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Norton v. Loether

United States District Court, E.D. Kentucky, Central Division, Lexington

March 15, 2018

THOMAS NORTON, et al., Plaintiffs,
PAUL LOETHER, in his official capacity as Keeper of the National Register of Historic Places, et al., Defendants.


          Danny C. Reeves, United States District Judge

         This matter is pending for consideration of the defendants’ motion to dismiss the plaintiffs’ Complaint pursuant to Rules 12(b)(1), and (6) of the Federal Rules of Civil Procedure. [Record No. 12] The Court will grant in part, and deny, in part, the defendants’ motion.


         Plaintiffs Thomas Norton, George Norton, Carl Norton, Clyde Wilcoxson, the Gess Family Partnership, Ltd., Troy Thompson, Larry White and Brenda White, Patsy A. Bratton, Mary Louis Bratton Quertermous, Wayne Quertermous, Irene Gerdeman, as Trustee of the Irene Gerdeman Living Trust, and Jane Greaves Blackford, under the J.H. Graves Trust, are individuals and entities with principal places of business and/or owners of real property in Clark and Fayette Counties, Kentucky. [Record No. 1, ¶ 3] In the summer of 2008, they became aware of the efforts of parties to have the area known as the Upper Reaches of Boone Creel (“the Property”) listed on the National Register of Historic Places (“National Register”). Id. at ¶ 11.

         The National Historical Preservation Act (the “Preservation Act”) authorizes the Secretary of the Interior “to expand and maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 36 C.F.R. § 60.1. The Secretary is charged under the Preservation Act with promulgating regulations for nominating properties to the National Register and notifying property owners when property is being considered for inclusion on the register. 54 U.S.C. § 302103. Before any property may be included in the National Register, the owners of such property-or a majority of owners within the district in the case of a historic district- must be given the opportunity to object to the nomination of the property for inclusion. Id. at § 302105. The Preservation Act generally prohibits inclusion of the district on the register if a majority of the owners in the district object. See id.

         The plaintiffs, along with other landowners of property in the area, were notified by the Kentucky Heritage Counsel through the Kentucky state Historic Preservation Office via a letter that the Property would be considered by the Kentucky Historic Preservation Review Board for nomination to the National Register and an informational meeting would take place in August 2008 in Lexington, Kentucky. Id. at ¶ 12. At the meeting, a Kentucky state official informed those in attendance that objection letters were required to be submitted to the Kentucky Review Board at a meeting in Russellville, Kentucky, three hours away from the Property, at a later date. Id. at ¶ 13. Counsel for the plaintiffs presented a letter at the meeting stating that they had objection letters from 129 landowners covering 95 parcels of properties out of the 157 properties listed, and demanded the Board stop the action to submit the nomination. Id. at ¶ 14. Following receipt of a letter from the State indicating that, regardless of whether the majority of landowners object, the nomination must still be forwarded to the Keeper of the National Register of Historic Places (“the Keeper”) for a determination of eligibility. Id. at ¶ 15.

         The plaintiffs filed suit in the Fayette Circuit Court against the state and local agencies involved in the nomination process (“the state court defendants”) in late 2008. The suit challenged the efforts to have the Property listed on the National Register. Protracted litigation ensured over the next several years. During this time, the Kentucky State Review Board met and approved the nomination of the Property. It was subsequently listed in the National Register on November 27, 2009. Id. at ¶¶ 19, 25. The matter worked its way to the Kentucky Court of Appeals and then back to the Fayette Circuit Court. Id. at ¶¶ 16-31. The circuit court granted partial summary judgment in the plaintiffs favor in September 2016, concluding that the state court defendants had violated their due process rights. Id. at ¶ 32.

         The plaintiffs’ counsel then submitted a petition to the Kentucky State Historic Preservation Officer on October 28, 2016, seeking to remove the Property from the National Register based upon alleged procedural irregularities under 26 C.F.R. 60.15(a)(4). The plaintiffs relied, in part, on the state court holdings. The petition was then submitted to and received by the Keeper from the state on January 27, 2017. Id. at ¶ 35. The Keeper subsequently denied the petition to delist the Property from the National Register on March 13, 2017. Id.

         The plaintiffs now seek review of the Keeper’s denial of the petition to delist the Property under the Administrative Procedure Act, 5 U.S.C. § 702. They assert that they have been damaged as a result of the actions and inactions of the defendants. [Record No. 1, ¶¶ 38- 43] They also allege that the actions and inactions of the defendants violated and continue to violate their rights to substantive and procedural due process. Id. at ¶¶ 44-46. The plaintiffs also contend that they are entitled to a writ of mandamus under the Mandamus Act. Id. at ¶¶ 47-50. Finally, the plaintiffs seeks permanent injunctive relief and attorneys’ fees. Id. at ¶¶ 51-59.


         The defendants’ arguments that the plaintiffs’ claims are time-barred and that the plaintiffs lack of standing to bring this action contests this Court’s subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017) (citations omitted). A 12(b)(1) motion “can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A facial challenge to the Court’s subject matter jurisdiction, such as the defendants’ challenge here, “merely questions the sufficiency of the pleading.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. “[T]he party claiming jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject matter.” Id. at 324.

         Next, in considering a motion under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the complaint states a claim for which relief is available. It “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations must be sufficient to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, and permit the Court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While a complaint need not contain detailed factual allegations, it must contain more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action’” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).


         A. Subject ...

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