Opinion
No. 04 Civ. 6941 (JSR).
February 8, 2005
MEMORANDUM ORDER
On December 2, 2004, the Court issued an Order dismissing the first of plaintiffs' two claims and granting summary judgment to defendants on plaintiffs' other claim. This Memorandum Order confirms these rulings and explains the reasons therefor.
This lawsuit concerns the plans for demolition and new construction on the site of the former World Trade Center ("WTC") in the wake of the terrorist attacks on September 11, 2001. See Declaration of Irene Chang dated September 30, 2004 ("Chang Decl.") at ¶ 6. Following the attacks, New York State created the Lower Manhattan Development Corporation ("LMDC") to coordinate the "remembrance, rebuilding, and revitalization" efforts in lower Manhattan. See id. at ¶ 2. Named here as defendants in addition to the LMDC are Kevin Rampe, the president of the LMDC, and the Port Authority of New York and New Jersey ("Port Authority"), which owns the WTC Site, see Declaration of Timothy G. Stickelman dated September 30, 2004 ("Stickelman Decl.") at ¶ 2. The primary plaintiff is the Coalition of 9/11 Families (the "Coalition"), a New York corporation formed to represent family members, survivors, and rescue workers affected by the September 11 attacks. The other seven plaintiffs are either members of this organization or connected in some intimate way to the September 11 losses. Complaint ¶¶ 5-11.
In late 2003, while overseeing plans to re-develop the WTC Site, LMDC initiated an "historic resources review" pursuant to the National Historic Preservation Act. Chang Decl. ¶¶ 4, 11. Section 106 of that Act requires federal agencies planning to develop historically important sites to "take into account" the effects of their actions on properties listed, or eligible for listing, on the National Register of Historic Places and to consult with the federal Advisory Council on Historic Preservation in regard to same. 16 U.S.C. § 470f. Regulations promulgated under § 106 also require consultation with parties having a demonstrated interest in the federal undertaking or in its impact on historic resources. See 36 C.F.R. § 800.1. As part of the consulting process, LMDC, in coordination with the Federal Transit Administration and the Federal Highway Administration (which were involved because of their connection in rebuilding the PATH Terminal and Route 9A, respectively), granted "consulting party" status to approximately 60 interested persons or groups, including most of the plaintiffs. Chang Decl. ¶ 15; Letter from Kevin M. Rampe et al. to Patricia Reilly, Anthony Gardner, and Jack Lynch dated December 17, 2003, attached as Ex. B to Chang Decl. The consulting parties met with the LMDC and the other federal agencies involved throughout the early months of 2004, during which time they were offered various opportunities to comment in person and in writing on different aspects of the plans for the Site.
Those plaintiffs who were not individually granted consulting party status were either on the board of the Coalition or sat on the LMDC's Family Advisory Council. See Chang Decl. at 7 n. 3.
Subsequent to this consultation, the LMDC entered into a Programmatic Agreement, dated April 22, 2004, with the State Historic Preservation Office and the federal Advisory Council on Historic Preservation. Stipulation 1 of the Programmatic Agreement provides that:
LMDC will, within 60 days of execution of this Agreement, consult with the National Park Service and submit existing documentation of the current appearance of the Project Site to the [State Historic Preservation Office], the Historic American Engineering Record (HAER), the Historic American Building Survey (HABS) and/or the New York State Archives, as appropriate, to ensure that there is a permanent record of existing historic resources on the Project Site.
World Trade Center Memorial and Redevelopment Plan Programmatic Agreement, attached as Ex. K to Chang Decl., at 3. In their first claim here, plaintiffs assert that the defendants have failed to comply with this Stipulation by failing to consult appropriately and in a timely fashion with the National Park Service and by failing to submit documentation of HABS/HAER quality to the bodies contemplated by the Stipulation.
The claim, however, must be dismissed because plaintiffs have no standing to enforce the Programmatic Agreement. Plaintiffs acknowledge that they were not signatories to the Agreement but argue that they may sue to enforce it as third-party beneficiaries. However, third parties may sue to enforce rights or obtain benefits under a contract only to the extent that the contracting parties specifically intended to provide the third parties with such rights or benefits. See, e.g., Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir. 1979). Although an intention to benefit a third party may be gleaned from the contract as a whole and the party need not be specifically named to be a beneficiary, the intent must be clear from the face of the contract and the benefit must be direct, not merely incidental.Id.
Plaintiffs cannot meet this standard. Although some prefatory "whereas" clauses in the Programmatic Agreement mention the valuable and important role of the consulting parties, such cosmetic references do not confer rights on the consulting parties to enforce the Agreement. More importantly, while Stipulation 5 and Stipulation 7 specifically refer to the consulting parties in ways that arguably create third-party rights, Stipulation 1 does not mention the consulting parties at all. See Tyler v. Cuomo, 236 F.3d 1124, 1135 (9th Cir. 2000) (finding that plaintiffs, non-signatories to a Memorandum of Agreement undertaken pursuant to the National Historic Preservation Act, had standing to enforce only the section of the Agreement that specifically granted "member[s] of the public" a right to be heard but did not have standing to enforce another section of the Agreement that obligated only the signatories without mentioning anyone else); see also Friends of the Astor, Inc. v. City of Reading, 1998 U.S. Dist. LEXIS 14935, * 37-38 (E.D. Pa. 1998) (dictum to same effect). The clear implication is that the signatories to the Programmatic Agreement did not intend to convey rights or benefits to the consulting parties so far as Stipulation 1 is concerned. Accordingly, plaintiffs lack standing to enforce that Stipulation and their first claim must be dismissed.
