National Trust for Historic Preservation v. Blanck

OPINION

This case concerns the extent of the federal government’s obligation to spend scarce funds to preserve historic braidings under the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470' et seq. Plaintiffs, the National Trust for Historic Preservation and Save Our Seminary at Forest Glen, seek declaratory and injunctive relief to compel the Army to expend substantial sums of money in long-term preservation activities that, plaintiffs argue, are not only necessary to preserve the National Park Seminary Historic District, a community of historic buildings located at the Walter Reed Army Medical Center, but are statutorily mandated. The government asserts that it has in fact expended significant resources in order to preserve the Historic District consistent with the Department of the Army’s spending priorities and mission, that it has complied with the requirements of the NHPA, and that the Act does not contemplate the kind of relief plaintiffs seek.

Both sides moved for summary judgment, and plaintiffs subsequently filed a motion for a preliminary injunction, supplemented by affidavits, photographs and other evidence of deterioration, to force the Army to undertake emergency repairs and stabilization measures to the historic buildings in the Historic District in order to preserve the status quo during the pendency of this litigation. See *910 Pis.’ Mot. for Temporary Restraining Order and Preliminary Injunction (Jan. 22, 1996) and Appendix A. 1

In this case, the availability of preliminary injunctive relief turns on whether plaintiffs have demonstrated a likelihood of success on the merits entitling them to relief under the statute. 2 The Court will address plaintiffs’ request for a preliminary injunction as a part of its discussion of the ultimate disposition of the case and what relief, if any, is appropriate.

I. FACTUAL BACKGROUND

Walter Reed Army Medical Center (‘Walter Reed” or “WRAMC”) is a medical care, research and teaching facility; Forest Glen, one of three geographically separate sections of Walter Reed, is an auxiliary service, support and research area in Silver Spring, Maryland. The National Park Seminary Historic District consists of 29 buildings spread over 23 acres of the Forest Glen section. The Maryland Historical Trust determined that twenty-four of those buildings contribute individually to the historic character of the Historic District while five other buildings do not. Plaintiffs’ Statement of Material Facts As to Which There is No Genuine Dispute (“Pis.’ Statement of Material Facts”) ¶7; Cultural Resource Management Plan (“CRMP”) at IV-3, Pis.’ Ex. 2, Administrative Record (“A.R.”) at 947. Walter Reed currently uses some of the 24 historic buildings for administrative purposes. The majority of the buildings, however, are not used at all. Interim Stabilization Plan (Apr. 13, 1994), A.R. at 1713.

A The Buildings of the Histone District

The National Park Seminary Historic District has been listed in the National Register of Historic Places since 1972. Built in the 1880s, Ye Forest Inne is the oldest building in the District. It was originally constructed as a resort and now serves as the Main Building (Building 101) of the National Park Seminary. The Odeon Theater (Building 104) was constructed in 1901, the Gymnasium (Building 118) in 1907, Aloha House (Building 116) in 1898, and the Villa (Building 199) in 1907. The Pergola Bridge spanned the glen and connected the Villa to the Practice House (Building 112). See note 1, swpra. In the late 1890s and early 1900s, eight eclectic sorority houses were built, each in a different architectural style, which also are among the 29 buildings in the Historic District. In addition, the District contains formal gardens, foot bridges, retaining walls, walkways, trails, garden ornaments and statuary. Pis.’ Statement of Material Facts ¶¶ 8-13.

The parties agree that there has been significant damage to and deterioration of the buildings in the Historic District over the years, although they disagree about the extent of the damage and deterioration. At least the following facts are not in dispute. By 1989, Building 101, the largest building in the complex, showed some rotten wood joints, mortar loss and deterioration. Walter Reed Survey of Historical Buildings on the 26 Acre Forest Glen Historic District, Maryland (“1989 Survey”) (April 1989), Pis.’ Ex. 4, A.R. at 280-301.5, 1122-1193. The foundation walls of Senior House were badly deteriorated. The Pergola Bridge was “in a deteriorating condition and might well be considered unsafe. Maintenance [on the Bridge] has been stopped.” AR. at 1145. See also note 1, supra. Building 109 needed a new roof; Building 112 had water infiltration in all basement areas and serious wall *911 damage; and Building 107 had a deteriorating structural condition. The Army subsequently reported in 1992 that the south wall of the dining room of Building 101 had partially collapsed and one of the columns in the west portico of the library wing had rotted and dropped eight to ten inches. CRMP at V-7, A.R. at 951.

