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Christopher, 49 F. National Capital Planning Comm'n, F. Thornburgh, F. 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 See, e.

ICC, F. Hughes, F. Skinner, F. District of Columbia, F. Curran, U. The most important inquiry is whether Congress specifically intended to create such a right.

Merrill Lynch, Pierce, Fenner Smith v. Redington, U. Watt, F. The existence of a statutory provision 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. Dep't of Transportation, F. Secretary of Housing and Urban Development, F. 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, U. 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 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 subchapter, 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.

The House Report states that "the intent [of Section ] 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.

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.

See Citizens to Preserve Overton Park v. Volpe, U. Indeed, the NHPA explicitly instructs agencies to undertake preservationist activities that are "consistent with [their] mission.

Assessing the nature of the Army's mission is, of course, particularly within the scope of that Department's expertise. 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.

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.

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.

In this case, 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 of the NHPA.

Accordingly, the Court will review the Army's actions under the arbitrary and capricious standard of the Administrative Procedure Act, 5 U.

Defendants have moved to strike the affidavits of Bonnie Rosenthal, Pls. These affidavits are all dated April and describe the effects of deterioration on the buildings in the Historic District.

Exhibits 44 and 45 include photographs of the District. Pls' Ex. Defendants argue that under the APA the Court cannot consider information that was not before the agency at the time the decision was made.

Plaintiffs argue that the affidavits and the EDAW study demonstrate the effects of the Army's neglect. Supplementation of the administrative record may be appropriate in a number of circumstances, in particular where "evidence arising after the agency action shows whether the decision was correct or not; in cases where agencies are sued for failure to take action; in cases arising under the National Environmental Policy Act; and in cases where relief is at issue, especially at the preliminary injunction stage.

Yeutter, F. This case presents several reasons for supplementation: plaintiffs challenge the correctness of Walter Reed's decisions; they are suing Walter Reed for its failure to take action; evidence of deterioration arose during and after Walter Reed's various decisions affecting the Historic District; and defendants themselves rely on the similarities between Section of the NHPA and NEPA.

In addition, there are substantial issues regarding the appropriate relief and plaintiffs have requested a preliminary injunction.

Accordingly, plaintiffs' affidavits regarding the deterioration of the District are properly considered by the Court and they will not be stricken.

It provides:. The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State.

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 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.

Section provides in relevant part:. 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 a g of this title, any preservation, as may be necessary to carry out this section.

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 f [Section ] of this title.

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 Plaintiffs would have the Court interpret Section 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 and other subsections of Section Only one court has come close to ruling on this interpretive question.

See North Oakland Voters Alliance v. Defendants reply that all of the requirements of the NHPA, including those in Section , 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 and 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.

They also rely on Waterford Citizens' Assoc. Reilly, F. Each of these cases, however, focuses on the language of Section and does not address the effect, if any, of the seemingly more substantive language of Section Indeed, most courts discuss the obligations of Section and the Act as a whole as if they were interchangeable.

Section of the NHPA requires that agencies give the Advisory Council on Historic Preservation a reasonable opportunity to comment on any "undertaking" that will "adversely affect" a listed property.

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.

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 Different circuits describe the Section process as imposing more or less stringent or limited obligations upon agencies.

Compare United States v. Nevertheless, Section 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 Council on Historic Preservation and whether it did so at that time.

The Historic District was listed in the National Register in The Army decided not to excess the Historic District as early as and cemented that initial decision in despite having acquired additional information.

Yet, no "Section Report" was prepared until , and that was done in connection with the preparation of a revised Master Plan in Furthermore, there were no consultations with the relevant boards, commissions and historic trusts until , and the revised Master Plan was not finally modified and approved until 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 there was no "undertaking" on which to comment. Plaintiffs assert that the Army's failure to maintain the Historic District since at least , when the Army made its decision not to excess the District, constitutes "demolition by neglect" that warrants relief.

Master Plans are general planning documents, see supra note 4, and do not trigger the Section consultation process.

The Maryland Historical Trust itself has stated that the preparation of a Master Plan does not constitute an undertaking. Although plaintiffs do not expressly concede this point, see Pls.

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. NAACP v. The explicit terms of Section , however, require a finding not just of agency "action" but of an "undertaking" — that is, "a project, activity, or program.

An agency's failure to act, without more, is not an "undertaking" under Section ; indeed, if it were there would be a constant and ongoing requirement for ACHP comment and consultation.

On the other hand, an undertaking includes any "activity. Thus, the NHPA contemplates a certain level of agency vigilance even in the absence of a specific new project.

For example, Section procedures must be "applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals.

Pierce, F. Harris, F. Even the Army recognizes that such ongoing and routine activities as maintenance and repair may rise to the level of undertakings.

