case3:14-cv-04916-wha document47 filed01/22/15 page1 of 28 · case no.: cv-14-04916 wha federal...

DEFS.’ MOTION TO DISMISS PLS.’ AMENDED COMPLAINT CASE NO.: CV-14-04916

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JOHN C. CRUDEN Assistant Attorney General Environmental & Natural Resources Division U.S. Department of Justice

MELINDA HAAG (CABN 132612) United States Attorney ALEX G. TSE (CSBN 152348) Chief, Civil Division ERICA BLACHMAN HITCHINGS (MABN 669825) SARA WINSLOW (DCBN 457643) Assistant United States Attorneys

450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6925 Facsimile: (415) 436-7243

KENNETH ROONEY (NM BN 128670) Trial Attorney Natural Resources Section U.S. Department of Justice Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

CITY OF BERKELEY; MAYOR ANDMEMBERS OF THE CITY COUNCILOF THE CITY OF BERKELEY,

Plaintiffs,

v.

UNITED STATES POSTAL SERVICE; PATRICK R. DONOHOE AS POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE; TOM A. SAMRA, VICE PRESIDENT-FACILITIES OF THE UNITED STATES POSTAL SERVICE; DIANA ALVARADO, DIRECTOR, REAL ESTATE, Service PACIFIC REGION,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: CV-14-04916 WHA

FEDERAL DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Date: March 19, 2015 Time: 8:00 am

Case3:14-cv-04916-WHA Document47 Filed01/22/15 Page1 of 28

Case 3:16-cv-04815-WHA Document 12-1 Filed 10/27/16 of 28


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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

I. Factual Background .................................................................................................2

A. Postal Service’s proposal to sell ........................................................................2

B. Purchase and Sales Agreement .........................................................................2

C. Plaintiff’s Lawsuit .............................................................................................3

II. Standard of Review ..................................................................................................4

A. Legal Standard for Federal Rule of Civil Procedure 12(b)(1) ...........................4

B. Legal Standard for Federal Rule of Civil Procedure 12(b)(6) ...........................5

III. ARGUMENT ...........................................................................................................5

A. Hudson McDonald’s Termination of the Purchase and Sales Agreement Renders This Case Moot ....................................................................................6

B. No Exception To the Doctrine of Mootness Applies .......................................10

C. Alternatively, Plaintiffs’ Claims Are Not Ripe ................................................13

D. Even if Plaintiffs’ Claims Are Not Moot, Plaintiffs Cannot Bring An Action to Challenge the Postal Service’s Compliance with NEPA or Section 106, Either Through an Implied Cause of Action or Through the APA ..................15

CONCLUSION ..............................................................................................................................19

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TABLE OF AUTHORITIES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .......................................................................................................................... 14

Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140 (9th Cir. 2000) ........................................................................................................... 18

Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774 (9th Cir. 2012) ............................................................................................................. 14

Alexander v. Sandoval, 532 U.S. 275 (2001) .............................................................................................................. 17, 18, 19

Aluminum Co. of Am. v. Bonneville Power Admin., 56 F.3d 1075 (9th Cir. 1995) ............................................................................................................... 8

Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997) ............................................................................................................. 7

Barrientos v. Wells Fargo Bank, 633 F.3d 1186 (9th Cir. 2011) ............................................................................................................. 6

Biotics Research Corp. v. Heckler, 710 F.2d 1375 (9th Cir. 1983) ............................................................................................................. 6

Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991) ............................................................................................................ 18

Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009) ........................................................................................................... 14

Burlington N.R. Co. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir. 1991) ........................................................................................................... 12

Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) ............................................................................................................. 10

Carlin v. McKean, 823 F.2d 620 (D.C. Cir. 1987) ........................................................................................................... 20

Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011) ........................................................................................................... 14

Chelsea Neighborhood Assoc. v. U.S. Postal Serv., 516 F.2d 378 (2d Cir. 1975) .............................................................................................................. 18

Chelsea Neighborhood Assoc. v. U.S. Postal Serv., 389 F. Supp. 1171 (S.D.N.Y. 1975) .................................................................................................. 19




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Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884 (10th Cir. 2008) ........................................................................................................... 11

City of Los Angeles v. Lyons, 449 U.S. 934 (1980) .......................................................................................................................... 11

Cnty. of Santa Clara v. Astra USA, Inc., 588 F.3d 1237 (9th Cir. 2009) ............................................................................................................. 6

Comm. for Pres. of Seattle Fed. Reserve Bank Bldg. v. Fed. Reserve Bank of S.F., No. 08-1700, 2010 WL 1138407 (W.D. Wash. Mar. 19, 2010) ........................................................ 20

Ctr. for Biological Diversity v. Lohn, 511 F.3d 960 (9th Cir. 2007) ............................................................................................................... 8

Currier v. Potter, 379 F.3d 716 (9th Cir. 2004) ..................................................................................... 16, 17, 18, 19, 20

Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) ............................................................................................................. 7

FDIC v. Meyer, 510 U.S. 471 (1994) .......................................................................................................................... 16

Feldman v. Bomar, 518 F.3d 637 (9th Cir. 2008) ........................................................................................................... 7, 9

Fla. Power & Light Co. v. EPA, 145 F.3d 1414 (D.C. Cir. 1998) ......................................................................................................... 16

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) ............................................................................................................. 8

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) ....................................................................................................... 17, 18

Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 893 F.2d 1012 (9th Cir. 1989) ....................................................................................... 8, 9, 10, 11, 12

Karst Envtl. Educ. & Prot., Inc. v. E.P.A., 475 F.3d 1291 (D.C. Cir. 2007) ......................................................................................................... 17

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ............................................................................................................................ 5

Lewis v. Cont’l Bank, 494 U.S. 472 (1990) ............................................................................................................................ 7

Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449 (9th Cir. 1994) ............................................................................................................... 13



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Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300 (D.C. Cir. 2014) ........................................................................................................... 18

Morongo Band of Mission Indians v. F.A.A., 161 F.3d 569 (9th Cir. 1998) ............................................................................................................. 19

Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) ............................................................................................................. 19

Municipality of Anchorage v. United States, 980 F.2d 1320 (9th Cir. 1992) ........................................................................................................... 15

Native Americans v. U.S. Forest Serv., 60 F.3d 645 (9th Cir. 1995) ............................................................................................................... 13

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) .......................................................................................................................... 14

Nat’l Post Office Collaborate v. Donahoe, No.13-1406, 2014 WL 6686691 (D. Conn. Nov. 26, 2014) ........................................................ 10, 14

Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813 (9th Cir. 1995) ....................................................................................................... 8, 9, 11

Nw. Envtl. Def. Center v. Gordon, 849 F.2d 1241 (9th Cir. 1988) ......................................................................................................... 7, 9

O'Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005) ......................................................................................................... 11

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) .......................................................................................................................... 15

Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ............................................................................................................. 20

Or. Natural Res. Council, Inc. v. Grossarth, 979 F.2d 1377 (9th Cir. 1992) ..................................................................................................... 11, 16

Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895 (9th Cir. 2007) ............................................................................................................... 6

Paulsen v. CNF Inc., 559 F.3d 1061 (9th Cir. 2009) ............................................................................................................. 6

Presidential Gardens Assocs. v. United States ex rel. Sec’y of Hous. & Urban Dev., 175 F.3d 132 (2d Cir. 1999) .............................................................................................................. 16

Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153 (9th Cir. 1998) ........................................................................................................... 19



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Pub. Utilities Comm’n of State of Cal. v. F.E.R.C, 100 F.3d 1451 (9th Cir. 1996) ........................................................................................................... 11

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) ............................................................................................................................ 14

Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) ......................................................................................................... 10

San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005) ..................................................................................................... 18, 19

Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) ............................................................................................................. 8

Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545 (9th Cir. 2009) ............................................................................................................. 10

Snake River Farmers’ Ass’n v. Department of Labor, 9 F.3d 792 (9th Cir. 1993) ................................................................................................................... 9

Spencer v. Kemna, 523 U.S. 1 (1998) .............................................................................................................................. 12

St. Clair v. Chico, 880 F.2d 199 (9th Cir. 1989) ............................................................................................................... 6

Sze v. I.N.S., 153 F.3d 1005 (9th Cir. 1998) ........................................................................................................... 11

Texas v. United States, 523 U.S. 296 (1998) .................................................................................................................... 14, 16

Thompson v. McCombe, 99 F.3d 352 (9th Cir. 1996) ................................................................................................................. 5

Thornhill Pub. Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730 (9th Cir. 1979) ............................................................................................................... 6

Turner v. Rogers, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011) ........................................................................................ 13

United States v. Seminole Nation of Okla., 321 F.3d 939 (10th Cir. 2002) ........................................................................................................... 13

Vega v. JP Morgan Chase Bank, 654 F. Supp. 2d 1104 (E.D. Cal. 2009) ............................................................................................... 6

Vieux Carre Prop. Owners, Residents & Assocs. v. Brown, 875 F.2d 453 (5th Cir. 1989) ............................................................................................................. 18



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Weinstein v. Bradford, 423 U.S. 147 (1975) ........................................................................................................................... 12

Federal Statutes

5 U.S.C. § 704 ........................................................................................................................................... 20

28 U.S.C. § 1331 ...................................................................................................................................... 17

38 U.S.C. § 106 ........................................................................................................................................ 17

38 U.S.C. § 1331 ....................................................................................................................................... 16

38 U.S.C. §§ 409(a) ............................................................................................................................ 16, 17

38 U.S.C. § 410(a) .............................................................................................................................. 17, 18

39 U.S.C. § 106 ......................................................................................................................................... 17

39 U.S.C. § 401 ......................................................................................................................................... 16

39 U.S.C. § 410(a) .............................................................................................................................. 17, 18

Regulations

39 C.F.R. § 241.4(d) ................................................................................................................................. 17

Rules

Fed. R. Civ. P. 12(b)(1) .......................................................................................................................... 5, 6

Fed. R. Civ. P. 12(b)(6) .............................................................................................................................. 6




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INTRODUCTION

Plaintiffs’ claims are moot as a consequence of the prospective buyer’s (Hudson McDonald)

decision to terminate the proposed purchase and sale agreement and this case should therefore

dismissed. It is clear the controversy initially raised concerning the proposed sale has now ceased to

exist and the requested injunctive and declaratory relief to set aside that particular sale can no longer be

given. See Pls.’ Compl., ECF No. 1. That the lawsuit is moot is no less true for Plaintiffs’ Amended

Complaint (ECF No. 46), which now raises much the same National Environmental Policy Act

(“NEPA”) and National Historic Preservation Act (“NHPA”) claims found in the original complaint.

