October 12, 2023

Fall 2023 Legal Advocacy in Review

Protecting Minidoka, Section 106 and Greenfield Terminal, and Advocating for the Ashley River Historic District.

Every day, the National Trust for Historic Preservation handles a variety of preservation law issues through either direct participation or consultation with organizations, individuals, and governmental entities.

In the first in a new series, we are sharing a few of the cases that the legal advocacy team is working on with state and local advocates in to save historic places across the United States. Some are ongoing efforts, while others provide lessons learned and important precedents for future advocacy work even though the site is lost.

Block 22 at Minidoka National Historic Site, Jerome, Idaho

photo by: Stan Honda/National Park Service

Block 22 at Minidoka National Historic Site, Jerome, Idaho.

Ongoing: Lava Ridge Wind Project (Jerome, Idaho)

In recent months, significant progress has been made toward avoiding the Lava Ridge Wind Project’s potential adverse impacts to the Minidoka National Historic Site in Jerome, Idaho (one of the sites on the 2022 list of America’s 11 Most Endangered Historic Places). The Idaho State Legislature and all seven counties that border the project have now formally stated their opposition to the project and urged the Bureau of Land Management (BLM) to deny its permit. In 2022, our team of advocates met with BLM and submitted Programmatic Agreement comments. The BLM released a new alternative that would shrink the project and relocate the turbines as far away from Minidoka as possible. The National Trust continues to participate in monthly consulting party meetings and strategy meetings with Preservation Idaho.

Take action to protect Minidoka National Historic Site

Ongoing: Greenfield Terminal (Baptist Parish, Louisiana)

The ongoing Section 106 consultation for the proposed permitting of Greenfield Terminal on the West Bank of St. John the Baptist Parish in Louisiana (one of the sites on the 2023 list of America’s 11 Most Endangered Historic Places) has recently had positive developments. The Army Corps of Engineers agreed to expand the project’s Area of Potential Effects to the extent requested by the National Trust and other consulting parties, and the National Park Service has announced that they are studying the area for designation as a National Historic Landmark District.

West Bank of St. John the Baptist Parish, Louisiana. A new grain elevator and terminal are proposed for a site near the village of Wallace, Louisiana. The highest point of the terminal complex would be approximately the same height as the Louisiana Superdome.

photo by: Brian M. Davis/Louisiana Trust for Historic Preservation

Overhead view of St. John Parish.

The proposed grain terminal would include 54 silos and a 275-foot-tall grain elevator—one of the largest in the world—on former Whitney Plantation land and would be immediately adjacent to the Whitney Plantation and Evergreen Plantation. Evergreen Plantation, a National Historic Landmark, includes one of the most architecturally intact collections of plantation buildings along with 575 acres of agricultural land associated with the plantation since the mid-18th century.

The plantations are two historic sites that are nationally significant leaders in interpreting the history of slavery. The proposed site likely contains important archaeological resources including the remains of a former burial plot for enslaved people. Partner organizations include The Descendants Project, the President’s Advisory Council on Historic Preservation, and the Louisiana Trust for Historic Preservation. The National Trust continues to participate in regular consulting party meetings.

Tell the Army Corps of Engineers to deny the Greenfield Terminal Permit.

Lost: Rock Island County Courthouse Demolished, Despite Litigation Victory (Rock Island County, Illinois)

In a classic “win-the-battle but lose-the war” scenario, we are heartbroken to report that the historic 1897 Rock Island County Courthouse in Illinois has been demolished by the county, notwithstanding an important victory three years ago in the Appellate Court of Illinois, enforcing the state’s preservation act. The demolition required a permit from the Illinois Environmental Protection Agency, which in turn required compliance with the state’s preservation law.

The state law requires agencies to “explore all feasible and prudent plans” prior to taking action that could harm historic properties. However, like the National Historic Preservation Act, the Illinois law does not actually mandate a preservation outcome, but only prescribes a consultation process. The county refused to adopt a preservation alternative, and the outcome of the state review process was a mitigation agreement, signed in October 2021, which required documentation of the courthouse under the Historic American Buildings Survey (HABS).

Local preservation advocates tried valiantly to persuade the county to change its plans, even offering to provide an expert structural engineer to evaluate the condition of the building, but the county refused to allow access.

Even though the building itself has now been destroyed, the legal victory remains an important precedent for future cases. The Appellate Court ruled in July 2020 that the National Trust and Landmarks Illinois had standing to enforce the state preservation act, and issued a strong interpretation of the act, which will be useful in future preservation battles.

National Trust Legal Advocacy

On a daily basis, the National Trust handles a variety of preservation law issues through both direct participation in disputes between parties and through consultation with organizations, individuals and governmental entities.

Ongoing: Ashley River Historic District (Charleston, South Carolina)

In the longstanding case challenging the annexation of a portion of the Ashley River Historic District by the city of North Charleston, our petition for rehearing in the South Carolina Court of Appeals was, as expected, denied on May 11th. The Court of Appeals had affirmed a lower court decision denying standing to the National Trust and the City of Charleston in the case. In June, we filed a writ of certiorari requesting that the case be heard by the South Carolina Supreme Court to address this important issue of standing. We are currently waiting for the Court to schedule a conference.

Support the Ashley River Historic District.

Ashley River Historic District, Charleston, South Carolina

photo by: iStock

View of the Ashley River Historic District.

Ongoing: Frank J. Wood Bridge (Topsham, Maine)

After the National Trust’s legal victory in January 2022, in which the U.S. Court of Appeals ordered a reevaluation of the decision to demolish the historic Frank J. Wood Bridge, the Federal Highway Administration issued a new decision one year later, again authorizing the demolition, despite dramatic new information showing that preservation and rehabilitation of the historic bridge would cost only half as much as demolition and replacement. The demolition decision was based on the false premise that the new bridge would cost the same as it did six years ago—$13.7 million. However, Maine DOT has now signed a construction contract for almost $50 million, so the basis for the demolition decision is completely fictional, setting a dangerous precedent.

Accordingly, the National Trust filed a new federal lawsuit challenging the demolition under Section 4(f) of the Department of Transportation Act, which prohibits demolition if preservation is a feasible and prudent alternative. We sought an injunction from the federal courts, but sadly injunctive relief has been denied.(Construction of the new bridge was initiated on August 1, 2023, but demolition of the historic Frank J. Wood Bridge is not scheduled to begin until 2026, so the highway agencies argued that irreparable harm is not imminent.)

Meanwhile, summary judgment briefing continues in the district court, with key briefs filed by the plaintiffs on August 25 and October 20, 2023.

In addition to our earlier partners (the Historic Bridge Foundation and Friends of the Frank J. Wood Bridge), we now have a new co-plaintiff: Waterfront Maine, Brunswick, LLC, owner of the historic Fort Andross/Cabot Mill complex in Brunswick, which is home to almost 150 local businesses.

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Jade McClary is an associate general counsel in the Law Division at the National Trust for Historic Preservation.

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