Army Regulation , Glossary-3 May 15, , Pls. Accordingly, the analysis turns on the nature of the projects, activities and decisions that properly trigger Section review.

While Section of the NHPA and NEPA are not identical, many courts fruitfully compare them, and their similarities shed light on the issue of agency action and inaction.

See McMillan Park Committee v. In passing the NHPA, Congress inserted historic preservation concerns into all aspects of agency decision making by requiring agency heads to "take into account the effect of [any] undertaking" on historic buildings and structures, 16 U.

Both statutes require the government to conduct certain procedural and informational activities before embarking on projects that might affect, respectively, historic sites or the environment.

Neither NEPA nor Section mandates a particular outcome of governmental decisions; rather each defines the processes by which those decisions must be made.

See Apache Survival Coalition v. United States, 21 F. Marsh, F. The obligation to prepare an environmental impact statement under NEPA is triggered by the proposal of a "major federal action," 42 U.

Defenders of Wildlife v. Andrus, F. Sierra Club, U. In Defenders of Wildlife, the court ruled that the Secretary of the Interior's inaction — specifically, his failure to exercise his power to prevent the State of Alaska from killing wolves — did not constitute a "federal action" requiring the preparation of an environmental impact statement.

In , the Army decided not to excess the Historic District because the costs were too high and the process would take too long. This was not a mere failure to prevent another entity from taking action, cf.

Sheridan Kalorama Historical Assoc. Indeed, the record is replete with evidence attesting to the consideration given over the years to the decision whether to excess the District, and defendants acknowledge that an affirmative decision was made in not to do so.

Yet there were no Section consultations with the Advisory Council on Historic Preservation, the National Capital Planning Commission or the various Maryland state agencies about the overall disposition of the Historic District until The Court concludes that the decision not to excess the District was an undertaking under Section It therefore should have been made in consultation with the Advisory Council on Historic Preservation.

Plaintiffs contend that Walter Reed not only disregarded the Section consultation process but also violated the substantive mandate contained in Section to repair and maintain the buildings in the District.

Agency obligations under Section , however, are far less defined than those under Section , and the parties vigorously disagree as to their scope and effect.

The contested language of Section reads as follows: "Each agency shall undertake, consistent with the preservation of such [historic] properties and the mission of the agency and the professional standards established pursuant to section a g of this title, any preservation, as may be necessary to carry out this section.

In addition, each agency "shall ensure" that properties listed in or eligible for the National Register of Historic Places "are managed and maintained in a way that considers the preservation of their historic [and] architectural.

In this case, the District was listed in the National Register in and the Army's most significant decision was taken in when the Army decided not to excess the District but rather to retain control over it.

That decision, and the ongoing policy thereafter to treat the historic preservation of the District's buildings as a low priority, gave rise to much of the deterioration now complained of by plaintiffs.

See Survey at 3, A. The meaning of Section is not clear on its face. On the one hand, the use of the word "shall" in Sections a 1 and 2 suggests that agencies have a mandatory obligation to engage in preservation, separate and apart from their obligations under Section On the other hand, the section refers several times to the Section consultation process and uses the word "consider" three times in describing an agency's responsibilities.

It also provides that the agency must act consistent with its "missions and mandates. Reading the section as a whole, this suggests that Section represents an elucidation and extension of the Section process but not its replacement by new and independent substantive obligations of a different kind.

Although the District of Columbia Circuit has interpreted the NHPA on several occasions, none of its decisions has addressed the scope of Section a or the federal government's obligations thereunder.

Rather, the cases that have reached our court of appeals have either primarily concerned the scope of Section or dealt with projects undertaken by non-federal entities.

In Lee v. The court concluded that the requirements of the Act "are triggered only when approval or financial assistance from a federal agency are involved.

The court recognized that "Congress intended these provisions to have a limited reach; they are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.

While the court construed two subsections of Section although not subsection a at issue here , it did so specifically in order to answer the question of whether the statute applied to the District of Columbia project at all.

As a result, the court did not describe what the federal government's obligations would have been under Section a if that section of the statute had in fact been implicated.

In McMillan Park Committee v. In Sheridan Kalorama Historical Assoc. While each of these decisions might be read to imply that the only obligations imposed by the NHPA flow from Section because the court did not mention any obligation arising under Section , the Court declines to infer such a sweeping conclusion from the mere absence of discussion.

The legislative history of Section , which was added to the NHPA in , provides limited guidance as to the section's purposes. See H.

The House Report describes the aims of Section in relevant part as follows:. The new Section clarifies and codifies the minimum responsibilities expected of Federal agencies in carrying out the purposes of this Act.

