United States Court of Appeals,
Fifth Circuit.
No. 93-3344.
VIEUX CARRE PROPERTY OWNERS RESIDENTS AND ASSOCIATIONS, INC.,
Plaintiff-Appellant,
v.
Lloyd Kent BROWN, Colonel, Defendant-Appellee.
Dec. 19, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before REAVLEY and JONES, Circuit Judges, and JUSTICE*, District
Judge.
EDITH H. JONES, Circuit Judge:
The City of New Orleans' Vieux Carre Commission, the New
Orleans City Planning Commission, and the New Orleans City Council
all approved the site for a world-class aquarium and riverfront
park in 1987. That year a group of landowners in the Vieux Carre
National Historic Landmark District—the French Quarter—disgruntled
with the "historic impact" of the project, filed suit to arrest its
construction. Relying on the Rivers and Harbors Act, 33 U.S.C. §
403, which was designed to protect the navigable waterways of the
United States, and the regulations found in 33 C.F.R. §§ 320
through 330, the plaintiffs have managed to survive two prior
dismissals of their action by the district court by appeal to this
*
District Judge of the Eastern District of Texas, sitting by
designation.
1
court.1 Despite our reluctance to accept fully the reasoning of
the district court, we find no barrier to terminating this
litigation since no meaningful relief to the plaintiffs is
presently possible.
The park project, properly characterized as "inconsequential,"
fell within the scope of the Corps' nationwide permit process.
Although the Corps' conceded omission of compliance with its
internal historical review regulation renders the park's permit
technically flawed, neither the regulations nor the RHA authorizes
Vieux Carre to remedy that problem.
I.
The two previous opinions by this court have significantly
narrowed the issues. Ultimately, the Vieux Carre's fate is
predetermined by the level of historic review properly imported
into the provisions of the Rivers and Harbors Act (RHA).2 Although
the RHA might appear to constitute an odd vehicle to resolve a
dispute over historic impact, the provisions of the Act are
triggered because some structures involved in the project were
built on the Bienville Street Wharf. The RHA prohibits all
activities affecting the course, condition, location, or capacity
of any navigable water unless authorized by a permit issued by the
Army Corps of Engineers. Vieux Carre II, 948 F.2d at 1439 n. 2.
1
See Vieux Carre Property Owners v. Brown, 948 F.2d 1436
(5th Cir.1991) (Vieux Carre II ); Vieux Carre Property Owners,
Residents & Associates, Inc. v. Brown, 875 F.2d 453 (5th
Cir.1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 720, 107
L.Ed.2d 739 (1990) (Vieux Carre I ).
2
33 U.S.C. § 403 et seq.
2
Vieux Carre I determined that only the park (in contrast to the
aquarium) segment of the project could obstruct navigable capacity
in waters of the United States so that it alone required a permit
from the Corps. Vieux Carre I, 875 F.2d at 462.3
That conclusion the Corps no longer contests. Not all
permits are created equal, however; the burden on the Corps of
assessing historical impact may vary considerably as a repercussion
of the precise type of permit required. Specifically, the Corps is
authorized to issue two types of permits, individual and general.
Vieux Carre II, 948 F.2d 1436 n. 3; 33 CFR § 325.5(a). If an
individual permit is necessary, the formal historic review
consultation procedures mandated by Congress in Section 106 of the
National Historic Preservation Act (NHPA) are triggered. Vieux
Carre I, 875 F.2d at 464. The Corps concedes that this type of
historic impact analysis was never undertaken. Nevertheless, a
form of general permit that authorizes specific types of activities
without prior particularized approval of the Corps—the nationwide
permit—was designed to expedite endeavors with inconsequential
effects on the RHA concerns. See 33 C.F.R. § 330.1 (stating that
nationwide permits "are designed to allow certain activities to
occur with little, if any, delay or paperwork"). Projects exempted
from the individual permit requirement by virtue of the nationwide
permit merely demand minimal, informal consideration of historical
impact. Vieux Carre I, 875 F.2d at 465 ("nationwide permits
3
More precisely, this court held that the Corps' conclusion
that the aquarium project would not affect navigation was not
arbitrary and capricious. Id.
3
authorizing truly inconsequential activities are not trigger[s]" of
the NHPA).
In the Corps' judgment the construction of the park satisfied
the criteria for sanction under the nationwide permit. The
district court held on remand that this conclusion was not
arbitrary or capricious, and in accord with this court's directive
the district court further inquired whether the park project was
"so inconsequential that it does not trigger NHPA." Vieux Carre
II, 948 F.2d at 1448. Inferring that the proper measure of whether
an activity is consequential is its impact on navigation, the court
held that since the park spawned no effect on navigation the Corps
need not activate the procedures demanded by the NHPA.
