Recent Past Preservation Network v. Latschar

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RECENT PAST PRESERVATION ) NETWORK, et. al., ) ) Plaintiffs, ) ) Case No. 06-cv-2077 (TFH-AK) vs. ) ) JOHN LATSCHAR, et. al., ) ) Defendants. )

MEMORANDUM OPINION

Before the Court are the First and Second Report and Recommendation (“Report I” or “First

Report” and “Report II” or “Second Report”) of Magistrate Judge Alan Kay [Doc. Nos. 45 & 46]

regarding Plaintiffs’ Motion to Augment the Record [29]; Plaintiffs’ Motion for Judicial Notice

[39]; and the Parties’ Cross-Motions for Summary Judgment [28 & 30], along with the objections

and responses thereto. Upon consideration of the pending motions, the Reports and

Recommendations, the parties’ briefs, and the entire record herein, the Court (1) rejects in part and

adopts in part with modification the First Report and Recommendation, and (2) rejects in part and

adopts in part the Second Report and Recommendation. For the reasons explained herein, the Court

will deny Plaintiffs’ Motion to Augment the Record, grant Plaintiffs’ Motion for Judicial Notice,

grant in part and deny in part Plaintiffs’ Motion for Summary Judgment, and grant in part and deny

in part Defendants’ Cross-Motion for Summary Judgment.

I. BACKGROUND

The Recent Past Preservation Network (“RPPN”), Dion Neutra, and Christine Madrid French

filed this lawsuit against the National Park Service and the named public officials in December 2006, seeking declaratory and injunctive relief “to ensure that the Park Service does not demolish

the historic Gettysburg Cyclorama Center . . . .” Compl. at 2. The Gettysburg Cyclorama Center

(“Cyclorama Center” or “the Center”) was commissioned by the Park Service and designed by

architect Richard Neutra to serve as a visitor center and to display a 356-foot long cylindrical

painting by Paul Philippoteaux depicting “Pickett’s Charge,” a pivotal attack during the Battle of

Gettysburg. Report II at 2-3. The Center remains on Ziegler’s Grove in Gettysburg National Park,

but it no longer serves either of these functions. 1 A.R. 1592-95. In June 1999, the Park Service

published a Final General Management Plan/Environmental Impact Statement (GMP/EIS) that

included (as Alternative C) plans to remove the Center as part of an effort to rehabilitate the site to

reflect conditions in 1863. Report II at 3-6. On November 23, 1999, the Park Service issued a

Record of Decision (“ROD”) announcing its decision to implement Alternative C of the GMP/EIS.

A.R. 20. Based in part on the Center’s eligibility for listing in the National Register of Historic

Places, Plaintiffs contend that the Park Service has failed to comply with the requirements of the

National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4231-4370f, and the National

Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et. seq. 2

In January 2008, Plaintiffs filed a Motion for Summary Judgment and a Motion to Augment

the Record. On March 14, 2008, Defendants filed a Cross-Motion for Summary Judgment. On

July 25, 2008, Plaintiffs filed a Motion for Judicial Notice of a supplemental authority. The

undersigned referred these four motions to Magistrate Judge Alan Kay for proposed findings of fact

1 The Center opened in 1962 but ceased to function as the visitor center and museum in 1971. Defs.’ Objs. to Report II at 5. The painting now resides in the Gettysburg National Military Park Museum and Visitor Center on Baltimore Pike. 2 The relevant facts of this case are set forth in greater detail in Magistrate Judge Kay’s Reports. The parties do not object to Judge Kay’s description of the factual background of the case or the applicable standards of review. The Court accordingly adopts Section I (Background) of the First Report and Sections I (Background) and II (Standard of Review) of the Second Report.

- 2 - and recommendations on their dispositions pursuant to Local Civil Rule 72.3. Referral Order (Sept.