Plaintiffs’ amended request for relief—that this Court “prevent and enjoin” some hypothetical future

sale and a decision to relocate services—ignores the fact that federal court jurisdiction must be based

upon a live case or controversy. And Plaintiffs cannot demonstrate that either the “voluntary cessation”

or “capable of repetition but evading review” exceptions to the mootness doctrine apply.

Plaintiffs’ efforts to salvage their lawsuit by relying on free-floating grievances with the Postal

Service’s NHPA and NEPA determinations also do not present ripe controversies. Absent a final action

to sell the building, the Postal Service’s compliance with either statute has no tangible effects on

Plaintiffs’ existing interests. Should the Postal Service rely on the NHPA and NEPA documents in the

context of any future sale, Plaintiffs may attempt to challenge that final decision in much the same

manner that they challenged the now-terminated sales agreement with Hudson McDonald.

Even if this Court concludes that Plaintiffs’ lawsuit is neither moot nor unripe, their Complaint

fails for the fundamental reason that they have not identified a private right of action to sue the Postal

Service. Congress specifically excepted the Postal Service from the Administrative Procedure Act’s

(“APA”) judicial review provisions, and neither the NHPA nor NEPA provides a private right of action.

Should this Court nonetheless accept Plaintiffs’ contention that the APA does apply and that the Postal

Service took “reviewable final agency action” when it entered into the purchase and sales agreement,

then dismissal is likewise warranted, given that the very basis of any APA review has since been

terminated.



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I. Factual Background

A. Postal Service’s proposal to sell

On March 7, 2012, the Postal Service’s Pacific Area Vice President, Tom A. Samra, signed a

Facility Optimization Study which found that the Berkeley Post Office, located at 2000 Allston Way,

Berkeley, CA was underutilized and costs savings could be achieved by selling the property and

relocating to a smaller facility. Decl. of Diana Alvarado, ¶ 2 (“Alvarado Decl.”) (ECF No. 24). After

consideration of the public input received, the Postal Service announced its decision to relocate retail

services at the Berkeley Post Office in April 2013.1 Alvarado Decl., ECF No. 24, ¶¶ 4-5. In response to

concerns that the Postal Service failed to comply with NEPA and the NHPA with regard to the

relocation of services, the Postal Service pointed out that it “has not yet identified the potential

relocation site and thus it is premature to evaluate potential impacts” under NEPA. ECF No. 24-1 at 2.

The Postal Service also acknowledged that it would engage in Section 106 consultation prior to any sale

of the Berkeley Post Office to consider potential impacts on the identified historic properties. Id.

In or around October 2013, the Postal Service began consideration of a plan in which non-retail

operations would be relocated, while retail services would continue at the Berkeley Post Office

following any sale. Alvarado Decl., ECF No. 24, ¶ 8; Decl. of Joseph D. Lowe, ¶ 3 (“Lowe Decl.”)

(ECF No. 25). That plan was ultimately incorporated into the agreement reached with Hudson

McDonald, discussed below. Id.

B. Purchase and Sales Agreement

In October 2013, the Postal Service’s broker began marketing the Property. The marketing

materials discussed, among other things, the Postal Service’s interest in leasing back 3,500 square feet

on the ground floor for retail operations. Lowe Decl., ECF No. 25, ¶¶ 4-5. In September 2014, the

Postal Service entered into an Agreement to Sell and Purchase the Berkeley Post Office with Hudson

McDonald, LLC. Id. at ¶ 6.

1 In this context, “retail services” refer to the services the Postal Service offered to the general public at this location on a walk-in basis, such as postage sales, and acceptance of mail and parcels for delivery. Non-retail services include mail preparation and other operations incidental to mail processing and delivery.



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The sales agreement included, among other provisions, a leaseback provision requiring the

purchaser to provide for the Postal Service’s continued occupancy of retail space at the Berkeley Post

Office for an initial term of five years, with three five-year renewal options that the Postal Service can

exercise at its sole discretion. Id. ¶¶ 6-7. As a result, the Postal Service concluded there would be little,

if any, change of use for the average postal customer and the public would retain regular access to many,

if not all, of the historic features. Id. ¶ 7d. On December 3, 3014, Hudson McDonald terminated the

Sales Agreement. See Joint Status Report on the Cancellation of the Sales Agreement and Notice of

Withdrawal of the Preliminary Injunction Motion, ECF No. 38, Attachment A (“Termination Letter”).

As a consequence, there is no sale pending.

C. Plaintiffs’ Lawsuit

On November 5, 2014, Plaintiffs filed a Complaint for Declaratory and Injunctive Relief (ECF

No. 1) and a motion for a temporary restraining order and preliminary injunction (ECF No. 3), to enjoin

the named Federal Defendants from completing a sale of the Berkeley Post Office. Plaintiffs’ original

Complaint sought “declaratory and injunctive relief . . . to prevent and enjoin the proposed sale by

defendants of the Berkeley Main Post Office,” Pls.’ Compl., ECF No. 1, ¶ 1. As a basis for review,

Plaintiffs argued that the Postal Service “established reviewable final agency action” when it represented

on its website that “it is now ‘in contract’ to sell the Berkeley Post Office to an undisclosed purchaser.”

Pls.’ Mem. In Supp. Of Temp. Restraining Order and Prelim. Inj., ECF No. 3 at 2; see also id. at 1

(stating in a sub-header that “Entering Into a Sale Agreement Creates a Reviewable Final Agency

Action.”).

Following Hudson McDonald’s cancellation, this Court held a hearing on whether Plaintiffs’

Complaint was rendered moot by that cancellation, and allowed Plaintiffs an opportunity to amend their

Complaint. Plaintiffs amended their Complaint on December 30, 2014. Pls.’ Am. Compl., ECF No. 46.

As currently pled, Plaintiffs’ Amended Complaint requests this Court “prevent and enjoin” the Postal

Service from “implementing [its] decision to relocate and sell the Berkeley Main Post Office.” Id. ¶ 1.

Plaintiffs’ Amended Complaint includes both an NHPA claim, id. ¶¶ 40-46, and a NEPA claim, id. ¶¶

47-56. According to Plaintiffs, unless this Court enjoins the Postal Service from relocating and selling



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the Post Office, Plaintiffs will suffer injury in the form of “loss of service to them and all Berkeley

Citizens of use of the Post Office, loss of access to the architectural and artistic features of its interior

lobby, diminution (if not outright removal) of its contribution to the Berkeley . . .” Id. ¶ 56.

Plaintiffs seek the following relief:

(1) Adjudge and declare that defendants cannot proceed with any relocation or sale of the Berkeley

Main Post Office unless and until the USPS proceeds as required by the NHPA;

(2) Adjudge and declare that defendants cannot proceed with any relocation or sale of the Berkeley

Main Post Office unless and until the USPS fully complies with NEPA, including the preparation of an

environmental assessment and EIS;

(3) Grant an injunction against defendants proceeding with any relocation or sale of the Berkeley

Main Post Office unless and until the USPS proceeds as required by the NHPA; and,

(4) Grant an injunction against defendants proceeding with any relocation or sale of the Berkeley

Main Post Office unless and until the USPS fully complies with NEPA, including the preparation of an

environmental assessment and EIS.

Id. (Prayer for Relief).

II. Standard of Review

Defendant moves to dismiss both Plaintiffs’ NEPA claim and the NHPA claim. Defendants’

motion as to mootness and ripeness is made pursuant to Federal Rule of Civil Procedure 12(b)(1), while

Defendants’ motion to dismiss because Plaintiffs have failed to identify a private right of action is

premised on Rule 12(b)(6).

A. Legal Standard for Federal Rule of Civil Procedure 12(b)(1)

The plaintiff, as the party invoking federal jurisdiction, has the burden of proving its existence.

See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Thompson v. McCombe, 99 F.3d

352, 353 (9th Cir. 1996). A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)

may attack either the facial sufficiency of the allegations of the complaint or the existence of subject

matter jurisdiction in fact. See Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th

Cir. 1979). If, as here, a motion to dismiss challenges subject matter jurisdiction in fact, the court may



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consider materials outside the pleadings. Id. Accordingly, the consideration of evidence concerning the

issue of jurisdiction does not convert a Rule 12(b)(1) motion into one for summary judgment. Biotics

Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). In resolving such factual disputes, the

Court does not presume that the allegations of the complaint are true, and plaintiff maintains the burden

of establishing subject matter jurisdiction through affidavits or other appropriate evidence. See id.; St.

Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).

B. Legal Standard for Federal Rule of Civil Procedure 12(b)(6)

A defense arguing that a statute does not create individually enforceable rights is properly

evaluated as a failure to state a claim. See, e.g., Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186,

1188 (9th Cir. 2011). A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6)

challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank,

N.A., 654 F.Supp.2d 1104, 1109 (E.D. Cal. 2009). The court accepts “all facts alleged as true and

construes them in the light most favorable to the plaintiff.” County of Santa Clara v. Astra USA, Inc.,

588 F.3d 1237, 1241 n.1 (9th Cir. 2009). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the

court “may generally consider only allegations contained in the pleadings, exhibits attached to the

complaint, and matters properly subject to judicial notice.” Outdoor Media Grp., Inc. v. City of

Beaumont, 506 F.3d 895, 899 (9th Cir.2007) (citation and quotation marks omitted). The court is “not,

however, required to accept as true conclusory allegations that are contradicted by documents referred to

in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely

because they are cast in the form of factual allegations.” Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th

Cir. 2009) (citations and quotation marks omitted).