It is not intended to change the preservation responsibilities of Federal agencies as required by any other laws, executive orders or regulations, nor limit the President's authority to specify additional responsibilities.

Section a 1 requires a Federal agency to assume preservation responsibilities for properties owned or under the control of the agency.

It is intended that the degree of preservation responsibility be commensurate with the extent of the agency's interest in or control of a particular property.

Agencies are further directed to undertake such preservation as may be necessary including rehabilitation, documentation, etc.

Section d requires that, consistent with their missions and mandates, all Federal agencies will carry out their programs. It is recognized that most Federal agencies have a primary purpose other than historic preservation; however, it is reasonable to expect that they also view themselves as multiple resource managers responding to diverse economic, social and environmental concerns — including the concerns of historic preservation.

Section f establishes a higher standard of care to be exercised by Federal agencies when considering undertakings that may directly and adversely affect National Historic Landmarks.

Agencies are directed to undertake, to the maximum extent possible, such planning and actions as may be necessary to minimize harm to such a landmark and to provide the Advisory Council on Historic Preservation a reasonable opportunity to comment on such proposed actions.

This section does not supersede Section , but complements it by setting a higher standard for agency planning in relationship to landmarks before the agency brings the matter to the Council.

The Court concludes that Section a cannot be read to create new substantive preservationist obligations separate and apart from the overwhelmingly procedural thrust of the NHPA as described by every court that has considered the Act.

In interpreting other subsections of Section , the D. The court pointed out that when Section was added to the NHPA in , Congress made clear that the new section "is not intended to change the preservation responsibilities of Federal agencies as required by any other laws, executive orders or regulations.

Plaintiffs' interpretation would create vast new preservationist responsibilities unrelated to the consultation provisions of Section to which the rest of Section constantly refers.

Indeed, under plaintiffs' theory, Section would replace Section as the heart and soul of the NHPA, requiring an agency to spend money on historic preservation regardless of whether it was engaged in or contemplating an undertaking.

Nothing in the statute or the legislative history suggests that Congress intended to alter the nature of the NHPA in such a fashion when it amended it in , and the Court finds that Congress had no such intention.

The guidelines promulgated by the Secretary of the Interior support this interpretation. The Section Guidelines state that "[t]he basic purpose of section a 1 is to cause agencies when planning or carrying out their programs, to consider whether there are ways that the use of historic properties can be effectively integrated into such programs so as to advance program purposes while preserving or even enhancing the integrity of the properties.

The Guidelines further explain:. Section a 1 also requires agencies to "undertake, consistent with the preservation of such properties and the mission of the agency.

Preservation plans should be developed for historic property types that the agency knows it has under its jurisdiction or control.

In managing historic properties, agencies should consider a variety of factors in addition to, but not in lieu of, the significant element or elements of the properties which qualify them for inclusion in the National Register.

The Section Guidelines require the development by agencies of historic preservation plans and list a variety of factors that agencies "should consider" in establishing such plans and in managing historic properties.

Nowhere, however, do they state that agencies have an affirmative obligation to spend money to preserve historic buildings.

Rather, the entire thrust of the Guidelines is to channel agency decisionmaking in an informed preservationist direction consistent with the agency's mission.

Since the NHPA expressly delegates the responsibility for promulgating such guidelines to the Secretary of the Department of the Interior, the Secretary's interpretation of Section is entitled to substantial deference from the Court.

Lyng v. Payne, U. Reich, 11 F. Walter Reed's obligations under Section are further defined by the Army's own regulations.

Army Regulation , promulgated in in compliance with the NHPA and various of the Secretary of the Interior's regulations and guidelines for historic preservation, provides in detail for the preparation of a Historic Preservation Plan "HPP" as the main mechanism by which the Army is to comply with the requirements and implementing regulations of Sections and of the NHPA.

Army Regulation also provides guidelines for the programming, staffing, contracting, information management and disposal procedures pertaining to historic properties.

While an agency is entitled to substantial deference when it interprets statutes and regulations whose enforcement is committed to that particular agency, Orengo Caraballo v.

It proposes a detailed protection plan outlining the procedures for maintaining the historic properties, including the procedures to be followed under Section Indeed, plaintiffs concede that the CRMP "provide[s] very specific and detailed guidance for the treatment and protection of the Historic District.

Accordingly, the Court finds that the Army has been in compliance with the Section Guidelines and its own regulations since when the CRMP was created and officially adopted.

By contrast, the Master Plan, like the earlier Master Plans, devotes a single general section to the Historic District and does not reflect the substantial level of consideration and analysis required by the Section Guidelines.

Plaintiffs assert that the CRMP was only a draft and was never formally approved or adopted by the Army, but the portions of the record to which they cite do not support that assertion.