22, 2008) [41]. On March 23, 2009, Magistrate Judge Kay issued two Reports. The First Report

recommends that the Court grant Plaintiffs’ Motion to Augment the Record and Plaintiffs’ Motion

for Judicial Notice. Report I at 5. The Second Report recommends that the Court grant summary

judgment in favor of Plaintiffs on their NEPA claims and grant summary judgment in favor of

Defendants on the NHPA claims. Report II at 35. Defendants filed timely objections to each

Report. Plaintiffs filed a timely response, but raised no objections. They instead encourage the

Court to adopt both Reports in full. The Court here considers de novo the portions of the Reports to

which objections have been made. 3

II. ANALYSIS

A. First Report and Recommendation

1. Plaintiffs’ Motion to Augment the Record

At the time they submitted the administrative record to the Court, Defendants noted a

dispute over whether certain documents should be included in the record. Defs.’ Notice of Filing

[20]. Three months later, Defendants supplemented and certified the record. Defs.’ Notice of

A.R. Supp. [26 & 27]; Report II at 28 n.20. Plaintiffs thereafter filed a Motion to Augment the

Record with five declarations and several documents that they request the Court consider as either

3 When a party files written objections to any part of a magistrate judge's recommendation with respect to a dispositive motion, the court considers de novo those portions of the recommendation to which objections have been made, and “may accept, reject, or modify the recommended disposition.” FED. R. CIV. P. 72(b)(3). The parties indicate that the First Report should be adopted except to the extent it is “clearly erroneous or contrary to law.” See Defs.’ Reply at 2 (“A Magistrate Judge’s decision is entitled to great deference unless it is clearly erroneous or contrary to law . . . .”). Each party is clearly erroneous. Since the First Report concerns only non-dispositive matters, the parties would be right if the motion were “referred to magistrate judge to hear and decide.” FED. R. CIV. P. 72(a) (emphasis added). Here the case was referred under LCvR 72.3 for “proposed findings of fact and recommendations.” Therefore, de novo is the proper standard of review for both Reports.

- 3 - part of the administrative record or as extra-record evidence. Pls.’ Mot. to Augment [29].

Magistrate Judge Kay recommends that the Court accept these documents as extra-record evidence

of “(1) the feasibility of potential alternatives to demolition that were not evaluated by the Park

Service, and (2) Plaintiffs’ post-ROD requests for information from the Park Service and relevant

responses (or non-responses).” Report I at 4.

a. Legal Standard

The Administrative Procedure Act (“APA”) instructs a reviewing court to “review the whole

record or those parts of it cited by a party.” 5 U.S.C. § 706. The review “is to be based on the full

administrative record that was before the agency decision makers at the time they made their

decision.” Pacific Shores v. Army Corps of Engineers, 448 F. Supp. 2d 1, 4 (D.D.C. 2006)

(Facciola, M.J.) (brackets omitted) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 420 (1971)). “Once an agency presents a certified copy of the complete administrative record

to the court, the court presumes that the record is properly designated. . . . For a court to

supplement the record, the moving party must rebut the presumption of administrative regularity

and show that the documents to be included were before the agency decisionmaker.” Id. at 5-6

(citation omitted). Consideration of extra-record information is appropriate when the movant

shows that simply reviewing the administrative record is not enough to resolve the case. Esch v.

Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). One example is where a court requires additional

information to evaluate an agency’s analysis of potential environmental impacts under NEPA. Id.;

see also Pacific Shores, 448 F. Supp. 2d at 6.

b. Discussion and Disposition

The Declarations of Jerry Matyiko, Robert Shoaff, and David McIlnay discuss the feasibility

of alternatives to demolishing the Cyclorama Center. The Declaration of RPPN President Christine

French discusses her correspondence with the Park Service regarding plans for the Center. The

- 4 - Declaration of Matthew Adams attempts to lay the foundation for the fourteen documents that

accompany it, including information requests submitted to the Park Service, dictionary definitions,

and letters to Superintendent Latschar. Plaintiffs contend, in a conclusory manner, that some of

these materials provide “information necessary for effective judicial review of Defendants’ failure

to take actions required under NEPA and the NHPA.” 4 Pls.’ Mot. to Augment at 4. Defendants

argue that the motion should be denied “[b]ecause Plaintiffs have failed to carry their burden of

showing that these documents are essential for effective judicial review and are consistent with one

of the exceptions to the rule that [] agency action must be reviewed on the record.” Defs.’ Objs. to

Report I [48] at 6 (internal quotation marks omitted).