III. ARGUMENT

Plaintiffs’ Amended Complaint presents two possibilities for judicial review: judicial review of

the since-cancelled purchase and sale agreement or judicial review of some future sale governed by an

agreement that has yet to be negotiated (and may very well provide Plaintiffs with the continued postal

services they desire). Neither scenario, however, presents a live case or controversy, as required by

Article III of the Constitution. Any controversy associated with the Hudson McDonald sales agreement



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is now moot, and the case does not present one of the exceptions to the mootness doctrine. Any

controversy associated with some future, hypothetical sale and decision to relocate services is not ripe

for judicial review.

Even if this Court concludes that a live case or controversy exists, the Amended Complaint

suffers from another fatal flaw: Plaintiffs have not identified a cause of action to sue the Postal Service.

The Amended Complaint asserts a right to review under the APA. But Congress has excepted the Postal

Service from the APA’s judicial review provisions and Plaintiffs do not identify any other avenue to

challenge the Postal Service’s NHPA and NEPA compliance. Plaintiffs’ argument that the APA

provides the requisite private right of action and should nonetheless apply also exposes another

significant contradiction: Plaintiffs’ previous contention that the Postal Service’s entry into the

proposed sales agreement was the “reviewable final agency action” runs headlong into Hudson

McDonald’s termination and the well-established principle that the APA provides federal courts with the

limited authority to review agency action so long as it final. There is currently no “final agency action”

to sell the building and, accordingly, Plaintiffs’ Amended Complaint should be dismissed.

A. Hudson McDonald’s Termination of the Purchase and Sales Agreement Renders

This Case Moot.

To maintain jurisdiction over this lawsuit “it is not enough that a dispute was very much alive

when suit was filed;” the controversy must be continuing, ongoing, and persist throughout all stages of

litigation. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Earth Island Inst. v. U.S. Forest

Serv., 442 F.3d 1147, 1157 (9th Cir. 2006). A case becomes moot when an intervening event occurs that

prevents the Court from granting effective relief. Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d

1118, 1123 (9th Cir. 1997); see also Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (quoting Nw.

Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)) (“[t]he basic question in determining

mootness is whether there is a present controversy as to which effective relief can be granted”).

In the context of agency action review, the Ninth Circuit has consistently held that a case

becomes moot when the challenged agency decision at issue is rescinded, superseded or has expired.

See e.g., Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1096 (9th Cir.2003) (challenge to a



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Biological Opinion is moot when opinion has been superseded by a later opinion); Nome Eskimo Cmty.

v. Babbitt, 67 F.3d 813, 815 (9th Cir.1995) (case rendered moot when challenged lease sale was

cancelled due to lack of bids and Department of Interior had no “concrete future plan” to lease portions

of the area); Aluminum Co. of Am. v. Bonneville Power Admin., 56 F.3d 1075, 1078 (9th Cir.1995)

(challenge to an agency decision was moot when challenged record of decision expired). This case is no

different.

Though Plaintiffs previously requested in the original Complaint that this Court “prevent and

enjoin the proposed sale” of the Berkeley Post Office, see Compl. (¶ 1) (emphasis added), and now

amend their complaint to prevent “any relocation or sale,” Am. Compl. (Prayer for Relief), they fail in

their attempt to salvage the complaint. As a result of Hudson McDonald’s decision to cancel the

purchase and sale agreement, there remains no “live” controversy, and therefore no basis for meaningful

relief, whether injunctive or declaratory in nature. See Ctr. for Biological Diversity v. Lohn, 511 F.3d

960, 964 (9th Cir. 2007). The relief that Plaintiffs request illustrates the point.

First, Plaintiffs’ request for injunctive relief is moot because there currently no sale for the Court

to enjoin. See Am. Compl. Prayer for Relief at 19-20 (requesting this Court “[g]rant an injunction

against defendants from proceeding with any relocation or sale . . .”). Any request that this Court

permanently enjoin the Postal Service from entering into some future sale rests on a contingent, and at

this point entirely hypothetical, agreement, the very contours of which have yet to be negotiated. And,

because there is currently no sale, any harm to Plaintiffs—which would be necessary for any injunctive

relief—is simply hypothetical. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir. 2011)

(noting that even in NEPA cases plaintiff must establish it has suffered an irreparable injury before a

court can award permanent injunctive relief). Even an injunctive order for additional studies or further

consultation would still require the impossible showing of how such relief would resolve or mitigate the

harms caused by a sale that may never occur. See Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d

1012, 1015 n.6 (9th Cir. 1989) (distinguishing between cases in which relief could mitigate effects of

legal violation with ongoing and concrete adverse effects and those in which it could not). Thus, there is

no basis for a contention that Plaintiffs are currently harmed in a manner that would trigger federal court



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jurisdiction. Nome Eskimo Cmty., 67 F.3d at 816 (observing that with mootness, similar to

considerations of standing, “[t]he federal courts lack power to make a decision unless the plaintiff has

suffered an injury in fact, traceable to the challenged action, and likely to be redressed by a favorable

decision.”) (citing Snake River Farmers’ Ass’n v. Department of Labor, 9 F.3d 792, 795 (9th Cir.1993)).

Second, Plaintiffs request for declaratory relief is similarly based upon a harm that no longer

exists and is therefore outside the Court’s jurisdiction. See Am. Compl. (Prayer for Relief) (Plaintiffs

request that this Court “adjudge and declare that defendants cannot proceed with any relocation or sale

unless and until the USPS fully complies with NEPA [and the NHPA].”). For the claims for declaratory

relief to be reviewable under Plaintiffs’ apparent theory of the case, Plaintiffs must, despite termination

of the sales agreement, still face a “continuous, remediable harm that concretely affects their ‘existing

interests.’” Feldman, 518 F.3d at 643 (quoting Headwaters, 893 F.2d at 1015)). Where courts have

concluded that declaratory relief would nonetheless remedy the alleged harm, the “common thread”

throughout these cases was that “the violation complained of may have caused continuing harm and . . .

the court can still act to remedy such harm by limiting its future adverse effects.” Feldman, 518 F.3d at

643 (citing Nw. Envtl. Def. Ctr., 849 F.2d at 1244). No such situation exists here.

The Ninth Circuit was faced with similar circumstances in Nome Eskimo Cmty., where the

plaintiff challenged the government’s proposed sale of leases for gold dredging. Plaintiffs filed their

lawsuit a month after bidding was opened and on the last day on which bids were due. The government

did not receive any bids, and the leasing attempt failed independently of the lawsuit. The Court

observed that “[i]n the absence of any present or concrete future plans to lease portions” of the

challenged area, the plaintiffs’ claims were moot. 67 F.3d at 816. In the Court’s view, it would be

impossible to determine the issue of the agency’s purported infringement of plaintiffs’ rights “without

first knowing the scope and nature of the proposed lease activity.” Id. at 816.

Such is the case here. Plaintiffs have provided no explanation for how the harms to which they

cite—viz. loss of service within this Post Office and the potential loss of access to the architectural and

artistic features of the lobby, Am. Compl., ECF No. 46, ¶ 56—continue in the absence of a sales

agreement. Indeed, the alleged harms may well be mitigated or altogether avoided by a future purchase



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and sale agreement that retains retail services in the present location and allows the public regular access

to the historic features. See Lowe Decl., ECF No. 25, ¶ 7. Much like Nome Eskimo Cmty., therefore,

neither Plaintiffs nor this Court can identify the tangible harms required under the Ninth Circuit’s

standard without first knowing the scope and nature of any hypothetical future sale.

The hypothetical future “relocation and sale” upon which Plaintiffs rely does not constitute the

type of substantial controversy between the parties that is “of sufficient immediacy and reality” such that

a judicial declaration would provide meaningful relief. See Lohn, 511 F.3d at 963. How exactly the

Postal Service will address any future sale is simply “too uncertain, and too contingent” upon the Postal

Service’s discretion “to permit declaratory adjudication predicated on prejudice on [Plaintiffs’] ‘existing

interests.’” See Headwaters, Inc., 893 F.2d at 1016; Siskiyou Reg'l Educ. Project v. U.S. Forest Serv.,

565 F.3d 545, 558 (9th Cir. 2009). If the Postal Service decides to relist the property, and if a buyer

emerges on terms acceptable to the Postal Service, it would need to undertake a variety of actions—

including ensuring that the sale complies with NEPA and the NHPA.

The concern that the Postal Service will attempt to “hide behind the mootness doctrine” simply

does not exist in this case. Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001). To the

extent the Postal Service enters another sales agreement at some future point, Plaintiffs can then attempt

to raise any challenges they may have to that specific project in much the same manner as they did here

and other plaintiffs have in similar actions, such as National Post Office Collaborate v. Donahoe, No.

3:13-cv-1406, 2014 WL 6686691 (D. Conn. Nov. 26, 2014) (challenging the Postal Service’s entry into

a sales agreement for a post office in Connecticut). But the prospect of this possible future litigation

does not provide a basis for Plaintiffs’ complaint that is no longer grounded in a “concrete and

particularized factual context” but instead rests on a “free-floating, ethereal grievances.” Rio Grande

Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).

B. No exception to the doctrine of mootness applies

There are two recognized exceptions to the mootness doctrine. The first is for the voluntary

cessation of allegedly unlawful conduct; the second pertains to conduct that is “capable of repetition yet



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evading review.” See City of Los Angeles v. Lyons, 449 U.S. 934, 935 n.1 (1980). Neither exception

applies here.

The “voluntary cessation of allegedly illegal conduct” exception does not apply on its face

because the termination of the sales agreement was a consequence of a decision by the potential buyer,

not the Postal Service. See Termination Letter, ECF No. 38. For the exception to apply, “the

defendant’s voluntary cessation must have arisen because of the litigation.” Pub. Utilities Com'n of

State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir. 1996) (emphasis in the original) (citing Nome

Eskimo Cmty., 67 F.3d at 816); see also Sze v. I.N.S., 153 F.3d 1005, 1008 (9th Cir. 1998) (same). A

third party’s termination of an agreement that affects the agency action subject to challenge does not

provide grounds for application of the voluntary cessation doctrine. See Or. Natural Res. Inc. v.