In 1990, KFS Historic Preservation Group, a paid consultant, prepared a “Section 106 Report” for the Army Corps of Engineers. Pis.’ Ex. 27, A.R. at 3077. 3 The report found that the structures of the Historic District had “suffered serious and in some instances irreversible damage from long-term deferred maintenance. Several buildings have been condemned ... [and] abandoned and are rapidly falling into ruinous condition.” Id. at 31-32, A.R. at 3114-15. The report described a wide variety of damage and concluded that “[w]hile the appropriate mitigation measure would be to develop a Historic Preservation Plan, as specified by Army Regulation 420-40, at this time funds are not available for WRAMC to undertake such an action.” Id. at 47, A.R. at 3132. The Army does not dispute that its failure to expend more resources to maintain the District caused at least some of the significant damage. See CRMP at V-6, A.R. at 950.

B. Walter Reed’s Efforts in the Historic District

Since acquiring the Historic District in 1942, the Army has made some efforts to account for and preserve the historic value of the buildings, primarily through the development of Master Plans and, in 1992, a Cultural Resource Management Plan. 4 In 1967, the Army prepared a Master Plan that proposed demolishing the old buildings and erecting new ones; this plan was approved by the Maryland National Capital Parks and Planning Commission (“MNCPPC”). A.R. at 2003. A 1972 revised Master Plan retained the demolition proposal. At that time, however, MNCPPC raised concerns about the historic value of the buildings, and the Army delayed demolition. A.R. at 3975, 3979. On July 10, 1972, the Maryland Historical Trust (“MHT”) nominated the property for inclusion in the National Register of Historic Places and, on September 14, 1972, the National Park Seminary Historic District was officially entered in the Register. A.R. at 1564—73. Walter Reed developed a further Master Plan in 1977, which was approved by the National Capitol Planning Commission (“NCPC”). A.R. at 586, 601, 608, 618.

In 1979, the General Services Administration proposed that Walter Reed “excess” the Historic District. See Executive Order 11954 Real Property Survey (Jan. 10, 1978) at 3, Pis.’ Ex. 13. 5 Walter Reed rejected that proposal, opting to retain the property, even while acknowledging that the buildings were underutilized at that time and that their fate was uncertain. U.S. Army Health Services Command Memorandum (July 6, 1979), Pis.’ Ex. 14, A.R. at 4351; see also Unclassified Memorandum (Sept.1981), A.R. at 2222. In the ensuing years, however, Walter Reed apparently continued to consider declaring the property to be excess and selling it off in order to redirect maintenance funds toward its medical mission. See Letter from Colonel Gerald D. Allgood to Maryland State Historic Preservation Office (May 14, 1984), A.R. at 1574 (“From a monetary standpoint, the Walter Reed Facilities Engineer would like to be relieved from the responsibilities for these 19 [historic] buildings as they use a disproportionate amount of his limited operation and maintenance budget.”); see also Installation Survey Report (Apr. 17,1984), A.R. at 2131-77 (identifying potential areas of Forest Glen *912 for sale). In 1984, however, the Army abandoned the idea of exeessing the property “as a result of the limited monetary return and expected time required (8-12 years) to excess the property.” Defs.’ Statement of Facts Identified By Plaintiffs to Which There is A Genuine Issue (“Defs.’ Statement of Facts in Dispute”) at 1 ¶ 28; see Pis.’ Statement of Material Facts ¶ 30; see also 1989 Survey at 3, A.R. at 287.

In 1989, the Army completed another survey of historic buddings in the District in compliance with its own historic preservation regulation, Army Regulation 420-40. 1989 Survey, AR. at 287. The 1989 Survey noted that “[h]istoric preservation was not a consideration to the Army at this site” until Army Regulation 420-40 became effective in 1984. It further stated that the Army’s mission at Walter Reed and historic preservation were “in conflict,” and that the underutilization of the old buildings on the site put “these facilities on a lower priority for maintenance funds when competition for funding direct medical facilities is severe.” Id.

