CAMDEN COUNTY HISTORICAL SOCIETY v. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION et al

Filing 71

OPINION. Signed by Judge Renee Marie Bumb on 3/1/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CAMDEN COUNTY HISTORICAL
SOCIETY,
Plaintiff,

Civil No. 17-5270 (RMB/AMD)

v.

OPINION

STATE OF NEW JERSEY DEPARTMENT
OF TRANSPORTATION, et al.,
Defendants.

APPEARANCES:
POSTERNOCK APELL, P.C.
By: Matthew R. Litt, Esq.
400 N. Church Street, Suite 250
Moorestown, New Jersey 08057
Counsel for Plaintiff Camden County Historical Society
OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY
By: Brad M. Reiter, Esq.
Fredric R. Cohen, Esq.
Michael R. Sarno, Esq.
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 114
Trenton, New Jersey 08625
Counsel for Defendants the New Jersey Department of
Transportation, Richard T. Hammer, and David C. Mudge
OFFICE OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW JERSEY
By: Elizabeth A. Pascal, Esq.
401 Market Street, P.O. Box 2098
Camden, New Jersey 08101
Counsel for U.S. Department of Transportation;
Secretary of the U.S. Department of Transportation,
Elaine L. Chao; the Federal Highway Administration;
and Former Acting Director of the Federal Highway
Administration, Walter Waidelich, Jr.

1

BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff, the Camden County Historical Society, considers
the Harrison House “a national, regional, and local historic
treasure.”

(Amend. Compl. ¶ 1) 1

The State of New Jersey

demolished it in the early morning hours of March 3, 2017 to
make room for “a federally funded highway reconstruction
project.”

(Id.)

The Historical Society had sought emergent

relief before the State Court to prevent the destruction of such
a treasure, but the Historical Society alleges that the State
ignored its application and instead, “initiated a furtive and
expedited demolition” of the house.

(Id. ¶ 20)

While the

Historical Society has asserted many claims under federal and
state law 2, this Opinion addresses one discrete issue raised in
Defendants’ Motions to Dismiss: Does the National Historic
Preservation Act, 54 U.S.C. § 306108 (“NHPA”), create a private
right of action?

Applying the analytical framework established

1

The Amended Complaint alleges that the earliest portions
of the house “were likely constructed around 1740,” and
featured, among other things, “unique pattern brick
architecture.” (Amend. Compl. ¶ 2)
2

Those claims are: (1) violation of the National Historic
Preservation Act, 54 U.S.C. § 306108; (2) violation of the
Administrative Procedure Act, 5 U.S.C. § 706(2)(a); (3)
fraudulent concealment of evidence; (4) “conspiracy to commit
tort”; and (5) negligent spoliation of evidence. The Court
exercises subject matter jurisdiction over this suit subject to
the New Jersey State Defendants’ claim to sovereign immunity
under the 11th Amendment to the U.S. Constitution, which the
Court does not rule upon at this time.

2

by the United States Supreme Court in Alexander v. Sandoval, 532
U.S. 275 (2001), which precedent the Third Circuit followed in
Wisniewski v. Rodale, Inc., 510 F.3d 294 (3d Cir. 2007) and
McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009),
among other cases, the Court holds the NHPA does not create a
private right of action.

Accordingly, Defendants’ Motion to

Dismiss Count 1 of the Amended Complaint will be granted. 3
I.
As alleged in the Amended Complaint, “[i]n or about 2001,
Defendants [New Jersey Department of Transportation] and the
Federal Highway Administration (“FHWA”) announced they were
preparing to undertake . . . a major reconstruction of the
intersections of federal highway 295 and State highway 42
located in Bellmawr, New Jersey.”

(Amend. Compl. ¶ 74)

“The

geographic area affected by the Construction Project encompassed
the Harrison House.”