Deposition of Henry Henley "Henley Dep. For their part, defendants point to nearly three million dollars that have been spent on the Historic District since , nearly two million of which was spent since when the CRMP was promulgated.

See note 8, supra. While it is true that the CRMP calls for two million dollars to be spent specifically on roof repair and maintenance, money that does not appear to have been allocated, the Army has explained that those funds, while originally available, were diverted to other Army projects and that Walter Reed continues to seek funding.

The Court concludes that since Walter Reed has formally complied with Army Regulation by creating and adopting the CRMP, has spent substantial sums of money on repair, maintenance and preservation activities although obviously not enough to avoid significant deterioration and continues to make efforts to obtain additional funding to carry out its obligations under the CRMP, Walter Reed has complied with the Secretary's Guidelines and its own regulations.

Its manner of doing so cannot be said to be arbitrary and capricious. From until , however, Walter Reed was in compliance neither with Section nor with its own regulations.

Defendants have identified no documents in the administrative record that demonstrate that Walter Reed engaged in a deliberate, considered decisionmaking process to assess, consider and plan for the preservation needs of the Historic District during that period.

Until the CRMP was adopted in , the only planning document to make any reference to the historic needs of the District at all was the Master Plan of , A.

See Def. The fixed entities are the things inasmuch as they are nonexistent in themselves but known to God; the existent entities are the exact same things inasmuch as they have been given a certain imaginal or delimited existence by the engendering command.

On the contrary, He never ceases seeing it. He continues:. Nonetheless, he tells us that he avoids using it in reference to God because God does not use it to name himself.

For example:. At first he seems to be talking in the standard Avicennan language of necessity and possibility, but then he brings up the notion of barzakh to explain how these two can be interrelated.

Things, he says, can be divided into three sorts. The Third Thing, however, never became established as a technical term, in contrast to the synonym that he mentions in this same passage, the Reality of Realities, also called the Universal Reality and the Muhammadan Reality.

He has in view a version of the Tree of Porphyry, though he never uses the expression: Each individual leaf is a member of a species twig , which in turn belongs to a genus branch , and so on, until all are eventually subsumed under the genus of the genera, the Reality of Realities.

This Reality is neither the Necessary Being nor the cosmos. In God it is the divine knowledge of all things, and as such is eternal; in the cosmos, it is the ever-changing totality that is temporal creation.

As for the Reality of Realities, it is the First Entification, because all other entifications follow in its wake. Both schools of thought also had a great deal to say about the Return, which was viewed in two respects: compulsory and voluntary.

From the standpoint of the compulsory Return, the cosmos unfolds following its own ineluctable laws, and human beings go back to God in a series of stages that mirror the stages of cosmogenesis.

From the standpoint of the voluntary Return, free will allows human beings to play a role in determining the trajectory of their own becoming.

To a certain degree they are co-creators of their own souls and the posthumous realms, which are experienced in karmic terms, that is, as the result of a chain of causality set in motion by their own individual understandings, character traits, and activities.

They had little to say about the actual nature of the soul, the structure of the cosmos, or the ontological status of the posthumous realms.

Origin and Return became major themes in both schools of thought, but, in contrast to the philosophers, Sufis highlighted the exemplary role of Muhammad.

In Arabic the word qaws or bow, like Latin arcus , also means the arc of a circle, so the two bows can be understood as two arcs.

Twenty-one of these letters correspond to stages of the descending arc, which reaches its lowest point with the four elements. The remaining letters designate the stages of the ascending arc, beginning with minerals, going on to plants, animals, angels, and jinn, and then on to man, the twenty-seventh letter.

The decisive difference between animals and humans lies not in speech or rationality, but rather in the fact that man was created in the form of God per se, that is, God as designated by the all-comprehensive name.

Everything else was created under the care of less comprehensive names. The human microcosm has the potential to realize—that is, to actualize the reality of—everything present in the Book of the Cosmos and the Book of Scripture.

It is at that point that the circle of existence is completed, the dividing line disappears, and the imaginal distinction between Real and creation is effaced.

Human embodiment at the visible level represents an essential stage in the manifestation of the Reality of Realities, but realization of that Reality takes place within the soul, that is, on the imaginal and spiritual levels.

The possibilities of manifestation represented by plants and animals are relatively limited; external appearance reveals their secrets to observers, and no one confuses a cabbage with a carrot, or a horse with a donkey.

But such is not the case with human beings, whose external uniformity conceals an unlimited inner diversity.

Rather, he wants to delineate the broad contours of the perfections of deiformity, for it is these that lead to harmony with the Real in the posthumous realms.

Even on this level, however, it is impossible even to enumerate these perfections, given that, as he tells us, their archetypes number ,, in keeping with the number of prophets from the time of Adam.

