United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2007 Decided February 5, 2008
No. 06-5278
JIM LEMON AND
ROBIN BISER,
APPELLANTS
v.
PETE GEREN, SECRETARY OF THE ARMY, ET AL.,
APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 05cv00949)
Scott M. Edson argued the cause for appellants. With him
on the briefs were John H. Beisner and Mark S. Davies.
Alexander Hays, V., pro hac vice, argued the cause for
amici curiae National Trust for Historic Preservation, et al. in
support of appellant. On the brief were Elizabeth S. Merritt and
Aaron Colangelo.
Brian C. Baldrate, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Kevin K. Robitaille, Assistant U.S. Attorney, entered
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an appearance. Lawrence P. Fletcher-Hill, Cristen S. Rose, and
David H. Bamberger joined in the brief for appellees.
Before: RANDOLPH, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Plaintiffs live near and enjoy
Fort Ritchie, a closed Army base in western Maryland described
in our opinion in Role Models America, Inc. v. White, 317 F.3d
327, 330 (D.C. Cir. 2003). The only issues on this appeal are
whether, as the district court ruled, plaintiffs lack standing to
pursue claims regarding the disposition of Fort Ritchie under the
National Environmental Policy Act, 42 U.S.C. § 4321 et seq.,
and the National Historic Preservation Act, 16 U.S.C. § 470 et
seq., and whether the case became moot while the appeal was
pending.
After Fort Ritchie was selected for closure, Washington
County, Maryland became the local authority to plan the reuse
and redevelopment of the fort. In 1997, Washington County
approved a comprehensive redevelopment plan calling for the
creation of an office complex. Maryland then established
PenMar Development Corporation to serve as the new
redevelopment authority to implement the plan. See MD. CODE
ANN., Art. 83A §§ 5-1201 to -1210 (West 1997).
In 1997, the Secretary of the Army entered into a
Programmatic Agreement with PenMar, the Maryland Historical
Trust, and the Federal Advisory Council on Historic
Preservation to comply with the National Historic Preservation
Act (“NHPA”). Section 106 of NHPA requires the Secretary,
“prior to the approval of the expenditure of any Federal funds on
the undertaking[,]. . . [to] take into account the effect of the
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[transfer] on any district . . . that is included in or eligible for
inclusion in the National Register,” and to “afford the Advisory
Council on Historic Preservation . . . a reasonable opportunity to
comment” regarding the transfer. 16 U.S.C. § 470f. The
Programmatic Agreement sought to minimize damage to the
historic areas of the fort by requiring PenMar to develop Design
Guidelines that would encumber future receivers of the property.
In 1998, the Secretary prepared, pursuant to the National
Environmental Policy Act (“NEPA”), an environmental impact
statement examining the environmental effects of different
redevelopment options. NEPA requires an impact statement for
“major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C). Significant
circumstances occurring after the initial impact statement but
before major federal action may require a supplemental impact
statement. See Marsh v. Or. Natural Res. Council, 490 U.S.
360, 371, 374 (1989) (noting that the preparation of
supplemental environmental impact statements is sometimes
necessary to comply with NEPA); City of Olmstead Falls v.
FAA, 292 F.3d 261, 274 (D.C. Cir. 2002) (NEPA requires a
supplemental environmental impact statement when “new
information ‘provides a seriously different picture of the
environmental landscape.’” (quoting Wisconsin v. Weinberger,
745 F.2d 412, 418 (7th Cir. 1984) (emphasis in original))).
By 2004 PenMar had abandoned its original plan and had
decided instead to sell Fort Ritchie to the Corporate Offices
Properties Trust (COPT), a publicly-traded real estate
investment trust. COPT proposed a new redevelopment plan
that entailed more construction and commercial activity,
including activity on historic grounds, than PenMar had
proposed. In 2005, the Secretary of Housing and Urban
Development approved the new plan. In 2006, the Army issued
a Record of Environmental Consideration that called for no
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further examination into the environmental or historical impact
of the COPT plan.
Plaintiffs brought this action against the Secretary of the
Army, PenMar, and COPT, alleging violations of NEPA and
NHPA in the closure and redevelopment of Fort Ritchie.
Among other things, their amended complaint alleged that the
emergence of COPT’s proposed redevelopment plan for Fort
Ritchie created additional NHPA and NEPA obligations on the
Secretary before the property could be conveyed. Plaintiffs
sought declaratory and injunctive relief to prevent the Army’s
transfer of Fort Ritchie to PenMar.
The district court recognized that Article III of the
Constitution requires plaintiffs to “demonstrate injury-in-fact
(concrete and particularized, actual or imminent), caused by the
defendant and capable of being redressed by a court order.”
Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 4 (D.C.
Cir. 2005); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). With respect to plaintiffs’ NEPA claim, the court held
that they had not satisfied this test because the Army’s
preparation of a supplementary impact statement would not
“force defendants to alter their allegedly injurious course of
action here.” Lemon v. Harvey, 448 F. Supp. 2d 97, 104 (D.D.C.
2006). We think the court misperceived the nature of plaintiffs’
claim. The key word in the quotation from the district court’s
opinion is “force.” Preparation of an environmental impact
statement will never “force” an agency to change the course of
action it proposes. The idea behind NEPA is that if the agency’s
eyes are open to the environmental consequences of its actions
and if it considers options that entail less environmental damage,
it may be persuaded to alter what it proposed. See, e.g.,
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
(1989). Countless lawsuits in which this court and others upheld
a plaintiff’s standing were predicated on that understanding.
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The plaintiffs in some of those cases had standing because they
lived – as do the plaintiffs here – near where the federal action
would occur and would feel the environmental effects of that
action if it went forward. Lujan, 504 U.S. at 572-73 nn.7-8; City
of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir.
2007); City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003). Sometimes, the Article III injury in these types of cases
is called a “procedural injury,” the thought being that plaintiffs
suffer harm from the agency’s failure to follow NEPA’s
procedures, compliance with which might have changed the
agency’s mind for the reasons just given. See City of Dania
Beach, Fla., 485 F.3d at 1185; Nat’l Parks Conservation Ass’n,
414 F.3d at 4; Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 674-
75 (D.C. Cir. 1996)(en banc). Whatever the label, it is clear that
individuals in the same position as the plaintiffs in this case have
standing to seek compliance with the impact statement
requirement of NEPA. The Supreme Court recognizes as much,
as do we. Lujan, 504 U.S. at 572-73 nn.7-8; Nat’l Parks
Conservation Ass’n, 414 F.3d at 4-6; City of Waukesha, 320
F.3d at 235.
For similar reasons we believe plaintiffs had standing to
pursue their claim under NHPA. The district court treated the
claim as if plaintiffs were seeking to enforce a contract – the
Programmatic Agreement – despite having no contractual rights
under the agreement. We do not believe this is a correct view of
plaintiffs’ complaint. Lemon, 448 F. Supp. 2d at 105. As we
have mentioned, § 106 of NHPA required the Secretary of the
Army to “take into account” the effect of transferring Fort
Ritchie on the area within the former base that is eligible for
inclusion in the National Register of Historic Places – about
one-third of the Fort. Plaintiffs’ alleged injury is similar to that
under NEPA – if the Secretary had taken into account the effect
of the new COPT redevelopment plan he might have placed
conditions on the transfer of the land to PenMar, conditions that
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might have ameliorated what plaintiffs see as damage to an
historic site they visit and enjoy. See Karst Envtl. Educ. &
Prot., Inc. v. EPA, 475 F.3d 1291, 1294-95 (D.C. Cir. 2007);
Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 55-56 (1st Cir.
2001); Pye v. United States, 269 F.3d 459, 468 (4th Cir. 2001).
Plaintiffs therefore had standing to pursue their NHPA claim.
The remaining question is whether, as the defendants
contend, the case became moot when the Army recently
completed the transfer of Fort Ritchie to PenMar, which
immediately transferred the property to COPT. A case becomes
moot when “intervening events make it impossible to grant the
prevailing party effective relief.” Burlington N. R.R. Co. v.
Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996). But all
of the parties to the transaction are before the court. If
unraveling the transfer is necessary after the district court
decides the merits, it will be within the court’s power to do so.
See Porter v. Lee, 328 U.S. 246, 251 (1946); Indus. Bank of
Wash. v. Tobriner, 405 F.2d 1321, 1323 (D.C. Cir. 1968). The
case therefore is not moot.
The judgment of the district court dismissing the action for
lack of standing is reversed and the case is remanded for further
proceedings.
So ordered.