UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

COMMITTEE TO SAVE CLEVELAND'S HULETTS 252 Miner Road Highland Heights, OH 44143 EDWARD J. HAUSER 11125 Lake Avenue #402 Cleveland, OH 44102 JAMES H. KORECKO 13801 Tinkers Creek Road Valley View, OH 44125 JERRY C. MANN 1695 Bradford Avenue Cleveland, OH 44113 STEPHEN L. MERKEL 380 Oakmoor Avenue Bay Village, OH 44140 RIMANTAS SAIKUS 252 Miner Road Highland Heights, OH 44143 Plaintiffs, vs. U.S. ARMY CORPS OF ENGINEERS 2600 Army Pentagon Washington, DC 20310-2600 LT. GENERAL JOE N. BALLARD CHIEF OF ENGINEERS U.S. ARMY CORPS OF ENGINEERS 2600 Army Pentagon Washington, DC 20310-2600 COLONEL MARK D. FEIRSTEIN DISTRICT ENGINEER BUFFALO DISTRICT U.S. ARMY CORPS OF ENGINEERS 1776 Niagara Street Buffalo, NY 14027-3199 CLEVELAND-CUYAHOGA COUNTY PORT AUTHORITY 101 Erieside Avenue Cleveland, OH 44114 OGLEBAY NORTON COMPANY 1100 Superior Avenue Cleveland, OH 44114 SIGNATURE SERVICES, INC. 3600 West Samaria Road Temperance, MI 48182-0978 Defendants.

Case No. 1:99 CV 3046 Judge Kathleen O'Malley COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. The plaintiffs bring this action to remedy past and continuing violations of the National Historic Preservation Act, 16 USC 470 et seq. and corresponding regulations. Defendants have authorized the demolition of, have in fact demolished and will continue to demolish Historic Properties listed on the National Register of Historic Places. In so doing, defendants violated four provisions of the Act: 1) The prohibition on issuing permits without considering the potential effects on properties listed on the National Register; 2) The prohibition on issuing permits without allowing the federal Advisory Council for Historic Preservation, the Ohio State Historic Preservation Office and the public a reasonable opportunity to comment; 3) Segmentation of an undertaking into component parts; and 4) The prohibition on anticipatory demolition.

2. In 1998 defendant Port Authority adopted a Master Plan, pursuant to Ohio Revised Code § 4582.07. The Plan describes future improvements and expansions to the property at 5400 Whiskey Island, known as Cleveland Bulk Terminal ("CBT") on Whiskey Island, west of the mouth of the Cuyahoga River and east of the Westerly Wastewater Treatment Plant. Standing tall at CBT are four intact Hulett ore unloaders, machine shop, repair shop, other buildings, along with the ruins of the recently demolished Power House (collectively "Historic Properties"), which are listed on the National Register of Historic Places and were designated as Cleveland Landmarks by the Cleveland City Council in 1993. The Port's Master Plan calls for expanding bulk cargo handling capabilities at the CBT, and later a more detailed study and mitigation plan on the expansion section of the Master Plan, specifies that such expansion would require demolition and/or removal of the Historic Properties. Full implementation of the expansion plans requires dredging along the face of the CBT dock, directly in front of where the Historic Properties to be demolished and/or removed are located.

3. At the time the Port adopted the Master Plan, it possessed a permit for maintenance dredging for the Port properties only east of the Cuyahoga River, but not for the area at the CBT in front of the Historic Properties. The Port and Oglebay, through their agent Greiner, presented a plan for demolition of the Historic Properties at the public meeting of the Landmarks Commission of the City of Cleveland. There they assured the public that since there was no federal involvement in the Mitigation Plan, such as the need for a dredging permit, no section 106 review would be applicable. Then, one week later the Port asked the Army Corps for permission to dredge in front of the Historic Properties-not by asking for a new permit, but by attempting to get the dredging added to an existing, unrelated maintenance dredging permit. The Port asked defendant U.S. Army Corps of Engineers to add the new CBT dredging area under that existing permit. The added area was to extend along the face of the CBT dock for 2,000 feet - the exact length required in the Port's expansion plans to simultaneously accommodate two 1,000-foot ships. The Army Corps told the Port that a new permit was required. Yet the Port still insisted that this additional dredging, although matching precisely the dock length requirement in the Port's expansion plans, had nothing to do with those expansion plans.

4. When plaintiff Ray Saikus discovered this new plan for dredging at the CBT, he requested/demanded of the Army Corps that no permit be issued without first conducting a review under section 106 of the National Historic Preservation Act and corresponding regulations. (Section 106 requires federal agencies to consider the potential effects of their actions on historic properties.) Later, the Advisory Council on Historic Preservation and Ohio State Historic Preservation Office also advised the Army Corps that a 106 review was required.

5. In another transparent attempt to evade compliance with the NHPA and corresponding regulations, defendants took two illegal acts. First, they scaled back the length of the dredging area from 2,000 feet to a 600-foot segment of the 2,000-foot area, directly in front of the Historic Properties. This attempt to evade a 106 review through incrementally implementing the expansion plans is called segmentation and is illegal. Second, the Army Corps issued a dredging permit to the Port, thereby facilitating the Port's plan to demolish the Historic Properties with no intent by the Army Corps to complete their 106 review obligation. This is called anticipatory demolition and is illegal under section 110(k) of the Act.

6. Despite strong objections by the Advisory Council on Historic Preservation, the Ohio State Historic Preservation Office and the public, and despite lack of a 106 review, defendant Port, with the cooperation of the Army Corps, completed the dredging of the 600-foot segment. Defendant Army Corps, through it's granting the permit and executing the dredging, facilitated the demolition of the Historic Buildings and the eminent demolition/disassembly of the Historic Hulett Ore Unloaders themselves. To accomplish this demolition, defendants Port and Oglebay Norton have entered into contracts with defendant Signature Services, Inc. The City of Cleveland has issued demolition permit[s].

JURISDICTION AND VENUE

7. This Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. §§ 2201-2202, 28 U.S.C. §1361, 5 U.S.C. § 702 and 16 U.S.C. § 470w-4. Venue is proper in this district under 28 U.S.C. § 1391(e) and 5 U.S.C. § 703.

