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Section 106 Compliance on Trial:
Russ and Lee Pye v. U.S. Army Corps of Engineers

Charles M. Niquette

The Pye case, on appeal from the United States District Court for the District of South Carolina (Charleston Division), raises the fundamental issue of "standing," in the context of a lawsuit challenging the U.S. Army Corps of Engineers' (Corps) failure to comply with Section 106 of the National Historic Preservation Act (NHPA). In this case, the Corps authorized the paving of a road that crosses a wetland area, pursuant to a nationwide permit under Section 404 of the Clean Water Act. In doing so, the Corps failed to take into account the effects of its undertaking on known historic and archaeological properties that had previously been determined eligible for listing in the National Register of Historic Places. The Corps' failure in this regard was inconsistent with its mandated responsibilities under Section 106 and under the Corps' own regulations: 33 C.F.R. Part 325, Appendix C. Despite these inconsistencies, an earlier decision by the district court held that the plaintiffs lacked standing to challenge the Corps' decision, even though they owned property adjacent to the permit area.

In December 1998, the National Trust for Historic Preservation filed an amici curiae brief in support of the Plaintiffs-Appellants, Russ and Lee Pye. The American Cultural Resources Association (ACRA) and the Society for Historical Archaeology (SHA) joined the National Trust in signing onto the brief. The National Trust argued forcefully that if the district court's opinion was allowed to stand, the enforceability of the NHPA would be seriously jeopardized, notwithstanding clear Congressional intent that "any interested person" be entitled to bring an action in federal court "to enforce the provisions of the Act," and to recover attorney's fees if he or she "substantially prevails."

The Pyes own a 36-acre parcel of land known as Oak Hall Plantation. Their property lies immediately adjacent to the Sheppard Tract, a 750-acre parcel owned by the County of Charleston, South Carolina. Both the Sheppard Tract and the plaintiff's property were once part of Encampment Plantation, a much larger historic rice plantation owned by the family of Robert Young Hayne (1791-1839).

In January 1995, the county submitted a permit application to the Corps to pave a road with a 50-foot-wide right-of-way, the only legal access to the Sheppard Tract. The county's road-paving project involved a wetland crossing, and therefore, was subject to Corps regulation under the Clean Water Act.

In April of the same year, the Advisory Council on Historic Preservation (Council) notified the Corps that the road-paving project might have an effect on Encampment Plantation and associated archeological properties. These properties are included in or eligible for listing in the National Register of Historic Places. At the same time, the Council advised the Corps that the nature of the undertaking's effect on historic properties might require compliance with Section 106.

In August, the County revised and resubmitted its permit application to the Corps. The new application included plans for paving a road that would access a 13-acre parcel; this paving application involved a total of 4 acres.

In November 1995, the Council once again contacted the Corps and requested additional information about the application. The Council also warned the Corps that the agency's permit review procedures might be inconsistent with the Corps' responsibilities under the National Historic Preservation Act. The Corps never responded to the Council.

In September 1996, the Corps authorized the project under Nationwide Permit No. 14 that applies to road crossings of wetland areas of which less than one third of an acre will be subject to filling. In authorizing the permit, the Corps prepared an internal memorandum documenting the agency's rationale for not taking into consideration the effects of this undertaking. The memo acknowledged that the road would provide access to the 13-acre field and that the field contained archeological site 38CH1589. Previously determined eligible for listing in the National Register, the site was the location of the original Hayne family home, dating back to 1740, and possibly the birthplace of Robert Young Hayne. Nevertheless, the Corps refused to consider the potential effects of the permit on the archaeological site based upon the assertion that "the area of consideration for cultural resource impacts is limited to the footprint of the roadway only," and the site in question was located outside of the footprint. As most readers are well aware, failure to consider both direct and indirect impacts of an undertaking on significant historic properties is inconsistent with a federal agency's obligation under the National Historic Preservation Act, and in this case with the Corps' own regulations; thus the plaintiff's legal action.

The National Trust's amicus brief challenged the district court's ruling that the plaintiffs lack standing to enforce the National Historic Preservation Act. Their brief concluded by offering well-crafted arguments demonstrating that the court's ruling is fundamentally inconsistent with constitutional principles and Congressional intent. The decision now rests in the United States Court of Appeals for the Fourth Circuit.

Charles M. Niquette is president of Cultural Resource Analysts, a CRM consulting firm based in Lexington, Kentucky.

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