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

Filing 85

OPINION. Signed by Judge Renee Marie Bumb on 10/29/2019. (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:
This suit arises out of the demolition of the historic
Harrison House to make room for a federally-funded highway
project.

This opinion is the third of three opinions addressing

the arguments raised by Defendants in their respective motions.
The first opinion held that the National Historic Preservation
Act, 54 U.S.C. § 306108 (“NHPA”), does not create a private
right of action, and therefore dismissed Count 1 of the Amended
Complaint.

See Camden Cty. Historical Soc’y v. Dep’t of

Transportation, 371 F. Supp. 3d 187 (D.N.J. March 6, 2019). 1

The

second opinion held that the State of New Jersey had not waived
its Eleventh Amendment sovereign immunity to the state law
claims asserted by the Historical Society, and therefore
dismissed Counts 3 and 5 of the Amended Complaint.

See Camden

Cty. Historical Soc’y v. Dep’t of Transportation, 2019 WL
2443101 (D.N.J. June 12, 2019).

This final opinion addresses

the Federal Defendants’ “Motion for Summary Judgment and to
Dismiss for Lack of Subject Matter Jurisdiction” as to the
Administrative Procedure Act, 5 U.S.C. § 706(2)(a) (“APA”),
claim against them (Count 2 of the Amended Complaint).

The

Court requested supplemental argument on the issues raised by
the motion [see Docket No. 81], and the Court heard supplemental

1

The Court also dismissed without prejudice, pursuant to
Fed. R. Civ. P. 41(a)(1), Count 4 of the Amended Complaint.
Camden Cty. Historical Soc’y, 371 F. Supp. 3d at 189 n.2.
2

arguments on July 30, 2019.

As set forth below, the Court holds

that the only remedy available under the APA for the alleged
NHPA violation is a section 106 2 review, and in this case the
Historical Society’s request for such relief is moot.
Therefore, the Federal Defendants’ Motion to Dismiss will be
granted.
I.
The Court has comprehensively set forth the facts of this
suit in two previous opinions, see Camden Cty. Historical Soc’y
v. Dep’t of Transportation, 371 F. Supp. 3d 187 (D.N.J. March 6,
2019) and Camden Cty. Historical Soc’y v. Dep’t of
Transportation, 2019 WL 2443101 (D.N.J. June 12, 2019).

The

facts as set forth therein are incorporated herein by reference.
II.
Rule 12(b)(1) motions may challenge subject-matter
jurisdiction based upon the complaint’s face or its underlying
facts.

Pittman v. Metuchen Police Dept., No. 08–2373, 2009 WL

3207854, *1 (D.N.J. Sept. 29, 2009) (citing James Wm. Moore, 2
Moore’s Federal Practice § 12.30[4] (3d ed. 2007)).

“A facial

attack questions the sufficiency of the pleading, and in
reviewing a facial attack, a trial court accepts the allegations
in the complaint as true.”

2

Id.

“Section 106” of the NHPA is found at 54 U.S.C. § 306108.
3

III.
Two issues are presented by the instant motion: (A)
Pursuant to the APA, 5 U.S.C. § 702, what remedies are available
to the Historical Society for the alleged NHPA violation? and
(B) Is the Historical Society’s request for a new section 106
review moot?

The Court addresses each question in turn.
A.

Although the Historical Society seeks broad relief for the
asserted APA violation 3, the Court concludes that the only remedy
available under the APA for the alleged NHPA violation is a
section 106 review; all other remedies are barred by sovereign
immunity.
Under § 702, a plaintiff is only entitled to that which the
NHPA gives it.

U.S. v. Chambers, 92 F. Supp.2d 396, 400 (D.N.J.

2000) (applying Bowen v. Massachusetts, 487 U.S. 879 (1988) and
Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999)).

