The Tenth Circuit affirmed the district court's decision that NHPA did not apply. 551 F.2d at 1179. Section 106 of NHPA requires agencies to seek the comments of the Advisory Council on Historic Preservation "prior to the approval of the expenditure of any Federal funds." Because the "approval" was the execution of the loan and capital grant contract in 1968, prior to the date that the tower was placed on the Register, HUD did not have to seek the Council's comments. The court rejected plaintiffs' arguments that the operative date was 1971 or 1972, when major amendments were made to the project, or 1970, when the local agency purchased the tower. In neither instance was HUD approval of expenditures of funds involved. Id. at 1180.
Second, the court held that the application of NEPA to an ongoing project must be considered in relation to the particular matter or structure being evaluated. Because the historic structure involved was only one building in a very large project and had been treated separately throughout the process, its historic value was balanced against the burden to defendants of stopping the project to comply with NEPA. The court found that the balance lay against enjoining the project to require compliance with NEPA. Id. at 1181-82.
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