God addresses this command to all existent things without exception, and everything is obedient to it. It provides no way to distinguish between right and wrong, good and evil, better and worse, because all things are exactly what they must be.

Everything manifests the Real, al-Haqq , and each is a specific face of God with its own haqq. Guidance is precisely the function of the prophets, by means of whom God issues commandments and prohibitions.

The engendering command brings the cosmos into existence, but the divine attributes demand much more than life, awareness, desire, power, and other qualities that are presupposed by the existence of minerals, plants, and animals.

Among the ontological possibilities actually present in the Essence and actually manifest in the universe are mercy, love, compassion, forgiveness, justice, fairness, wisdom, and many other moral and ethical traits whose significance only becomes clear in human activity and interactions.

All these are ontological qualities, but, in order for them to become fully manifest, the engendering command must give rise to the prescriptive command, which instructs people in the haqq of love, mercy, beneficence, kindness, and other traits.

Becoming rightly characterized by the divine names does not happen simply by the natural course of events; it calls for the engagement of the will.

By making guidance available, the prescriptive command also provides the possibility of error and misguidance.

It is the occasion, in other words, for the actualization of various possibilities of being and becoming that are demanded by divine attributes such as severity, wrath, pride, and vengeance, not to speak of forgiveness and pardon.

Distinguishing between the two commands allows us to grasp the difference between fact and value, between what is and what ought to be.

But these are two sides of the same self-disclosure of Being. By issuing commands and prohibitions, the Real introduces causal factors that force human beings to assume responsibility for what they will become on the moral and spiritual levels.

Without human or analogous, all-comprehensive, free beings , an infinity of ontological possibilities would not find their actualization. Avicenna sums up the philosophical view in a passage found in two of his major works:.

In each stage, the follower meets what Muhammad met in his Night Journey, but the philosopher finds only what his knowledge of the natural world allows him to find; in short, when seekers pass through the ascending realms of the mundus imaginalis , they gain what accords with their own cognitive preparation.

There are countless stations of knowledge and spiritual perfection, and each bestows specific character traits and points of view.

In the same way, he divides Ringstones into twenty-seven chapters, each of which is dedicated to a prophet or sage who is presented as a word or logos kalima embodying the wisdom hikma of a specific divine name.

This is full realization of the Reality of Realities; it embraces all stations and standpoints without being determined and defined by any of them.

Perfect Man, standing in the Station of No Station, is in effect the human analogue of Nondelimited Being, which assumes every delimitation without itself becoming limited.

He also explains it in terms of the contrast between Being and quiddity i. Perfect Man, however, manifests the Real per se, so his whatness is identical with Being, not with this or that.

To put this in another way, Perfect Man is the spirit that animates the cosmos. In a parallel way, he writes in the Openings :.

He uses the expression to explain how the Reality of Realities, or the First Entification, embraces all entifications and thereby becomes manifest in five basic realms.

The first presence is the Reality of Realities in divinis, embracing the divine knowledge of the cosmos.

The fifth presence is Perfect Man in his all-comprehensive deployment, embracing the other four presences in a synthetic whole: his fixed entity is identical with the Reality of Realities, his spirit with the unseen world, his soul with the imaginal world, and his body with the visible realm Chittick In this way of conceiving of man, the role that the Logos plays in giving birth to the cosmos is clear.

Life and Works 2. Methodology 2. Ontology 3. Things and Realities 4. The Return 5. Human Perfection 6. The names of light are diverse in keeping with the names of the faculties….

Smell, taste, imagination, memory, reason, reflection, conceptualization, and everything through which perception takes place are light.

As for the objects of perception… they first possess manifestation to the perceiver, then they are perceived; and manifestation is light…. Hence every known thing has a relation with the Real, for the Real is Light.

It follows that nothing is known but God. The schools have become various and the religions diverse. The Real is sheer Light and the impossible is sheer darkness.

Darkness never turns into Light, and Light never turns into darkness. The created realm is the barzakh between Light and darkness.

In its essence it is qualified neither by darkness nor by Light, since it is the barzakh and the middle, having a property from each of its two sides.

Through one eye and one path he accepts Light and looks upon it in the measure of his preparedness. Through the other eye and the other path he looks upon darkness and turns toward it.

In other words, it can never be withheld. God is saying that He gives constantly, while the loci receive in the measure of the realities of their preparedness.

In the same way, you say that the sun spreads its rays over the existent things. It is not miserly with its light toward anything. The loci receive the light in the measure of their preparedness.

There is no true being that does not accept change except God, for there is nothing in realized Being but God. As for everything other than He, that dwells in imaginal being….