Grossarth, 979 F.2d 1377, 1379 (9th Cir. 1992) (finding that the agency’s cancellation of the timber sale

“was not a voluntary cessation within the meaning of that doctrine, but was instead the result of the

[plaintiff’s] successful administrative appeal.”); Chihuahuan Grasslands Alliance v. Kempthorne, 545

F.3d 884, 893 (10th Cir. 2008) (finding “[n]othing in the record presented to us indicates the BLM’s

termination of the leases at issue constitutes a ‘voluntary cessation’ of illegal conduct,” but instead

concluding that “the terminations for nonpayment resulted from the actions of a third party . . . .”);

O’Connor v. Washburn Univ., 416 F.3d 1216, 1222 (10th Cir. 2005) (“A defendant cannot be said to

have voluntarily ceased allegedly illegal conduct where, as here, the controversy has become moot

through the normal course of events rather than through the unilateral action of the defendant.”).

Nor can Plaintiffs argue that the “capable of repetition, yet evading review” exception can save

their claims. The “repetition/evasion” exception “is a narrow one, and applies only in ‘exceptional

situations’” that are not present here. Headwaters, 893 F.2d at 1016. Under this exception, federal

courts may exercise jurisdiction over otherwise moot matters when: 1) there is a reasonable expectation

that the same complaining party would be subjected to the same action again; and 2) the challenged

action is so short in duration that it cannot be fully litigated prior to its cessation or expiration. Id.

(citations omitted). The Supreme Court has stated that the exception applies only in exceptional




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situations, and only when both factors are present. Spencer v. Kemna, 523 U.S. 1 (1998); see also

Weinstein v. Bradford, 423 U.S. 147 (1975). Plaintiffs cannot demonstrate the presence of either.

First, there is no reasonable expectation that the Postal Service will reach an agreement for the

sale of the building, let alone with this specific buyer under the same terms of the cancelled purchase

and sales agreement.2 Burlington Northern R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1244 (9th

Cir. 1991) (“A case becomes moot when a court cannot grant effective relief, and where it is unlikely

that the precise conditions of the case could ever recur.”) (emphasis added). Indeed any argument that

the alleged harms will recur is particularly ironic given the lengths to which Plaintiffs have gone to

prevent any relocation and sale. For example, on September 30, 2014 (after the Postal Service had

entered into the purchase and sale agreement), the City of Berkeley adopted City Ordinance No. 7,370-

N.S. (“Ordinance”), which added Chapter 23E.98, Civic Center District Overlay, to the Berkeley

Municipal Code. The Ordinance creates a far more restrictive zoning overlay in the Civic Center

District, a small, nine-parcel section of Berkeley’s downtown, which includes the Post Office. The

zoning overlay now prohibits all residential and most private commercial uses of property within the

District. The zoning overlay goes so far as to permit only the following new uses in the Civic Center

District: libraries; judicial courts; museums; parks and playgrounds; public safety and emergency

services; government agencies and institutions; public schools/educational facilities; non-profit cultural,

arts, environmental, community service and historic organizations; live performance theatre; and a

public market. Id. § 23E.68.030; Berkeley, Cal., Downtown Area Plan LU-3 (2012). Indeed, every

indication suggests that the establishment of the Civic Center District zoning overlay was explicitly

designed to prevent the Postal Service’s sale of, and relocation of services from, the Post Office.3 Any

2 Plaintiffs contend that the Postal Service continues to list the Berkeley Post Office for sale. Am. Compl., ECF No. 46, ¶ 39 (relying on http://www.uspspropertiesforsale.com). Not so. That listing is no longer on the site. See Second Decl. of Joseph D. Lowe (“Second Lowe Decl.”) ¶ 3 (attached). 3 In a July 16, 2013, memorandum from City Councilmember Jesse Arreguin to the Mayor and fellow Councilmembers, Mr. Arreguin states that “[t]he establishment of a Civic Center District zoning overlay will not only limit uses of properties in the district to those consistent with the character of the district, but it will also ensure that the Downtown Post Office can only be utilized for a civic or community-oriented use, and may help influence the USPS to decide a more favorable future for the building.” Agenda for Oct. 2, 2013, meeting of the City of Berkeley Planning Commission (page 15),



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future decision to relist the property is further complicated by the size, scale, and scope of the type of

sale here and the limited universe of prospective buyers amenable to such a purchase. See Lowe Decl. ¶

4. Thus, both the City’s enactment of an ordinance specifically designed to thwart the Postal Service’s

efforts to sell the building, as well as the Postal Service’s conclusion that it requires additional time to

consider the financial and operational implications of maintaining retail service at the Berkeley Post

Office, underscore that any future recurrence of Plaintiffs’ alleged injuries is speculative at best. See

Second Lowe Decl, ¶ 4.

Second, even if there were a “reasonable expectation” Plaintiffs would be subjected to the same

agency conduct it complains of here, there is no basis for finding that the underlying action would be

certain to “run its course” before this Court could give the case its full consideration. Miller v. Cal. Pac.

Med. Ctr., 19 F.3d 449, 453–54 (9th Cir.1994). The inquiry turns on whether something inherent exists

in the nature or structure of the governmental action that makes it necessarily of short duration. See e.g.,

Turner v. Rogers, 131 S.Ct. 2507, 2515, 180 L.Ed.2d 452 (2011) (imprisonment for a statutory

maximum of one year for civil contempt); United States v. Seminole Nation of Okla., 321 F.3d 939, 943

(10th Cir. 2002) (temporary regulatory orders that by statute cease to be in effect no later than ninety

days after issuance). For example, the Ninth Circuit in Native Americans for Enola v. U.S. Forest Serv.,

concluded that an NHPA challenge to a Forest Service permit was moot and did not fall within the

aforementioned exception because permits issued by the Forest Service “are not inherently of such short

duration that challenges to their validity will go unreviewed.” 60 F.3d 645, 646 (9th Cir. 1995).

If another sale were to be authorized, Plaintiffs could then try to seek judicial review of, and

injunctive relieve preventing, the Postal Service’s compliance with NEPA and the NHPA, just as they

did with their original complaint. See also Nat’l Post Office Collaborate, 2014 WL 2014 WL 6686691;

cf. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1168 (9th Cir. 2011)

available at http://www.ci.berkeley.ca.us/Planning_and_Development/Commissions/Commission_for_Planning/2013-10-02_Agenda_Page.aspx (last visited Jan. 22, 2015) (to access the referenced document, click on the link for “PDF of Entire Agenda” at the top of the webpage).



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(finding that exception did not apply “because there is no reason to suppose that any similar subsequent

denial would be unreviewable”).

Accordingly, because Plaintiffs’ claims are moot, and neither of the exceptions to the mootness

doctrine apply, the Court lacks jurisdiction and should dismiss Plaintiffs’ claims.

C. Alternatively, Plaintiffs’ Claims are Not Ripe.

Even if a future sale of the Berkeley Post Office were on the horizon, Plaintiffs’ case would still

have to be dismissed because it is not ripe absent an effective purchase and sales agreement authorizing

the sale of the Post Office.

Ripeness is “drawn both from Article III limitations on judicial power and from prudential

reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior,

538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, n.18 (1993)).

“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative policies, and

also to protect the agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.’” Nat’l Park Hosp. Ass’n,

538 U.S. at 807–08 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)).

The Ninth Circuit has instructed that “[a] claim is not ripe for adjudication if it rests upon

‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Alcoa, Inc.

v. Bonneville Power Admin., 698 F.3d 774, 793 (9th Cir. 2012) (quoting Texas v. United States, 523

U.S. 296, 300 (1998)). “That is so because, if the contingent events do not occur, the plaintiff likely will

not have suffered an injury that is concrete and particularized enough to establish the first element of

standing.” Id. (quoting Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009)).

To determine whether a controversy is ripe, a court considers: “(1) whether delayed review

would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere

with further administrative action; and (3) whether the courts would benefit from further factual

development of the issues presented.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733

(1998). Here, Plaintiffs’ claims are unripe under all three prongs of this test.



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First, postponing review until a sale has been reached that threatens injury to one of its members

would not harm Plaintiffs because they would be able to raise their NHPA and NEPA objections (like

any other objections) through any available channels for judicial review, to the extent such review is

available against the Postal Service. Infra Part III.D. The NHPA and NEPA documents do not

themselves authorize any action to be taken, and focusing challenges on an actual sale will not harm

Plaintiffs. Without a decision to relist, let alone a buyer or an agreement, there can be no sale, no

transfer of title, and Plaintiffs remain free to avail themselves of continued retail services and access and

enjoy the architectural and artistic features of the building. Am. Compl., ECF No. 46, ¶ 56 (citing to the

loss of postal services and access to the building as an “irreparable injury”).

That Plaintiffs’ challenge now rests on purported injuries associated with the relocation of postal

services, Id.. ¶ 56, further highlights the premature nature of their challenge. As the Postal Service

explained, it intends to retain current retail operations at the Berkeley Post Office, Alvarado Decl., ECF

No. 24, ¶ 7. Accordingly, waiting until there actually is a Postal Service action to review will cause no

hardship to Plaintiffs, and may, in fact, demonstrate little to no harm to their asserted interests. See

Municipality of Anchorage v. United States, 980 F.2d 1320, 1326 (9th Cir. 1992) (“noting that the ‘mere

potential for future injury does not overcome the interest of the judiciary in delaying review.’”) (internal

quotation omitted).

Second, absent approval of a sale or some other irreversible commitment of resources by the

Postal Service, Plaintiffs’ challenge merely presents an abstract disagreement not appropriate for judicial

review. Even assuming the Postal Service relists the property (which is by no means guaranteed), the

Postal Service will need to consider whether additional evaluation is warranted under NEPA and/or the

NHPA. As the Supreme Court has explained, “[a] claim is not ripe for adjudication if it rests upon

‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas, 523

U.S. at 300.