PARTIES

8. Plaintiff Committee to Save Cleveland's Huletts (hereinafter "Committee"), is an unincorporated organization, operating in the State of Ohio, formed in 1992 for and dedicated to the on-site preservation of the historic and unique Hulett Ore Unloaders and other historically significant features, buildings, and artifacts situated at the CBT. All additional plaintiffs are members of the Committee. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and the Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $ 3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

9. Plaintiff Edward J. Hauser is a resident and taxpayer of the City of Cleveland, Cuyahoga County, State of Ohio, whose residence is located in Ward 17, the same city ward in which the Huletts, buildings and artifacts are located. Mr. Hauser holds a Bachelor of Science degree in Electronic Technology and works as a process control engineer in the local steel industry. Mr. Hauser owns and operates a recreational boat that he docks at the Marina on Whiskey Island, Cleveland, approximately 1500 feet from the Huletts, buildings and artifacts. Mr. Hauser uses his boat on a regular basis and frequently takes the opportunity to view, appreciate, and study the Huletts, buildings and artifacts from the waters of Lake Erie and from land. Mr. Hauser has been fascinated by these mechanical and electrical engineering marvels since he first saw them in operation in 1988. As a steel industry employee, Mr. Hauser appreciates how these machines revolutionized the unloading of iron ore and made Cleveland the world's largest iron ore terminus. He is a member of Committee to Save Cleveland's Huletts, formed in 1992, and Friends of the Hulett Ore Unloaders and Steamship William G. Mather, formed in 1994. Both organizations were created to promote the preservation of these historically significant artifacts. Both of these organizations are now affiliated with Citizens' Vision, a non-profit corporation of the State of Ohio of which Mr. Hauser is a co-founder, charter member, trustee and current president. Mr. Hauser attended the Port's Master Plan hearing on April 1, 1998, and other Port meetings. Mr. Hauser, in actively opposing the demolition of the Huletts, buildings and artifacts, appeared at the Cleveland Landmarks Commission meeting of December 10, 1998, as well as the Commission's Hulett Subcommittee meetings of January 14, February 25, April 1, April 22, May 13, June 3, 1999, and again at the Landmarks Commission meetings of June 10, and July 8, 1999. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the Defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and the Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $ 3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

10. Plaintiff James H. Korecko, a resident and taxpayer of the Village of Valley View, Cuyahoga County, State of Ohio, holds a Bachelor of Arts degree in Russian and Soviet studies. A former merchant seaman from 1976 to 1981, Mr. Korecko worked on more than one dozen ships that stopped at many Great Lakes ports. During that time, Mr. Korecko watched and developed an admiration for Great Lakes vessels and loading/unloading machinery, in particular the Huletts, and related buildings and artifacts in Cleveland. Currently, Mr. Korecko is a frequent visitor to Edgewater Park in Cleveland, from which the Huletts, buildings and artifacts are visible. Mr. Korecko is a charter member of the Committee to Save Cleveland's Huletts and Friends of the Hulett Ore Unloaders and Steamer William G. Mather, and is a member of the Great Lakes Historical Society and the Society for Industrial Archeology. Mr. Korecko is also a co-founder, charter member and trustee of Citizens' Vision. Mr. Korecko attended and participated in hearings and meetings at which City agencies and Council considered and enacted legislation that designated the Historic Properties as Cleveland Landmarks. Because Mr. Korecko actively opposes the demolition of the Huletts, buildings and artifacts, he appeared at the Landmarks Commission meeting of December 10, 1998 and the Hulett Subcommittee meeting of April 1, 1999 and again the Landmarks Commission meeting of June 10, 1999. Mr. Korecko has been an active proponent of the Huletts since 1992 when he began a letter-writing campaign and began to lobby elected representatives to encourage the preservation of the Huletts, buildings and artifacts. Mr. Korecko attended most of the City's meetings, beginning in October of 1992, when the demolition of the Historic Properties was first threatened. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the Defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $ 3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

11. Plaintiff Jerry C. Mann, a resident and taxpayer of the City of Cleveland, Cuyahoga County, State of Ohio, is a professional photographer with a Bachelor of Fine Arts in Visual Communication. Mr. Mann appreciates and enjoys the lakefront as a crewmember on a sailboat, sailing past the Huletts twice weekly from spring through fall. Inspired by the preservation and illumination of bridges in Cleveland's Flats, Mr. Mann decided to stand up in defense of the four Huletts, buildings and artifacts as valuable Historic Landmarks and resources that offer vast interpretive potential for generations to come. Mr. Mann, appreciating the aesthetic beauty of the Huletts, has painted signs featuring them, filmed and photographed them, all in an effort to heighten awareness of their aesthetic value. Mr. Mann volunteered his services, vehicle, and signs to the Committee for their display in the 1999 St. Patrick's Day and Christmas parades. To express opposition to the proposed demolition of the Huletts, buildings and artifacts, Mr. Mann attended the Landmarks Commission and/or Hulett Subcommittee meetings of January 14, February 25, April 1, June 3, June 10, and July 8, 1999, delivering documents to the Commission and stating his views. Mr. Mann participated in the October 29, 1999 nighttime illumination of the Huletts and his photograph of them appears in the December 1999 issue of Northern Ohio Live magazine. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $ 3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

12. Plaintiff Stephen L. Merkel, a resident and taxpayer of the City of Bay Village, Cuyahoga County, State of Ohio, and a member of the Committee to Save Cleveland's Huletts, has a twofold interest in the preservation of the historic integrity of the Historic Site. Mr. Merkel's wife, Catherine Nash Merkel, is the Great Grand-Niece of George H. Hulett, inventor of the Hulett Ore Unloaders that are the subject of this action. In cooperation with Catherine Merkel and her sister, Margaret Nash, Mr. Merkel is committed to preserve a family legacy - the Huletts, buildings and artifacts at the former C&P Ore dock on Whiskey Island. Additionally, Mr. Merkel, an Electrical Engineer holding a Bachelor of Electrical Engineering degree, and with an appreciation for vintage electrical and electronic apparatus and control systems, has a special interest in the Huletts and their power and control systems (which includes the Power House and its equipment). Mr. Merkel believes that the Huletts, an outstanding example of turn-of the century electrical and mechanical engineering ingenuity and a precursor of modern-day robotics technology, should be preserved as a teaching tool for future generations to see first-hand the accomplishments of their predecessors. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