(Id. ¶ 75)

In December 2003, historians Elizabeth Amisson and Paul
Schopp allegedly concluded that the Harrison House was eligible
for listing in the National Register of Historic Places.
(Amend. Compl. ¶ 79)

The Amended Complaint alleges that in May

3

As discussed at oral argument on the motions, the Court
reserves decision on the remainder of the issues raised by the
motions until supplemental briefing has been completed, except
that, consistent with the Historical Society’s concession at
oral argument, Count 4 of the Amended Complaint will be
dismissed without prejudice pursuant to Fed. R. Civ. P.
41(a)(1).
3

2005, those same historians “suddenly concluded” that the
features that had originally made the Harrison House eligible
for the National Register “had been so obscured or removed that
the Harrison House was incapable of interpreting its history and
[was] now ineligible.”

(Amend. Compl. ¶ 88)

Specifically, the

Amended Complaint alleges that
the survey process and the independence of the
historians
was
[sic]
compromised
by
misinterpretations of the building’s architecture
by the NJDOT cultural resources assessment project
manager, divergences between the NJDOT project
manager and the independent cultural resource
consultants, and contrived analyses. Defendants’
inaccuracies would have been identified and
corrected had the process followed the regulations
of the [NHPA].
Instead, Defendants hid and
obscured their intentions by neglecting their
obligation to notify the required consulting
parties of their plans to demolish Harrison House.
(Id. ¶¶ 89-90)

This alleged “bad faith section 106 ‘review’”

(Id., Section Heading, p. 17) is the basis of the Historical
Society’s NHPA claim.

(See Id. ¶ 174, “The Federal Highway

Administration and/or United States Department of Transportation
and/or New Jersey Department of Transportation violated their
obligations under section 106 by failing to exercise good faith
in concluding that the Harrison House was ineligible for
inclusion on the National Register.”). 4

4

See generally, Friends of the Atglen-Susquehanna Trail,
Inc. v. Surface Transp. Bd., 252 F.3d 246, 252 (3d Cir. 2001)
(describing § 106 as “stop, look, and listen” provision
requiring an agency to acquire information before acting).
4

II.
On a Rule 12(b)(6) motion, the Court must decide whether
the complaint “contain[s] 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)).

In

evaluating plausibility, the Court “disregard[s] rote recitals
of the elements of a cause of action, legal conclusions, and
mere conclusory statements.

A claim has facial plausibility

when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Hassen v. Gov’t of V.I., 861 F.3d 108,

114–15 (3d Cir. 2017) (internal citations and quotations
omitted).
III.
A.
Before this Court reaches its analysis concerning an NHPA
private right of action, it must answer a threshold question:
Do principles of stare decisis and binding precedent allow this
Court to reach the NHPA private right of action issue in light
of the Third Circuit’s decision in Boarhead Corp. v. Erickson,
923 F.2d 1011 (3d Cir. 1991)?
In Boarhead, the Third Circuit, relying upon the attorney
fee shifting provision of the NHPA, concluded that “we agree

5

with the arguments advanced by Boarhead and amici that Congress
must have intended to establish a private right of action to
interested parties, such as Boarhead” under the NHPA.

923 F.2d

1011, 1017 (3d Cir. 1991) (citing the holding of Vieux Carre
Prop. Owners, Residents & Assocs. v. Brown, 875 F.2d 453 (5th
Cir. 1989), “that a private right of action existed under the
Preservation Act against a federal agency.” 5).

Neither the

Supreme Court, nor the Third Circuit, has overruled Boarhead,
and so, it is therefore the law of this Circuit that a private
right of action exists under the NHPA.

This Court well

recognizes that as the lowest court in the vertical hierarchy of
federal courts, it is powerless to overrule Boarhead.