Everything other than the Essence of the Real is intervening imagination and vanishing shadow. No created thing remains upon a single state in this world, the next world, and what is between the two, neither spirit, nor soul, nor anything other than the Essence of God.

Rather, each continuously changes from form to form, constantly and forever. And imagination is nothing but this…. So the cosmos only became manifest within imagination….

It is it, and it is not it. He continues: Every one of the possible entities has a specific divine name that gazes upon it and gives it its specific face, thereby distinguishing it from every other entity.

The possible things are infinite, so the names are infinite, for new relations arrive with the new arrival of the possible things. For example: Through Him we [existent entities] become manifest to Him and to us.

In one respect we are through Him, but He is not through us, since He is the Manifest, and we remain with our own root [i. All this belongs to One Entity, nothing else.

The cosmos becomes manifest from this Third Thing, for this thing is the Reality of the Universal Realities of the cosmos, which are intelligible to the mind….

If you say that this thing is the cosmos, you speak the truth, and if you say that it is the Eternal Real, you speak the truth.

If you say that it is neither the cosmos nor the Real but rather an added meaning, you speak the truth. There is no existent possible thing in everything other than God that is not connected to the divine relations and lordly realities that are known as the Most Beautiful Names.

Therefore every possible thing is in the grasp of a divine reality. He is as it were a barzakh between the cosmos and the Real, bringing together and embracing both creation and the Real.

He is the dividing line between the cosmic and divine levels, like the dividing line between shadow and sunlight.

This is his reality. So he has nondelimited perfection in both new arrival and eternity, while God has nondelimited perfection in eternity and does not enter into new arrival—high exalted is He!

Thus man is all-comprehensive. The cosmos, next to the Real, is something imagined to have existence, not an existent thing. The existent thing and existence are nothing but the Entity of the Real.

When it is removed from imagination, nothing remains but a circle, and the two arcs are not entified. Avicenna sums up the philosophical view in a passage found in two of his major works: The perfection specific to the rational soul is for her to become an intellective world within which is represented the form of the All, the arrangement intelligible in the All, and the good that is effused upon the All….

She turns into an intelligible world, parallel with the entire existent world, and witnesses what is unconditioned comeliness, unconditioned good, and real, unconditioned beauty while she is unified with it, imprinted with its likeness and guise, strung upon its thread, and coming to be of its substance.

Then the bonds—the contingent properties, states, attributes, stations, configurations, acts, and beliefs—are loosened, and he is not confined by any of them.

By his essence he flows in everything, just as existence flows in the realities of all things without end or beginning….

When the Real gave me to witness this tremendous place of witnessing, I saw that its possessor has no fixed entity and no reality. He is the intermediary between the Real and creation….

Were it not for him and the fact that he acts as a barzakh no different from the two sides, nothing of the cosmos would receive the divine, unitary effusion, because of the lack of correspondence and interrelationship.

In a parallel way, he writes in the Openings : The whole cosmos is the differentiation of Adam, and Adam is the All-Comprehensive Book.

In relation to the cosmos he is like the spirit in relation to the body. Hence man is the spirit of the cosmos, and the cosmos is the body. By bringing all this together, the cosmos is the great man, so long as man is within it.

But, if you look at the cosmos alone, without man, you will find it to be like a proportioned body without a spirit.

Elmore trans. Brill, Austin trans. Dagli trans. Yahia ed. Chodkiewicz, W.

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Login or Register. Save Word. Log In. Definition of nettler. 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.

See Citizens to Preserve Overton Park v. Volpe, U. Indeed, the NHPA explicitly instructs agencies to undertake preservationist activities that are "consistent with [their] mission.

Assessing the nature of the Army's mission is, of course, particularly within the scope of that Department's expertise. 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.

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.

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.

In this case, 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 of the NHPA.

Accordingly, the Court will review the Army's actions under the arbitrary and capricious standard of the Administrative Procedure Act, 5 U.

Defendants have moved to strike the affidavits of Bonnie Rosenthal, Pls. These affidavits are all dated April and describe the effects of deterioration on the buildings in the Historic District.

Exhibits 44 and 45 include photographs of the District. Pls' Ex. Defendants argue that under the APA the Court cannot consider information that was not before the agency at the time the decision was made.

Plaintiffs argue that the affidavits and the EDAW study demonstrate the effects of the Army's neglect. Supplementation of the administrative record may be appropriate in a number of circumstances, in particular where "evidence arising after the agency action shows whether the decision was correct or not; in cases where agencies are sued for failure to take action; in cases arising under the National Environmental Policy Act; and in cases where relief is at issue, especially at the preliminary injunction stage.