13. Plaintiff Rimantas (Ray) Saikus, a resident and taxpayer of the City of Highland Heights, Cuyahoga County, State of Ohio, is a Mechanical Engineer with a Master of Business Administration degree. Mr. Saikus has long been committed to preservation of the Huletts, buildings and artifacts at Whiskey Island. Mr. Saikus has been an active member of the American Society of Mechanical Engineers since 1977 (now ASME International, with over 125,000 members worldwide) and served as Chair of ASME's 1,000-member Cleveland section. He first became involved with the Huletts in 1983 with the nomination of the Huletts as an ASME National Historic Mechanical Engineering Landmark. He renewed his involvement in 1994 when he succeeded in having the Hulett Ore Unloaders approved for ASME's designation as Historic Mechanical Engineering Landmarks. In 1994, Mr. Saikus and fellow Hulett aficionados built an articulating wooden 12 feet x 8.5 feet model of a Hulett, which he has since exhibited in parades. Mr. Saikus was co-founder of Friends of the Hulett Ore Unloaders and Steamer William G. Mather. In 1995, Mr. Saikus co-authored with Cleveland preservationist Carol Poh Miller the nomination of the C&P Ore Dock, including the Huletts, buildings and other artifacts, to the National Register of Historic Places. Mr. Saikus also co-authored with Carol Poh Miller the successful nomination of the Hulett Ore Unloaders to the National Trust for Historic Preservation's 1999 "11 Most Endangered" List. Mr. Saikus also co-authored a nomination of George H. Hulett to the Inventors Hall of Fame. Mr. Saikus organized the designation ceremony of the Hulett Ore Unloaders on Whiskey Island as an ASME International Historic Mechanical Engineering Landmark. The 1998 ceremony was held aboard the cruise ship Goodtime III and was attended by approximately 500 people. Mr. Saikus wrote and published a 20-page commemorative brochure [EXHIBIT 2] on the history and significance of the Hulett Ore Unloaders for the Landmark Ceremony. Mr. Saikus is an early member of the Committee to Save Cleveland's Huletts and is currently the Committee's Secretary-Treasurer. Relevant to the Huletts, buildings and artifacts, Mr. Saikus attended numerous Port meetings, made many Ohio Pubic Records Act requests, participated in most of the Landmarks Commission hearings, and videotaped almost all of the proceedings. Mr. Saikus also objected to the Army Corps' issuance of the dredging permit without first holding a section 106 review. As an engineer, Mr. Saikus has tremendous admiration and appreciation for George H. Hulett's design and construction of these incredible machines, and for the people that maintained and operated them for more than 80 years. Mr. Saikus believes that the Huletts are an irreplaceable legacy and a source of pride. Mr. Saikus coordinated the recent nighttime illumination and photographing of the Huletts. Plaintiff is within the zone of interests protected by the NHPA. Plaintiff is and will continue to be aggrieved and adversely affected by the actions of the defendants complained of herein. Plaintiff has suffered and will continue to suffer injury in fact due to the defendants' current and prospective failure to comply with the NHPA. Plaintiff will be deprived of the opportunity to have this site, the buildings, the artifacts and the Hulett Ore Unloaders considered and designated a National Landmark. Plaintiff believes the site and Historic Properties merit such an honor due to their significance in America's history and heritage. The opportunity for such consideration is confirmed by an offer from the National Park Service to contribute $ 3,000.00 towards funding a study to verify eligibility. [EXHIBIT 1]

14. In addition, all the plaintiffs use, enjoy, and derive benefit from the historic, engineering, industrial, transportation, and cultural resources that the site, Huletts, buildings and artifacts embody. The plaintiffs' use, enjoyment and aesthetic appreciation of the Huletts, buildings and artifacts will be threatened and adversely affected by the defendants' actions complained of herein.

15. Defendant U.S. Army Corps of Engineers ("Army Corps") is a federal agency that issues dredging permits.

16. Defendant Lt. General Joe N. Ballard is Chief Engineer of the U.S. Army Corps of Engineers, and is sued in that official capacity.

17. Defendant Col. Mark D. Feirstein is District Engineer for the Buffalo District of the U.S. Army Corps of Engineers, and is sued in that official capacity.

18. Defendants Ballard and Feirstein are responsible for the administration, environmental review, authorization, and issuance or denial of permits for the discharge of dredged or fill material into waters of the United States pursuant to section 10 of the Rivers and Harbors Act, 33 U.S.C. §403, and section 404 of the Clean Water Act, 33 U.S.C. §1344. Defendants Ballard and Feirstein are also responsible for ensuring that, in the permitting process, the Army Corps complies with section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. 470f, and the regulations implementing section 106, 36 CFR Part 800.

19. Defendant Cleveland-Cuyahoga County Port Authority ("Port") owns that portion of Whiskey Island known as Cleveland Bulk Terminal (formerly the C&P Ore Dock), where the Historic Properties (Huletts, buildings and artifacts) are located. The Port is a joint public agency of Cuyahoga County and the City of Cleveland and operates pursuant to Ohio Revised Code Chapter 4582. The Port applied for and received a dredging permit and dredging services from the Army Corps. The Port leases the CBT to defendant Oglebay Norton Company.

20. Defendant Oglebay Norton Company ("Oglebay") is a publicly held corporation in the business of bulk materials handling. Oglebay leases the CBT from the Port and is an ultimate beneficiary of the Port's plan to demolish the Historic Properties. With the Port, Oglebay hired a contractor to study the economics of expanding the capacity of the CBT. As of this filing one of the Historic Properties - the Power House - has recently been demolished by Oglebay, the Port or their agents/contractors.

21. Defendant Signature Services, Inc. (hereinafter "Signature Services") is a contractor who received from the City of Cleveland a permit to demolish the historic buildings at the CBT. Also, the Port selected Signature Services to demolish and/or disassemble and remove the Hulett Ore Unloaders.

22. Plaintiffs seek injunctive relief against defendants in order to remedy an ongoing violation of federal law.

FACTS

23. The Hulett Ore Unloader was invented by Clevelander George H. Hulett in 1898 and the first Hulett Ore Unloader went into service in 1899. The Huletts, buildings and artifacts at the CBT were built in 1911 by the Cleveland company Wellman-Seaver-Morgan and went into service in 1912. The Hulett Ore Unloaders revolutionized the handling of iron ore (and later other bulk materials) at ports throughout the Great Lakes and made the City of Cleveland the largest iron ore terminus in the world. The resulting effects on American steel production dramatically changed the country's social, cultural, and economic life. At the height of the Hulett Ore Unloaders' utility, they could be found at virtually every port on Lake Erie as well as many other ports on the Great Lakes. Today, of the 75 originally built, the four Hulett Ore Unloaders at the CBT (which operated until 1992) are the oldest and among the last six to survive in the world.

24. On or about November 20, 1979, CONRAIL (which then owned the CBT) requested a dredging permit from the Army Corps. The Corps issued a permit [EXHIBIT 3] on April 14, 1980. The permit encompassed an area 25 feet wide by 1,800 feet long in front of the CBT dock face and expired in 1990.

25. On June 14, 1993, after numerous hearings by the Landmarks Commission, the City of Cleveland designated the Huletts, buildings and artifacts on CBT as local historic landmarks. [EXHIBIT 4]

26. The Port acquired the CBT from CONRAIL on or about March 19, 1997. At about that time, the Port entered into a 10-year lease of the CBT to Oglebay. The lease permits Oglebay to operate the docks for the Port. By the terms of the lease, the Port retains control and responsibility for the Hulett Ore Unloaders. [EXHIBIT 5] Also as part of the lease the Port and Oglebay have other responsibilities in regards to the fate of the Historic Properties at the CBT.

27. In October 1997, after the Port acquired the CBT, the site (including the Huletts, buildings and artifacts) was placed on the National Register of Historic Places. [EXHIBIT 6]

28. On or about June 5, 1998, through Resolution 1998-28, the Port adopted a Master Plan dated July 1998. The Plan, which incorporates long-term modifications to its operations and infrastructure throughout its holdings, presents two "scenarios" for capacity - one with and one without the Huletts. [EXHIBIT 7] The Port has claimed in various filings and arguments before the City of Cleveland Landmarks Commission [EXHIBIT 8], City of Cleveland Board of Zoning Appeals, the Court of Common Pleas of Cuyahoga County, State of Ohio [EXHIBIT 9], and in its application for a dredging permit and request for section 106 compliance clarification to the Army Corps [EXHIBIT 10], that the CBT expansion is part of the improvement project for the CBT, and that the improvement project is part of the Master Plan, especially as to disposition of the Historic Properties. However, in later contradictory verbal and written communications to the Corps, the Port asserted that the CBT expansion is "stand alone" [EXHIBIT 24] and "incontrovertibly" not part of the Master Plan. [EXHIBIT 27]

29. Using a hired consultant, URS Greiner ("Greiner"), The Port and Oglebay have developed long-range plans documented in a study titled The Cleveland Bulk Terminal: An Evaluation of Expanding Capacity and the Economic Impacts dated November 1998 (hereinafter "Study"). The Study calls for the demolition and/or removal of the Historic Properties in order to allow two 1,000-foot ships to dock simultaneously end-to-end at CBT. (For dubious reasons, the defendants claim that the Huletts will interfere with cargo loading/unloading.) The area in front of CBT must be dredged before the ships can dock. Dredging requires Army Corps approval. On or about November 6, 1998, the Port adopted the Study. The Study, on page (iii) of the Executive Summary [EXHIBIT 11], states: "Increase the capacity of the usable length of bulkhead from 1,200 feet to its full 1,950 foot length (including mooring devices). This will allow a 1,000 foot laker and a 700 foot ship to load and unload at the same time at the face." On page 14 the Study calls for "two berths suitable for two 1,000 foot self-unloading vessels with 28-foot drafts." [EXHIBIT 11]

30. On or about November 6, 1998, the Port approved The Cleveland Bulk Terminal Historic Preservation Mitigation Plan ("Mitigation Plan"), prepared by URS Greiner. Page one, paragraph 2 of this plan states, "The proposed CBT project will have an adverse effect on the National Register-listed and City landmarked C & P Ore Dock property. The project requires the removal of the four Huletts and the buildings and structures associated with the Huletts. The Huletts are located on the face of the docks and must be removed so that 1) two self-unloading ships can dock at the facility, and 2) the storage capacity of the face of the docks can be increased. The associated buildings and structures must be removed to increase the storage capacity of the dock face and to increase the storage capacity of the facility's backyard." Page one, paragraph 3 states, "The proposed mitigation alternatives will be presented to the Ohio Historic Preservation Office (OHPO) as part of the historic preservation consultation process between the OHPO and the Port Authority. It is anticipated that future activities associated with the CBT project may require federal involvement in terms of permitting and approval. Therefore, this consultation process with the OHPO will follow the format required for consultation under Section 106 of the National Historic Preservation Act of 1966, as amended. It is anticipated that this consultation process will result in the execution of an agreement document, containing the selected mitigation plan, among the Port Authority, the OHPO, the Cleveland Landmarks Commission, and any interested parties that agree to participate in the execution of this agreement document. The format of the agreement document will be the same as that required under the Advisory Council on Historic Preservation regulations that implement Section 106 (i.e., 36 CFR 800)." Page two, under Alternative 1, states, "...only one self-unloading ship would be able to use the dock at a time, since the Huletts occupy the location of the proposed second berth along the existing docks, taking up 750 feet of the 1,950 foot long dock." The Mitigation Plan on page one had "...anticipated that future activities [i.e., dredging] associated with the CBT project may require federal involvement in terms of permitting and approval." [EXHIBIT 12]

31. On or about November 6, 1998, the Port issued a news release and sent a copy to plaintiff Ray Saikus. This release contained a Fact Sheet on the Cleveland Bulk Terminal Historic Preservation Mitigation Plan [EXHIBIT 13] that states: (1) "Consequently the Port Authority and Oglebay Norton plan to improve Cleveland Bulk terminal to meet marketplace demand by increasing the storage, accessibility [i.e., dredging] and throughput capacity of the terminal's docks" and (2) "Making these improvements will necessitate the removal of the four Hulett ore unloaders to allow additional self-unloading ships to dock at the facility and to increase storage capacity on the dockface" (emphasis added).

32. On or about November 10, 1998, the Port applied to the Landmarks Commission for a certificate of appropriateness (i.e., permission) [EXHIBIT 8] to demolish the Historic Properties.

33. On or about November 25, 1998, the Port and Oglebay, through their agent, Greiner, sent out notices and invitations to the public to participate as "an interested party to the Section 106 process for this project." One such invitation [EXHIBIT 14] was received by plaintiff Ray Saikus. This invitation was misleading in that the section 106 Review was to be conducted by an unauthorized non-federal agency.

34. On or about December 10, 1998, the Landmarks Commission voted to deny the certificate of appropriateness and instead granted a six-month negotiation period to develop alternatives to demolition. A subcommittee of the Landmarks Commission was organized to conduct hearings and help the parties develop alternatives to demolition.

35. On or about February 25, 1999, Greiner representative Terry Klein presented to the Hulett Sub-Committee a report claiming that the Port had consulted with ACHP and OSHPO regarding applicability of section 106 to the CBT improvement project. The report continued, "The Buffalo District of the Army Corps has preliminarily informed the Port Authority that it has no jurisdiction over the proposed improvements to the CBT, as no permit is required and it does not involve modifications to the waters of the United States. Both the staff of the Ohio Historic Preservation Office [OSHPO] and the Advisory Council on Historic Preservation have indicated to the Port Authority that without a federal agency's involvement, such as the Corps, Section 106 would not apply to the project..." [EXHIBIT 15].

36. Just one week later, on or about March 4, 1999, without notifying the Landmarks Commission, OSHPO or ACHP, the Port initiated a permit request for dredging along the face of the CBT dock. To avoid scrutiny, their letter to the Army Corps requested expansion of the scope of an existing maintenance dredging permit - one that permitted dredging only at Port facilities east of the mouth of the Cuyahoga River [EXHIBIT16]. The additional dredging area requested was to be at the CBT dock face next to and in front of the Historic Properties, west of the mouth of the Cuyahoga River. The area to be dredged was to be 50 feet wide by 2,000 feet long - the exact length of two 1,000-foot ships as described in the Study on page 14 [EXHIBIT 11], and 200 feet more than the expired 1980 dredging permit, which specified 1,800 feet along the dock.

37. On or about March 12, 1999, the Port requested of the Army Corps [EXHIBIT 10] a determination of section 106 applicability. However, the Port did not provide the Corps a copy of the Cleveland Bulk Terminal Historic Preservation Mitigation Plan [EXHIBIT 12], which was the first clear statement by the Port of its intent to demolish/remove the Historic Properties, in order to allow for simultaneous docking by two 1,000-foot ships end-to-end at CBT, and the need for dredging permits. The Port's March 12, 1999, letter states: "The proposed CBT improvement project is included within the Master Plan. Further, some of the future actions included within this Master Plan will require permits from the USACE." This statement shows that the Port considered the CBT expansion plan and demolition of the Historic Properties to be an amendment to and thus part of the Port's Master Plan of July 1998.

38. On or about March 29, 1999 the Port applied for a "maintenance" dredging permit, covering an area 2,000 feet by 60 feet at the CBT dockface [EXHIBIT 17]. The Army Corps assigned the request processing number D/A 1999-01471.

39. The April 1999 issue of Northern Ohio Live carried an advertisement by Oglebay, showing that CBT offers a "deep-water dock" with a "2,000-foot frontage." [EXHIBIT 18] This ad matches the March 29 request for a 2,000-foot permit.

40. Mr. Saikus learned of the intended dredging from statements made by officials of the Port and Oglebay at Landmarks Commission meetings. He expressed his concern about the dredging activities in an April 29, 1999 letter [EXHIBIT 19] to the Advisory Council on Historic Preservation (hereinafter "ACHP") with a copy to the Ohio State Historic Preservation Office (hereinafter "OSHPO"). His letter pointed out that the Port planned to carry out two actions before implementing its planned expansions of CBT. First, the Port would apply for a permit to dredge the lakebed at the dock face in front of the Historic Properties. Second, the Historic Properties would be demolished/removed, because the Port incorrectly believed that they interfered with loading/unloading and storage. If the lakebed were not dredged, there would be no need to demolish the Historic Properties, because the ships would not be able to dock in front of them. Thus the logical nexus between dredging and the Historic Properties, implicating section 106. (The ACHP is an independent federal agency responsible for the implementation and enforcement of the NHPA. 16 U.S.C. §§470i, 470s. The ACHP has promulgated regulations implementing the requirements of the NHPA. 36 C.F.R. Part 800, amended May 18, 1999. OSHPO helps federal agencies carry out their historic preservation responsibilities, 16 U.S.C. § 470(b), and is a "key participant" in the section 106 consultation process. 36 C.F.R. §800.1(c)(1)(ii))

41. On or about May 6, 1999, Mr. Saikus sent a letter to Steven Metivier of the Army Corps [EXHIBIT 20]. The letter repeated the substance of their recent telephone conversation and affirmed the Committee's and his position that any modification of the March 29 dredging permit application, which called for an area of 2,000 feet by 60 feet would be a "clear facilitation of [illegal] segmentation of the project" on the part of the Army Corps.

42. On or about May 11, 1999, in response to concerns stated by Mr. Saikus and other parties, OSHPO sent a letter [EXHIBIT 21] to Steven Metivier of the Army Corps, stating: "Therefore, it appears that the improvement project, including the dredging, is an undertaking subject to the requirements of the National Historic Preservation Act and that it will have an adverse effect on the Pennsylvania Railway [C&P] Ore Dock."