However,

the fair question remains whether, under principles of vertical
stare decisis 6, this Court is bound to follow Boarhead in light

5

But see, Friends of St. Frances Xavier Cabrini Church v.
FEMA, 658 F.3d 460, 466 n.2 (5th Cir. 2011) (“we note that
[Sandoval] casts serious doubt on the continued viability of the
private right of action under the NHPA.”).
6

Vertical stare decisis may be best defined thusly:
“[b]inding precedent for all is set only by the Supreme Court,
and for the district courts within a circuit, only by the court
of appeals for that circuit.” In re Korean Air Lines Disaster
of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987) (per
Ginsburg, J.), aff’d sub nom. by Chan v. Korean Air Lines, Ltd.,
490 U.S. 122 (1989); see also, Evan H. Caminker, Why Must
Inferior Courts Obey Superior Court Precedents?, 46 Stan. L.
Rev. 817, 824 (1994) (“A court must follow the precedents
established by the court(s) directly above it. District courts
must follow both Supreme Court decisions and those issued by
whichever court of appeals has revisory jurisdiction over its
decisions, and courts of appeals must heed Supreme Court
decisions.”). A lower court is “bound to follow both the
6

of the subsequent decision by the Supreme Court in Sandoval, and
subsequent Third Circuit decisions applying Sandoval.
For the reasons illustrated infra, the Court agrees with
Defendants’ argument that it is not possible to follow
faithfully, and apply properly, the mode of analysis established
by Sandoval while simultaneously adhering to the holding of
Boarhead—a decision that was issued ten years before Sandoval. 7
Indeed, as Defendants correctly point out, subsequent to
Sandoval, the Third Circuit, in Wisniewski and McGovern as well
as other decisions, applied Sandoval’s mode of analysis to hold
in some cases that Congress had not created a private right of
action because there was no “rights-creating language” in the
statutes.

See infra p. 10-11 and n.10.

Accordingly, the Court

reasoning and result of a case, and not simply to the result
alone.” Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682,
692 (3d Cir. 1991), aff'd in part, rev'd in part by 505 U.S. 833
(1992); see also, United States v. Martinez-Cruz, 736 F.3d 999,
1006 (D.C. Cir. 2013) (“As a lower court in a system of absolute
vertical stare decisis headed by one Supreme Court, it is
essential that we follow both the words and the music of Supreme
Court opinions.”) (Kavanaugh, J., dissenting).
7

The Historical Society’s assertion to the contrary-- that
“Sandoval did not change the law as it existed when Boarhead was
decided in 1991, it reinforced the Supreme Court’s decision in
Cort v. Ash, 422 U.S. 66 (1975) decades earlier” (Opposition
Brief, Dkt # 61, p. 14)-- appears to be incorrect. See
Wisniewski, 510 F.3d at 299, 300 (“Although Cort has never been
formally overruled, subsequent decisions have altered it
virtually beyond recognition. . .. The Supreme Court’s decision
in [Sandoval] strongly suggests that the Court has abandoned the
Cort v. Ash test. . .. Although the Sandoval Court did not
expressly reject the Cort v. Ash factors, it did not use them at
all to guide its inquiry.”)
7

concludes for the reasons explained below that, in this rare
circumstance where Boarhead cannot be reconciled with Sandoval
and other binding precedent, this Court by such subsequent
rulings, is relieved of its obligation to follow Boarhead’s
holding concerning the existence of a private right of action
under the NHPA.

See Bryan A. Garner, et al., The Law of

Judicial Precedent, 491 (Bryan A. Garner ed., 2016) (“A federal
district court . . . must follow decisions of the court of
appeals in the same circuit in preference to the decisions of
all other courts, state or national, unless there is a contrary
decision by the U.S. Supreme Court.”) (emphasis added) 8;

cf.

U.S. Airways, Inc. v. McCutchen, 663 F.3d 671, 678 (3d Cir.
2011) (“While we recognize that the District Court may have
considered itself bound by [previous Third Circuit precedent],
each [case] came before the Supreme Court’s decisions in Knudson
and Sereboff which . . . undermined the reasoning and holdings
of our prior decisions. . . . These cases are therefore
inapposite in light of the Supreme Court’s intervening

8

See also, Briley v. City of Trenton, 164 F.R.D. 26, 29
(D.N.J. 1995) (Wolfson, M.J.) (“‘Absent a Supreme Court decision
to the contrary, district courts are compelled to follow
mandates of appellate courts.’”) (quoting Litman v.
Massachusetts Mut. Life Ins. Co., 825 F.2d 1506, 1508 (11th Cir.
1987)).
8

decisions.”).

