Friends of St. Frances Xavier Cabrini Church v. Federal Emergency Management Agency

Citations: 658 F.3d 460; 2011 U.S. App. LEXIS 19617; 2011 WL 4435792Docket: 10-30918

Court: Court of Appeals for the Fifth Circuit; September 26, 2011; Federal Appellate Court

Original Court Document: View Document

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Friends of St. Frances Xavier Cabrini Church, a nonprofit organization focused on historic preservation, appealed the district court's summary judgment favoring the Federal Emergency Management Agency (FEMA). The Fifth Circuit Court determined that the organization lacked standing to pursue its claims, leading to the vacating of the district court's judgment and a remand for dismissal due to lack of standing. The excerpt outlines the National Historic Preservation Act (NHPA), which mandates federal evaluation of projects that may affect historic properties, including a four-step review process. This process involves defining the "area of potential effects" (APE), assessing historic value, determining potential adverse effects, and, if necessary, consulting to mitigate those effects. Friends of Cabrini Church includes individuals connected to Cabrini Church, which is recognized for its historic significance and eligible for the National Register of Historic Places. The document also notes the historical context of Holy Cross School in relation to the hurricanes that impacted the region.

Holy Cross, Cabrini Church, and Cabrini School suffered significant damage from hurricanes. The Archdiocese of New Orleans and Cabrini Church jointly own Cabrini Church and Cabrini School. Following the hurricanes, Holy Cross received FEMA Public Assistance funds to build a new campus at the Cabrini site in Gentilly, replacing its previous location in the Lower Ninth Ward. Although FEMA deemed Holy Cross eligible for funding, the project raised concerns about its impact on historic properties, necessitating compliance with the section 106 review process.

In late 2006, the Archdiocese and Holy Cross initiated plans for Cabrini Church's demolition and the school's relocation. Holy Cross submitted a funding application in January 2007, which excluded plans for the old campus. Friends of Cabrini Church and the ACHP urged FEMA to consider the old campus in the area of potential effect (APE) due to foreseeable impacts on the Lower Ninth Ward, but FEMA and the SHPO opted to limit the APE to the Gentilly site, deferring review of the old campus until further plans were submitted. This 'phased approach' was approved by the SHPO, ACHP, and other parties in a Memorandum of Agreement (MOA), outlining required measures for Holy Cross's relocation.

FEMA recognized the relocation as an undertaking that could affect historic properties, particularly Cabrini Church, which was eligible for the National Register. In early 2007, during consultations, FEMA learned of the Archdiocese's intent to demolish Cabrini Church. Public participation was sought in the section 106 review process, resulting in five public meetings attended by various stakeholders. Agreements were made to explore alternatives to mitigate adverse impacts on historic properties, including archiving church records and repurposing architectural features. After salvaging significant historical items, the Archdiocese demolished Cabrini Church on June 5, 2007, in accordance with the MOA.

In May 2007, the Holy Cross Neighborhood Association requested FEMA to reopen the section 106 review for the Gentilly property to assess its historic preservation impact on the Holy Cross Historic District. Following the demolition of Cabrini Church, FEMA confirmed that the Memorandum of Agreement (MOA) recognized the need for such a review if Holy Cross pursued FEMA funding. In late 2007, Holy Cross indicated its plan to 'mothball' all structures at the old campus. FEMA, in consultation with the State Historic Preservation Office (SHPO), found only the old administration building eligible for the National Register, deeming other buildings non-contributing due to their construction post-period of significance. FEMA concluded that the mothballing would result in 'No Adverse Effect' on historic properties, a determination concurred by SHPO.

Subsequently, Holy Cross sought to add the demolition of seven structures and the mothballing of the administration building. After further consultations, FEMA reaffirmed 'No Adverse Effect' based on the same criteria. The SHPO approved the project on June 5, 2008, advising caution during demolition near the Administration Building. 

In April 2007, Friends of Cabrini Church filed a complaint against FEMA, claiming deficiencies in the section 106 review process, including the exclusion of the Lower Ninth Ward property, inadequate consulting parties, and violations of the National Historic Preservation Act (NHPA). This complaint was amended to allege FEMA's failure to provide status reports and proper review for the Holy Cross campus. In March 2010, Friends of Cabrini Church sought summary judgment on these claims, while FEMA filed a cross-motion asserting the reasonableness of its approach and sufficient consultation. The district court granted FEMA summary judgment on all claims, leading to a timely appeal, which necessitates an assessment of the standing of Friends of Cabrini Church to raise its claims.

FEMA argues that Friends of Cabrini Church lacks standing to challenge actions related to the old Holy Cross campus due to insufficient geographical connection to the Lower Ninth Ward and no direct stake in the injuries claimed by the Holy Cross Neighborhood Association. Friends of Cabrini Church counters that a party should be able to contest FEMA's actions, asserting harm from alleged deficiencies in the section 106 process. The court reviews standing de novo and emphasizes that, under Article III, plaintiffs must demonstrate an injury in fact that is directly traceable to the defendant's actions and likely to be redressed by a favorable ruling. The court focuses on the injury in fact requirement, stating that plaintiffs must show a real and immediate injury resulting from the challenged conduct.

Friends of Cabrini Church alleges injury from FEMA's failure to conduct a historic preservation review for the old Holy Cross property, arguing that it should have been included in the Area of Potential Effects (APE) and received an independent section 106 review. The court notes that deficiencies in impact statements can establish standing, but a party must have a sufficient geographical nexus to the property at issue. There is no specific distance defined for this nexus; however, parties must be close enough to expect to suffer consequences from the project. Precedents indicate that adjacent landowners often have standing to challenge procedural failures if these failures adversely affect their concrete interests, such as maintaining the environmental and historic quality of their neighborhood.

The Third Circuit has determined that entities near a federal project possess a significantly greater interest than those further away. Friends of Cabrini Church, located six miles from the old Holy Cross campus, does not have a sufficient geographical connection to pursue claims against FEMA regarding the inclusion of the campus in the Area of Potential Effects (APE) and the adequacy of the section 106 review. Additionally, Friends of Cabrini Church asserts that FEMA failed to include interested parties, particularly the Holy Cross Neighborhood Association, in section 106 consultations and neglected their historic preservation concerns. However, Friends of Cabrini Church does not claim its own exclusion from consultations or that FEMA ignored its specific concerns. Instead, it alleges a generalized injury due to FEMA's procedural deficiencies. The Supreme Court's ruling in Lujan v. Defenders of Wildlife requires a showing of concrete personal injury for standing, which Friends of Cabrini Church fails to demonstrate. The group argues that FEMA violated the National Historic Preservation Act by not adequately considering the impact of its Public Assistance Program on historic properties, claiming funds were misallocated. However, since Friends of Cabrini Church lacks a geographical nexus to the old Holy Cross campus, it does not have standing to challenge this aspect either. Consequently, the court vacates the district court's judgment and remands the case with instructions to dismiss for lack of standing.