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Camden County Historical Society v. State of New Jersey Department of Transportation

United States District Court, D. New Jersey, Camden Vicinage

October 29, 2019

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

          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 25 Market Street, 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.

          OPINION

          RENÉE MARIE 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 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.” Id.

         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)). The 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 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 ...


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