Accordingly, the Court now turns to the merits of

the NHPA issue. 9
B.
Sandoval emphasized the principle that “[l]ike substantive
federal law itself, private rights of action to enforce federal
law must be created by Congress.”

532 U.S. at 286.

Thus, to

determine whether a statute creates a private right of action,
“[t]he judicial task is to interpret the statute Congress has
passed to determine whether it displays an intent to create not
just a private right but also a private remedy.”

Id.

In

Sandoval, the Court examined “the text and structure of Title
VI” to reach the conclusion that Congress did not “inten[d] to
create a freestanding private right of action to enforce
regulations promulgated under § 106 [of the Act].”

Id. at 288,

293.
In the almost 20 years since Sandoval, the Third Circuit
has applied the two step “Sandoval test,”-- i.e., “(1) Did
Congress intend to create a personal right?; and (2) Did
Congress intend to create a private remedy?” Wisniewski, 510
F.3d at 301-- to various statutes.
In Wisniewski, for example, the Third Circuit applied the
Sandoval test to hold that § 3009 of the Postal Reorganization

9

The Court need not, and does not, express any view on any
other issues addressed by Boarhead.
9

Act “provides no implied right of action.”

510 F.3d at 301.

First, considering “whether the statute contained ‘rightscreating’ language that focuses on the ‘individual protected’
rather than ‘the person regulated,’” Wisniewski, 510 F.3d at
301-02, the Court observed there was no obvious rights-creating
language; rather, “Congress worded [the relevant provisions of
the statute] as prohibitions on the person regulated rather than
entitlements for the person protected.”

Id. at 302.

Second,

the Court found no congressional intent to create a private
remedy in either the text or structure of the Act, nor in the
legislative history.

Id. at 304-08.

Similarly, in McGovern, the Third Circuit applied the
Sandoval test to 42 U.S.C. § 1981, holding that there was no
private right of action under that statute.
121.

554 F.3d at 116,

In McGovern, while the Third Circuit acknowledged that §

1981 does speak generically of “rights,” the Court explained
that “[t]he mere mention of ‘rights’ does not, without more,
establish a private right of action.”

554 F.3d at 119.

The

Court further explained that neither the text, nor the
legislative history, provided a private remedy to enforce the
“rights” protected by § 1981.

Id. at 120-21.

Most recently in Bakos v. Am. Airlines, Inc., the Third
Circuit applied the “two-fold” Sandoval test to hold that the
McCaskill-Bond Amendment does create a private right of action.

10

748 F. App’x 468, 473 (3d Cir. 2018).

In that case the Court

found that the statute did contain “rights-creating” language,
and did provide a private remedy, observing that “there is no
agency tasked with enforcement, which suggests private
plaintiffs may sue to enforce McCaskill-Bond’s requirements.”
Id. at 474. 10
Thus, in examining the NHPA, just as the Third Circuit did
in cases that followed Sandoval, this Court must apply the
Sandoval test.

First, the Court must look for rights-creating

language in the text and structure of the statute.

Second, the

Court must consider the statute and its legislative history (to
the extent relevant and available) in a search for a
congressionally created private remedy. 11

The Court agrees with

Defendants that the NHPA fails both prongs of the Sandoval test.
The relevant section of the statute states,
[t]he head of any Federal agency having direct or
indirect jurisdiction over a proposed Federal or
federally assisted undertaking in any State and the head
of any Federal department or independent agency having
10

See also, Santomenno ex rel. John Hancock Tr. v. John
Hancock Life Ins. Co. (U.S.A.), 677 F.3d 178, 186–87 (3d Cir.
2012) (applying the Sandoval test and holding that there is no
private right of action under Section 26(f) of the Investment
Company Act); In re Joubert, 411 F.3d 452, 453 (3d Cir. 2005)
(applying Sandoval to hold that a private remedy may not be
implied under 11 U.S.C. § 105(a)).
11