Yeutter, F. This case presents several reasons for supplementation: plaintiffs challenge the correctness of Walter Reed's decisions; they are suing Walter Reed for its failure to take action; evidence of deterioration arose during and after Walter Reed's various decisions affecting the Historic District; and defendants themselves rely on the similarities between Section of the NHPA and NEPA.

In addition, there are substantial issues regarding the appropriate relief and plaintiffs have requested a preliminary injunction.

Accordingly, plaintiffs' affidavits regarding the deterioration of the District are properly considered by the Court and they will not be stricken.

It provides:. The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State.

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 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.

Section provides in relevant part:. 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 a g of this title, any preservation, as may be necessary to carry out this section.

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 f [Section ] of this title.

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 Plaintiffs would have the Court interpret Section 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 and other subsections of Section Only one court has come close to ruling on this interpretive question.

See North Oakland Voters Alliance v. Defendants reply that all of the requirements of the NHPA, including those in Section , 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 and 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.

They also rely on Waterford Citizens' Assoc. Reilly, F. Each of these cases, however, focuses on the language of Section and does not address the effect, if any, of the seemingly more substantive language of Section Indeed, most courts discuss the obligations of Section and the Act as a whole as if they were interchangeable.

Section of the NHPA requires that agencies give the Advisory Council on Historic Preservation a reasonable opportunity to comment on any "undertaking" that will "adversely affect" a listed property.

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.

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 Different circuits describe the Section process as imposing more or less stringent or limited obligations upon agencies.

Compare United States v. Nevertheless, Section 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 Council on Historic Preservation and whether it did so at that time.

The Historic District was listed in the National Register in The Army decided not to excess the Historic District as early as and cemented that initial decision in despite having acquired additional information.

Yet, no "Section Report" was prepared until , and that was done in connection with the preparation of a revised Master Plan in Furthermore, there were no consultations with the relevant boards, commissions and historic trusts until , and the revised Master Plan was not finally modified and approved until 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 there was no "undertaking" on which to comment. Plaintiffs assert that the Army's failure to maintain the Historic District since at least , when the Army made its decision not to excess the District, constitutes "demolition by neglect" that warrants relief.

Master Plans are general planning documents, see supra note 4, and do not trigger the Section consultation process. The Maryland Historical Trust itself has stated that the preparation of a Master Plan does not constitute an undertaking.

Although plaintiffs do not expressly concede this point, see Pls. 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. NAACP v. The explicit terms of Section , however, require a finding not just of agency "action" but of an "undertaking" — that is, "a project, activity, or program.

An agency's failure to act, without more, is not an "undertaking" under Section ; indeed, if it were there would be a constant and ongoing requirement for ACHP comment and consultation.

On the other hand, an undertaking includes any "activity. Thus, the NHPA contemplates a certain level of agency vigilance even in the absence of a specific new project.

For example, Section procedures must be "applied to ongoing Federal actions as long as a Federal agency has opportunity to exercise authority at any stage of an undertaking where alterations might be made to modify its impact on historic preservation goals.

Pierce, F. Harris, F. Even the Army recognizes that such ongoing and routine activities as maintenance and repair may rise to the level of undertakings.

Army Regulation , Glossary-3 May 15, , Pls. Accordingly, the analysis turns on the nature of the projects, activities and decisions that properly trigger Section review.

While Section of the NHPA and NEPA are not identical, many courts fruitfully compare them, and their similarities shed light on the issue of agency action and inaction.

See McMillan Park Committee v. In passing the NHPA, Congress inserted historic preservation concerns into all aspects of agency decision making by requiring agency heads to "take into account the effect of [any] undertaking" on historic buildings and structures, 16 U.

Both statutes require the government to conduct certain procedural and informational activities before embarking on projects that might affect, respectively, historic sites or the environment.

Neither NEPA nor Section mandates a particular outcome of governmental decisions; rather each defines the processes by which those decisions must be made.

See Apache Survival Coalition v. United States, 21 F. Marsh, F. The obligation to prepare an environmental impact statement under NEPA is triggered by the proposal of a "major federal action," 42 U.

Defenders of Wildlife v. Andrus, F. Sierra Club, U. In Defenders of Wildlife, the court ruled that the Secretary of the Interior's inaction — specifically, his failure to exercise his power to prevent the State of Alaska from killing wolves — did not constitute a "federal action" requiring the preparation of an environmental impact statement.

In , the Army decided not to excess the Historic District because the costs were too high and the process would take too long.

This was not a mere failure to prevent another entity from taking action, cf. Sheridan Kalorama Historical Assoc. Indeed, the record is replete with evidence attesting to the consideration given over the years to the decision whether to excess the District, and defendants acknowledge that an affirmative decision was made in not to do so.

