Legal Happenings
At Preservation Law Conference, NTHP’s Elizabeth Merritt Recalls Ups and Downs in Fight to Save Historic Sites
September 27, 2024
Elizabeth Merritt, who has represented the National Trust for Historic Preservation (NTHP) in nearly 200 cases
over the past 25 years, has had her share of exhilarating wins and devastating losses.
Ranking as a memorable victory was saving Wisconsin’s Sturgeon Bay Bridge in the early 2000s, while seeing the Jobbers Canyon Historic District demolished in Omaha, Nebraska, in 1989 was “by far the most agonizing defeat” of her career, said Merritt, who was the keynote speaker at the 2024 National Preservation Law Conference on September 12. Held at the D.C. Bar headquarters, the conference brought together more than 200 attorneys, scholars, and other professionals focused on preservation law.
At the heart of Merritt’s work is the 1966 National Historic Preservation Act (NHPA), particularly Section 106, which requires federal agencies to consider the impact of their actions on historic properties and provide the Advisory Council on Historic Preservation (ACHP) an opportunity to comment on pending projects.
One of Merritt’s earliest victories with the NTHP was Citizen Advocates for Responsible Expansion, Inc. v. Dole (1984), which involved projects to widen Interstates 30 and 35 in Fort Worth, Texas, including expansion of an elevated section that would come within approximately 40 feet of historic buildings and a park.
Merritt’s team argued that although the construction would not “use” the properties, it would “constructively use” them by impairing their historic value. In addition, the group claimed that the U.S. Department of Transportation, Federal Highway Administration, and Texas highway department failed to seek prudent and reasonable alternatives.
The Texas district court decided in favor of the defendants, but the Fifth Circuit reversed the decision, remanding the case for further proceedings related to the environmental review of the overhead expansion. The highway was ultimately demolished and relocated to the other side of the historic buildings.
“That enabled portions of the city that had been divided by the original highway to be reconnected,” Merritt said.
Other victories include the defeat of the construction of the Jimmy Carter Presidential Parkway in Atlanta, Georgia’s Druid Hills neighborhood; the SR-710 freeway connector in South Pasadena, California, that would have demolished approximately 1,000 homes and 6,000 trees; and a massive interchange in Norwalk, Connecticut.
‘A Sense of Responsibility’
Merritt also talked about her losses, including the Omaha case, People for Responsible Omaha Urban Development v. Interstate Commerce Commission. When the Conagra corporation wanted to move its headquarters to Omaha in 1987, it picked a location that abutted the Jobbers Canyon Historic District, which consisted of six square blocks containing 24 historic warehouse buildings. Michael Harper, Conagra’s CEO at that time, wanted the entire historic district demolished and transformed into a park if the corporation was to relocate there.
In 1988 the NTHP filed a lawsuit against three federal agencies — the Army Corps of Engineers, the National Park Service, and the Interstate Commerce Commission — as well as against the city and Conagra. “Ultimately, the court held that the federal handles were too small to trigger compliance with federal preservation laws,” Merritt said. “However, the [United States District Court for the District of Nebraska] did issue an important ruling: upholding the right of the NTHP to sue federal agencies, which the defendants had argued we couldn’t do because we were congressionally chartered.”
Between 1988 and 1989, Merritt spent 100 days in Omaha working on the case, and she recalled that watching the demolition was “literally agonizing.”
“I felt such a weight on my shoulders, such as sense of responsibility and failure,” Merritt said. “I knew that I had to find a way to distance myself a bit emotionally or I wouldn’t last.”
Merritt recalled another defeat involving Reno, Nevada’s Mapes Hotel, which was demolished in January 2000. In Dewey v. Redevelopment Agency of the City of Reno, the NTHP challenged Reno’s decision to demolish the hotel on the grounds that the city had violated its open-meeting laws by holding private staff briefings on the matter.
Merritt said the NTHP communications director organized a “funeral” ceremony for the Mapes Hotel. “The demolition was scheduled for implosion rather than the months-long process of chipping away with a wrecking ball,” Merritt said. “So, we attended it in person. And we had a procession with bagpipes and poetic eulogy speeches. It was a better way, emotionally, to process the loss.”
She noted that it took three years after the Mapes Hotel demolition for the Supreme Court of Nevada to issue its ruling, affirming the lower court’s decision that the city council’s proceedings had been sufficient.
Other frustrating losses Merritt mentioned included Committee to Save Cleveland’s Huletts v. U.S. Army Corps of Engineers (2001), involving the Port Authority’s removal of historic iron ore unloaders, and Honolulutraffic.com v. Federal Transit Administration (2014), regarding a 20-mile elevated rail system through downtown.
Outlook Post-Chevron
During the conference, Merritt also participated in the panel discussion “Life After Chevron” with Kirti Datla, director of strategic legal advocacy for Earthjustice, and Javier Marqués, general counsel at the ACHP. The discussion focused on how the U.S. Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo affects the NHPA and National Environmental Policy Act. Loper Bright overturned the 1984 Chevron doctrine that directed courts to defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers.
Merritt said Loper Bright was a “much-anticipated decision, not a shock,” adding that “there’s been a lot of anxiety about how it will impact our advocacy work because [it] is based in the regulatory context.”
Citing the 2001 case National Mining Association v. Slater, Marqués expressed confidence that the Section 106 regulations of the NHPA are safe. “That gave us a few good court decisions that stand today, uphold[ing] all the Section 106 rules and regulations with two exceptions,” Marqués said. That includes the ACHP’s ability to make binding procedural regulations, countering the opinion that it was limited to an advisory role.
“That [advisory role] argument was shut down by the [Supreme] Court, based on the analysis that Loper Bright had to once go through,” Marqués said.
Following the Court’s ruling in Loper Bright, “the ACHP may promulgate regulations as it considers necessary to govern the implementation of Section 106 in its entirety,” Marqués concluded.