Boarhead did not consider these questions. Rather,
based solely on the existence of the NHPA attorneys fees
provision, Boarhead inferred that Congress “must have intended
to establish a private right of action to interested parties.”
923 F.2d at 1017.
11

authority to license any undertaking, prior to the
approval of the expenditure of any Federal funds on the
undertaking or prior to the issuance of any license,
shall take into account the effect of the undertaking on
any historic property. The head of the Federal agency
shall afford the Council a reasonable opportunity to
comment with regard to the undertaking.
54 U.S.C. § 306108.
This provision contains no mention of rights at all.

Thus,

this case is clearer than McGovern, where at least the statute
did speak generally of rights, yet the Court of Appeals
nonetheless held that not private right of action existed.
Additionally, as in Wisniewski, the statute focuses on the
person regulated (i.e., “the Federal agency”) rather than
entitlements for the person protected, and unlike the statute in
Bakos, the statute at issue here does task a federal agency with
enforcement.
The Historical Society points to 36 C.F.R. § 800.29(c)(5)-which provides that “organizations” such as the Historical
Society “may participate [in the § 106 process] as consulting
parties due to the nature of their legal or economic relation to
the undertaking or affected properties, or their concern with
the undertaking’s effects on historic properties” (emphasis
added)-- as evidence of an intent to provide a private right.
This argument fails for two independent reasons.
First, the regulation speaks in permissive, not mandatory,
terms which is at least somewhat inconsistent with an intent to

12

create a legal entitlement.

See Three Rivers Ctr. for Indep.

Living v. Hous. Auth. of City of Pittsburgh, 382 F.3d 412, 419–
20 (3d Cir. 2004) (“Personal rights are those intentionally and
unambiguously conferred through rights-creating language.”)
(emphasis added; internal citation and quotations omitted).
Second, and more to the point, Sandoval clearly states that
Congress must create the asserted right in a statute; an
executive agency cannot do so in a regulation. 532 U.S. at 291
(“it is most certainly incorrect to say that language in a
regulation can conjure up a private cause of action that has not
been authorized by Congress.

Agencies may play the sorcerer’s

apprentice but not the sorcerer himself.”).

Thus, the

Historical Society’s reliance on 36 C.F.R. § 800.29(c)(5) is
misplaced.

For these reasons, the Court concludes that the NHPA

does not create a personal, privately enforceable right.
Next, as to the private remedy inquiry, the Historical
Society points to no private remedy provision in the NHPA. 12

12

The NHPA’s attorneys fees provision is not tantamount to
a private remedy provision. See San Carlos Apache Tribe v.
United States, 417 F.3d 1091, 1099 (9th Cir. 2005) (“At best,
the absence of any private right of action language in § 106 and
the presence of the fee provision render the statute ambiguous
on the cause of action point. Without explicit language, such
an ambiguity can hardly be converted into an implied right of
action.”); Friends of Hamilton Grange v. Salazar, 2009 WL
650262 at *21 (S.D.N.Y. Mar. 12, 2009) (“the presence of a fee
award provision is not dispositive of the issue of a private
right of action”); Sisseton-Wahpeton Oyate v. U.S. Dep’t of
State, 659 F. Supp. 2d 1071, 1080 (D.S.D. 2009) (following San
Carlos Apache Tribe); Nat’l Tr. for Historic Pres. v. Blanck,
13

Rather, it argues that “[i]f the NHPA is not held to have a
right of private enforcement, then the NHPA is left with no
enforcement provision at all.”
14)

(Opposition Brief, Dkt # 61, p.

This argument is incorrect.

As Defendants observe, review

of agency action is available under the Administrative Procedure
Act, 5 U.S.C. § 706(2). 13

Indeed, the Historical Society has

asserted an APA claim in this case.