Plaintiffs urge this Court to follow Waterford Citizens' Association v. Reilly, 970 F.2d 1287 (4th Cir. 1992), in which the Fourth Circuit found that the non-signatory plaintiff had standing to enforce a Memorandum of Agreement signed pursuant to Section 106 of the National Historic Preservation Act. While the Court doubts it would adopt the broad view of standing propounded by the Fourth Circuit in that case, it is sufficient for present purposes to note that the provision the plaintiff there sought to enforce referred specifically to a triggering event that would reopen Section 106 consultation, a consultation in which the plaintiff had rights as a consulting party. By contrast, the provision plaintiffs in the instant suit seek to enforce contains no language that might be construed as referring to any right conferred on them.
Plaintiffs' only other claim alleges that "LMDC's decision to allow the Port Authority to proceed with the demolition, removal, or alteration of the sub-grade slab and column remnants in the northwest corner of the WTC site without first ensuring that appropriate records are made that comport with the Secretary of the Interior's Standards and Guidelines for Architectural and Engineering Documentation, is arbitrary, capricious, and in violation of Section 110(b) of the [National Historic Preservation Act]." Complaint ¶ 45. Section 110(b) provides as follows:
Each Federal agency shall initiate measures to assure that where, as a result of Federal action or assistance carried out by such agency, an historic property is to be substantially altered or demolished, timely steps are taken to make or have made appropriate records, and that such records then be deposited, in accordance with section 101(a) of this Act, in the Library of Congress or with such other appropriate agency as may be designated by the Secretary, for future use and reference.16 U.S.C. § 470h-2(b). Defendants have moved for summary judgment on this claim.
Preliminarily, the Court notes that Section 110 of the National Historic Preservation Act, which was added when the Act was amended in 1980, was not intended to add to the substantive requirements already in place under Section 106. See, e.g., Lee v. Thornburgh, 877 F.2d 1053, 1057 (D.C. Cir. 1989) (Section 110 must be read in conjunction with Section 106);National Trust for Historic Preservation v. Blanck, 938 F.Supp. 908, 922 (D.D.C. 1996), aff'd, 203 F.3d 53 (D.C. Cir. 1999) (dismissing claims under Section 110(a) because Section 110 "cannot be read to create new substantive preservationist obligations" beyond the central requirements set forth in Section 106). If defendants have complied with their obligations under Section 106 through the Programmatic Agreement, they have also complied with Section 110(b).
Here, defendants have come forward with undisputed facts proving that they have complied with Section 110(b), Section 106, and the relevant sections of the Programmatic Agreement. For example, defendants have adduced admissible evidence of a meeting LMDC sponsored on April 29, 2004, at which the consulting parties were present, where LMDC and the Port Authority described the plans for deconstruction of the structural remnants of the former parking garage in the northwest corner of the WTC Site. Chang Decl. ¶ 33. This meeting was held pursuant to Stipulation 5 of the Programmatic Agreement, which required LMDC and, "where appropriate," the Port Authority to take "reasonable and practicable" steps to "minimize or mitigate" any "potentially adverse effects" to structural remnants, "consistent with the overall Plan, sound engineering practice and relevant construction considerations." Programmatic Agreement at 6. The proposed mitigation plan provided that detailed photographic documentation would be made of the Site, using HABS/HAER standards and methods set forth in the Secretary of the Interior's Standards and Guidelines for Architectural and Engineering Documentation. See WTC Memorial and Redevelopment Plan — Historic Resources Review dated April 29, 2004, attached as Ex. B to Stickelman Decl. The State Historic Preservation Office approved this plan as satisfying Stipulation 5 of the Programmatic Agreement. Chang Decl. ¶ 36; Letter from Robert D. Kuhn to Irene Chang dated May 24, 2004, attached as Ex. O to Chang Decl. The Port Authority directed that HABS/HAER-quality photographs be made of the northwest corner of the site. Stickelman Decl. ¶ 11. The documentation was sent to SHPO on July 21, 2004, which confirmed by letter dated August 12, 2004, that the documentation satisfied HABS/HAER requirements. See Letter from Christopher R. Zepple to Kathleen A. Howe dated July 21, 2004, attached as Ex. E to Stickelman Decl.; Letter from Beth A. Cumming to Irene Chang dated August 12, 2004, attached as Ex. R to Chang Decl. A copy of the documentation was subsequently sent to the consulting parties, including plaintiffs, as well as to the National Park Service. Letter from Timothy G. Stickelman to Consulting Parties dated July 28, 2004, attached as Ex. F to Stickelman Decl.; Letter from John A. Hotopp to Richard O'Connor dated August 11, 2004, attached as Ex. G to Stickelman Decl.
In response to this very substantial showing that defendants have fully complied with Section 110(b) and Stipulation 5 of the Programmatic Agreement, plaintiffs have offered no evidence to the contrary. Plaintiffs have therefore failed to meet their burden at summary judgment on their second claim.
For the foregoing reasons, plaintiff's complaint is hereby dismissed, with prejudice, in its entirety. Clerk to enter judgment.
SO ORDERED.