Although Vieux Carre challenges these conclusions in this
appeal, its more cogent assaults address the district court's
deductions from these premises. Indeed, the crux of this
protracted litigation assumes that the district court correctly
resolved the NHPA question. Instead, the enigmatic question
persists as to whether the § 330.5(a)(3) nationwide permit is—or
ever was—valid "given that the Corps did not follow its own
regulations at § 330.5(b)(9)."4 Vieux Carre II, 948 F.2d at 1449.
4
33 C.F.R. § 330.5(b)(9) (1986) provides in relevant part:
That, if the activity may adversely affect historic
properties which the National Park Service has listed
on, or determined eligible for listing on, the National
Register of Historic Places, the permittee will notify
the district engineer. If the district engineer
determines that such historic properties may be
adversely affected, he will provide the Advisory
Council on Historic Preservation an opportunity to
comment on the effects on such historic properties or
he will consider modification, suspension, or
4
Simply, the Corps' "conce[ssion] that it did not evaluate the
historic impact of either phrase of the project"5 violates even an
interpretation of section 330.5(b)(9) demanding solely pro forma
consideration.6
The district court held for the second time that the
completion of the project rendered this difficulty moot. Once
again, this decision did not technically comply with our
instructions on remand. Nevertheless, the interpretation we
ascribe to the Rivers and Harbors Act is of little more avail to
the plaintiffs.
II.
We proceed in this trilogy by first affirming the district
court's careful treatment of the "appropriateness" of a nationwide
revocation in accordance with 33 C.F.R. § 325.7.
5
Vieux Carre I, 875 F.2d at 465.
6
The district court ventured to finesse this complication by
reexamination of the issue. Applying an exception to the "law of
the case" doctrine, the court concluded that the Fifth Circuit's
determination "that the Corps concedes that it did not evaluate
the historic impact of either phase if the project", see Vieux
Carre I, 875 F.2d at 465, has no support in the record, thereby
rendering it clearly erroneous. Upon reexamination, the district
court held that the Corps had complied with the regulation. In
particular, the court relied upon Colonel Brown, district
engineer for the Corps, who testified that he and his staff has
discussed the impact of the park project on the French Quarter
and judged that no adverse impact would result. Although a
review of the record in Vieux Carre I does leave the appropriate
interpretation of the "concession" open to debate, the Corps had
several procedures at its disposal five years ago to bring this
misunderstanding to the attention of the original panel of this
court. Without an unequivocal departure from the record,
revision at this late date of settled issues is imprudent in
light of the superior knowledge of the original panel of the
context of the "concession," and the risk of undermining the
litigation decisions the parties adopted in reliance upon it.
5
permit and its assessment of the activities as "inconsequential."
The Corps determined that the riverfront park project fell
within § 330.5(a)(3) of its nationwide permit program.7 The court
found that there was no construction beneath the wharf, and the
dimensions of the wharf did not change. Critically, its maritime
purpose as a general cargo wharf was preserved. Since an agency is
afforded "substantial deference" when it interprets its own
regulations, Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333,
2341, 90 L.Ed.2d 921 (1986), our inquiry is confined to whether
this judgment was arbitrary or capricious. Considering that the
Corps' jurisdiction emanates from effects on navigable water,
evaluating whether the park resulted in a deviation in the original
plan or a different use for the wharf from the perspective of the
wharf's maritime function is perfectly reasonable. Hence the
changes affecting landward surface are not ineligible for
authorization by means of a nationwide permit.
Similarly, the district court properly gauged
"inconsequentiality" by reference to the project's impact "on the
7
The § 330.5(a)(3) nationwide permit provides in relevant
part: The repair, rehabilitation, or replacement of
any previously authorized, currently serviceable,
structure or fill, or of any currently serviceable
structure or fill constructed prior to the requirement
for authorization, provided such repair,
rehabilitation, or replacement does not result in a
deviation from the plans of the original structure or
fill, and further provided that the structure or fill
has not been put to uses differing from uses specified
for it in any permit authorizing its original
construction.
33 C.F.R. § 330.5(a)(3) (1986) (emphasis added).
6
RHA concerns," i.e., the obstruction of navigable waters. See
Vieux Carre I, 875 F.2d at 465. In this respect, the fact that the
project had no effect on the ability of the wharf to function in
its "navigational" capacity proves crucial. Finally, even if the
decision on consequentiality should have considered the park's
historic impact separately from its impact on navigable waters,
appellants have not carried their burden of demonstrating that the
Corps' decision was arbitrary and capricious. With the exception
of an occasional reference to the increased traffic and congestion
attributable to the development of the aquarium and park project,
appellants failed to identify any specific relationship between the
park's development and historic preservation consequences for the
French Quarter.8 Consequently, no justification is apparent for
disturbing the district court's conclusion that the Corps properly
denominated the park project under its nationwide permit system.