43. On or about May 13, 1999, after Mr. Saikus and other persons strenuously objected to the original 2,000 foot dredging permit request, the Port applied to the Army Corps for a new permit [EXHIBIT 22: May 13 letter from Port to Army Corps with fax time-stamp 10:59AM] for dredging. This new permit application called for dredging an area 600 feet by 25 feet, beginning 250 feet east of the Westerly Wastewater Treatment Plant property line, next to and in front of the Historic Properties - a segment of the original March 29 2,000 foot x 60 foot permit request area. That same day, the Port sent a second letter to the Army Corps in which the Port requested a modification [EXHIBIT 23: May 13 letter from Port to Army Corps with fax time-stamp 11:26AM] of the original March 29 dredging application to the Army Corps, covering the same 600-foot segment of the original 2,000 foot x 60 foot area. The new permit request and the subsequent modification to the original March 29 dredging permit request, both of which changed the dredging distance from 2,000 feet to a segment of 600 feet, were executed with the intent to preclude, and had the effect of precluding, comments by ACHP, OSHPO and the public. On the same day, May 13, 1999, upon realizing that both request copies, new permit and modification, of the May 13 letters had been sent to Mr. Saikus, Steven Metivier, of the Army Corps Buffalo District, told plaintiff Saikus to disregard the earlier letter from the Port, i.e., the letter that requested a new permit. [EXHIBIT 22: May 13 letter from Port to Army Corps with fax time-stamp 10:59AM]

44. On or about May 13, 1999, defendant Army Corps issued a letter [EXHIBIT 24] that referred to revised maintenance dredging proposal D/A processing number 1999-01471 as one that "includes an approximately 25 foot wide area in front of the CBT bulkhead beginning approximately 250 feet from the west end of the CBT dock and extending east along the dock face for a distance of 600 feet." The Corps retained the same D/A 1999-01471 number as was assigned to the March 29 request for a 2,000 foot permit, indicating that the Corps considered the requests to be one and the same, thereby evading the 106 review that would be necessary for a new permit application.

45. That same Army Corps letter of May 13, 1999 states "During telephone conversations, Port Authority representatives have indicated that the CBT expansion project is a stand alone and does not depend upon subsequent phases of the project." This statement by the Port contradicts the Port's position stated in its letter of March 12, 1999 to the Corps ("The proposed CBT improvement project is included within the Master Plan.") [EXHIBIT 10] as well as defenses that the Port and Oglebay asserted in litigation in State of Ohio courts commenced by plaintiff Ed Hauser against the Port and Oglebay. [EXHIBIT 9]

46. On or about May 14, 1999, Mr. Saikus contacted the Army Corps via fax [EXHIBIT 25] and demanded that no permit be issued. He demanded/requested that ACHP and OSHPO be allowed to comment on the Corps' May 13 finding that the dredging would have "no effect" on the Historic Properties listed on the National Register of Historic Places.

47. On or about May 14, 1999, the Defendant Army Corps issued to the Port the modified version of the requested dredging permit [EXHIBIT 26] covering a 600 foot x 25 foot segment of the original March 29, 1999 request for a 2,000 foot x 60 foot area.

48. On or about May 20, 1999, Gary Failor, the Port's Executive Director, sent a letter [EXHIBIT 27] to Steven Metivier of the Army Corps with the intent to persuade the Corps that no section 106 review would be necessary. In so doing, the Port exposed its agenda of anticipatory demolition and segmenting the Port's Master Plan into component parts, those being dredging at the CBT dock, the CBT improvement project, and destruction of the Historic Properties. The Port's same letter claims that any "...Neither of these possible connections between the dredging, the Port Master Plan, and the removal of the Huletts exists. ...the removal of the Huletts or other proposed changes to the site would occur regardless of, and in no way connected to, any elements contained in the Port Master Plan. In light of these incontrovertible facts, the removal of the Huletts and buildings on the site does not require a Section 106 review nor any action by the Corps of Engineers..." (Emphasis added). For its part, the Army Corps negligently failed to compare the Port's May 20, 1999 argument with the Port's previous letter of March 12, 1999 which presented the contradicting argument: "The proposed CBT [improvement] project will require the removal of the four Huletts and the buildings and structures associated with the Huletts." "The proposed CBT improvement project is included within the Master Plan." [EXHIBIT 10] The Army Corps segmented the projects and facilitated anticipatory demolition without exercising due diligence by 1) embracing both contradictory arguments 2) negligently failing to revoke the dredging permit and 3) negligently failing to initiate a section 106 review, given applicant Port's blatant and obvious attempts to confuse, deceive, and avoid public scrutiny.

49. On or about May 24, 1999, plaintiff Ray Saikus demanded in a letter to the Army Corps [EXHIBIT 28] that the Corps revoke the modified version of the dredging permit and allow all interested parties, including ACHP and OSHPO, to comment.

50. On or about May 25, 1999, the Army Corps sent a copy of its May 14 Letter of Permission and finding of "no effect" by facsimile to OSHPO. [EXHIBITS 26, 31 ]

51. On or about May 27, 1999, the Army Corps denied plaintiff Saikus's request to revoke the dredging permit. [EXHIBIT 29]

52. On or about June 2, 1999, both the ACHP [EXHIBIT 30] and the OSHPO [EXHIBIT 31] informed the Army Corps by letter that its determination of "no effect" was erroneous and that review pursuant to section 106 of the NHPA was required. 36 C.F.R. §800.5(d)(2). The ACHP requested suspension of the dredging permit until such compliance had occurred.

53. On Saturday, June 5, 1999, starting at approximately 5:00 p.m. and continuing past 10:00 p.m. a dredging barge, tug boats and other equipment dredged at the CBT in front of the Historic Properties. Plaintiff Ed Hauser videotaped the dredging.

54. On or about June 21, 1999, Paul G. Leuchner of Army Corps sent a letter [EXHIBIT 32] to Don L. Klima of ACHP, erroneously stating that the dredging was completed on June 9, 1999, when in fact it was completed in the morning of June 6, 1999.

