## Facts

- Four historic Hulett iron-ore unloaders stood on Cleveland’s lakefront at the Cleveland & Pittsburgh Ore Dock, a site listed on the National Register of Historic Places.
- The Cleveland-Cuyahoga County Port Authority sought to dredge and perform related waterfront work as part of a redevelopment and port reconfiguration plan and applied to the U.S. Army Corps of Engineers for a permit in March 1999.
- Because federal permitting involved a listed historic property, the Corps was required to comply with NHPA § 106 and implementing regulations, including consultation with the Ohio State Historic Preservation Office (SHPO).
- Preservation advocates, including the Committee to Save Cleveland’s Huletts, communicated concerns that the project could affect the Huletts and the historic dock.
- In May 1999, the Corps issued a dredging permit effective through 2004 after reaching an oral “no effect” conclusion, but without properly documenting the finding, providing written notice to SHPO, or waiting the required review period for SHPO comment.
- The Committee sued for declaratory and injunctive relief, seeking suspension or revocation of the permit and compliance with § 106.

## Issues

1. Whether the Committee had standing and whether the Corps’ NHPA § 106 compliance was reviewable under the Administrative Procedure Act (APA).
2. Whether the Corps violated NHPA § 106 and its regulations by issuing the dredging permit without properly documenting and consulting on its “no effect” determination.
3. What remedy was appropriate for any NHPA violation, including vacatur of the permit and renewed § 106 procedures.

## Decision

- The court held the Committee had standing based on alleged aesthetic, historical, and cultural injuries and found the injuries traceable to the permit and redressable by procedural relief.
- The court held issuance of the dredging permit was final agency action and the Corps’ § 106 compliance was judicially reviewable under the APA.
- The court held the Corps violated NHPA § 106 regulations by failing to prepare adequate documentation, failing to notify SHPO in writing, and failing to allow the required SHPO review period before issuing the permit.
- The court set aside the permit and ordered the Corps to revoke it and to comply with § 106 procedures before issuing any further permit affecting the historic property.

## Legal Principles

- NHPA § 106 imposes enforceable procedural duties on federal agencies to consider effects of undertakings on historic properties and to provide an opportunity for preservation officials to comment.
- A “no effect” determination must follow regulatory steps, including written documentation, written notification to the SHPO, and allowing the SHPO the specified time to review and respond.
- Informal discussions and agency awareness do not substitute for the required written, sequential consultation process under 36 C.F.R. part 800.
- Courts may vacate or enjoin agency actions taken in violation of NHPA procedures through APA review of final agency action.

## Conclusion

The court vacated and ordered revocation of the Corps’ dredging permit because the Corps failed to comply with NHPA § 106’s documented consultation requirements, requiring the agency to restart and complete the prescribed process before any further permitting that could affect the historic Hulett unloaders and dock.


Comm. to Save Cleveland's Huletts v. U.S. Army Corps of Eng'rs, 163 F. Supp. 2d 776 (N.D. Ohio 2001)