In 1991, the Commander of Walter Reed, Major General Richard D. Cameron, again recommended that the Historic District be excessed. As part of his recommendation, Major General Cameron noted that “the current condition of the buildings to be excessed is deteriorating to the point that it is hazardous to life and property and cannot be repaired or maintained at our justifiable cost.” Memorandum to Headquarters of the Department of the Army (“HQDA”) from Major General Richard Cameron (April 26, 1991), Pis.’ Ex. 28, AR. at 316.

In 1991, Walter Reed consulted with the National Capital Planning Commission (“NCPC”), the Montgomery County Planning Board (“MCPB”), the Maryland Historical Trust and the Maryland State Historic Preservation Officer (“SHPO”). A new proposed Master Plan was submitted to the MCPB on September 12, 1991. At a meeting on October 15, 1991, the MCPB and the NCPC raised 19 items of concern about the Master Plan, seven of which directly concerned the Historic District. AR. at 586-89. On April 30, 1992, the NCPC approved the proposed Master Plan, as modified, and specifically noted that certain concerns relating to historic preservation had been resolved. A.R. at 601, 608, 618. See also A.R. at 355 (letter from the MNCPPC reflecting cooperation with Walter Reed on Master Plan); A.R. at 1611-1618 (letter from the MNCPPC to Senator Paul Sarbanes dated September 22, 1993, stating that Walter Reed had “fully cooperated” with the MNCPPC). The 1992 Master Plan approved by the NCPC stated several times that the Historic District would be excessed. Master Plan Report (March 1992) (“1992 Master Plan”) at ES-5, 12-2, Pis.’ Ex. 6, A.R. at 697, 808.

As part of the 1992 Master Plan, KFS Historic Preservation Group prepared a report for the Army Corps of Engineers providing recommendations for stabilization and maintenance of the Historic District. These recommendations were adopted by Walter Reed as the “Forest Glen Section WRAMC Stabilization and Maintenance Guidelines” in accordance with the Secretary of the Interi- or’s Standards for Rehabilitation Guidelines. Forest Glen Section WRAMC Stabilization and Maintenance Guidelines (Aug. 14, 1992), Pis.’ Ex. 38, AR. at 3836-50; see 36 C.F.R. pt. 68. 6 In December 1992, Army consultants prepared a “Roof Repair and Replacement Study,” documenting damage to various roofs and windows and recommending immediate maintenance. Pis.’ Ex. 36, A.R. at 3207. In October 1993, the Army commissioned a Stabilization Report from Ward Bucher to identify emergency stabilization measures. Pis.’ Ex. 39, Attachment B.

The Army also commissioned a Cultural Resource Management Plan (“CRMP”) in 1992. A.R. at 922. The Plan, prepared by KFS Historic Preservation Group, is dated August 14, 1992, but it was held out by the Army as having been formally adopted by Walter Reed as early as April 27,1992. A.R. at 302, 305, 320. The Maryland Historical *913 Trust never approved the CRMP, although the parties dispute the reason for the non-approval. See Letter from Maryland Historical Trust to Lt. Colonel Roy D. Quick (June 4, 1992), A.R. at 345 (describing the CRMP as “a comprehensive approach for the protection of the National Park Seminary” that “includes the necessary components as outlined in the Section 110 regulations” but raising several issues requiring resolution before the MHT would approve the plan). In the Section 106 Coordination documents, issued in April 1992, the Army described the CRMP as satisfying the requirements of Army Regulation 420-40 as well as Section 110 of the NHPA. A.R. at 305. 7

On August 20, 1992, Walter Reed initiated formal consultations with the Advisory Council on Historic Preservation (“ACHP”) under Section 106 of the NHPA with regard to the decision to excess the District. A.R. at 302-04, 312. A Cooperative Agreement between Walter Reed and Montgomery County was signed and a consulting firm was selected to perform an Alternative Use Study which was completed in May 1995. Declaration of Major General Ronald R. Blanek (“Blanck Decl.”) ¶ 10 (July 8,1996), Exhibit 1 to Defs.’ Supp.Mem. (Aug. 5, 1996). Defendants now represent that Walter Reed has decided not to excess the District but rather will retain and reuse it and has or intends to initiate consultation procedures regarding repairs. Blanek Decl. ¶¶ 10, 12; Defs.’ Supp.Mem. (Aug. 5,1996) at 3.