Yet there were no Section consultations with the Advisory Council on Historic Preservation, the National Capital Planning Commission or the various Maryland state agencies about the overall disposition of the Historic District until The Court concludes that the decision not to excess the District was an undertaking under Section It therefore should have been made in consultation with the Advisory Council on Historic Preservation.

Plaintiffs contend that Walter Reed not only disregarded the Section consultation process but also violated the substantive mandate contained in Section to repair and maintain the buildings in the District.

Agency obligations under Section , however, are far less defined than those under Section , and the parties vigorously disagree as to their scope and effect.

The contested language of Section reads as follows: "Each agency shall undertake, consistent with the preservation of such [historic] properties and the mission of the agency and the professional standards established pursuant to section a g of this title, any preservation, as may be necessary to carry out this section.

In addition, each agency "shall ensure" that properties listed in or eligible for the National Register of Historic Places "are managed and maintained in a way that considers the preservation of their historic [and] architectural.

In this case, the District was listed in the National Register in and the Army's most significant decision was taken in when the Army decided not to excess the District but rather to retain control over it.

That decision, and the ongoing policy thereafter to treat the historic preservation of the District's buildings as a low priority, gave rise to much of the deterioration now complained of by plaintiffs.

See Survey at 3, A. The meaning of Section is not clear on its face. On the one hand, the use of the word "shall" in Sections a 1 and 2 suggests that agencies have a mandatory obligation to engage in preservation, separate and apart from their obligations under Section On the other hand, the section refers several times to the Section consultation process and uses the word "consider" three times in describing an agency's responsibilities.

It also provides that the agency must act consistent with its "missions and mandates. Reading the section as a whole, this suggests that Section represents an elucidation and extension of the Section process but not its replacement by new and independent substantive obligations of a different kind.

Although the District of Columbia Circuit has interpreted the NHPA on several occasions, none of its decisions has addressed the scope of Section a or the federal government's obligations thereunder.

Rather, the cases that have reached our court of appeals have either primarily concerned the scope of Section or dealt with projects undertaken by non-federal entities.

In Lee v. The court concluded that the requirements of the Act "are triggered only when approval or financial assistance from a federal agency are involved.

The court recognized that "Congress intended these provisions to have a limited reach; they are aimed solely at discouraging federal agencies from ignoring preservation values in projects they initiate, approve funds for or otherwise control.

While the court construed two subsections of Section although not subsection a at issue here , it did so specifically in order to answer the question of whether the statute applied to the District of Columbia project at all.

As a result, the court did not describe what the federal government's obligations would have been under Section a if that section of the statute had in fact been implicated.

In McMillan Park Committee v. In Sheridan Kalorama Historical Assoc. While each of these decisions might be read to imply that the only obligations imposed by the NHPA flow from Section because the court did not mention any obligation arising under Section , the Court declines to infer such a sweeping conclusion from the mere absence of discussion.

The legislative history of Section , which was added to the NHPA in , provides limited guidance as to the section's purposes. See H. The House Report describes the aims of Section in relevant part as follows:.

The new Section clarifies and codifies the minimum responsibilities expected of Federal agencies in carrying out the purposes of this Act.

It is not intended to change the preservation responsibilities of Federal agencies as required by any other laws, executive orders or regulations, nor limit the President's authority to specify additional responsibilities.

Section a 1 requires a Federal agency to assume preservation responsibilities for properties owned or under the control of the agency.

It is intended that the degree of preservation responsibility be commensurate with the extent of the agency's interest in or control of a particular property.

Agencies are further directed to undertake such preservation as may be necessary including rehabilitation, documentation, etc.

Section d requires that, consistent with their missions and mandates, all Federal agencies will carry out their programs.

It is recognized that most Federal agencies have a primary purpose other than historic preservation; however, it is reasonable to expect that they also view themselves as multiple resource managers responding to diverse economic, social and environmental concerns — including the concerns of historic preservation.

Section f establishes a higher standard of care to be exercised by Federal agencies when considering undertakings that may directly and adversely affect National Historic Landmarks.

Agencies are directed to undertake, to the maximum extent possible, such planning and actions as may be necessary to minimize harm to such a landmark and to provide the Advisory Council on Historic Preservation a reasonable opportunity to comment on such proposed actions.

This section does not supersede Section , but complements it by setting a higher standard for agency planning in relationship to landmarks before the agency brings the matter to the Council.

The Court concludes that Section a cannot be read to create new substantive preservationist obligations separate and apart from the overwhelmingly procedural thrust of the NHPA as described by every court that has considered the Act.

5 thoughts on “Nettler Inne

  1. Ich bin endlich, ich tue Abbitte, aber diese Antwort veranstaltet mich nicht. Kann, es gibt noch die Varianten?

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