55. By completing the dredging on June 6, 1999, defendants precluded the public, ACHP and OSHPO from commenting on their May 13 and 17, 1999, finding of "no effect". [EXHIBITS 24, 32]

56. On or about September 21, 1999 and thereafter, the Port and Oglebay argued in Cuyahoga County Court of Common Pleas cases 391885 and 391886, filed by plaintiff Ed Hauser, that the CBT expansion plan and demolition of the Historic Properties were part of the Port's Master Plan. [EXHIBIT 9] The March 12, 1999 letter [EXHIBIT 10] from the Port to the Army Corps shows that the Port considered the CBT expansion plan and demolition of the Historic Properties as incorporated into the Port Master Plan. Yet on or about May 13, 1999, in a letter [EXHIBIT 24] to the Port, Steven Metivier quoted a conversation that the Port stated to the Army Corps that the CBT expansion was a stand alone project, and on or about May 20, in a letter [EXHIBITS 27] the Port argued that connections between the Master Plan, demolition of Historic Properties and dredging did not exist.

57. On or about September 28, 1999 the ACHP issued a letter [EXHIBIT 34] to the Corps concluding that "...the dredging activity permitted by the District in May 1999 violated Section 106 of the National Historic Preservation Act as well as the Corp's historic preservation regulations , 33CFR Part 325, Appendix C."

58. On or about October 22, 1999, the Cleveland Division of Building and Housing issued a permit to contractor Signature Services, Inc. authorizing demolition of the historic structures and buildings. [EXHIBIT 35]

59. On or about November 11, 1999, the defendants commenced demolition of structures and buildings at the CBT. [EXHIBIT: Video Tape available]

60. On or about November 12, 1999, the Port's Board of Directors passed Resolution 1999-65 [EXHIBIT 36] authorizing the Port to enter into a contract with Signature Services, Inc. for "disassembly and removal of the Hulett Ore Unloaders at the Cleveland Bulk Terminals."

61. Quantity of bulk and iron ore received at the CBT has decreased each year since Oglebay leased the CBT. The 1997 season total was 1.6 million tons; 1998 season total was 1.3 million tons. The 1999 season to date (from the beginning of the shipping season in April through the end of October) has been 0.61 million tons. [EXHIBIT 37] On or about April 1999, in an advertisement that ran in the April issue of Northern Ohio Live magazine, [EXHIBIT 18] Oglebay offered the CBT facility to prospective customers as a "Complete 5,000,000-ton Bulk Materials Storage and Transfer Facility" having a "Deep-water Dock" (i.e., the CBT dock face) and "2000-foot [dock] Frontage." The photograph of the CBT dock in Oglebay's ad distinctly shows the presence of the Historic Properties: four Huletts and their accessory buildings. This ad is an obvious indication that the presence of the Historic Properties would not detract from the utility of the dock in the immediate future. Therefore the presence of the Historic Properties does not impinge on the bulk cargo storage or throughput of the CBT. Thus the damage to the public and plaintiffs through the destruction of the Historic Properties far outweighs any speculative loss of revenue in this declining business environment.

COUNT I

Section 106 Violations - Army Corps Failure to Consider Effects of its Action on Historic Properties; Army Corps Failure to Afford ACHP Reasonable Opportunity to Comment

62. Plaintiffs incorporate paragraphs 1 through 61 as if fully restated.

63. The National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., includes congressional findings that the nation's historic heritage should be preserved; that the preservation of this irreplaceable heritage is in the public interest; that the encouragement of preserving our historic resources will improve the planning and execution of federal and federally assisted projects and will assist economic growth and development; and that it is necessary and appropriate for the federal government to accelerate its preservation programs and activities. Id. 16 USC § 470(b). The NHPA further provides that it shall be the policy of the federal government in partnership with the states, local governments, and private organizations to provide leadership in the preservation of the historic resources of the United States and to contribute to the preservation of non-federally owned historic resources. Id. 16 USC § 470-1.

64. Section 106 of the NHPA applies to all undertakings that are federally assisted or that require federal license or permit. 16 U.S.C. § 470f. 36 C.F.R. § 800.2(o) of the ACHP's regulations defines "undertaking" as follows:

[A]ny project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, and programs and any of their elements not previously considered under Section 106. (Emphasis added)

65. The Army Corps' issuance of a dredging permit is an "undertaking" subject to the requirements of Section 106 of the NHPA.

66. Section 106 of the NHPA, 16 U.S.C. § 470f, prohibits federal agencies from engaging in any federal undertaking (or federally assisted, licensed or permitted undertaking) unless the agency first (1) takes into account the potential effects of the undertaking on historic properties; and (2) affords the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. Section 106 of the NHPA states:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, ...prior to the issuance of any license..., take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation...a reasonable opportunity to comment with regard to such undertaking. (Emphasis added).

67. The Huletts, buildings and artifacts, by virtue of their listing on the National Register of Historic Places, are "historic properties" for purposes of Section 106 of the NHPA and 36 C.F.R. §800.2(e)

68. Defendants failed to take into account the potential effects of the undertaking on the Huletts, buildings and artifacts in violation of Section 106 of the NHPA.

69. Defendants failed to afford the ACHP and OSHPO a reasonable opportunity to comment on the effects of the undertaking before issuing a permit in violation of Section 106 of the NHPA.

70. Defendants' failure to comply with section 106 prior to issuance of the permit in May 1999 was arbitrary, capricious, an abuse of discretion, unsupported by the record, and otherwise not in accordance with the law. Accordingly, defendants should be enjoined from proceeding with any further activities that would adversely affect the Historic Properties. The historic Power House having been demolished as of this filing, the defendants should be enjoined from granting any further permits, doing any further dredging, receiving federal or federally-originated funding and/or services for any roadway work, new building construction, dock modifications, demolition and/or removal of any building, structure, artifacts and the four Hulett Ore Unloaders. Unless Defendants are so enjoined, Plaintiffs will be irreparably harmed in their use, appreciation, and enjoyment of the Historic Properties. The public interest in avoiding irreversible damage to the Huletts, buildings and artifacts outweighs the risk to the Defendants occasioned by a delay in their demolition and/or removal.

71. Plaintiffs have no adequate or speedy remedy at law for the above-mentioned conduct of the defendants, and this action for injunctive and declaratory relief is the plaintiff's only means for securing relief. Accordingly, the Court must enjoin the defendants from any and all activities that might adversely affect the Historic Properties until such time as the defendants fully comply with the NHPA.