Some of the declarations and accompanying exhibits might aid an assessment of the notice

that the Park Service provided regarding plans for the Cyclorama Center. Others might be relevant

to standing, which is not contested here. Should the Court reach the question, some of the

submitted material might be relevant to an evaluation of the Park Service’s assessment of

environmental impacts. The Court is left to such speculation because Plaintiffs’ motion does not

reveal inadequacies in the Park Service’s record or otherwise explain how the documents would aid

judicial review. Indeed, the motion is unsupported by even a single citation to the administrative

record. See generally United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not

like pigs, hunting for truffles buried in briefs”). Accordingly, the Court will respectfully reject

4 This argument supports consideration of the materials sub judice as extra-record evidence. Plaintiffs do not provide an argument supporting consideration of these materials as part of the administrative record. Nor did they object to Magistrate Judge Kay’s treatment of the documents as extra-record evidence rather than as part of the administrative record. Therefore, despite the Defendants’ supplemental filing of their heavily-relied-upon 1995 and 1996 Draft Environmental Assessments concerning the Cyclorama Center, the Court finds that Plaintiffs have not rebutted the presumption of administrative regularity.

- 5 - Section II of Magistrate Judge Kay’s First Report and Recommendation and will deny Plaintiffs’

Motion to Augment the Record. 5

2. Motion for Judicial Notice

Plaintiffs also request that the Court take Judicial Notice of a Ninth Circuit opinion issued

after motions were filed in this case. Defendants question the applicability of the opinion, but do

not oppose the motion. Defs.’ Resp. to Pls.’ Mot. for Jud. Notice [40]. The Court routinely accepts

supplemental authorities brought to its attention on a timely basis. Therefore, the First Report

recommends granting the motion, citing Federal Rule of Evidence 201. Report I at 5.

Rule 201 provides an avenue for the Court to take judicial notice of reasonably indisputable

adjudicative facts at any time. FED. R. EVID. 201. It is not clearly an appropriate mechanism for

acknowledging a persuasive authority, however. The Court therefore adopts Section III of

Magistrate Judge Kay’s First Report and Recommendation with a minor modification by accepting

Plaintiffs’ notice of a supplemental authority, disregarding the citation to Rule 201.

B. Second Report and Recommendation: Cross-Motions for Summary Judgment

1. NHPA Claims

Plaintiffs contend that the Park Service failed to properly consider the re-use and

preservation of the Cyclorama Center as required by NHPA Section 110(a)(1) (Count IV). They

also contend that the Park Service failed to prepare an adequate preservation program under NHPA

§ 110(a)(2) (Count V). Magistrate Judge Kay determined the § 110(a)(1) claim to be time barred

5 Although the Court declines to admit these documents as exhibits, parties (and judges) may nonetheless refer to certain forms of publicly available agency guidance. As such, the Court sees no reason to strike the Second Report’s references to Park Service documents (e.g., the Director’s Orders or the “DO-12 Handbook”) to the extent they are accompanied by citation to the agency’s website rather than to Plaintiffs’ proffered exhibits.

- 6 - by 28 U.S.C. § 2401(a). 6 Report II at 13-15. Judge Kay also recommends granting summary

judgment in favor of Defendants on the § 110(a)(2) claim based on evidence that an agency-wide

preservation program exists and Plaintiffs’ failure to demonstrate any deficiency in the program.

Report II at 34-5. The Plaintiffs filed no objections. The Court accordingly adopts the Second

Report with regard to Plaintiffs’ NHPA Claims (Sections III.B and V), and will grant summary

judgment in favor of Defendants on those claims.

2. NEPA Claims

a. Statutory Background

NEPA requires federal agencies to prepare, and make publicly available, an environmental

impact statement (“EIS”) before taking any major action “significantly affecting the quality of the

human environment.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193 (D.C. Cir.

1991). An EIS should “provide full and fair discussion of significant environmental impacts and

inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize

adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. The EIS

requirement obligates agencies to “take a ‘hard look’ at the environmental consequences before

taking a major action.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97

(1983) (citations omitted).

Council on Environmental Quality (“CEQ”) regulations interpreting NEPA help agencies

determine which actions require an EIS. See 40 CFR § 1500.3 (2003). They permit an agency to

prepare a more limited document (an Environmental Assessment or “EA”), if the agency's proposed

action is neither categorically excluded from the requirement to produce an EIS nor would clearly

6 Defendants argue that Plaintiffs’ claims are time barred because they were not brought within six years of the 1999 Report of Decision and GMP/EIS. See 28 U.S.C. § 2401(a) (“every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues”).

