United States District Court, D. New Jersey
POSTERNOCK APELL, P.C. By: Matthew R. Litt, Esq. Counsel for
Plaintiff Camden County Historical Society
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 Counsel for Defendants the New Jersey
Department of Transportation, Richard T. Hammer, and David C.
OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW JERSEY By:
Elizabeth A. Pascal, Esq. 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.
RENÉE MARIE BUMB, U.S.D.J.
the Camden County Historical Society, considers the Harrison
House “a national, regional, and local historic
treasure.” (Amend. Compl. ¶ 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, 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 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
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)
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
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
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
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).