Plaintiffs assert that although the 1992 Master Plan committed $2 million toward immediate repair and renovation activities, no such activities have taken place. They also claim that the Army failed to implement any of the October 1993 Bucher Report’s recommendations, while defendants state that repairs were undertaken in response to the Bucher Report. A.R. at 1661-62. The parties also disagree about the Army’s commitment to undertake future repairs: Plaintiffs characterize the Army as refusing to fund future measures, while defendants state that Walter Reed has expended millions of dollars in maintenance, repair and preservation of the Historic District—including recent expenditures of $367,468 in FY 1992; $508,-151 in FY 1993; $290,527 from October 1993 to August 1994, A.R. at 1712; and $46,000 from January through July 1996, Blanck Decl. ¶ 7—and that certain projects have yet to be funded but that funding has been or is being sought. 8

Defendants acknowledge that the facilities in the Historic District are a lower priority for maintenance funds than the direct medical care facilities, such as the hospital, since the Historic District buildings for the most part have no function and are not being used. Defs.’ Mot. at 27. Walter Reed has an annual maintenance and repair budget of approximately $5 million for all three of its sections, including Forest Glen; that budget was cut by $500,000 in 1994. A.R. at 1649, 1659. *914 Walter Reed also has a backlog of $80 million worth of work orders. A.R. at 1649, 1659.

. II. STANDARD OF REVIEW

As a threshold matter, the parties dispute the proper standard of judicial review of the Army’s actions under the NHPA. Defendants assert that judicial review is governed by the arbitrary and capricious standard of the Administrative Procedure Act, 5 U.S.C. § 706, while plaintiffs maintain that Section 305 of the NHPA, the attorneys’ fees provision, 16 U.S.C. § 470w-4, creates an implied private right of action directly against the agency. Such an implied right of action would permit private enforcement of the statute and potentially trump the deferential standard of review provided by the APA. The Third and Fifth Circuits and one district court in the Ninth Circuit have found such an implied private right of action in the NHPA, although none of these courts has concluded that a less deferential standard of review is appropriate. See Boarhead Corp. v. Erickson, 923 F.2d. 1011, 1017 (3d Cir.1991); Bywater Neighborhood Assoc. v. Tricarico, 879 F.2d 165, 167 (5th Cir.1989), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 474 (1990); Vieux Carre Property Owners v. Brown, 875 F.2d 453, 458 (5th Cir.1989), cert. denied 493 U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990); North Oakland Voters Alliance v. City of Oakland 1992 WL 367096, *5 (N.D.Cal.1992). 9

The court of appeals for this Circuit has not addressed the issue, although one judge of this Court has rejected the argument that Section 305 constitutes a waiver of sovereign immunity. Indiana Coal Council v. Lujan, 774 F.Supp. 1385, 1394 n. 7 (D.D.C.1991) (J.H. Green, J.). Nor has our court of appeals ever explicitly described the standard of review under NHPA as being governed by the APA, in part because the NHPA cases in this Circuit primarily have involved deciding whether the terms of the Ac.t applied in certain instances at all, and not, as in this case, assessing whether an agency’s actions are sufficient under the law. See Sheridan Kalorama Historical Assoc. v. Christopher, 49 F.3d 750, 754 (D.C.Cir.1995); McMillan Park Committee v. National Capital Planning Comm’n, 968 F.2d 1283 (D.C.Cir.1992); Lee v. Thornburgh, 877 F.2d 1053 (D.C.Cir.1989). Other courts have applied the APA’s arbitrary and capricious standard of review to agency decisions under the NHPA without explicitly addressing the issue of whether a private right of action is created by Section 305. See, e.g., Connecticut Trust for Historic Preservation v. ICC, 841 F.2d 479, 481-82 (2d Cir.1988); Abenaki Nation of Mississquoi v. Hughes, 805 F.Supp. 234, 239-40 (D.Vt.1992), aff'd 990 F.2d 729 (2d Cir.1993); Citizens for the Scenic Severn River Bridge v. Skinner, 802 F.Supp. 1325, 1337 (D.Md. 1991) (applying same review standards to NHPA as apply to NEPA), aff'd, 972 F.2d 338 (4th Cir.1992).