- 7 - require the production of an EIS. DOT v. Public Citizen, 541 U.S. 752, 757-58 (2004); see 40

C.F.R. §§ 1501.4(a)-(b). An EA is a “concise public document” that “[b]riefly provide[s] sufficient

evidence and analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a). If,

pursuant to an EA, an agency determines that an EIS is not required, it must issue a “finding of no

significant impact” (“FONSI”), which briefly presents the reasons why the proposed action will not

have a significant impact on the human environment. Public Citizen, 541 U.S. at 758 (citing 40

C.F.R. §§ 1501.4(e), 1508.13). CEQ regulations also impose a largely commonsense approach to

paperwork and public notice. See, e.g., 40 C.F.R. §§ 1500.4 (reducing paperwork); 1502.8 (writing

in plain language); 1502.22 (noting incomplete or unavailable information).

NEPA imposes procedural requirements, but it does not divest agency decision makers of

their authority to make professional decisions by compelling a particular result. See Stewart Park

& Reserve Coal v. Slater, 352 F.3d 545, 557 (2nd Cir. 2003). Indeed, “[i]f the adverse

environmental effects of the proposed action are adequately identified and evaluated, the agency is

not constrained by NEPA from deciding that other values outweigh the environmental costs.”

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). In reviewing an EIS, the

Court considers whether “the agency has made an adequate compilation of relevant information,

has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public.”

Slater, 352 F.3d at 557 (internal quotation marks omitted).

b. Discussion

Plaintiffs contend that the Park Service failed to produce an adequate implementation level

or site-specific environmental assessment or statement for the demolition of the Cyclorama Center

in violation of NEPA. 7 Specifically, they claim that, with regard to the Center, the Park Service

7 Agencies must make “diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R. § 1506.6. Under Department of Interior regulations, the

- 8 - failed to prepare an EIS as required by 42 U.S.C. §4332(2)(C) (Count I), failed to prepare an EA

pursuant to 40 C.F.R. §§ 1501.3 and 1504.4 (Count II), and failed to adequately analyze alternative

methods of “restoring” Ziegler’s Grove as required by 42 U.S.C. § 4332(2)(E) (Count III).

Complaint at 24-28. They argue that these each of these omissions constitutes a failure to act under

5 U.S.C. § 706(1) and that the decision to destroy the Center without producing such assessments is

an action that is arbitrary, capricious, or otherwise not in accordance with law under 5 U.S.C.

§ 706(2). Pls.’ Mot. for Summ. J. at 22. Defendants claim that the Park Service’s June 1999 Final

General Management Plan/EIS (“GMP/EIS”) satisfies NEPA’s analytical requirements.

Defendants also argue that the November 1999 Final Record of Decision (“ROD”) constitutes

notice of final agency action with regard to the Cyclorama Center. Report II at 11-12. Plaintiffs

dispute this, arguing that the Park Service contemplated, but never issued, a site-specific EIS. Id.

Magistrate Judge Kay determined that the neither the 1999 GMP/EIS nor the ROD satisfied

NEPA requirements with regard to the Center, noting that the 1999 GMP/EIS left the door open for

“more detailed assessments of impacts . . . as part of necessary implementation planning.” 8 Report

II at 13. Thus, the limitations clock did not begin ticking until some undetermined time after 1999.

Id. Judge Kay recommends that the Court grant summary judgment in favor of Plaintiffs on their

Park Service must, “to the extent practicable, provide for public notification and public involvement when an environmental assessment is being prepared. However, the methods for providing public notification and opportunities for public involvement are at the discretion of the Responsible Official.” 43 C.F.R. § 46.305. 8 The Second Report cites internal Park Service guidance regarding site-specific analyses, including Director’s Orders and the “DO-12 Handbook.” Report II at 29-30. To the extent the Report relies on these documents, Defendants object to its conclusion that the Park Service contemplated a future site-specific EIS on demolition of the Cyclorama Center on the grounds that the materials are not judicially enforceable. Defs.’ Objs. to Report II at 19. Defendants’ argument is inapposite. Even without regard for these documents, Defendants have failed to show that the Park Service provided notice sufficient to trigger the limitations clock or to satisfy NEPA. Indeed, Judge Kay’s analysis on this point is based primarily on the Park Service’s description of the 1999 GMP/EIS as a “programmatic statement.”