III.
Because of the vitality of the Corps' concession that it did
not follow its own historical impact regulation, § 330.5(b)(9), the
permit authorizing the park project, albeit appropriate, is
defective. Compliance with section 330.5(b)(9), requiring the
consideration of adverse historical impact by the district
engineer, is a "condition" of activity licensed via the nationwide
permit scheme. See 33 C.F.R. § 330.5(b) ("Conditions"). Since no
8
Recall that any increased traffic and congestion would be
relevant only to the extent it could be tied to the development
of the park as the aquarium is beyond the jurisdiction of the
Corps. See Vieux Carre I, 875 F.2d at 463.
7
individualized permit was ever sought for the park project, no
valid authorization exists. 33 C.F.R. § 330.1 ("Failure to comply
with a condition does not necessarily mean the activity cannot be
authorized but rather that the activity can only be authorized by
an individual or regional permit.") "Without a valid and
appropriate permit, the park project is unlawful under RHA § 10."
Vieux Carre II, 948 F.2d at 1443 n. 22.
Although this corollary manifests a ring of importance, the
"unlawful" shibboleth does not advance the cause of the Vieux
Carre. Indeed, the fact that the park is illegal may expose others
to draconian consequences,9 but the RHA statutory scheme does not
assign enforcement prerogatives to these plaintiffs.
The Vieux Carre cannot pursue an injunction to ameliorate the
violation of RHA § 10. California v. Sierra Club, 451 U.S. 287,
294, 101 S.Ct. 1775, 1779-80, 68 L.Ed.2d 101 (1981) (RHA does not
provide private right of action). Moreover, this court has already
rejected the suggestion that the Corps could be compelled to
enforce the statute. Vieux Carre I, 875 F.2d at 457 ("[N]o statute
requires the Corps to enforce the RHA provision that Vieux Carre
[10]
claims was violated here. In fact, 33 U.S.C. § 406 explicitly
9
These are criminal statutes. See 33 U.S.C. § 406 (persons
violating this title are guilty of a misdemeanor punishable by a
term of imprisonment not exceeding one year and a fine of $500-
2,500).
10
"[T]he removal of any structures or parts of structures
erected in violation of the provisions of the said sections may
be enforced by the injunction of any district court exercising
jurisdiction in any district in which such structures may exist,
and proper proceedings to this end may be instituted under the
direction of the Attorney General of the United States." 33
8
vests that authority in the Attorney General.")11 And patently the
Attorney General may not be obliged to prosecute any offenders.
Diamond v. Charles, 476 U.S. 54, 64-65, 106 S.Ct. 1697, 1704, 90
L.Ed.2d 48 (1986) (in American jurisprudence a private citizen
lacks a judicially cognizable interest in the prosecution or
non-prosecution of another).
The Army Corps of Engineers is not, however, left unbridled.
Other parties, concerned with exposure to criminal liability, must
be motivated in the future to seek an after-the-fact permit. For
example, a need or desire for new construction or a modification of
the park project may arise. As section 401 makes it unlawful "to
construct or commence the construction" of a structure without the
designated approval, only the foolhardy would proceed in such a new
venture in disregard of the statutory penalty. To issue such a
"valid" permit, the Corps could not circumvent the historical
review process. If the contemplated activity warranted the
simplified approach of the nationwide permit only brief
consultation would be implicated; otherwise, complete NHPA
treatment would be necessary.12
IV.
U.S.C. § 406.
11
Interestingly, it is the Department of Justice that has
been defending the position of the Army Corps against the Vieux
Carre.
12
Since the Corps cannot modify, suspend, or revoke a permit
that does not exist, § 325.6(a) has no application. No need
arises, therefore, to answer the difficult question whether or
not permits "expire." See Vieux Carre II, 948 F.2d at 1444.
9
For these reasons, we AFFIRM the judgment of the district
court.
JUSTICE, District Judge, dissenting:
I wholly agree with the majority opinion, save for its
ultimate conclusion that no meaningful relief is now available to
plaintiff-appellant Vieux Carre. Vieux Carre I plainly hold that
Vieux Carre "has standing to assert its claim for a declaratory
judgment against the Corps." Vieux Carre Property Owners v. Brown,
875 F.2d 453, 459 (5th Cir.1989). The majority opinion is clearly
contrary to Vieux Carre I in this respect, and apparently fails to
give recognition to the law of the case doctrine. North Miss.
Communications v. Jones, 951 F.2d 652, 656 (5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 184, 121 L.Ed.2d 129 (1992).
I would reverse and remand this case, in order that Vieux
Carre may pursue the remedy made available to it under Vieux Carre
I.
10