“In order to establish an implied private right of action under a federal statute, a plaintiff bears a relatively heavy burden of demonstrating that Congress affirmatively or specifically contemplated private enforcement when it passed the relevant statute.” Samuels v. District of Columbia, 770 F.2d 184, 194 (D.C.Cir.1985) (citing Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 377-78, 102 S.Ct. 1825, 1838-39, 72 L.Ed.2d 182 (1982)). The most important inquiry is whether Congress specifically intended to create such a right. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. at 378, 102 S.Ct. at 1839; Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); see Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789-90 (D.C.Cir.1983), cert. denied 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). The existence of a statutory provi sion for attorneys’ fees alone is not dispositive, although the First Circuit has acknowledged that it may, in some circumstances, be evidence of a congressional intent to create a private right of action. Cousins v. U.S. Dep’t of Transportation, 880 F.2d 603, 606 (1st. Cir.1989); NAACP v. Secretary of Housing *915 and Urban Development, 817 F.2d 149, 153 (1st Cir.1987).

The Court is not persuaded that Congress intended to create a private right of action against the federal government under the NHPA. First, it is not clear that such a private right of action would provide any more relief than the APA itself does. The statute does not make damages available to private parties but speaks only in terms of agency responsibility for preservationist goals. Since waivers of sovereign immunity are not to be implied and are to be strictly construed, Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701-02, 69 L.Ed.2d 548 (1981), finding a private right of action would permit plaintiffs to “do no more than ask the federal government to enforce the statute.” Cousins v. U.S. Dep’t of Transportation, 880 F.2d at 606. This is precisely the function of the APA.

Second, neither the language nor the legislative history of the attorneys’ fees provision of the NHPA clearly indicates an intent on the part of Congress to create a private right of action. Section 305 of the NHPA provides:

In any civil action brought in any United States district court by any interested person to enforce the provisions of this sub-chapter, if such person substantially prevails in such action the court may award attorneys’ fees, expert witness fees, and other costs of participating in such action, as the court deems reasonable.

16 U.S.C. § 470w-4. The House Report states that “the intent [of Section 305] is to ensure that property owners, non-profit organizations and interested individuals who may otherwise lack the means for court action be awarded reasonable costs for actions taken under this Act.” H.R.Rep. No. 1457, 96th Cong., 2d Sess. 46 (1980), reprinted in 1980 U.S.C.CAN. 6378, 6409. Since the APA does not authorize attorneys’ fees, it would have been perfectly consistent for Congress to provide for attorneys’ fees under the NHPA while contemplating that challenges to agency action would be evaluated under the standards of the APA

Finally, even if there were a private right of action, nothing in the NHPA suggests that Congress intended to institute de novo review of agency preservationist actions or to create an exception to the presumption embodied in the APA that courts generally should defer to an agency’s expertise and review its decisions under the deferential arbitrary and eaprieious/abuse of discretion standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). Indeed, the NHPA explicitly instructs agencies to undertake preservationist activities that are “consistent with [their] mission.” 16 U.S.C. § 470h-2(a)(l). Assessing the nature of the Army’s mission is, of course, particularly within the scope of that Department’s expertise.

The Court is further persuaded by the reasoning of the First Circuit in NAACP v. Secretary of Housing and Urban Development, 817 F.2d 149 (1st Cir.1987). In that case, Circuit Judge (now Justice) Breyer, writing for the court, noted that “it is difficult to understand why a court would ever hold that Congress, in enacting a statute that creates federal obligations, has implicitly created a private right of action against the federal government, for there is hardly ever any need to do so” because of the omnipresent availability of APA review. Id. at 152. In those few cases in which courts have inferred a private right of action against the federal government, “the courts have not even considered the role of the APA” Id. at 153. Indeed, the very existence of the APA makes it reasonable to assume that “when Congress means to permit a private party to ask a court to review the legality of federal action in a manner that differs from APA review, Congress will say so explicitly in the statute.” Id.