COUNT II

Section 106 and 110(k) Violation --Segmentation and Anticipatory Demolition

72. Plaintiffs incorporate paragraphs 1 through 71 as if fully restated.

73. Defendants Port and Oglebay seek to demolish the Historic Properties in order to create more open space at the CBT dock.

74. In order to evade complying with Section 106 of the NHPA, defendants have engaged in the illegal segmentation of the undertakings related to the ultimate demolition of the Historic Properties. This segmentation has occurred simultaneously with the Port's and Oglebay's commencement of demolition plans for the Historic Properties.

75. Defendants Port and/or Oglebay have submitted multiple revised applications to the Army Corps to escape the requirement of review under Section 106 of the NHPA, in order to evade and preclude the possibility of taking into account the potential effects of the project on the Historic Properties (the Huletts, buildings and artifacts) and with the facilitation of the Army Corps, preclude the possibility of affording the ACHP and OSHPO an opportunity to comment, as required by Section 106, and to avoid the full implication of penalties to the rest of the projects within the Port Master Plan.

76. Section 110(k) of the NHPA, 16 U.S.C. § 470h-2(k), prohibits Federal assistance to persons intentionally adversely affecting a historic property. Section 110 (k) provides:

Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having the legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.
(Emphasis added).

77. The Army Corps knowingly allowed the non-federal defendants to begin the anticipatory demolition. The demolition of the Historic Properties would not occur but for the segmentation and illegally authorized dredging pursuant to the illegal permit issued in May 1999. The demolition of the Huletts, buildings, and artifacts is integrally related to and directly associated with the illegally authorized dredging, which is essential to completion of the overall Port expansion project, as outlined in the Port Master Plan. Therefore the Huletts, buildings, and ancillary apparatus have been and will be directly affected as a result of the illegally authorized dredging, and should be included within the permit area for the dredging permit [33C.F.R., Part 325, Appendix C, paragraph 1.g.]. In addition, the demolition of the Historic Properties (Huletts, buildings and artifacts) is a foreseeable potential adverse effect of the dredging permit.

78. The federal defendants have violated Section 106 by issuing a permit for dredging and also completing the dredging, without taking into account the potential effects on the Historic Properties and without affording the ACHP, OSHPO or the public the opportunity to comment.

79. Defendants' failure to comply with Section 106 prior to issuance of the dredging permit in May 1999 and also completing the dredging in June of 1999, was arbitrary, capricious, an abuse of discretion, unsupported by the record, and otherwise not in accordance with the law. Accordingly, the Court must enjoin defendants from proceeding with any further activities that might adversely affect the Huletts, buildings, and artifacts. Demolition having been initiated and completed to the historic Power House as of this filing, the Defendants should be enjoined from granting any further permits, doing any further dredging, receiving federal or federally-originated funding and/or services for any roadway work, new building construction and dock modifications throughout the project areas of the Port Master Plan, and demolition and/or removal of any building, structure, artifacts and the four (4) Hulett Ore Unloaders. Unless Defendants are so enjoined, Plaintiffs will be irreparably harmed in their use, appreciation, and enjoyment of the Historic Properties (Huletts, buildings, and artifacts). The public interest in avoiding irreversible damage to the Huletts, buildings and artifacts outweighs the risk to the Defendants occasioned by a delay in their demolition and/or removal.

80. Plaintiffs have no adequate or speedy remedy at law for the above-mentioned conduct of the defendants, and this action for injunctive and declaratory relief is the plaintiffs' only means for securing relief. Accordingly, the Court must enjoin the defendants from any and all activities that might adversely affect the Historic Properties until such time as the defendants fully comply with the NHPA.

RELIEF REQUESTED

WHEREFORE, the plaintiffs respectfully request this Court to grant the following relief:

1. Declare the obligations and duties of the defendants to comply with the requirements of Section 106 of the National Historic Preservation Act and corresponding regulations and enjoin defendants from conducting any further demolition activities whatsoever.

2. Adjudge and declare that the non-federal defendants have acted unlawfully in violation of the NHPA 110(k) and corresponding regulations by facilitating and proceeding with segmentation and anticipatory demolition leading to the destruction of the Historic Properties (Hulett Ore Unloaders, buildings, and artifacts) before complying with the applicable statutory and regulatory requirements, in order to evade, and/or prevent compliance with those laws and regulations.

3. Adjudge and declare that the federal Defendants have acted unlawfully in violation of the NHPA and corresponding regulations by issuing an illegal dredging permit and illegally performing the dredging, facilitating segmentation and anticipatory demolition without taking into account the potential effects on the Historic Properties and without affording the ACHP, OSHPO and the public a reasonable opportunity to comment.

4. Adjudge and declare that the CBT improvement plan is constructively an extension to, and therefore part of, the Master Plan as argued by the Port and Oglebay.

5. Adjudge and declare that the Historic Properties were damaged and/or destroyed in violation of the NHPA and corresponding regulations.

6. Revoke and terminate all current federal services, funding, and permits granted to non-federal defendants throughout the project areas of the Port Master Plan.

7. Prohibit non-federal defendants from ever receiving, and all federal agencies and providers of federal services, funding, and permits from providing, future federal services to non-federal defendants throughout the project areas of the Port Master Plan.

8. Issue a preliminary injunction and permanent injunction pursuant to F.R.C.P. 65 directing defendants to refrain from any action that might adversely affect the Historic Properties.

9. Order injunctive relief directing the federal defendants to do everything feasible within the scope of their legal authority to discourage and prevent the demolition initiated and conducted by the non-federal defendants.

10. Adjudge and declare all defendants financially responsible for restoration of damaged Historic Properties. Order defendants with responsibility for demolition to post a surety bond for the cost to restore demolished or partially demolished structures to their pre-demolition condition, and replace destroyed Historic Property.

11. Award Plaintiffs their attorney fees, costs, and disbursements, pursuant to Section 305 of the NHPA, 16 U.S.C. § 470w-4.

12. Award such other and further relief, as the Court may deem appropriate.