Third, this Court would benefit from deferring consideration of any challenge, whether on NEPA

or NHPA grounds. Indeed, a final purchase and sale agreement is necessary for any challenge to a sale

to proceed. Without any proposal, neither this Court nor Plaintiffs can assess whether some future sale



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will injure Plaintiffs “because the nature and effect of that sale cannot yet be assessed” or if the Postal

Service action complied with NEPA and the NHPA. Grossarth, 979 F.2d at 1379 (finding the NEPA

challenge to a future sale not ripe). Waiting until that sale is reached, a decision that may very well

retain retail services and ensure public access, may make “resolution of the dispute . . . unnecessary.”

Fla. Power & Light Co. v. E.P.A., 145 F.3d 1414, 1421 (D.C. Cir. 1998). Thus, because the proposal to

sell entails no commitment of resources that have any on-the-ground effect, judicial consideration of the

sufficiency of the Postal Service’s NEPA and NHPA analyses standing alone would be abstract and

premature. Texas, 523 U.S. at 301 (“The operation of [a challenged] statute is better grasped when

viewed in light of a particular application.”).

D. Even If Plaintiffs’ Claims Are Not Moot, Plaintiffs Cannot Bring an Action To

Challenge the Postal Service’s Compliance with NEPA or Section 106, Either

Through an Implied Cause of Action or Through the APA.

Even if the Court were to assume jurisdiction—which it should not—Plaintiffs’ arguments suffer

from an additional legal deficiency: they have not identified a valid private right of action for Claims

One and Two. It is well-established that for Plaintiffs to bring suit against the executive branch, they

must identify a waiver of sovereign immunity, subject matter jurisdiction, and a private right of action.

Presidential Gardens Assocs. v. United States ex rel. Sec’y of Housing & Urban Dev., 175 F.3d 132, 139

(2d Cir. 1999); see FDIC v. Meyer, 510 U.S. 471, 483-86 (1994) (explaining that, even with a waiver of

sovereign immunity, plaintiffs filing suit against the federal government must still identify an “avenue

for relief” within the “source of substantive law upon which the [plaintiff] relies”). Though Plaintiffs

have satisfied the first two criteria, they cannot satisfy the third.4 This is not merely some “academic”

disagreement as Plaintiffs would have it, Pls.’ Reply in Supp. of Mot. for Inj. Relief (“Pls.’ Reply”)

(ECF No. 32) at 2-3, but instead a reflection that, in Alexander v. Sandoval, the Supreme Court

reaffirmed that private enforcement of public laws must be clearly expressed by Congress. 532 U.S. 275

4 The “sue and be sued” clause found at 39 U.S.C. § 401, waives the Postal Service’s sovereign immunity, Currier v. Potter, 379 F.3d 716, 724 (9th Cir. 2004), and subject matter jurisdiction is provided by both 38 U.S.C. § 409(a) and 28 U.S.C. § 1331.



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(2001). Plaintiffs cannot obtain judicial review of the present complaint, because the Postal Service “is

exempt from the APA’s general mandate of judicial review of agency actions” by virtue of the Postal

Reorganization Act, Currier, 379 F.3d at 725, and neither NEPA nor the NHPA by their own force

create a private right of action, Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006).

The question does not turn on whether the substantive provisions of NEPA or the NHPA apply to

the Postal Service, as Plaintiffs suggest. Pls.’ Reply, ECF No. 32 at 2-3.5 The question is instead

whether there is any private right of action that enables Plaintiffs to sue the Postal Service for alleged

violations of the statutes they have identified. It is well-established in the Ninth Circuit that neither

NEPA nor the NHPA include a private right of action. See Gros Ventre, 469 F.3d at 814 (“Neither

statute [NHPA or NEPA] provides a private right of action; therefore the [Plaintiffs] must rely on the

APA to state a claim.”); see also Karst Envtl. Educ. and Prot., Inc. v. E.P.A., 475 F.3d 1291, 1295 (D.C.

Cir. 2007) (“[B]ecause NHPA, like NEPA, contains no private right of action, we agree with the Ninth

Circuit that NHPA actions must also be brought pursuant to the APA.”).

Recognizing that NEPA and the NHPA do not contain private rights of action, Plaintiffs rely to

no avail upon the APA. To be sure, Chapter 5, Section 702, of the APA provides a cause of action

through which to challenge federal agency decision-making, and the APA remains the standard course

for judicial review of agency action under NEPA and the NHPA. Gros Ventre Tribe, 469 F.3d at 814.

But what Congress gives, it can also take away. And Congress has explicitly excepted the Postal

Service from large portions of the APA, including its judicial review provisions found in Chapter 5,

Section 702. See 39 U.S.C. § 410(a)6; Currier, 379 F.3d at 725; see Mittleman v. Postal Regulatory

5 We are aware of no court decision that holds, in light of Section 410(a), that Section 106’s procedural requirements do apply to the Postal Service, in whole or in part. See 39 U.S.C. § 410(a) (“no Federal law dealing with public or Federal . . . property . . . shall apply to the exercise of the powers of the Postal Service.”). The Postal Service believes that Congress intended in § 410(a) that Section 106 would not apply to the Postal Service’s disposal of its own real property. The Postal Service voluntarily follows, as matter of policy, the procedures set forth in Section 106 when undertaking real property disposals. See, e.g., 39 C.F.R. § 241.4(d). The Postal Service’s voluntary compliance with a process that would not otherwise be required by law, however, would not create a cause of action through which the Plaintiffs could challenge the Postal Service’s actions. Sandoval, 532 U.S. at 291. 6 39 U.S.C. § 410(a) reads: “Except as provided by subsection (b) of this section, and except as otherwise provided in this title or insofar as such laws remain in force as rules or regulations of the




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Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014) (explaining that the D.C. Circuit and several other Courts

of Appeals have “observed that the Postal Service is exempt from review under the Administrative

Procedures Act.”) (internal quotation marks and citation omitted). Thus, the APA does not provide a

cause of action for Plaintiffs’ complaint and Plaintiffs have failed to meet their burden.

Chelsea Neighborhood Ass’ns v. U.S. Postal Serv., 516 F.2d 378 (2d Cir. 1975) and Akiak Native

Cmty. v. U.S. Postal Serv.,213 F.3d 1140 (9th Cir. 2000) are not to the contrary. As an initial matter,

both Akiak and Chelsea predate the landmark decision in Alexander v. Sandoval, where the Supreme

Court underscored its disavowal of the authority of federal courts to infer a private right of action,

finding that “private rights of action to enforce federal law must be created by Congress.” 532 U.S. at

286-87. The Court in Sandoval went on to explain that “[t]he judicial task is to interpret the statute

Congress has passed to determine whether it displays an intent to create not just a private right but also a

private remedy,” and that without a statutorily-prescribed remedy, “a cause of action does not exist and

courts may not create one, no matter how desirable that might be . . . .” Id. Four years later, the Ninth

Circuit, in San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097-98 (9th Cir. 2005), was the

first court to consider the existence of a private right of action under the NHPA in a post-Sandoval

world. Although two federal courts had previously concluded that Section 106 of the NHPA provided

for a private right action,7 relying on Sandoval, the Ninth Circuit departed from the precedent set by its

sister circuits, holding that the NHPA does not provide a private right of action and that “invocation of

the APA is a longstanding means to challenge agency action.” 417 F.3d at 1095.8 Only one year earlier,

however, the Ninth Circuit had concluded that the Postal Service is excepted from the judicial review

provisions of the APA. Currier, 379 F.3d at 725.

Postal Service, no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service.” (emphasis added). 7 Boarhead Corp. v. Erickson, 923 F.2d 1011, 1017 (3d Cir. 1991); Vieux Carre Prop. Owners, Residents & Assoc., Inc. v. Brown, 875 F.2d 453, 458 (5th Cir. 1989). 8 Indeed, the Ninth Circuit’s cases make clear that NHPA claims are reviewed under the APA. E.g., Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1998); Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1158 (9th Cir. 1998); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir. 1999).



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Both Chelsea and Akiak are also silent on the issue of whether a cause of action existed for the

NEPA claims in those cases. The question before the Second Circuit in Chelsea was whether Congress

intended in the Postal Reorganization Act that the Postal Service comply with NEPA. See id. No party

appears to have raised a cause of action argument, and the Second Circuit did not address whether

NEPA provides the requisite cause of action.9 Likewise, in Akiak the parties did not raise, and the Ninth

Circuit therefore had no occasion to address, whether (regardless if NEPA applied) there is a mechanism

for judicial review. Nonetheless, the Court’s decision in Sandoval and the Ninth Circuit’s decision in

San Carlos both call into question what Plaintiffs appear to believe was the Ninth Circuit’s assumption

in Akiak that the Postal Service’s adoption of certain provisions of NEPA via its regulations subjected it

to a cause of action under the APA. The mere fact that the Postal Service has incorporated aspects of

NEPA and the Section 106 process into its regulations cannot undo Congress’ intentional exception of

the Postal Service from the APA’s general mandate of judicial review of its actions. Currier, 379 F.3d

at 725. And it is “most certainly incorrect,” on the other hand, to “say that language in a regulation can

conjure up a private cause of action that has not been authorized by Congress. Agencies may play the

sorcerer’s apprentice but not the sorcerer himself.” Sandoval, 532 U.S. at 291.

The recent decision by a district court in Connecticut in National Post Office Collaborate does

not alter the analysis. Relying primarily on its interpretation of precedent in that circuit (Chelsea), the

court concluded that whether the NEPA claim was reviewed “under the APA or another source of a

private right [was] not material, because the ‘arbitrary and capricious’ standard of review indisputably

applie[d].” 2014 WL 6686691 at * 6. The court did not conclude that the APA or NEPA provide a

private right of action against the Postal Service. And, in the Ninth Circuit, the notion that review of the

Postal Service’s decisions may still apply when the APA does not is not so clear. Though given the

opportunity in Currier, the Ninth Circuit “decline[d] to override the PRA’s express removal of APA

review of the Service’s actions by imputing an implicit Congressional intent to preserve common-law

9 The district court opinion in Chelsea did not address the cause of action argument, see Chelsea Neighborhood Ass’ns v. U.S. Postal Serv., 389 F.Supp. 1171 (S.D.N.Y. 1975), which is a waivable argument. The Second Circuit would have therefore been unable to address the issue.



