Barcelo v. Brown

In Barcelo v. Brown, action was brought to enjoin the Navy from using for training operations its lands on and the waters around the island of Vieques in Puerto Rico. Plaintiffs alleged, among other things, that the Navy had failed to identify and protect all of the archeological and historic sites on the island as required by the National Historic Preservation Act (NHPA), Executive Order No. 11593, and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA. After the complaint had been filed, the Navy conducted an archeological survey on the island that disclosed the existence of a number of previously unknown archeological sites, some of which appeared to meet the criteria for eligibility for the National Register of Historic Places. The survey covered 55 percent of one area on the island and 35 percent of another. The Navy did not, however, nominate to the Register or seek from the Secretary of the Interior a determination of the eligibility of any of the archeological sites identified in the survey.

The district court denied plaintiffs' motion for a temporary restraining order. On the merits, the district court concluded that the sampling method used in the survey provided an unbiased sample of the archeological sites on the entire island, but that the Navy's failure to nominate or seek eligibility determinations for the newly discovered sites was a violation of Executive Order No. 11593. The court found that Executive Order No. 11593 has the force of law and its violation may be privately enforced.

On appeal, neither party challenged the district court's ruling with respect to the nomination or determination of eligibility of the known sites, but one party questioned the court's decision on the adequacy of the survey, alleging that the survey did not locate all of the sites on the island. The First Circuit reversed the district court on this question, holding that Executive Order No. 11593 and Section 800.4 of the Council's regulations require an agency to locate, in consultation with the State Historic Preservation Officer, "all" and "any" sites that may be eligible for inclusion in the Register. . Because the archeologist who conducted the survey acknowledged that a substantial number of sites remained to be located on the island, the archeological survey that the Navy had done was inadequate. The appellate court held that the Navy did not have to do a 100 percent survey, but rather was required to follow up on the leads produced by the survey that had been done. The court also confirmed that the National Historic Preservation Act applies to ongoing Federal undertakings.

The Supreme Court reversed the First Circuit on other grounds and did not consider the NHPA issues.