3

The

See Amended Complaint p. 37 “Relief Sought” ¶ 2, demanding
“[a]n Order directing Defendants Federal Highway Administration,
United States Department of Transportation, and New Jersey
Department of Transportation to consult in good faith with
Plaintiffs as that term is used in the National Historic
Preservation Act to minimize and/or mitigate the effects of the
demolition of Harrison House. Examples of such a post-demolition
minimization and/or mitigation include the provision of
resources to create a replica of the Harrison House,
Revolutionary War museum, monument commemorating the Harrison
House, ghost structure at the site of the Harrison House,
commemorative signage, possession of all remaining artifacts,
and an intensive-level archeological excavation.”
4

parties do not dispute that the NHPA only creates a procedural
right-- a “right” 4 to a section 106 review. 54 U.S.C. § 306108
(“section 106”) (“The head of any Federal agency . . . shall . .
. take into account the effect of the undertaking on any
district, site, building, structure, or object that is included
in or eligible for inclusion in the National Register.”); 36
C.F.R. § 800.29(c)(5) (“organizations” such as the Historical
Society “may participate [in the § 106 process] as consulting
parties”); Friends of the Atglen-Susquehanna Trail, Inc. v.
Surface Transp. Bd., 252 F.3d 246, 252 (3d Cir. 2001) (“The NHPA
is a procedural statute designed to ensure that, as part of the
planning process for properties under the jurisdiction of a
federal agency, the agency takes into account any adverse
effects on historical places from actions concerning that
property.”) (emphasis added).

Therefore, under the APA, the

only relief available to the Historical Society for the alleged
NHPA violation is a section 106 review. 5

All other relief is

4

This issue is analytically distinct from the Court’s
previous holding that the NHPA does not create a private right
of action, in part because “the NHPA does not create a personal,
privately enforceable right.” Camden County Historical Society,
371 F.Supp.3d at 193 (D.N.J. 2019).
5

See Friends of the Atglen-Susquehanna Trail, 252 F.3d at
267 (“In determining to vacate and remand this matter, we in no
way suggest that FAST is entitled to the relief it seeks. . . .
We hold only that, on remand, the STB must conduct the § 106
process in accordance with the regulations. It must consider the
comments and opinions of the Keeper, the ACHP, and other
5

barred by sovereign immunity.

Blue Fox, 525 U.S. at 261

(explaining that § 702 is a limited waiver of sovereign immunity
and that waiver “is to be strictly construed, in terms of its
scope, in favor of the sovereign.”); Bowen, 487 U.S. at 891–92
(explaining that § 702 is a limited waiver of sovereign
immunity). 6

Thus, even the Historical Society’s demand for

commemorative signage, which the Historical Society suggested at
oral argument is de minimus in nature and not tantamount to
money damages, is barred by sovereign immunity because the
Historical Society never had an entitlement to such relief under
the NHPA in the first instance.

In this regard, the demand for

commemorative signage and other similar forms of relief are,
contrary to the Historical Society’s argument, compensatory in
nature-- i.e., they are substitutes for the section 106 review
process and are therefore barred.

Blue Fox, 525 U.S. at 262

(“Damages are given to the plaintiff to substitute for a
suffered loss, whereas specific remedies are not substitute
remedies at all, but attempt to give the plaintiff the very

interested parties as to the scope of the eligible historic
properties and as to a proper mitigation plan.”).
6

See generally, Wright, Miller, Cooper, Kane, et al., 14
Fed. Prac. & Proc. Juris. § 3659 (4th ed.) “Statutory Exceptions
to Sovereign Immunity-- Actions for Nonmonetary Relief under the
Administrative Procedure Act.”

6

thing to which he was entitled.”) (internal citation and
quotation omitted).
Thus, the Historical Society’s broad demand for relief
notwithstanding, the only legally available remedy for the
asserted APA violation is an NHPA section 106 review.

As

discussed next, however, the Historical Society’s request for
such relief in this case has been rendered moot by the
demolition of the Harrison House.
B.
Courts have held under similar factual circumstances that
the destruction of “the site, building, structure, or object
that is . . . eligible for inclusion in the National Register,”
54 U.S.C. § 306108, renders moot a plaintiff’s claim for a new
section 106 review.

See Benavides v. Housing Authority of City

of San Antonio, 238 F.3d 667, 670 (5th Cir. 2001)(“even assuming
we were to grant complete relief to Benavides and order the
compliance with the historic review process, there is no
evidence on the record that further agency review could possibly
affect the substantially-completed demolition of Victoria
Courts.

