ELR Citation: ELR 20540
No(s). 97-15005 (9th Cir. Feb 10, 1998)

The court reverses a district court decision holding that the U.S. Department of Housing and Urban Development's (HUD's) disbursement of federal funds for a low-income housing project barred a group of homeowners' National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA) claims against HUD and a city. The court first holds that the NHPA does not contain an implicit statute of limitations. The language in NHPA §106 establishes the time during which the agency is required to conduct an NHPA review, not the time during which a plaintiff is required to bring a lawsuit. An implicit statute of limitations could create a situation where cases are dismissed as upripe before disbursement of federal funds and dismissed as moot after disbursement of federal funds, leaving virtually no window of opportunity for a private enforcement action. Furthermore, the court has applied the equitable doctrine of laches in the past to resolve the timeliness of both the NHPA and NEPA claims.

The court next holds that HUD had continuing authority over the project because it entered into an agreement to ensure that the project remains compatible with the historical and architectural qualities of the surrounding homes. If HUD believed the terms of the agreement could not be carried out, it had the obligation to request consultation with the other parties to the agreement. However, HUD's obligation did not extend further than the terms of the agreement because the environmental review process was complete and the homeowners have no quarrel with the adequacy of those reviews.

The court further holds that the city's federal environmental review responsibilities did not cease once federal involvement in the project ceased. The statute authorizing delegation of HUD's NHPA and NEPA review responsibilities also provides that the local official consents to assume the status of a responsible federal official under NEPA and other federal laws and consents to accept the jurisdiction of the federal courts. Even if the city may be held liable under federal law after federal funds are disbursed, its liability under NEPA remains limited to failures to carry out the terms of the agreement because the homeowners do not contest the adequacy of the predisbursement reviews.

Last, the court instructs the district court to decide, as a threshold matter, whether the homeowners have standing to enforce the terms of the agreement. The public's right to bring objections is specifically mentioned in the agreement. On remand, the district court should address whether the landowners have standing to enforce the terms of the agreement. If so, the district court should decide the extent of HUD's and the city's obligations under the agreement and whether these obligations were breached.

Counsel for Plaintiffs
Andrea C. Ferster
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-5427

Counsel for Defendants
James C. Kilbourne, Sean H. Donahue
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hug Jr. and Wallace, JJ.