the complaint states a claim for which relief is available. It “must
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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The factual allegations must be sufficient to raise a right to relief
above the speculative level, Twombly, 550 U.S. at 555, and permit the Court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. While a complaint need not contain detailed factual allegations, it must contain more
than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. “A pleading that
offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action’”
is insufficient. Id. (quoting Twombly, 550 U.S. at 555).
III.
A.
Subject Matter Jurisdiction
The defendants contend that the plaintiffs’ claims stem from the Keeper’s 2009 listing
decision and, therefore, are time-barred and should be dismissed for lack of subject matter
jurisdiction. [Record No. 12-1, pp. 15-16] The defendants also argue that the claims should
be dismissed because the plaintiffs lack standing. They assert they plaintiffs have failed to
allege an injury in fact as a result of the Keeper’s denial of their petition to remove the Boone
Historic District from the National Register. Id. at pp. 17-18.
Title 28 of the United States Code, section 2401(a), provides that “every civil action
commenced against the United States shall be barred unless the complaint is filed within six
years after the right of action first accrues.” The defendants argue that the plaintiffs do not
articulate which decision by the Keeper they challenge and allege that the claims must stem
from the 2009 listing decision. However, this characterization fails simply by looking at the
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complaint. The complaint plainly states that the plaintiffs suffered a legal wrong and were
adversely affected by the actions of the defendants “in denying the petition for delisting of the
Property.” [Record No. 1, ¶ 40] The petition for delisting of the property was submitted to
the Keeper through the Kentucky State Historical Preservation Office and was received by the
Keeper on January 27, 2017. [Record No. 1-20] The Keeper subsequently denied the petition
to remove the Property from the National Register on March 13, 2017. Id. The plaintiffs are
seeking review of the decision by the Keeper to deny the petition to remove the Property. As
a result, the action is not time-barred.
As with every lawsuit filed in federal court, Article III of the Constitution limits the
jurisdiction of federal courts to hear only actual cases and controversies. U.S. Const. art 3. §
2.
“The doctrine of standing is one of several doctrines that reflect this fundamental
limitation.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). To satisfy the standing
requirement, the plaintiffs must establish that: (i) they have suffered an injury in fact that is (a)
concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical;
(ii) that there is a causal connection between the injury and the defendants’’ alleged
wrongdoing; and (iii) that the injury can likely be redressed. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992). Here, the dispute is whether the plaintiffs have suffered an injury
in fact.
The plaintiffs have alleged concrete and particularized injury in the form of
discouragement of the destruction of historic buildings by eliminating certain otherwise
available Federal tax provisions both for the demolition of historic structures and for new
construction on the site of demolished historic buildings, and applicability of the Surface
Mining and Control Act of 1977 which requires consideration of a property’s historic values
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in determining whether to issue a surface coal mining permit. [Record No. 13, pp. 15-16.]
The defendants argue that the plaintiffs have failed to provide any facts to support their
allegations that there is coal under the property or that there are certain buildings or property
owners that would qualify for a tax credit.
The defendants’ argument against the plaintiffs’ standing conflates issues of standing
and questions of proof. The plaintiffs who are owners of the involved property are clearly
alleging injury to protected interest in property ownership and use. Further, the regulatory
scheme of the Preservation Act is intended to provide a procedural avenue to object to the
inclusion of the district on the register. If the owners of the property directly affected by the
decision to list or delist the property in the National Register do not have standing, it would be
hard to imagine that anyone would have standing to oppose a decision by the Keeper, thus
rendering the procedural mechanisms to object meaningless.
B.
APA Claim
The defendants contend that the plaintiffs have failed to state a claim for upon which
relief can be granted because they fail to identify grounds for removal of the Property from the
National Register. This argument fails to take into consideration the facts as alleged.
The plaintiffs sought the removal of listed Property from the National Resister under
the NPS’ regulations. See 36 C.F.R. § 60.15(c). Under the relevant regulation, four grounds
for removal are provided:
(1) The property has ceased to meet the criteria for listing in the National
Register because the qualities which caused it to be originally listed have been
lost or destroyed, or such qualities were lost subsequent to nomination and prior
to listing;
(2) Additional information shows that the property does not meet the National
Register criteria for evaluation;
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(3) Error in professional judgment as to whether the property meets the criteria
for evaluation; or
(4) Prejudicial procedural error in the nomination or listing process.
