Committee to Save Cleveland's Huletts wins suit against Army Corps
Judge orders revocation of Port Authority's permit for dredging in front of Huletts
CLEVELAND, Ohio -- A U.S. District Court has ordered revocation of the Cleveland-Cuyahoga County Port Authority's permit to dredge in front of the Cleveland Bulk Terminal on Whiskey Island, where four historic Hulett Ore Unloaders once stood tall.
In a landmark March 30 ruling against the U.S. Army Corps of Engineers, issuer of permits for activities in coastal waters, Judge Kathleen O'Malley ordered the Army Corps to "immediately revoke the Letter of Permission (No. 1999-014171(0)) that it issued to the Port Authority allowing dredging in a 600 by 25 foot area on May 14, 1999" -- a permit that had allowed dredging along the face of the Cleveland Bulk Terminal (CBT) until the year 2004.
Citing the provisions of the National Historic Preservation Act, Judge O'Malley ruled that the Army Corps had violated federal law by issuing that May 14 dredging permit the day after receiving the Port Authority's application, in the face of a blizzard of protest letters by the Ohio State Historic Preservation Office, the national Advisory Council for Historic Preservation, the Committee to Save Cleveland's Huletts, and numerous concerned citizens who warned the Corps to obey the law.
In December of 1999, in an attempt to block the demolition and dismantlement of four of the last six Huletts in existence, the Committee to Save Cleveland's Huletts and several Committee members filed suit in federal court alleging that the Army Corps and the Port Authority had violated the National Historic Preservation Act and even the Army Corps' own regulations. The original suit included as defendants the Cleveland-Cuyahoga County Port Authority (owner of the CBT) and Oglebay-Norton Company (Lessee of the CBT). When the Judge dismissed all non-federal defendants, the Committee turned its attention to the Army Corps, zeroing in on its illegal actions.
Federal law bestows upon the Advisory Coucil for Historic Preservation the exclusive right to establish the rules and regulations that federal agencies must abide by when dealing with historic properties. The process defined by these regulations is sometimes referred to as the "106 process." Agencies are permitted to establish their own counterpart regulations, but such regulations must agree with -- and be approved by -- the Advisory Council. The Army Corps had attempted to justify their actions by claiming that they were merely following their own regulations, but Judge O'Malley found that "there is no record of the ACHP ever approving or concurring in the Corp's regulations." Furthermore the Court found that "...the Corps' procedures are inconsistent with, and indeed, are in derogation of those ACHP regulations."
With the dredging permit revoked, no matter what the hardship caused by low lake levels the Port Authority cannot dredge again without applying for a new permit. The Court's order stated: "If a new application is made, defendants must comply with all requirements of the NHPA" which will mandate formal notice to federal and state preservation offices, allowing public comment, and honoring the statutory waiting period.
Most importantly, the Army Corps must also consider whether a section of the federal statute would be invoked that could deny future federal services to the Port Authority as a penalty for removing the Huletts and then applying for a dredging permit at their former location. As the Court put it: "Section 470h-2(k) works to punish those who would seek to manipulate the section 106 process by denying them access to post-demolition permits."
In addition, the Court ruled that "If the Port Authority were to request dredging in areas beyond that encompassed by the [revoked] permit, plaintiffs could seek to invoke 470h-2(k) to stop the Corps from granting another permit to the Port Authority."
The Committee to Save Cleveland's Huletts is a committee of Citizens' Vision, an Ohio non-profit corporation whose goals are: