Russ Pye; Lee Pye v. UNITED STATES OF AMERICA; UNITED STATES ARMY CORPS OF ENGINEERS, No. 98-2229 

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RUSS PYE; LEE PYE,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA; UNITED
STATES ARMY CORPS OF ENGINEERS, No. 98-2229  Defendants-Appellees.
NATIONAL TRUST FOR HISTORIC
PRESERVATION; SOCIETY FOR
HISTORICAL ARCHAEOLOGY; AMERICAN
CULTURAL RESOURCES ASSOCIATION,
Amici Curiae. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
C. Weston Houck, District Judge.
(CA-97-431-2-12)
Argued: May 5, 1999
Decided: October 22, 2001
Before WILKINSON, Chief Judge, and WIDENER and
MOTZ, Circuit Judges.
Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Chief Judge Wilkinson and Judge Motz con-
curred.

-- 1 of 18 --

COUNSEL
ARGUED: C. C. Harness, III, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Charleston, South Carolina, for Appel-
lants. Cornish F. Hitchcock, Washington, D.C., for Amici Curiae.
John Thompson Stahr, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Perrin Q. Dargan, III, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Charleston, South
Carolina, for Appellants. Elizabeth S. Merritt, Associate General
Counsel, Edith M. Shine, Associate General Counsel, Laura S. Nel-
son, Assistant General Counsel, NATIONAL TRUST FOR HIS-
TORIC PRESERVATION, Washington, D.C., for Amici Curiae. Lois
J. Schiffer, Assistant Attorney General, David C. Shilton, David L.
Weigert, Lyn Jacobs, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Frank Jordan, District Counsel, UNITED STATES ARMY
CORPS OF ENGINEERS, Charleston, South Carolina, for Appellees.
OPINION
WIDENER, Circuit Judge:
This is a suit brought by Russ and Lee Pye, seeking to require the
Corps of Engineers to conform to statutory and regulatory require-
ments before issuing a permit to construct a road crossing within the
waters of the United States. The Pyes own adjoining land to the land
on which the road crossing is constructed. Their land also adjoins
what is known as Tract M of the Sheppard Tract on which an eigh-
teenth century plantation house connected to the Hayne family is situ-
ated and is near to, a matter of several hundred feet, the site of an
African-American cemetery owned by Westvaco. The cemetery itself
adjoins the Pyes’ land and is probably partly on the Pyes’ land. The
old plantation house is eligible for the National Register of Historic
Places, as is the African-American cemetery.
The district court dismissed the Pyes’ complaint for lack of stand-
ing. We are of opinion such dismissal was error, and we vacate and
remand for consideration of the merits of the Pyes’ complaint.
2 PYE v. UNITED STATES

-- 2 of 18 --

I.
The series of events giving rise to this litigation stems from the
County’s proposal to improve an existing dirt access road (the road)
leading from United States Highway 171 to the southwest corner of
an approximately 750-acre tract of the County’s land called the Shep-
pard Tract. See Ex. A. to this opinion. The improvements affect all
of the access road, which is owned by the County and open to private
use only with County permission. A .23-acre segment of the road is
covered by waters of the United States. The road runs along the west
side of the Sheppard Tract and cuts through it at its southwest corner,
northwest corner, and northern end. The road leads directly from U.S.
Highway 17 to a 33-acre field, designated Area M, at the southwest
corner of the Sheppard Tract. Area M contains the remains of an eigh-
teenth century plantation home site. The Pyes’ property is adjacent to
Area M and contains part of an historic African American cemetery.
Both the plantation home site and that of the cemetery have been
declared eligible for entry on the National Register of Historic Places.
The Sheppard Tract, the Pyes’ property, and other adjacent property
are all part of a larger area known as Encampment Plantation.
Encampment Plantation has historic significance because in addition
to containing the eighteenth century plantation home remains, the
graveyard, and other historic sites, it may have been the location
where troops were stationed during the Revolutionary War to guard
South Carolina’s state government which met across the Edisto River
during the British occupation of Charleston.
In order to improve access to Area M, the County proposed to fill
the 0.23 acres of wetland occupied by the road, to grade the road, and
to install a culvert to permit drainage under the improved road.
Because the project involved filling wetlands, the County had to
obtain a permit from the Corps under section 404 of the Clean Water
Act, 33 U.S.C. § 1344.2
1We take judicial notice that Highway U.S. 17 is a major coastal high-
way running at least from Florida to Virginia through South Carolina.
2The Clean Water Act prohibits the discharge of dredge or fill material
into the waters of the United States, which include wetlands, without a
permit from the Corps. 33 U.S.C. § 1344 (1994); 33 C.F.R. § 328(a), (b)
(1998).
3 PYE v. UNITED STATES

-- 3 of 18 --

The permitting process began on October 23, 1991 when the
County initially applied for a permit to fill the wetlands. At this time,
the County intended to use the road in connection with the construc-
tion of an ash monofill3 on the Sheppard Tract. The County retired
(apparently meaning withdrew) the application for the ash monofill
on July 1, 1993. On January 24, 1995, the County applied for a
Nationwide Permit 14 under section 404 of the Clean Water Act to
improve the road, indicating that it now planned to use the land at the
end of the road for a dirt borrow pit4 and, later, for training police
dogs. On April 20, 1995, the Advisory Council on Historic Preserva-
tion (the Advisory Council) notified the Corps that the road improve-
ment might have an effect on Encampment Planation, which would
include the eighteenth century plantation home remains, a site that
was either included in, or eligible for, the National Register of His-
toric Places. Additionally, the County had commissioned a cultural
resource survey of the Sheppard Tract, obviously to determine the
historical value of the area. The survey revealed that the eighteenth
century plantation home site could be eligible for listing in the
National Register of Historic Places, along with other sites in the area.
After receiving the results of the survey in May 1996, the County
abandoned its plans to create the dirt borrow pit. As of July 1996, the
County intended to use the road to access Area M only for conducting
routine maintenance of the land and for training police dogs.
The Corps forwarded the County’s permit application on July 31,
1996 to the United States Department of the Interior, Fish and Wild-
life Service; the State Historic Preservation Office; the Environmental
Protection Agency, Wetlands Regulatory Unit; the South Carolina
3"A monofill is a landfill which only accepts municipal waste combus-
tion ash." Denise L. Stoker, Note, The Burning Dilemma of Incinerator
Ash Disposal: City of Chicago v. Environmental Defense Fund, 3 Wis.
Envtl. L.J. 67, 70 n.13 (1996) (citing Haia K. Roffman, Monofill, in The
Encyclopedia of the Environment, 458 (Ruth A. Eblen & William R.
Eblen eds., 1994)).
4A dirt borrow pit is a pit used to supply earth for filling or embanking
projects. See C. Conrad Claus, Oregon’s Development of Absolute Lia-
bility Under the Rylands Doctrine: A Case Study, 53 Wash. U. J. Urb.
& Contemp. L. 171, 196 n.162 (1998) (citing Webster’s Third New Inter-
national Dictionary of the English Language 257 (3d ed. 1993)).
4 PYE v. UNITED STATES

-- 4 of 18 --

Department of Natural Resources; the United States Department of
Commerce, National Marine Fisheries Service; and the South Caro-
lina Department of Health and Environmental Control, Office of
Ocean and Coastal Resource Management. Both the National Marine
Fisheries Service and the Fish and Wildlife service responded to the
Corps concerning the project’s effects, as required under section 7 of
the Endangered Species Act. 16 U.S.C. §§ 1531-43. The Deputy State
Historic Preservation Officer also responded and indicated that the
eighteenth century plantation home site was eligible for listing on the
National Register of Historic Places. On January 23, 1997, the United
States Department of the Interior, National Parks Service, found the
Hayne Plantation site and the African-American cemetery site eligible
for listing on the National Register of Historic Places and informed
the Corps of that decision by copy of that letter. The letter indicated
that the Service did not find that the area was eligible for listing as
a rural historic district.
The Pyes filed a complaint in the United States District Court, Dis-
trict of South Carolina on February 19, 1997 alleging that the Corps
failed to complete all the required steps under federal law prior to
granting the County the Nationwide Permit 14. They asserted federal
question jurisdiction under 28 U.S.C. § 1331 and because the United
States was a defendant. They sued under The Administrative Proce-
dure Act, 5 U.S.C. § 702; The Clean Water Act, 33 U.S.C. § 1251, et
seq.; The National Historic Preservation Act, 16 U.S.C. § 470, et seq.;
The National Environmental Policy Act, 42 U.S.C. § 4321, et seq.;
and The Endangered Species Act, 16 U.S.C. § 1531, et seq. The
Corps answered the complaint on April 25, 1997. In response to the
litigation, the Corps suspended the permit on May 13, 1997 to con-
firm that it was properly authorized.
Under this further review, the Corps notified the Fish and Wildlife
Service to confine its analysis concerning endangered species to Area
M. The Fish and Wildlife Service, later that month, answered that it
could not discern any adverse impact on Area M. On November 19,
1997, the Corps reinstated the County’s Nationwide Permit 14, allow-
ing it to complete the road improvement project. In reinstating the
permit, the Corps did not consider the impact of the improvement on
the historic site in Area M, or any other area, instead, confining its
5 PYE v. UNITED STATES

-- 5 of 18 --

analysis to the "footprint"5 of the roadway area to be filled, which did
not contain any historically relevant sites.
After reinstatement of the permit, the Corps moved for summary
judgment on February 10, 1998. The district court granted summary
judgment in favor of the Corps and dismissed the complaint, finding
that the Pyes did not have standing to bring this action because they
did not demonstrate either an injury in fact, causation of an injury by
the Corps, or the ability of the court to redress an injury. Pye v.
United States, Army Corps of Eng’rs, No. 2:97-00431-2 (D.S.C. July
24, 1998). The County advises us that it has completed the road
improvement project, however the Corps freely admits that the wet-
land fill is easily removed. Having considered the record, and after
oral argument, we are of opinion that the Pyes have standing to bring
their suit, and we vacate and remand.
Before discussing the question of standing, it is well that we
recount some principal facts.
The Pyes’ property is adjacent to the property on which the wet-
land fill at issue here is located. Their property also is adjacent to
Area M on which is located the remains of the ante-bellum Hayne
Plantation. It also adjoins the African-American cemetery and proba-
bly includes a part of the cemetery. Both the remains of the plantation
and the African-American cemetery are eligible for inclusion in the
National Register of Historic Places.
Area M and the cemetery are located only some 6/10 of a mile off
of U.S. 17, a major coastal highway.
On August 12, 1996, the Fish and Wildlife Service of the Depart-
ment of the Interior advised the Corps that the proposed permit "not
be authorized without Service concurrence that the activity is not
likely to affect federally protected species." The Fish and Wildlife
Service was of opinion that the entire Sheppard tract be considered
"the action area of the project." It took that position because it was
5The "footprint" of the area to be filled consists only of the actual 100
foot stretch of road containing wetlands. This 100 foot stretch of road
does not contain any historic sites.
6 PYE v. UNITED STATES

-- 6 of 18 --

"concerned about the secondary impacts of development within the
750.02-acre tract that may ensue as a result of improved access." That
letter stated that the public notice did not clearly describe what type
of development would occur at the site and recommended that "to
avoid piece-mealing project development, we recommend that all
project plans be reviewed up front to determine compliance with state
and federal regulations. We recommend that a wetland master plan be
prepared and submitted to the source agencies for further review." It
opposed issuance of the permit until its listed agencies were
addressed. The Corps never addressed that position.
The ante-bellum plantation site and the African-American ceme-
tery site are both within a few hundred feet of the road which is the
issue here. There was evidence aplenty in the district court, in the
Garrow Report, that a significant part of the historical value of both
the African-American cemetery and the Hayne plantation site was
that neither, because of their location, had been subject to marauders:
Feeling [in finding a rural historic landscape] incorporates
all of the above attributes. A general test for feeling is
whether the site or district could serve as a teaching exam-
ple, without the need to ignore major post-occupational
changes. The feeling of the proposed district is very strong;
it is one of the few tracts in the county with well-preserved
remains from the planter’s house, slave settlement, upland
fields, rice fields, and associated infrastructure without alter-
ation by post-bellum or modern occupation or use.
(A. Part 1, p.68 with respect to the Hayne Plantation.)
The cemetery also is a good example of a distinctive,
regionally important type of cemetery. The African Ameri-
can tradition of grave decorations/grave goods was strongly
followed, and most of these goods have been preserved
beneath recently developed topsoil. The site has not under-
gone the disturbance or removal of grave goods that com-
monly occurs as part of a misguided effort to "clean up" a
burial ground. The cemetery can serve as a well-preserved
example of a community cemetery of rural African Ameri-
cans who followed a well-entrenched set of rules regarding
7 PYE v. UNITED STATES

-- 7 of 18 --

burial customs. The cemetery was apparently not linked to
a specific church, as were many later African American
cemeteries, and it was not a single-family cemetery. Rural
African American cemeteries of the antebellum and postbel-
lum periods were once a common element of the Southern
landscape, but many have been lost from memory, removed,
or impacted by development or logging. As a cemetery that
embodies the distinctive characteristics of the Sea Coast
African American type, site 38CH1590 is recommended as
eligible under Criterion C.
(A. Part 1, p.79-80 with respect to the African-American cemetery.)
We also note that the County commenced with proposing Area M
for an ash dump and both improving and paving the road to U.S. 17.
As opposition developed, it changed the proposed use to a dirt mine
and later changed the proposed use to a dog-training facility. The
degree of improvement of the road was changed from a paved road
merely to an improved road. The Corps has described the project as
"to improve an existing roadway and to make it an all-weather road."
Despite the fact of objections to the Corps’ lack of addressing the
impact of the road on the wetlands of the entire Sheppard tract and
the effect of improved and easier access to the historical sites, the
Corps addressed neither prior to issuing the permit, choosing instead
to confine its consideration to what it calls "the footprint," which is
the actual fill of the wetland area, only without regard to any of the
surrounding countryside, except, perhaps, Area M.
II.
We review the district court’s grant of summary judgment de novo.
Marshall v. Meadows, 105 F.3d 904, 905-06 (4th Cir. 1997). Standing
is a threshold jurisdictional question which ensures that a suit is a case
or controversy appropriate for the exercise of the courts’ judicial pow-
ers under the Constitution of the United States. Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 102 (1998). The core goal of
the standing inquiry is to ensure that a plaintiff bringing an action has
enough of a stake in the case to litigate it properly. In cases brought
under the Administrative Procedure Act, the standing inquiry includes
8 PYE v. UNITED STATES

-- 8 of 18 --

both a constitutional analysis and a prudential inquiry. See National
Credit Union Administration v. First National Bank & Trust Co., 522
U.S. 479, 488 (1998); GBA Assoc. v. General Servs. Admin., 32 F.3d
898, 900 (4th Cir. 1994) (quoting Motor Coach Indus., Inc. v. Dole,
725 F.2d 958, 963 (4th Cir. 1984)). Thus, to demonstrate standing in
the context of the Administrative Procedure Act, not only must a
plaintiff show that he has suffered an injury in fact that is fairly trace-
able to the defendant’s conduct and that a court can provide relief to
redress the injury, but also he must show that the injury in fact is
within the zone of interests protected by the statute. Motor Coach
Indus., 725 F.2d at 963 (citing Data Processing Serv. Orgs. v. Camp,
397 U.S. 150 (1970)).
A.
To demonstrate standing at the summary judgment stage, a plaintiff
must set forth evidence of an injury in fact in addition to that provided
in the complaint, which will be taken as true for purposes of deciding
the motion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
This injury must be concrete, particularized, and not conjectural or
hypothetical. Lujan, 504 U.S. at 560 (internal citations omitted). A
part of the Pyes’ support for their allegations of standing were the
affidavits of Mrs. Lee Pye and Dr. Michael Trinkley, a professional
archaeologist. These documents, together with other documents in the
record, explain that the Pyes own land next to, and probably includ-
ing, an area containing designated historic sites and allege that the
road improvements authorized by the Corps’ permit will adversely
affect that historic area. Dr. Trinkley asserted that the improved road
will affect the historic cohesiveness of the area and will, by providing
better access, result in the presence of more looters at the historic
sites. Additionally, the Pyes have alleged that their interests in the
cohesiveness and integrity of the historical sites were further impaired
by the Corps’ failure to consider the effect on the sites of the issuance
of the permit, and the failure of the Corps to allow public participa-
tion and commentary by the Advisory Council as mandated by the
Act and the Corps’ own regulations.
In this context, both our decisions and decisions of the Supreme
Court indicate that adjacent landowners often have standing to chal-
lenge the government’s failure to follow statutorily prescribed proce-
9 PYE v. UNITED STATES

-- 9 of 18 --

dures so long as this failure impairs a separate concrete interest of the
plaintiff. See Lujan v. Defenders of Wildlife, 504 U.S. at 571-73. For
instance, in Lujan, the Court explained that "under our case law, one
living adjacent to the site for proposed construction of a federally
licensed dam has standing to challenge the licensing agency’s failure
to prepare an environmental impact statement, even though he cannot
establish with any certainty that the statement will cause the license
to be withheld or altered, and even though the dam will not be com-
pleted for many years." Lujan, 504 U.S. at 572 n.7. Indeed, in such
cases standing to sue is so self-evident that the Supreme Court often
has dispensed with the inquiry altogether. See, e.g., Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 336 (1989) (no ques-
tion made of standing for a Citizen’s Council of the vicinity to chal-
lenge the contents of environmental impact statement). See also
Lujan, 504 U.S. at 572 n.7 (noting that in Robertson, Court did not
address standing "for the very good reason that the plaintiff was a citi-
zens’ council for the area in which the challenged action was to occur,
so that its members would obviously be concretely affected"). Like-
wise, in Waterford Citizens’ Assn. v. Reilly, 970 F.2d 1287 (4th Cir.
1992), we held that nearby plaintiffs have standing to challenge fail-
ures of agencies to comply with the National Historic Preservation
Act. Waterford involved an organization of citizens concerned about
the effect of an EPA decision to allow a developer of townhouses out-
side of the town of Waterford to hook into Waterford’s sewer system.
In permitting the hook-up, the EPA failed to comply with a Memoran-
dum of Agreement it had voluntarily made with various historic pres-
ervation agencies. Waterford, 970 F.2d at 1289. The Memorandum of
Agreement essentially reopened the Section 470f consultation pro-
cess, the same process at issue in the instant case. In Waterford, we
held that the plaintiffs "clearly [had] standing to bring this issue to
court." 970 F.2d at 1288 n.1, 1290. We did not require that the resi-
dents demonstrate that they lived in the vicinity of the project at issue.
Such a holding is not unique to this Circuit, moreover. The Third
Circuit has held that a group of residents living in the historic district
of Society Hill in Philadelphia had standing to challenge Housing and
Urban Development’s grant to the city to build a hotel and parking
garage in the residents’ neighborhood. See Society Hill Towers
Owner’s Association v. Rendell, 210 F.3d 168, 176-77 (3rd Cir.
2000). The plaintiffs in Society Hill Towers alleged that the building
10 PYE v. UNITED STATES

-- 10 of 18 --

of the hotel and garage would injure them by increasing traffic, pollu-
tion and noise, impair the use and enjoyment of the historic district,
and decrease their property values. Society Hill Towers, 210 F.3d at
176. The court found that these plaintiffs clearly had standing, stating
"[i]f the Residents do not have standing to protect the historic and
environmental quality of their neighborhood, it is hard to imagine that
anyone would have standing to oppose this . . . grant. If that is the
case, the requirement for . . . public input would be little more than
a meaningless procedural calisthenic that would provide little or no
protection to those most directly affected by the governmental
action." 210 F.3d at 176.
We think the Pyes have demonstrated an injury comparable to the
injuries demonstrated by the Waterford and Society Hill Towers
plaintiffs. The Pyes are not only in the vicinity of the proposed action,
but are adjacent landowners. The Keeper has designated adjoining
and what is probably a portion of their land as eligible for listing on
the National Register along with the individual site contained in the
Sheppard Tract. Most importantly, however, the eligible African-
American cemetery abuts directly the Pyes’ land, and probably over-
laps it. Therefore, the challenged action may lead to trespassing, van-
dalism, and looting of historic sites not only on the Sheppard Tract,
but also to the historic site on the Pye property. The Pyes are the peo-
ple most directly affected by the challenged action, and if they do not
have standing, to see that the government complies with the regula-
tory provisions, then the National Historic Preservation Act’s require-
ment for consideration of the effect of federal permits on historic
places is merely a "procedural calisthenic." We decline to so hold.
The Corps endeavors to undermine the concreteness of the Pyes’
injury by arguing that any development by the County is speculative
and that the construction project itself will not actually destroy any of
these historic sites. The Corps’ arguments in this regard are unavail-
ing, however. It is abundantly clear from the record that the county
wishes to use this 750 acre parcel for something. At different times
the County has planned a borrow pit, an ash dump, and a canine train-
ing center. The road construction is but the first step in future devel-
opment by the County. No reason is advanced that this road will
remain a road to nowhere for long. We cannot say that future devel-
11 PYE v. UNITED STATES

-- 11 of 18 --

opment enabled by the Corps’ permit is so speculative as to render the
Pyes’ allegations of injury abstract.
Similarly, that the proposed project will not actually touch any of
the historic sites on either the Sheppard Tract or the Pyes’ property
is of no moment. The plaintiffs in both Waterford and Society Hill
Towers alleged a range of harms to the historic areas concerned. The
plaintiffs in Waterford alleged that the actions would physically
destroy historic sites. 970 F.2d at 1289. In Society Hill Towers, how-
ever, the plaintiffs only complained of the effect on the historic area
in general, not destruction of any historic sites. Society Hill Towers,
210 F.3d at 176. Even if no shovels or backhoes will touch either his-
toric area, damage to historic areas can occur in less direct ways.
Indeed, the Corps’ own regulations embrace this by mandating con-
sideration of "the effects of undertakings on any known historic prop-
erties that may occur outside the permit area." See, e.g., 33 C.F.R. pt.
325, Appendix C, 5(f). Directness, while it may be relevant to causa-
tion and to extent of damages, is irrelevant to the presence of injury-
in-fact. While at first blush the project here may appear to be trivial,
the smallest of endeavors can have enormous consequences if
undertaken improvidently. We caution the district court not to yield
to the temptation of necessarily equating the size of the government’s
action with its potential for injury.
Finally, the fact that the Pyes’ aesthetic concerns pertaining to the
integrity and cohesiveness of the historic district and individual sites
are also widely held by the populace of the County does not render
them any less concrete and particularized as to the Pyes. The Supreme
Court has held that aesthetic and environmental injuries can constitute
an injury in fact sufficient to support a plaintiff’s standing. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 68
U.S.L.W. 4044, 4049 (2000) (citing Sierra Club v. Morton, 405 U.S.
727, 735 (1972)); Duke Power Co. v. Carolina Envtl. Study Group,
438 U.S. 59, 73-74 (1978) (environmental and aesthetic consequences
to lake provided sufficient injury for standing). While it is true that
the Court has stressed that a generalized grievance shared by the pop-
ulation at large cannot be a basis for standing, see Duke Power, 438
U.S. at 80, it is equally true that merely because an injury is widely
held does not necessarily render it abstract and thus not judicially
cognizable. See Federal Election Comm’n v. Akins, 524 U.S. 11, 24
12 PYE v. UNITED STATES

-- 12 of 18 --

(1998) (finding standing for voters alleging participation in the same
elections to question the status of a committee as a political commit-
tee under the statute). So long as the plaintiff himself has a concrete
and particularized injury, it does not matter that legions of other per-
sons have the same injury. See Akins, 524 U.S. at 24. In short, the
Pyes’ injuries do not stem from a "common concern for obedience to
law," Akins, 524 U.S. at 23, but from individual concerns about the
integrity and cohesiveness of historical sites in their own backyard.
In light of the foregoing, we are of opinion that the Pyes have
alleged sufficiently concrete injuries to establish the first prong of the
standing inquiry.6
B.
Because the Pyes established an injury in fact, we turn to a pruden-
tial inquiry to determine whether their injury is within the zone of
interests targeted by the National Historic Preservation Act. The zone
of interests test consists of a two part inquiry: first, determining which
interests the statute at issue arguably protects and second, determining
whether the agency action affects those interests. Tap Pharm. v.
United States Dep’t of Health and Human Servs., 163 F.3d 199, 203
(4th Cir. 1998) (citing National Credit Union Admin., 522 U.S. at
492). The National Historic Preservation Act is a relevant statute
under the Administrative Procedure Act for the purposes of applying
the zone of interests test. See Ely, 321 F. Supp. at 1092 (citing Barlow
v. Collins, 397 U.S. 159, 167 (1970)).
The purpose of the National Historic Preservation Act is to remedy
the dilemma that "historic properties significant to the Nation’s heri-
tage are being lost or substantially altered, often inadvertently, with
increasing frequency." 16 U.S.C. § 470(b)(3). To remedy this prob-
lem, the Act prescribes the section 470f process, which requires fed-
eral agencies with the authority to license an undertaking "to take into
6We note that we do not hold in this case that the violation of a proce-
dural duty is enough to confer standing on an adjacent landowner per se.
Here there is a concrete injury from the completion of the proposed proj-
ect separate from the failure of the government agency to undertake its
duties. As we have shown, the Pyes have met this requirement.
13 PYE v. UNITED STATES

-- 13 of 18 --

account the effect of the undertaking on any . . . site . . . that is . . .
eligible for inclusion in the National Register" prior to issuing the
license. 16 U.S.C. § 470f. In particular, the statute’s regulations
expressly provide that members of the public interested in the impacts
of a federal license on an historic property are to have a reasonable
opportunity to participate in the section 470f procedures. 36 C.F.R.
§ 800.1(a), 800.2(c)(6), (d)(1). The Corps’ own regulations pursuant
to the National Historic Preservation Act require it to "take into
account the effects, if any, of proposed undertakings on the historic
properties both within and beyond the waters of the U.S." 33 C.F.R.
pt. 325 app. C(2)(a) (emphasis added). And we note that that regula-
tion just mentioned authorizes the Corps to condition the permit so as
to minimize harm to the historic sites, which seems to have been
overlooked in this case.
In this case, the Pyes have asserted an interest directly targeted by
the National Historic Preservation Act and its regulations. As adja-
cent, and probably actual, property owners, they are members of the
public concerned with the impact of the Nationwide Permit 14 on a
historic site next to and on their property and want to ensure that the
Corps takes into account the effects of the improved road on that site.
Additionally, the Pyes’ claims are similar to the plaintiffs’ claims in
Society Hill Towers, which the Third Circuit found were asserted
within the zone of interests covered by the National Historic Preserva-
tion Act. See Society Hill Towers, 210 F.3d at 178.
Thus, the National Historic Preservation Act is aimed at the preser-
vation of areas like the sites here, the African-American cemetery and
the Hayne plantation, and expressly provides for interested members
of the public to participate in the permitting process when those areas
may be affected by agency action. See 36 C.F.R. § 800.2(d)(1). As
such, we conclude that the Pyes’ claims are within the zone of inter-
ests protected by the National Historic Preservation Act.
C.
Plaintiffs must also show that their injury is fairly traceable to the
defendant’s conduct. Steel Co., 523 U.S. at 103. The district court
found that the Pyes failed to demonstrate the causation element
because they did not present evidence indicating the extent to which
14 PYE v. UNITED STATES

-- 14 of 18 --

looting would increase once the county improved the road. We dis-
agree with this analysis of the causation requirement.
Plaintiffs’ injury is caused by the improved road, not the existing
road, and but for the improvements on the road authorized by the
Corps’ permit, the injuries the Pyes complain of, an increased proba-
bility of looting and destruction of cohesion in the area, have less
probability of occurring. The improvements must facilitate access,
otherwise the County would not want them. If access is facilitated for
the County, it will also facilitate access for other persons, including
looters. The Trinkley affidavit provided evidence that linked looting
with access to historic sites. While this evidence itself is sufficient to
establish causation, the Pyes’ injury is also directly traceable to the
Corps’ conduct because the Corps failed to consider the Pyes’ input
on the road improvements as required by the National Historic Preser-
vation Act. See Watt v. Energy Action Educ. Found., 454 U.S. 151,
161-62 (1981) (finding that causation element of standing inquiry
existed in case in which agency breached its procedural duties by fail-
ing to consider options raised by plaintiffs).
D.
Lastly, the Pyes must also show that the court can redress their
injury with the requested relief in this case. Steel Co., 523 U.S. at 103.
However, where the plaintiffs validly assert a procedural injury, they
need not meet "the normal standards for redressability and immedi-
acy." Lujan, 504 U.S. at 572 n.7. That is to say, the Pyes need not
establish that their cohesiveness and integrity injuries will be fully
remedied by a favorable decision by the court below, only that there
is a procedural remedy by which the plaintiffs’ concerns may be aired
before the agency.
The National Historic Preservation Act Section 470f regulations
give the Pyes an affirmative right to participate in the permitting pro-
cess as consulting parties. 36 C.F.R. § 800.2(c)(6), (d)(1). The Army
Corps is required to "take into account" the effects of the issuance of
the permit on historic sites prior to making its final decision. 16
U.S.C. § 470f. In evaluating these effects, the Corps must seek the
views of interested parties, including the Pyes and the Advisory
Council, in (1) identifying historic properties potentially affected by
15 PYE v. UNITED STATES

-- 15 of 18 --

granting the permit, (2) assessing whether those resources will be
adversely affected by granting the permit, and (3) seeking ways to
avoid and reduce harm to the affected resources. 36 C.F.R.
§§ 800.4(a)(3), 800.5(a)(1-2)(vii), 800.5(d)(2). While the Pyes allege
concerns about future development, they also raise concerns about the
effect of the improved road itself, including the looting and destruc-
tion of the area’s cohesiveness that would be considered if the Corps
followed the National Historic Preservation Act’s mandates. Thus, we
may redress the Pyes’ injury by requiring the Corps to comply with
the procedures required by the National Historic Preservation Act.7
See Catron City Bd. of Commrs. v. United States Fish and Wildlife
Service, 75 F.3d 1429, 1433 (10th Cir. 1996) (finding that court could
redress environmental injuries by requiring federal officials to assess
environmental impacts of project and potential alternatives). We
therefore conclude that the Pyes have established the redressability
requirement for standing.
III.
We do not address the Pyes’ additional argument for standing as
private attorneys general because we find that the plaintiffs have
standing on other grounds.
IV.
The Pyes have adequately and amply established that they have
been injured by the actions of the Corps in a concrete and particular
way, that they are within the zone of interests served by the National
Historic Preservation Act, and that their grievances are likely to be
redressed by a favorable decision in this case. Therefore, the Pyes
have demonstrated standing to bring the underlying suit, and we so
hold.
7We note that the plaintiffs need not show that the result of the agen-
cy’s deliberations will be different if the statutory procedure is followed.
See Akins, 524 U.S. at 25. It is enough that Pyes be allowed to participate
as consulting parties along with the Advisory Council and that the Corps
exercise its powers lawfully.
16 PYE v. UNITED STATES

-- 16 of 18 --

The judgment of the district court is vacated and the case remanded
for proceedings not inconsistent with this opinion.
VACATED AND REMANDED
17 PYE v. UNITED STATES

-- 17 of 18 --

18 PYE v. UNITED STATES

-- 18 of 18 --