36 C.F.R. § 60.15(a). Relying on the state court holding and alleged procedural errors, the
plaintiffs petitioned for removal of the property under 36 C.F.R. § 60.15(a)(4). They alleged
procedural irregularities, including: (i) that the number of recognized landowners and
objections was constantly fluctuating; (ii) LLC’s, trusts, and LP’s received only one vote even
if they owned multiple properties; (iii) someone with a remainder interest could not submit an
objection; (iv) the State Review Board meeting was scheduled more than 200 miles away from
the location of the Property; (v) and that one of the proponents of the listing purchased real
property from an objector at the last minute in order to change the vote of the number of owners
opposed. [Record No. 1, pp. 5-6, ¶22] Viewing the allegations in a light most favorable to the
plaintiffs, they have alleged several prejudicial procedural errors in the nomination or listing
process and have adequately stated a claim for relief under the APA.
C.
Due Process Claim
Next, the defendants argue that the plaintiffs failed to state a claim for relief under
Count II, which alleges due process violations. They contend that, because the plaintiffs did
not identify the deprived protected liberty or property interests resulting from the Keeper’s
2017 decision. However, the complaint alleges that the plaintiffs are owners of real property
that has been improperly listed and not removed in accordance with procedure and, as a result,
have been damaged.
The defendants cite Moody Hill Farms Ltd. P’ship v. Dep’t of the Interior, Nat’l Parks
Serv., in support of their argument that listing in the National Register, on its own, does not
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constitute a deprivation of a protected property interests. 205 F.3d 554, 561-62 (2d Cir. 1999).
While the defendant is correct that Moody stands for the proposition that listing in the National
Register, on its own, does not constitute a deprivation of a protected property interest, that
proposition does not mean that every due process violation should be dismissed under Rule
12. In Moody, the plaintiffs’ claims failed at summary judgment because their due process
allegations were predicated on the burdens imposed by state, not federal, law. Id. at 562. Here,
the plaintiffs have alleged that they have been deprived of protected property interests and
injured as a result of the defendants’ actions and inactions regarding the listing of the Property
and its decision to deny the removal petition under federal law. Further, the defendants’
actions in the review of the removal petition are alleged to have been arbitrary and capricious.
The plaintiffs have stated a valid claim for due process violations.
D.
Writ of Mandamus Claim
The Mandamus Act provides that district courts “have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Authority from
the Sixth Circuit “clearly indicates that ‘[m]andamus is available only if: (1) the plaintiff has
a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate
remedy available to the plaintiff.”’ Rimmer v. Holder, 700 F.3d 246, 264 (6th Cir. 2012)
(quoting Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)). In
Rimmer, the Sixth Circuit held that because the Freedom of Information Act and Touhy
framework provided the plaintiff with an adequate remedy for what was sought, his mandamus
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claim fails the three-part test and is precluded by the existence of an alternative adequate
remedy. Id. at 264.
In this case, the APA provides the plaintiffs with an adequate remedy. As a result, the
plaintiffs mandamus claim fails the three-part test. The plaintiffs have failed to address the
issue that an adequate remedy is available. Instead, citing Pennsylvania and Massachusetts
district court decisions, they attempt to argue that a mandamus claim may lie where an agency
has abused its discretion. See Record No. 13, pp. 21-22. However, as previously discussed,
the Sixth Circuit has outlined clear requirements for the drastic remedy that is “to be invoked
only in extraordinary situations.” Carson, 633 F.3d at 491 (quoting Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980)).
Because an adequate remedy is available, the
mandamus claim fails.
IV.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
1.
Defendants’ Motion to Dismiss [Record No. 12] is GRANTED, in part, and
DENIED, in part.
2.
The petition for writ of mandamus under the Mandamus Act (Count III) is
DISMISSED, with prejudice. All other allegations contained in Count I, Count II, Count IV
and Count V remain pending.
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This 15th day of March, 2018.
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