In this ease, the Army’s actions are fully reviewable under the APA The Court concludes that Congress did not create or intend to create an independent private right of action against the federal government under Section 305 of the NHPA. Accordingly, the Court will review the Army’s actions under the arbitrary and capricious standard of the Administrative Procedure Act, 5 *916 U.S.C. § 706, and based on the administrative record created by the agency. 10

III. THE NATIONAL HISTORIC PRESERVATION ACT

Section 106 of the National Historic Preservation Act is a procedural provision and the provision under which almost all NHPA cases are prosecuted. It provides:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State ... shall, prior to the approval of the expenditure of any Federal funds on the undertaking ..., 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.

16 U.S.C. § 470f. The majority of NHPA cases that have reached the courts concern instances where a federal agency is alleged to have failed to comply with the consultation provisions of Section 106.

Section 110 of the NHPA was added to the NHPA in 1980 to “clarif[y] and codif[y] the minimum responsibilities expected of Federal agencies in carrying out the purposes of th[e] Act.” Lee v. Thornburgh, 877 F.2d 1053, 1057 (D.C.Cir.1989) (quoting H.R.Rep. No. 1457, 96th Cong., 2d Sess. 36 (1980), reprinted in 1980 U.S.C.CA.N. 6378, 6399). Although the language of the section is broad, it was not “intended to change the preservation responsibilities of Federal agencies as required by any other laws, executive orders or regulations....” Id. Section 110 provides in relevant part:

(a)(1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency____ Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency and the professional standards established pursuant to section 470a(g) of this title, any preservation, as may be necessary to carry out this section. 11

(2) Each Federal agency shall establish ... in consultation with the Secretary, a *917 preservation program for the identification of, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties. Such program shall ensure—

* * * * * *

(B) that such properties under the jurisdiction or control of the agency as are listed or may be eligible for the National Register are managed and maintained in a way that considers the preservation of their historic, archaeological, architectural, and cultural values in compliance with section 470f [Section 106] of this title.

* * * * * *

(d) Consistent with the agency’s missions and mandates, all Federal agencies shall carry out agency programs and projects ... in accordance with the purposes of this subchapter and, give consideration to programs and projects which will further the purposes of this subchapter.

* * * * *

(f) Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.

16 U.S.C. § 470h-2(a)(l), (a)(2), (d), (f) (as amended 1992).

In this case, plaintiffs assert that the Army’s actions in permitting the decay and deterioration of the Historic District violate the mandate of Section 110. Plaintiffs would have the Court interpret Section 110(a)(1) as creating an independent substantive requirement that agencies engage in minimal preservationist activities so long as such activities are consistent with the agency’s mission. Under such an interpretation, whether Walter Reed violated the NHPA by permitting the buildings of the Historic District to deteriorate would be a question separate and apart from whether it also violated the procedural provisions of the Act contained in Section 106 and other subsections of Section 110. Only one court has come close to ruling on this interpretive question. See North Oakland Voters Alliance v. City of Oakland, 1992 WL 367096, *5 (N.D.Cal.1992) (finding that plaintiffs stated a claim under the NHPA based on Oakland’s failure to maintain and preserve historic property while engaging in the Section 106 consultation process).

Defendants reply that all of the requirements of the NHPA, including those in Section 110, are procedural, that the NHPA is designed to ensure that federal agencies merely take into account or consider the effect of their actions on historic places as part of the planning process for those properties, that there is no substantive requirement that agencies undertake particular preservationist activities at all, and that Congress intended the provisions of Sections 106 and 110 to have a limited reach. Defendants’ underlying premise is that the statute does not mandate preservation but merely encourages it, citing this Circuit’s opinion in Lee v. Thornburgh, 877 F.2d at 1056. They also rely on Waterford Citizens’ Assoc. v. Reilly, 970 F.2d 1287, 1290 (4th Cir.1992) (“Congress did not intend [Section 106] to impose general obligations on federal agencies to affirmatively protect preservation interests.”); Connecticut Trust for Historic Preservation v. ICC, 841 F.2d 479, 483-84 (2d Cir.1988) (“NEPA and NHPA require only that agencies acquire information before acting.”); United States v. 162.20 Acres of Land, More or Less, Etc., 639 F.2d 299, 302 (5th Cir.) (“[Section 106] neither ... forbid[s] the destruction of historic sites nor command[s] their preservation.”), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981). Each of these cases, however, focuses on the language of Section 106 and does not address the effect, if any, of the seemingly more substantive language of Section 110. Indeed, most courts discuss the obligations of Section 106 and the Act as a whole as if they were interchangeable.