- 9 - NEPA claims because “the Park Service did not properly evaluate the site-specific environmental

impacts of demolition of the Cyclorama Center and did not properly consider alternatives to

demolition.” Report II at 33.

i. Statute of Limitations

Defendants contend that Magistrate Judge Kay incorrectly determined that the 1999 ROD

did not amount to notice of final agency action with regard to the Cyclorama Center. 9 They

accurately explain that NEPA requires agencies to evaluate environmental consequences before

committing to any actions that might affect the quality of the human environment. Defs.’ Objs. to

Report II at 15 (citing Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983)).

Defendants then argue, without any supporting citation, that “an irreversible and irretrievable

commitment of resources was made, with the concomitant obligation to comply with NEPA.” Id.

at 17. There is no support in the record for this notion. 10 Moreover, Defendants’ argument

conflates ripeness with final action for purposes of determining the limitations period. Even if a

claim became ripe in 1999, Defendants bear the burden of demonstrating that Plaintiffs had

sufficient notice to set the limitations clock running. See, e.g., Sprint Communs. Co., L.P. v. FCC,

76 F.3d 1221, 1226 (D.C. Cir. 1996) (noting that a court may deem a cause of action not to have

accrued during a period of concealment); see also P&V Enters. v. United States Army Corps of

Eng'rs, 466 F. Supp. 2d 134, 149 (D.D.C. 2006) (a “rebuttable presumption of equitable tolling

applies to lawsuits governed by the six-year limitations period of § 2401(a)” (internal quotation

9 Defendants did not raise a latches defense. See generally Comm. to Save the Fox Bldg. v. Birmingham Branch of the Fed. Reserve Bank of Atlanta, 497 F. Supp. 504 (N.D.Al. 1980) (denying last-minute NEPA and NHPA claims on grounds of latches); Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir. 1994) (same). 10 Indeed, Defendants’ counsel indicated that the Park Service had not solicited bids for demolition of the Center as of November 2008. Defs.’ Objs. to Report II Ex. 2 (Nov. 3, 2008 Letter to the Hon. Alan Kay).

- 10 - marks and citation omitted)). Defendants dispute this, citing Alder Terrace, Inc. v. United States,

for the proposition that the “burden of establishing jurisdiction, including jurisdictional timeliness,

must be carried by the plaintiffs.” 161 F.3d 1372, 1377 (Fed. Cir. 1998) (internal quotation marks

omitted). Alder Terrace involved a different statute of limitations, and it is of questionable

validity on this point, particularly in this Circuit, where 28 U.S.C. § 2401(a) has been treated as

non-jurisdictional. See Smith v. United States, 518 F. Supp. 2d 139, 147 (D.D.C. 2007); see also

Grass Valley Terrace v. United States, 69 Fed. Cl. 341, 347 (Fed. Cl. 2005) (summarizing

inconsistent opinions and concluding that, with regard to 28 U.S.C. § 2501, “the statute of

limitations issue goes to the sufficiency of the claim asserted and, thus, does not affect the court's

subject matter jurisdiction”).

Defendants also contend that “the administrative record reflects a complete awareness by

Plaintiffs and others that the Park Service intended the ROD to be the final agency action with

regard to demolition of the Cyclorama Building.” Defs.’ Objs. to Report II at 19. Defendants point

to evidence indicating that, months prior to the publication of the Final GMP/EIS, Plaintiff Dion

Neutra was informed that the preferred alternative would require demolition. Id. at 22. Yet

Defendants provide no authority suggesting that such awareness on the part of the individual

plaintiffs would preclude the APA claims raised here. Rather than providing public notice of a final

decision with regard to the Center, the ROD and GMP/EIS indicated a likelihood of a future, site-

specific statement. The Court accordingly adopts Section III.A of the Second Report.

ii. Site-Specific Analysis

Defendants further suggest that the Second Report wrongly disregards the project-specific

analyses referenced in the 1999 GMP/EIS. Defs.’ Objs. to Report II at 17, 26. Specifically, they

point to the 1995 and 1996 Draft Development Concept Plans/Environmental Assessments and the

1999 MOA between the Park Service, the Pennsylvania Historic Preservation Office, and the

- 11 - Advisory Council on Historic Preservation. Id. at 28-36. The MOA does indicate that the decision

to demolish was reached in August 1999, a few months before the ROD was issued. A.R. 51-55.

