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

Victory: Sonoran Desert Restricts Target Shooting

After more than a decade of advocacy, the Bureau of Land Management (BLM) announced on January 19, 2024 a proposal to dramatically reduce recreational target shooting within the Sonoran Desert National Monument. The proposed amendment to the resource management plan is a huge success, as the new preferred alternative represents a 99 percent prohibition on target shooting. Currently, target shooting is permitted on 435,700 acres of the monument (approximately 90 percent). This amendment would reduce that area to just 5,295 (about 1 percent) of its 486,400 acres. The Federal Register notice was published on January 22, 2024. Comments close on March 22, 2024. Review the notice or submit a comment.

Ongoing: Opposing Political Manipulation of a Preservation Commission in Poughkeepsie, New York

On November 24, 2023 the National Trust filed an amicus brief in support of litigation challenging improper actions by the city government of Poughkeepsie, New York. Following the city historic preservation commission’s repeated denials of a development project due to its negative impacts on the historic Pelton Mansion, the Mayor of Poughkeepsie dismissed the majority of the historic preservation commission members and replaced them with individuals who did not meet the professional qualifications specifically required in the preservation ordinance. The reconstituted, unqualified commission then approved the development project surrounding the Pelton Mansion, which the preceding commission members had denied. The National Trust is participating as amicus curiae in a lawsuit challenging this approval as arbitrary and capricious.

Ongoing: Protecting Due Process Rights in Kentucky

The National Trust is awaiting a ruling after oral arguments were held on February 7, 2024 before the Kentucky Supreme Court in a case challenging a new statewide law that imposes burdensome bond requirements for judicial appeals of land use decisions in Kentucky. In May 2023 the National Trust joined an amicus brief submitted to the Court. The Bluegrass Trust for Historic Preservation, a longstanding partner of the National Trust, challenged the law in a case involving the proposed demolition of a historic building in Lexington, KY. In appealing the local government approval of the demolition, the Bluegrass Trust argued that the bond requirement unreasonably curtails the public’s due process rights by creating an excessive barrier to judicial review. The National Trust joined the Kentucky Resources Council in filing an amicus brief to support the Bluegrass Trust, in furtherance of our congressional charter to “facilitate public participation” in historic preservation.

Update: Federal District Court Rejects Section 4(f) and NEPA Challenge to Replacement of the Historic Frank J. Wood Bridge in Maine

The National Trust was disappointed to receive a decision from the federal district court in Maine on January 5, 2024, rejecting our challenges to the replacement of the historic Frank J. Wood Bridge connecting Brunswick and Topsham, Maine. An appeal has been filed in the U.S. Court of Appeals for the First Circuit, with our brief likely to be filed in late March. Construction of the new bridge was initiated in August, 2023, but demolition of the historic bridge is not scheduled to begin until 2026. Nonetheless, we are racing against the wrecking ball.

The preparation work for new bridge construction has also revealed a previously undiscovered archaeological resource – the stone foundation of a historic fort potentially dating back to the 17th and 18th centuries. Unfortunately, the State Historic Preservation Office has weighed in to reject the site’s historic significance, without any on-site evaluation.

The district court’s decision is especially frustrating because the sole basis for rejecting the rehabilitation alternative for the historic bridge was the claim that preservation would be a cost of “extraordinary magnitude,” and therefore not a “prudent” alternative under Section 4(f) of the Department of Transportation Act. However, the cost assumptions on which that decision was based have proven to be egregiously inaccurate, and yet the courts have allowed the fictional cost estimates to stand. For example, approval of the demolition alternative was based on the false assumption that the new bridge would cost only $13 million. In reality, the actual cost of the construction contract is almost $50 million. The Trust hopes to persuade the appellate court to revisit this inherently arbitrary decision.

The district court’s decision is especially frustrating because the sole basis for rejecting the rehabilitation alternative for the historic bridge was the claim that preservation would be a cost of “extraordinary magnitude,” and therefore not a “prudent” alternative under Section 4(f) of the Department of Transportation Act. However, the cost assumptions on which that decision was based have proven to be egregiously inaccurate, and yet the courts have allowed the fictional cost estimates to stand. For example, approval of the demolition alternative was based on the false assumption that the new bridge would cost only $13 million. In reality, the actual cost of the construction contract is almost $50 million. The Trust hopes to persuade the appellate court to revisit this inherently arbitrary decision.