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Camden County Historical Society v. State, Department of Transportation

United States District Court, D. New Jersey

March 1, 2019



          POSTERNOCK APELL, P.C. By: Matthew R. Litt, Esq. 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 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. 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.

         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 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]


         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 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]


         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).



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