Moreover, the absence of a

938 F. Supp. 908, 915 (D.D.C. 1996), aff’d, 203 F.3d 53 (D.C.
Cir. 1999) (“neither the language nor the legislative history of
the attorneys’ fees provision of the NHPA clearly indicates an
intent on the part of Congress to create a private right of
action.”).
13

See, e.g., Friends of the Atglen-Susquehanna Trail, Inc.
v. Surface Transp. Bd., 252 F.3d 246, 262 (3d Cir. 2001) (“We
now proceed to the merits of this petition, whether the STB
erred in carrying out its statutory obligations under § 106.
Our review is governed by the Administrative Procedure Act
(APA), 5 U.S.C. § 706(2).”); Soc’y Hill Towers Owners’ Assn v.
Rendell, 210 F.3d 168, 178 (3d Cir. 2000) (“In their claim under
the APA, the Residents contend that . . . the City failed to
provide for meaningful public participation in the UDAG
application review process, failed to consider the cumulative
impacts of proposed development in the Penn’s Landing area,
failed to consider appropriate alternatives, and failed to
properly weigh the public controversy surrounding the project in
deciding whether an environmental impact statement was
required.”); see also, San Carlos Apache Tribe, 417 F.3d at
1096 (“An aggrieved party can sue under the APA to force
compliance with § 106 without having a private right of action
under the statute.”); see generally, NAACP v. Sec’y of HUD, 817
F.2d 149, 152 (1st Cir. 1987) (“it is difficult to understand
why a court would ever hold that Congress, in enacting a statute
that creates federal obligations, has implicitly created a
private right of action against the federal government, for
there is hardly ever any need for Congress to do so. That is
because federal action is nearly always reviewable [under the
APA] for conformity with statutory obligations without any such
private right of action.”) (per Stephen J. Breyer, Circuit
Judge).
14

remedy provision cannot be an invitation for the courts to
create such a remedy, as Sandoval teaches.

532 U.S. at 286–87

(“Statutory intent . . . is determinative.

Without it, a cause

of action does not exist and courts may not create one, no
matter how desirable that might be as a policy matter, or how
compatible with the statute.”) (internal citations and
quotations omitted); see also, Three Rivers Ctr., 382 F.3d at
420 (“It is often the case that only the executive can enforce a
federal statute.

Some statutes create rights in individuals

that are only enforceable by agencies, or not enforceable at
all.”) (internal citations omitted).

For these reasons, the

Court concludes that the NHPA does not create a private remedy,
and therefore the Court further holds that the NHPA does not
create a private right of action.
Lastly, in further support of this conclusion, the Court
observes that persuasive authority from other jurisdictions
either holds or strongly suggests that no NHPA private right of
action exists post-Sandoval.

See Karst Envtl. Educ. & Prot.,

Inc. v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007) (no private
right of action under NHPA); San Carlos Apache Tribe, 417 F.3d
at 1099 (no private right of action under NHPA);

see also,

Narragansett Indian Tribe by & through Narragansett Indian
Tribal Historic Pres. Office v. R.I. Dep’t of Transp., 903 F.3d
26, 29–30 (1st Cir. 2018) (“we have previously assumed without

15

deciding that the NHPA creates some type of private right of
action.

Such an assumption subsequently became more tenuous in

the wake of [Sandoval].”); Coal. of Concerned Citizens to Make
Art Smart v. Fed. Transit Admin. of U.S. Dep’t of Transp., 843
F.3d 886, 901 (10th Cir. 2016) (noting in dicta that plaintiffs’
claims arose under the APA because the NHPA provides no private
right of action); Friends of St. Francis Xavier Cabrini Church,
658 F.3d at 466 n.2 (“[T]he Supreme Court’s recent jurisprudence
casts serious doubt on the continued viability of the private
right of action under the NHPA.”).
IV.
For the above-stated reasons, the Court holds that the NHPA
does not create a private right of action.

Accordingly,

Defendants’ Motion to Dismiss Count 1 of the Amended Complaint
will be granted.

Dated:

An appropriate Order accompanies this Opinion.

March 1, 2019

__s/ Renée Marie Bumb____
Renée Marie Bumb, U.S.D.J.

16