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principles of judicial review.” (citing Carlin v. McKean, 823 F.2d 620, 623 (D.C.Cir.1987) for the

proposition that “common-law administrative review may not survive PRA’s explicit removal of APA

review”).

Congress’s decision to except the Postal Service from judicial review under the APA also

comports with “Congress’s intent to insulate the Postal Service from administrative challenges and to

place the Service on a business like footing.” Currier, 379 F.3d at 725-26. Because the Amended

Complaint fails to identify any other alternative enforcement mechanism (i.e. a private right of action)

for Plaintiffs to seek judicial review of the Postal Service’s compliance with NEPA and the NHPA, their

claims should be dismissed in the alternative on this basis.

Lastly, even if the Court were to conclude that the APA does apply, there would still be one last

hurdle that Plaintiffs cannot clear: the APA provides federal courts with the limited authority to review

only those agency decisions that are “final agency action” pursuant to 5 U.S.C. § 704. Or. Natural

Desert Ass’n. v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006). Taking as true Plaintiffs’

argument that entry into a sales agreement was the “reviewable final agency action,” ECF No. 3 at 2-3,

there is no longer a final agency action for this Court to review.10 Thus, the very basis for even

Plaintiffs’ purported private right of action no longer exists and proves fatal to Plaintiffs’ Amended

Complaint.

CONCLUSION

The Court lacks jurisdiction over Claims One and Two because the claims do not present a live

case or controversy under Article III, whether as a matter of mootness or ripeness. Further, the APA’s

judicial review provisions do not apply to the Postal Service and Plaintiffs have not identified any viable

cause of action for Counts One and Two. Should this Court conclude that the APA does apply,

Plaintiffs cannot demonstrate that there exists a reviewable, final agency action.

10 One of the cases Plaintiffs cite in support of judicial review illustrates this very point. See Comm. for Pres. of Seattle Fed. Reserve Bank Bldg. v. Fed. Reserve Bank of San Francisco, No. 08-1700-RSL, 2010 WL 1138407 at *2-3 (W.D. Wash. Mar. 19, 2010) (finding, in the context of a NEPA and NHPA challenge to the Federal Reserve’s proposed sale of a building, that the Federal Reserve took final agency action when it entered into a “binding purchase and sale agreement.”).




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DATED: January 22, 2015 Respectfully submitted,

JOHN C. CRUDEN Assistant Attorney General Environmental & Natural Resources Division

MELINDA HAAG United States Attorney

By: /s/ Kenneth D. Rooney KENNETH ROONEY (NMBN 128670) Trial Attorney Natural Resources Section

ERICA BLACHMAN HITCHINGS SARA WINSLOW (DCBN 457643) Assistant United States Attorneys

Attorneys for Federal Defendants

OF COUNSEL: JANINE CASTORINA Appellate and Commercial Litigation




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CERTIFICATE OF SERVICE

I hereby certify that on January 22, 2014, I filed the above pleading and its attachments with the Court’s CMS/ECF system, which will send notice of such to each party.

__s/ Kenneth D. Rooney__ KENNETH D. ROONEY



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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice

MELINDA HAAG (CABN 132612) United States Attorney ALEX G. TSE (CSBN 152348) Chief, Civil Division SARA WINSLOW (DCBN 457643) Assistant United States Attorneys


KENNETH ROONEY (NM BN 128670) Trial Attorney Natural Resources Section U.S. Department of Justice






Plaintiffs, v.

UNITED STATES POSTAL SERVICE; PATRICK R. DONOHOE AS POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE; TOM A. SAMRA, VICE PRESIDENT-FACILITIES OF THE UNITED STATES POSTAL SERVICE; DIANA ALVARADO, DIRECTOR, REAL ESTATE, USPS PACIFIC REGION,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:14-cv-04916-WHA

CORRECTED REPLY IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS

Date: Thursday, March 19, 2015 Time: 8:00 am Judge: Hon. William Alsup

)

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Based on a speculative and abstract set of factual circumstances that may or may not come to

pass, Plaintiffs are asking this Court and Defendants to bear the burdens of litigation, forced to grapple

with hypothetical possibilities rather than immediate fact. That the Postal Service clears many

administrative hurdles throughout its decisionmaking process is certainly true. But not all of those

decisions merit this Court’s review. The keystone to any Postal Service decision to sell a building and

relocate services—and, hence, Plaintiffs’ lawsuit—is the purchase and sales agreement. The Postal

Service reached one when it decided to sell the building to a developer in late 2014. But that agreement

was later terminated. And the property is no longer for sale.

Yet Plaintiffs persist, piecing together a complaint from the three Postal Service decisions that

remain. Plaintiffs maintain that the controversy over the sale continues because the Postal Service has

not rescinded a generalized Final Determination Regarding Relocation, issued almost a year and a half

ago. See ECF No. 24-1. Plaintiffs likewise insist that Postal Service’s NEPA determination and NHPA

consultation that followed issuance of the Final Determination gives this case continuing vitality. But

Plaintiffs do not articulate any direct and immediate impact on their day-to-day affairs that flow from the

alleged violations in those documents. Thus, where there is no injury, there can be no remedy.

It may be that a future sale of the Berkeley Post Office could justify a new complaint, if the

property is relisted by the Postal Service and if a buyer emerges on terms acceptable to the Postal

Service. But those “ifs,” that speculation, and those contingencies cannot keep this lawsuit from being

moot, tied as it is to the purchase and sales agreement. Indeed, the City of Berkeley’s decision to rezone

an entire historic district after the Postal Service concluded its NEPA process and agreed to a purchase

and sales agreement—an effort the City does not deny was designed to prevent the since-cancelled

sale—virtually guarantees that the precise conditions of this case will not recur.

Even more basic, Plaintiffs do not identify an alternate cause of action. Congress decided to

exempt the Postal Service from the general mandate of judicial review, found in the Administrative

Procedure Act, and Plaintiffs’ cause is only undermined by their failure to grapple with case law that has

developed over the past ten years. Even more problematic for Plaintiffs is that even if judicial review

were available, the three decisions identified all lack the indicia of finality necessary for this Court’s

review. Defendants therefore request that this Court dismiss Plaintiffs’ Amended Complaint.


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I. Because Plaintiffs cannot identify a continuing harm, let alone one that is sufficiently

concrete, Claims One and Two are moot.

While standing ensures that a justiciable controversy exists at the beginning of litigation, the

mootness doctrine ensures that a justiciable controversy continues to exist throughout the litigation. 13C

Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE, § 3533.1 (3d ed. 2008). Plaintiffs

maintain that there remains a live and continuing controversy because the Postal Service has not

rescinded the 2013 Final Determination Regarding Relocation (ECF No. 24-1), the 2014 Letter to the

ACHP (ECF No. 27-8), and the 2014 Categorical Exclusion (ECF No. 26-3). Plaintiffs miss the point:

The only action that gave rise to Plaintiffs’ alleged injuries was the purchase and sales agreement. Nome

Eskimo Cmty. v. Babbitt, 67 F.3d 813, 815 (9th Cir. 1995) (with mootness, as with standing, “‘[t]he

federal courts lack power to make a decision unless the plaintiff has suffered an injury in fact, traceable

to the challenged action, and likely to be redressed by a favorable decision.’”).

Put differently, the injuries Plaintiffs have identified—the potential loss of service within this

Post Office and the potential loss of access to the architectural and artistic features of the lobby, Am.

Compl., ECF No. 46, ¶ 56—flow directly from the purchase and sales agreement, not the NHPA

correspondence, Categorical Exclusion, or the 2013 Final Determination Regarding Relocation. Thus,

without a listing, let alone a sales agreement, the potential loss of retail services and inability to access

the artistic features cited by Plaintiffs lack the “immediacy and reality” necessary for this Court to

exercise its broad remedial powers. See Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th

Cir. 2007).

That a sale might someday adversely affect Plaintiffs’ interests at some indeterminate point in the

future (if the Postal Service even decides to relist the property) is “too remote and too speculative a

consideration to save this case from mootness.” Lohn, 511 F.3d at 964. Indeed, the documents

Plaintiffs identified do not commit the Postal Service to do anything. The Categorical Exclusion

demonstrates the Postal Service’s compliance with NEPA, while the letter to the ACHP explains the

Postal Service’s conclusion, pursuant to the NHPA, that the sale of the building would have no adverse

effect. See ECF Nos. 24-3; 27-8. But neither the Categorical Exclusion nor the NHPA correspondence

present a controversy fit for this Court’s review.


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Plaintiffs also distort the nature of the Final Determination Regarding Relocation. As opposed to

a purchase and sales agreement, a final determination does not obligate the Postal Service to do

anything. That the document merely represents one additional step, not the final step, towards relocation

finds support both in the text of the decision and the City of Berkeley’s own filing before the Postal

Regulatory Commission. The Postal Service indicated in the Final Determination that it had not yet

determined whether it would, in fact, relocate the post office or pursue a sale and lease-back transaction.

ECF No. 24-1 at 2 (“the Postal Service will pursue relocation”) (emphasis added). The Postal Service

even explained in its response to comments that several steps remained: the Postal Service would still

have to undertake a site selection process, a process that would include notice to public officials and the

public of potential alternatives, in addition to the solicitation of additional comment. Id. Even the City

of Berkeley acknowledged the tentative nature of the Final Determination in its petition for the

Commission’s review. See City of Berkeley PRC Reply at 2 (“[T]he USPS’s action here is unique in

that it has not identified a location in which to relocate retail service nor is there any guarantee that

relocation will occur.”) (available at http://www.prc.gov/dockets/document/87616 (last accessed

February 26, 2015)). And as recently as September 2014, the Postal Service has explained that it intends

to retain retail services in this location. See Lowe Decl., ECF No. 25, ¶ 7.