But as Judge Kay explained, neither the Draft EAs 11 nor the MOA was properly incorporated by

reference into the Final EIS or ROD. 12 Report II at 28-29; see 40 C.F.R. § 1502.21 (requiring

incorporated material to be cited in the statement and its content briefly described); A.R. 45

(containing a general citation to the MOA). The Court cannot countenance disregard for NEPA’s

public notice requirements by considering unincorporated documents in its evaluation of the Park

Service’s actions here.

iii. Alternatives to Demolition

Defendants also attack the Second Report’s conclusion that the Park Service failed to

properly consider alternatives to demolition of the Cyclorama Center. Defs.’ Objs. to Report II at

37. Magistrate Judge Kay’s analysis properly focuses on the 1999 GMP/EIS, which provides a

park-wide overview, 13 but does not provide the reader with an analysis of the Center’s demolition

and removal, either by way of discussion or adequate reference to another source. Consequently,

Defendants’ argument that any claim regarding alternatives to demolition not raised in comments

before the agency was waived, id. at 37-38, is unavailing. See Report II at 32-33. With regard to

11 Moreover, both the 1995 and 1996 Draft DCP/EAs were abandoned. A.R. 2270 (1995 Notice of Termination), A.R. 646, 2311-12 (announcing Termination of 1996 DCP/EA). Additionally, the 1996 DCP/EA did not invite comments, and the record does not reflect any response to the comments that the Park Service nevertheless received. 12 The Final ROD does include, in an Appendix, a report that notes the “fatal” effect the Park Service’s proposed action would have on the Center. A.R. 559. Overall, however, the ROD discusses the effects of demolition and new construction only in general, park-wide terms (e.g., a loss of two acres of wetlands), and it is unclear about the fates of different facilities. See, e.g., ROD at 13 (A.R. 45) (“Construction activities related to a relocation of the park’s museum complex, visitor facilities and administrative facilities to a site removed from its prime resources have the potential to cause environmental harm.” (emphasis added)). 13 See, e.g., Final GMP/EIS at 169-70 (A.R. 315-16) (noting that the park contains 148 historic buildings and that the “sheer number of buildings and structures places strain on the park’s financial and staff resources”).

- 12 - consideration of alternatives, the Court is careful not to treat the absence of evidence as evidence of

absence. It may be that the Park Service conducted sufficient analyses yet failed to provide

adequate notice, 14 but that would not change the result here.

iv. Scope of Remedies

Finally, Defendants object to the relief recommended by Judge Kay. They claim that an

order requiring an EIS would “usurp” the agency’s authority to decide whether a site-specific EIS is

appropriate: “While a proposal contemplating the demolition of historic property certainly triggers

NEPA obligations to undertake a review, as such a proposal is a ‘major federal action,’ it does [sic],

on its own necessarily dictate the level of appropriate review.” Defs.’ Objs. to Report II at 43.

Defendants point to Section IV of the Second Report, which states, in pertinent part: “Because the

Cyclorama Center was declared eligible for listing in the National Register of Historic Places . . . in

1998, any demolition of the building would itself be a significant impact, and therefore a major

federal action affecting the environment and requiring an EIS under NEPA.” Report II at 20. This

passage is incorrect. See 36 C.F.R. 800.8 (“A finding of adverse effect on a historic property does

not necessarily require an EIS under NEPA”). Accordingly, the Court will modify Section IV of

the Report to ensure it is consistent with Judge Kay’s concluding recommendation “that Defendants

be ordered to undertake a full implementation-level and site-specific environmental analysis on the

demolition of the Cyclorama Center and non-demolition alternatives before any implementing

action is taken on the Center.” 15 Report II at 34 (emphasis added).

14 Scattered throughout the record are facts that support the Park Service’s decision. The Section 106 Report describes the disrepair of the Center, A.R. 1594, the original plan to demolish the Center after seven years, A.R. 1597, mitigation measures, A.R. 1605, and reasons for declining to rehabilitate the building, A.R. 1606 (“Because the building is poured-in-place concrete, it cannot be jacked up”). See also Advisory Council Finding at 11 (A.R. 561) (The siting of the Center, “by today’s standards, would be rejected out of hand.”). 15 Since Defendants concede this is a major federal action, Defs.’ Objs. at 43, they must determine whether it will “significantly affect[] the quality of the human environment.”

