Nehring v. Harris

In Nehring v. Harris, Plaintiffs moved to vacate a prior court order dismissing their complaint, arguing in their motion that Section 106 of the National Historic Preservation Act required the Department of Housing and Urban Development (HUD) to consider the impact of a project that was part of the third action year of a HUD financed urban renewal program on the Haish Building, a structure determined to be eligible for the National Register of Historic Places in 1974, and to seek the comments of the Advisory Council on Historic Preservation on the project. The building in question had been demolished, but HUD continued to fund the greater urban renewal program.

The court held that Section 106 did not apply because that part of the project affecting the Haish Building was approved in 1972, prior to the determination of the building's eligibility for the Register. However, the court found that the Council's regulations are not keyed to the decision to approve funding, but are to apply at any time when it is still possible to effect changes in the undertaking to circumvent an adverse impact.

Because HUD had given final approval and funding for the acquisition of the building, demolition had already occurred, and the land had been reused, HUD could do nothing to change the local agencies' plans. That HUD may approve and fund successive years of the same urban renewal program on an ongoing basis does not place HUD in a position to exert such influence. Requiring compliance with the Council's regulations would be inappropriate and nonproductive.

In considering plaintiffs' National Environmental Policy Act (NEPA) claims that an environmental impact statement (EIS) was required for the third action year of the project, the court concluded that an EIS is not automatically required under NEPA just because there may be an impact on property eligible for the National Register.

In this case, because all of HUD's approvals concerning the building were completed before the building was determined eligible, there was no further major Federal action to be taken regarding the building that would require an EIS.