Plaintiffs therefore fail in their attempts to analogize this case with West v. Secretary of

Transportation, 206 F.3d 920, 925 (9th Cir. 2000) and Columbia Basin Land Protection Ass'n v.

Schlesinger, 643 F.2d 585, 591 (9th Cir. 1981). Questions of mootness only arose there because the

projects were either partially completed or continuing towards completion—neither of which are the

case before this Court. See 13C Charles Alan Wright, et al., FEDERAL PRACTICE AND PROCEDURE, §

3533.7 (3d ed. 2008), Discontinued Action; NEPA Law & Litigation, § 4:30, Moot Claims. The

primary concern underlying both West and Columbia Basin wasn’t whether or not there was an injury—

there clearly was some harm associated with the interchange in West and the power lines in Columbia

Basin—but rather the scope of the court’s remedial powers. The primary concern underlying West, as in

Columbia Basin, was whether an agency “could merely ignore the requirements of NEPA, build its

structures before a case gets to court, and then hide behind the mootness doctrine.” Columbia Basin,


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643 F.2d at 591 n.1. No such concerns exist here, because the Postal Service does not have a sales

agreement and is no longer continuing to pursue an agreement.

Plaintiffs seem to suggest that the Postal Service’s publicly stated desire to sell the building, Pls.’

Opp. 4 n.3, ECF No. 48, makes the sale a fait accompli. But the statements made by an agency, even

those characterized as “bellicose,” “do not support the existence of an ongoing legal controversy

sufficient for Plaintiff’s Complaint to survive Defendants’ challenge for mootness.” West v. Horner,

810 F. Supp. 2d 228, 234 (D.D.C. 2011) (emphasis in original).1 An agency’s final actions are what

may give rise to the legal controversy.

Given the City’s passage of a new zoning ordinance that Plaintiffs do not dispute was designed

to thwart the Postal Service’s sale, the City has all but guaranteed that the Postal Service will have to

consider the import of this new issue if it decides to sell the property. See 39 C.F.R. §775.6(e)(8)

(setting forth the Postal Service’s categorical exclusion for the disposal of properties). This is

particularly true since the new ordinance post-dates the Postal Service’s categorical exclusion. Tri-

Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (discussing supplementation

of the NEPA process). In the event the Postal Service decides to relist the property, it will take various

legal issues into account, including any obligation it may have under various federal statutes and

regulations. But that is an entirely different lawsuit. Forest Service Employees for Environmental

Ethics v. U.S. Forest Service, 408 F. Supp. 2d 916, 919 (N.D. Cal. 2006) (finding that even if the Forest

Service proceeded with the cancelled timber sale, the basis for the decision could change, presenting the

court with a different lawsuit and a different administrative record).

II. Plaintiffs’ claims relating to the decision to relocate and the decision to sell are not ripe for

review.

Plaintiffs’ reliance on the 2013 Final Determination, NHPA consultation, and the Categorical

Exclusion cannot support the contention that this case is ripe for review. Pls.’ Opp. 9-10.

First, Plaintiffs fail in their attempt to cobble together hardship where there is none.

1 Plaintiffs’ opaque reference to the Postal Service’s FOIA process notwithstanding, Pls.’ Opp. 4 n.3., their Complaint does not contain a FOIA claim.

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The basic thrust of Plaintiffs’ argument rests on a weak foundation: that waiting until a sale has been

reached would expose Plaintiffs to “major risks,” because some future property transfer to a non-federal

actor may limit the remedies available to this Court. Pls.’ Opp. at 9 (citing Kettle Range Conservation

Group v. BLM, 150 F.3d 1083, 1087-1088 (9th Cir. 2008)). But the mere possibility of some future

transfer does not pose a “direct and immediate impact on the day-to-day business of the complaining

parties.” Municipality of Anchorage v. United States, 980 F.2d 1320, 1323 (9th Cir. 1992). Were the

mere possibility of some future transfer sufficient to establish a “ripe” controversy, then it is unclear

why Plaintiffs did not bring suit immediately after issuance of the Final Determination, a decision they

now portray as ripe for review. After all, without a purchase and sales agreement, that risk—the transfer

of title to a non-federal actor—is as likely now as it was after issuance of the Final Determination. At

bottom, Plaintiffs’ subjective perception of “major risks” is insufficient to overcome the very basic

prerequisite of identifying a ripe controversy in order to maintain a claim in federal court.

Put simply, Plaintiffs fail to articulate any concrete and particularized injury that “imposes a

significant practical harm upon the plaintiff” absent immediate judicial review. NRDC v. Abraham, 388

F.3d 701, 706-07 (9th Cir. 2004). Like the memorandum agreement between the EPA and Corps that

failed to compel immediate review in Municipality of Anchorage, so, too, is the case here. The NHPA

and NEPA documents do not impact in any way Plaintiffs’ “day-to-day affairs.” 980 F.2d at 1323. And

Plaintiffs’ failure to identify any immediate, on-the-ground impact ultimately proves to be fatal to their

complaint.

Plaintiffs instead focus on dictum from the Court’s decision in Ohio Forestry Ass’n v. Sierra

Club, where the Court noted that “a person with standing who is injured by a failure to comply with the

NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never

get any riper.” 523 U.S. 726, 737 (1998). Although the challenged forest management plan there made

logging possible, even more likely, the Court dismissed the case as unripe because the plan itself did not

“authorize the cutting of any trees.” Id. at 729. The challenged plan, the Court observed, did not “give

anyone a legal right to cut trees” and “[did] not command anyone to do anything or refrain from doing

anything.” Id. The Forest Service was required to take multiple additional steps beyond the plan before

permitting any logging. Id. at 729–30. Accordingly, the Court held that immediate judicial review


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would unnecessarily interfere with the administrative process and require time-consuming judicial

consideration that may ultimately turn out to be unnecessary. That dictum upon which Plaintiffs rely is

therefore properly limited to a NEPA analysis of agency action that directly approves activity with

immediate on-the-ground consequences, not a broad proposal that will have no real-world effect absent

subsequent agency action. See Municipality of Anchorage, 980 F.2d at 1326.

Nor will any “irremediable adverse consequences flow from requiring a later challenge.”

Anchorage, 980 F.2d at 1326. Plaintiffs’ position that they face “major risks” by awaiting a purchase

and sales agreement is belied by Plaintiffs’ approach to this very litigation. They contend, for example,

that the Postal Service erred when it conducted its NEPA analysis after issuing the Final Determination

Regarding Relocation. See, e.g., Am. Compl. ¶ 51. But the Final Determination Regarding Relocation

that Plaintiffs characterize as ripe for adjudication (Pls.’ Opp. 7-8) was published in August of 2013.

Any violations of NEPA and the NHPA were presumably as apparent then as they were now. And

Plaintiffs were well aware of the Postal Service’s decision; they petitioned the Postal Regulatory

Commission for review. Yet Plaintiffs waited. They waited for more than a year to bring suit and seek

emergency injunctive relief. They waited until the Postal Service entered into a purchase and sales

agreement, described later by Plaintiffs as the “reviewable” final agency action (ECF No. 3 at 2-3).

Plaintiffs could pursue the same approach if some future final sale decision has sufficiently

“crystallized” and the NHPA and NEPA documents identified are used to support a concrete decision.

Ohio Forestry, 523 U.S. at 733-37.

Second, considerations of judicial economy support dismissal, given that the necessity of this

Court’s review is far less urgent than Plaintiffs would have this Court believe. This Court’s review may

even prove to be an unnecessary exercise. See Ohio Forestry, 523 U.S. at 736. Contrary to Plaintiffs’

suggestions otherwise, a future sale (even assuming one occurs) will fall against a different factual

backdrop. For instance, Plaintiffs argue that the NHPA requires the Postal Service to implement

alternatives, “such as leasing part or all of the property,” prior to deciding to sell. Am. Compl. ¶ 46.

Yet common sense suggests that neither Plaintiffs nor this Court will know whether or not the Postal

Service has agreed to a lease until an actual lease has been signed. Indeed, “[w]ithout concrete facts to



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grasp, this action would devolve into a speculative exercise.” Cal. River Watch v. Cnty of Sonoma, Civ.

No. 14-00217-WHA, 2014 WL 3377855 (N.D. Cal. July 10, 2014).

Even if this Court possessed jurisdiction over the closure, consolidation or relocation of a postal

facility,2 there is no imminent threat of harm in this case to warrant the exercise of such jurisdiction.

Contrary to Plaintiffs’ contentions, the Final Determination does not present an imminent threat that the

Postal Service will relocate postal services and thereafter sell the facility. It was widely acknowledged

by the Postal Service, the Public Representative, and even the City of Berkeley, that in reaching the Final

Determination the Postal Service had not guaranteed that services would be relocated. See City of

Berkeley PRC Reply at 2. As stated in the Final Determination, the Postal Service would either

undertake a site selection process before relocation, or complete a sale and lease-back transaction that

would allow retail services to remain in place. ECF No. 24-1 at 2.

Plaintiffs err in assuming that a sale or relocation will occur. As was the case when the Final

Determination was first issued in 2013, relocation and sale is merely a possibility at this point. If and

when those decisions are made, Plaintiffs will have “ample opportunity to later bring its legal challenge

at a time when harm [was] more imminent and more certain.” Ohio Forestry, 523 U.S. at 734.

III. In the alternative, Plaintiffs fail to state a claim, either because they fail to identify a valid

private right of action, or because they have not identified a final agency action.

a. This Circuit and others have all held that Congress expressly excepted the Postal

Service from the Administrative Procedure Act’s general mandate of judicial

review.