Benavides’ claims for prospective relief based on the

National Historic Preservation Act are moot.”); Standing Rock
Sioux Tribe v. U.S. Army Corps of Engineers, 301 F. Supp. 3d 50,
63 (D.D.C. 2018) (“The specter of mootness raised in Standing
Rock’s earlier filings has now come to pass-- construction is

7

complete and oil is flowing through the pipeline. This
advancement in DAPL’s development in turn dooms Yankton’s NHPA
efforts. The Tribe’s first three claims mentioned above are
explicitly premised on alleged violations of the consultation
requirements under § 106 of the Act.

Now that construction of

the pipeline has occurred, the Court agrees with Defendants (and
the Standing Rock Sioux) that such consultation would no longer
be meaningful.”); cf. Gettysburg Battlefield Pres. Ass’n v.
Gettysburg Coll., 799 F. Supp. 1571, 1575 (M.D. Pa. 1992), aff’d
without opinion by 989 F.2d 487 (3d Cir. 1993) (“The complaint
alleges that the federal defendants similarly failed to
undertake the required NHPA review prior to the transfer of the
7.5 acre parcel, and apparently seeks the court to order it be
done now. . . . This is not an otherwise living case and the
redress sought is unavailable.”). 7

7

Thus, the Court concludes

Commission to Save Cleveland’s Huletts v. U.S. Army Corps
of Engineers, 163 F. Supp. 2d 776, 788 (N.D. Ohio 2001) holds to
the contrary, but does so exclusively relying on Vieux Carre
Property Owners v. Brown, 948 F.2d 1436 (5th Cir. 1991), which
subsequently has been strictly limited and distinguished by
Benavides, 238 F.3d at 670 (5th Cir. 2001) (holding NHPA claim
moot and explaining, “[w]e have since interpreted Vieux Carre
narrowly. . . . [A]lthough it may appear under Vieux Carre that
any amount of remaining demolition or construction means that
the case is not moot because theoretical relief is available,
our subsequent case law indicates that it was the combination of
the uncertainty surrounding the pending agency review and the
partial state of the construction that contributed to the
viability of the plaintiff’s claims.”). This Court is not bound
to follow Save Cleveland’s Huletts, and declines to follow it
based on the reasoning set forth in the subsequent Benavides
decision.
8

that, in light of the destruction of the Harrison House,
ordering a new section 106 review would be futile, and therefore
such request for relief is moot.
It is very unfortunate, indeed, that a structure such as
the Harrison House, which the Historical Society considers “a
national, regional, and local historic treasure,” [Amend. Compl.
¶ 1] (regardless of its legal eligibility for placement on the
National Register) has been forever destroyed.

The Court

appreciates that by its rulings the Court has effectively denied
the Historical Society all relief, and this is the end of the
entire lawsuit for the Historical Society in pursuit of its
mission.

As another court has observed, this result may appear

to be unfair.

Cf. Nat’l Tr. for Historic Pres. v. Blanck, 938

F. Supp. 908, 925 (D.D.C. 1996) (“It may seem ironic for the
Court to find that Walter Reed violated the NHPA and its own
regulations for over eight years and nevertheless to conclude
that the Army cannot now be ordered to fix what it undoubtedly
broke.”) 8

However, under the APA and NHPA, this Court’s review

and attendant power to remedy violations, no matter how
egregious they seem, is limited.

Through the APA and the NHPA,

8

Aff’d, 203 F.3d 53 (D.C. Cir. 1999). To be clear, in
this case, the Court does not reach the summary judgment portion
of the Federal Defendants’ motion (review of the administrative
record), and the Court makes no ruling as to whether the
Harrison House was eligible for listing on the National Historic
Registry.
9

“Congress has decided as a legislative matter . . . to
institutionalize the national commitment to historic
preservation by creating certain planning, consultation and
decisionmaking procedures to assure adequate consideration of
preservationist concerns and not, as plaintiffs would have it,
by requiring federal agencies to spend the taxpayers’ money on
historic preservation when it is not earmarked for such
purposes.”

Id.

Accordingly, it is not for this Court to

disturb the judgment of Congress, and the APA claim must be
dismissed.
IV.
For the above-stated reasons, the Federal Defendants’
Motion to Dismiss Count 2 of the Amended Complaint will be
granted.

Dated:

An appropriate Order accompanies this Opinion.

October 29, 2019

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

10