ELR Citation: ELR 20860
No(s). 85-4448 (5th Cir. May 14, 1986)

The court holds that a neighborhood surrounding the site of a retirement home built in 1919 in Mississippi is eligible for inclusion on the National Register and thus falls under the protection of §106 of the National Historic Preservation Act (NHPA) even though it had not been officially declared eligible. Congress amended §106, the court notes, to require federal agencies to account for the effect of federally assisted action on properties '"eligible for inclusion" in the National Register, in addition to the properties actually included in the Register. Further, the regulations now define eligible property as property that meets National Register criteria. The court thus rules that §106's coverage is not limited to property that has been eligible for listing by a state or federal agency; it also applies to property that is literally eligible. The court holds that although the district court erred in holding that the neighborhood did not fall under NHPA protection, an injunction to stop construction of a new building on the site was properly denied because the Department of Housing and Urban Development-financed construction project was already well under way. The court holds, however, that the district court erred in dismissing the case. Since the property is protected by NHPA, the homeowners who were seeking the injunction should be able to amend their complaint to seek appropriate relief.

Counsel for Plaintiffs-Appellants
Guy T. Gillespie III
Holcomb, Dunbar, Connell, Chaffin & Willard
1217 Jackson Ave., P.O. Drawer 707, Oxford MS 38655
(601) 234-8775

Counsel for Defendants-Appellees
Robert P. Crutcher, Ass't U.S. Attorney
P.O. Drawer 886, Oxford MS 38655
(601) 234-3351

Charles M. Powers
Scott, Hetrick, McBee & Powers
525 E. Capitol St., Suite 200, Jackson MS 39215-2009
(601) 353-9522

Before Gee and Rubin, JJ.