- 13 - c. Disposition of NEPA Claims

With regard to Section IV of the Second Report, the Court agrees that, with regard to the

restoration of Ziegler’s Grove and the demolition of the Cyclorama Center, the Park Service failed

to produce an EIS sufficient to meet its obligations under NEPA. See Report II at 21. The Court

does not agree that the Center’s eligibility for listing in the National Register of Historic Places

compels the conclusion that a site-specific EIS is required. Therefore, the Court will reject (1) the

final sentence on page 20, and (2) both paragraphs beginning on page 21. The Court adopts the

remainder of Section IV.A. The upshot is that the Park Service must determine whether the

proposed demolition and restoration constitutes a significant impact for purposes of 42 U.S.C.

§ 4332 and proceed accordingly. Whether that means a categorical determination or an

environmental assessment followed by a FONSI or an EIS (or Supplemental EIS) is for the Park

Service to determine. 16

Consistent with the other findings adopted here, the Court finds that the Park Service

produced neither an adequate EIS, see 42 U.S.C. § 4332(C), nor any other assessment or

determination consistent with 40 C.F.R. § 1501.4 covering the site of the Cyclorama Center. The

Court agrees that by failing to take such action in satisfaction of NEPA before reaching a final

decision to demolish the Center, the Park Service withheld or unreasonably delayed agency action

under 5 U.S.C. § 706(1). The Court also agrees that the Park Service’s final decision to destroy the

42 U.S.C. § 4332(C). CEQ regulations provide options on how to make this determination, with the result being either (a) a categorical determination, or (b) an environmental assessment. 40 C.F.R. § 1501.4. After an environmental assessment, the Park Service may prepare and issue either an EIS or a FONSI. Id.; see also id. § 1508.9. 16 Naturally, in making these decisions, Park Service officials should follow applicable CEQ regulations and agency procedures. See, e.g., 40 C.F.R. §§ 1507.3, 1508.27 (defining “significantly”), 1502.20 (tiering). If categorical treatment is not suitable, an environmental assessment covering the site would be appropriate. See City of Dania Beach v. FAA, 485 F.3d 1181, 1189 (D.C. Cir. 2007).

- 14 - Center and rehabilitate Ziegler’s Grove without first satisfying NEPA constitutes an unlawful

agency action under 5 U.S.C. § 706(2). Accordingly, the Court will grant summary judgment in

favor of Plaintiffs on Counts I and II. The Court need not rule on the merits of Count III, as the

Court’s resolution of Counts I and II renders it moot, and the inadequate discussion of alternatives

in the GMP/EIS has already been noted here. See generally Report II at 31.

I. CONCLUSION

For the foregoing reasons, the Court adopts in part, modifies in part, and rejects in part

Magistrate Judge Kay’s First Report and Recommendation, and adopts in part and rejects in part his

Second Report and Recommendation. Specifically, the Court adopts Section I of the First Report,

rejects Section II, and adopts Section III with modification. With respect to the Second Report, the

Court adopts the proposed findings in Sections I, II, III, and V with the caveat that references to

extra-record material proffered by Plaintiffs are disregarded. See, e.g., Report II at 13 (citing

Adams Decl.). As discussed in the preceding section, the Court adopts in part and rejects in part the

proposed findings in Section IV. Accordingly, the Court will deny Plaintiffs’ Motion to Augment

the Record, grant Plaintiffs’ Motion for Judicial Notice, grant in part and deny in part Plaintiffs’

Motion for Summary Judgment, and grant in part and deny in part Defendants’ Cross-Motion for

Summary Judgment.

Proper, legally sufficient notice is a theme here—Plaintiffs must adequately explain the

utility of extra-record evidence to the Court, and the Park Service must adequately describe its

intentions to the public. As Magistrate Judge Kay noted, the Park Service may pursue the

rehabilitation of the Ziegler’s Grove site as its officials see fit in the exercise of their professional

judgment. But that judgment must be informed, reached and announced in compliance with NEPA.

An Order accompanies this Memorandum Opinion.

March 31, 2010 /s/ .

THOMAS F. HOGAN UNITED STATES DISTRICT JUDGE - 15 -