A The Section 106 Consultation Process

Section 106 of the NHPA requires that agencies give the Advisory Council on His- *918 tone Preservation a reasonable opportunity to comment on any “undertaking” that will “adversely affect” a listed property. 16 U.S.C. § 470f; see McMillan Park Committee v. National Capital Planning Comm’n, 968 F.2d at 1284-85; Lee v. Thornburgh, 877 F.2d at 1056. The NHPA defines “undertaking,” in relevant part, as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency” if carried out by a federal agency, with federal financial assistance or requiring a federal permit, license or approval. 16 U.S.C. § 470w(7). 36 C.F.R. § 800.2(o) defines an “undertaking” as

any project, activity or program that can result in changes in the character or use of historic properties---- The project, activity or program must be under the direct or indirect jurisdiction of a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under section 106.

36 C.F.R. § 800.9(b)(4) defines an “adverse effect” of an undertaking as including but not limited to “[njeglect of a property resulting in its deterioration or destruction.”

Different circuits describe the Section 106 process as imposing more or less stringent or limited obligations upon agencies. Compare United States v. 162.20 Acres of Land, More or Less, Etc., 639 F.2d at 302 (“While the [NHPA] may seem to be no more than a ‘command to consider,’ it must be noted that the language is mandatory and the scope is broad.”) with Waterford Citizens’ Association v. Reilly, 970 F.2d at 1290-91 (“[T]he scope of the obligations imposed upon federal agencies by the enactment of section 106 is quite narrow.”). Nevertheless, Section 106 is universally interpreted as requiring agencies to consult and consider and not to engage in any particular preservation activities per se. The issue here is when the Army became obligated to consult with the Advisory Coundi on Historic Preservation and whether it did so at that time.

The Historic District was listed in the National Register in 1972. The Army decided not to excess the Historic District as early as 1979 and cemented that initial decision in 1984 despite having acquired additional information. Yet, no “Section 106 Report” was prepared until 1990, and that was done in connection with the preparation of a revised Master Plan in 1991. 12 Furthermore, there were no consultations with the relevant boards, commissions and historic trusts until 1991, and the revised Master Plan was not finally modified and approved until 1992. The question is whether any of these actions—or lack of action—violated the NHPA. The Army argues that until it affirmatively decided to excess the District in 1991 there was no “undertaking” on which to comment. Plaintiffs assert that the Army’s failure to maintain the Historic District since at least 1984, when the Army made its decision not to excess the District, constitutes “demolition by neglect” that warrants relief.

It is clear that “an agency need not satisfy the § 106 process at all ... unless it is engaged in an undertaking.” McMillan Park Committee v. National Capital Planning Comm’n, 968 F.2d at 1289. Although the regulations consider neglect of a property that results in deterioration or destruction to be a cognizable “adverse effect” of an undertaking, not every instance of neglect or destruction can be said to flow from a cognizable undertaking. As a general matter, the APA defines “agency action” to include “failure to act,” 5 U.S.C. § 551(13), and, where an agency maintains a policy of inaction in the face of an explicit statutory mandate, generally a court may set that policy aside. NAACP v. Secretary of Housing and Urban Development, 817 F.2d at 160. The explicit terms of Section 106, however, require a finding not just of agency “action” but of an *919 “undertaking”—that is, “a project,' activity, or program.” 16 U.S.C. § 470w(7).

An agency’s failure to act, without more, is not an “undertaking” under Section 106; indeed, if it were there would be a constant and ongoing requirement for ACHP comment and consultation. See Sheridan Kalorama Historical Assoc. v. Christopher, 49 F.3d at 754 (State Department’s failure to disapprove Turkish Embassy’s plan to , de molish building was not an undertaking where no federal funds or approval were involved). On the other hand, an undertaking includes any “activity ... that can r