Federal Defendants’ argument that Congress withdrew judicial review of Postal Service actions

is far more straightforward than Plaintiffs’ rebuttal suggests. Plaintiffs’ concession that the Amended

2 In 39 U.S.C. § 404(d)(5), Congress provided an avenue for limited review of closure and consolidation of post offices: the Postal Regulatory Commission. Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 302, (D.C. Cir. 2014). Section 404(d) addresses changes to postal services, and provides for review of the most significant changes, the elimination of a community’s postal services. When 404(d) is triggered, the Commission may set aside the Postal Service’s determination and remand it for further consideration if the Commission finds the determination to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (B) without observance of procedure required by law; or (C) unsupported by substantial evidence on the record.” Id.


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Complaint “expressly relies upon the APA’s judicial review provisions,” Pls.’ Opp. 11, should be the

end of the matter. As recently as 2004, the Ninth Circuit has unequivocally explained that the Postal

Service is “exempt from the APA’s general mandate of judicial review of agency actions.” Currier v.

Potter, 379 F.3d 716, 725 (9th Cir. 2004).3 Drawing heavily from the history of NEPA and the purpose

of the NHPA, while ignoring the plain language of the Postal Reorganization Act, Plaintiffs attempt to

fashion a cause of action where none exists. Plaintiffs thereby confuse the question of whether NEPA

applies to the Postal Service (it does) with whether they, or any other private individual, can enforce the

Postal Service’s purported noncompliance (they cannot). The courts, however, “may not create [a

private right of action], no matter how desirable that might be as a policy matter, or how compatible

with the statute.” Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001).

To begin, a private right of action, sometimes used interchangeably with a cause of action, is the

right of a private individual to bring suit against the United States. As the Supreme Court explained in

United States Postal Service v. Flamingo Industries (USA) Ltd., the inquiry is one of statutory

construction: Did Congress intend the substantive law in question to reach the federal entity? 540 U.S.

736, 744 (2004). Congress intended some statutes to reach the federal government by their express

terms.4 Other federal statutes, however, merely define rights and duties, and are silent about whether an

individual may bring suit to enforce them. NEPA and the NHPA are two such statutes. Gros Ventre

Tribe v. United States, 469 F.3d 801 (9th Cir. 2006); NEPA Litigation, § 3:3.20 (“NEPA contains no

3 Plaintiffs’ cramped reading of Currier and Mittleman does not withstand scrutiny. Pls.’ Opp. 16. Plaintiffs rely on the fact that the individuals in Currier were able to bring a statutory discrimination claim as evidence that courts retain the authority to review the Postal Service’s public obligations. Not so. The Ninth Circuit only allowed the plaintiffs to bring suit because 39 U.S.C. § 403(c) (a different provision altogether) allowed the court to infer a private right of action. Plaintiffs have entirely failed to explain how this Court could infer a private right of action in a section (410(a)) where at least three other circuits have reached the conclusion that the Postal Service is exempt from review under the APA. See Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014); Booher v. U.S. Postal Serv., 843 F.2d 943, 945 (6th Cir. 1988); Harrison v. U.S. Postal Serv., 840 F.2d 1149, 1155 (4th Cir. 1988). 4 For example, private rights of action appear in “citizen suit” provision in a substantial number of federal environment laws, including: the Endangered Species Act of 1973, § 11(g)(1)(A), 16 U.S.C. § 1540(g)(1)(A) (1982); Surface Mining Control and Reclamation Act of 1977, § 520(a)(1), 30 U.S.C. § 1270(a)(1) 1982); and Federal Water Pollution Control Act § 505(a)(1), 33 U.S.C. § 1365(a)(1) (1982) (also known as the Clean Water Act).


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provisions providing either an explicit cause of action against federal agencies for alleged

noncompliance with the statute or a basis for subject matter jurisdiction over such claims. It is therefore

well established that NEPA provides no private right of action for violation of its provisions.”). It is

now well-settled that enforcement of NEPA and NHPA must therefore arise from the APA. Gros

Ventre, 469 F.3d at 814.

Plaintiffs’ reliance on Chelsea Neighborhood v. U.S. Postal Service, and Akiak Native

Community v. U.S. Postal Service is therefore misplaced. Again, Chelsea established that NEPA applies

to the Postal Service, a proposition the Postal Service does not dispute.5 516 F.2d 378 (2d Cir. 1975).

Akiak, like Chelsea, simply took it as a given that the APA standard of review applied, even though the

APA did not—in essence an assumption that common-law principles of judicial review applied. 213

F.3d 1140 (9th Cir. 2000). But the legal landscape on which those two cases rest has shifted in recent

years, and dramatically at that. Sandoval reaffirmed that private enforcement of public laws must be

clearly expressed by Congress. 532 U.S. at 286-87. Taking its cues from Sandoval, the Ninth Circuit in

Currier not only concluded that the Postal Service “is exempt from the APA’s general mandate of

judicial review of agency actions,” but also declined to “impute[] an implicit Congressional intent to

preserve common-law principles of judicial review.” Cf. Carlin v. McKean, 823 F.2d 620, 623 (D.C.

Cir. 1987). Sandoval, and, by extension Currier and San Carlos Apache Tribe v. United States, 417

F.3d 1091, 1097-98 (9th Cir. 2005), all therefore suggest that the APA and the common-law standards

invoked in Akiak no longer apply.

Notwithstanding Plaintiffs’ arguments to the contrary, Pls.’ Opp. 11-13, both the text and history

of the Postal Reorganization Act provide clear evidence of Congress’ general intent to withdraw judicial

scrutiny of specific Postal Service activities. The language in the Act is clear, and it is unequivocal.

Section 410(a) of the Act provides that (with the exception of listed statutes not relevant here):

no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service.

5 The Postal Service does contend that the NHPA does not apply. See Fed. Defs.’ Mot. 16 n.5, ECF No. 47.



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Chapter 7 of title 5 of the United States Code referenced above, entitled “Judicial Review,” is the part of

the APA that provides a cause of action for judicial review. Mittleman, 757 F.3d at 304. As a result,

Section 410(a) expressly exempts the Postal Service from APA review and thereby deprives the

plaintiffs of a cause of action for their NEPA and NHPA claims.

While the plain language in section 410(a) exempts the Postal Service from most of the APA,

Congress did include specific carve-outs found in Section 410(b). That section lists exceptions to the

broad APA exemption in Section 410(a), including the Freedom of Information Act, 5 U.S.C. 552, the

Privacy Act, 5 U.S.C. 552a, and the Government in the Sunshine Act, 5 U.S.C. 552b. The APA’s

judicial review provision is not listed as an exception in Section 410(b). Other provisions of the Postal

Reorganization Act specifically refer to provisions of the APA and require the Postal Service to follow

APA procedures in certain instances. See 39 U.S.C. § 3001(f) (proceedings concerning the mailability of

matter are subject to Chapters 5 and 7 of Title 5); § 503 (subjecting certain functions of the Postal Rate

Commission to the APA); § 3661(c) (requiring Commission to hold hearings on the record pursuant to 5

U.S.C. 556 and 557 on proposals to make nationwide service changes).

The legislative context likewise reinforces Congress’s decision to curtail the Postal Service’s

amenability to suit. In the Postal Reorganization Act, Congress sought to give the Postal Service the

“status of a private commercial enterprise,” Loeffler v. Frank, 486 U.S. 549, 556 (1988) (internal

quotation marks omitted), that would follow “modern management and business practices,” H.R. Rep.

No. 91-1104 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3650. Congress “indicated that it wished the

Postal Service to be run more like a business than had its predecessor.” Franchise Tax Bd. v. USPS, 467

U.S. 512, 519-20 (1984). That goal would have been hampered by requiring the agency operate under

the APA in undertaking the myriad actions necessary to run a business.

b. The only agency actions Plaintiffs have identified are merely tentative decisions

from which no legal obligations flow.

Much like their arguments regarding mootness and ripeness, Plaintiffs insist that, despite

termination of the purchase and sales agreement, at least three other bases for this Court’s review

remain: the Categorical Exclusion; the Postal Service’s letter to the ACHP; and the Final Determination

Regarding Relocation. Yet Plaintiffs’ arguments fail for much the same reason as set forth in the


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preceding section. These agency actions are merely interlocutory steps that are a part of a larger

decision-making process that may culminate with a decision to sell and purchase and sales agreement.6

As to the Categorical Exclusion, that document, standing alone, is not a final agency action. The

actual decision to proceed is typically memorialized in a record of decision (in the case of an

Environmental Impact Statement), see 40 C.F.R. § 1505.2,7 or a Finding of No Significant Impact (in the

case of an Environmental Assessment) or some other final decision memorandum. See Comm. for Pres.

of Seattle Fed. Reserve Bank Bldg. v. Fed. Reserve Bank of San Francisco, No. C08-1700-RSL, 2010

WL 1138407 at *2-3 (W.D. Wash. Mar. 19, 2010).

There is no bright-line rule that a categorical exclusion in and of itself is a final agency action, as

Plaintiffs’ citation to State of California v. Norton, 311 F.3d 1162, 1170-178 (9th Cir. 2002) would lead

this Court to believe. Indeed, Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317, 1319-20 (9th Cir. 1982)

suggests otherwise. There, the agency (the Urban Mass Transportation Administration) had relied on a

categorical exclusion for a bus depot. But the agency had also taken several critical steps that led the

Ninth Circuit to the conclusion that the agency had completed a final agency action. In addition to the

categorical exclusion, the agency had granted the city more than $819,000 to purchase that specific site

and complete design and engineering studies. The agency had also authorized the city to commence

condemnation proceedings. There were therefore “[n]o federal procedural hurdles” left in the way of the

city’s acquisition. The converse can be said here. Again, the Postal Service has not “performed all

federal actions necessary” to complete its decision-making process. Id.

The Postal Service’s letter to the ACHP regarding its compliance with the NHPA likewise lacks

sufficient indicia of finality to merit review. Like an Environmental Impact Statement without a Record

of Decision or an Environmental Assessment without a Finding of No Significant Impact or decision

memorandum, it is impossible to gauge the Postal Service’s compliance without a purchase and sales

6 The issue whether an issue is fit for judicial review can sometimes overlap with whether there is “final agency action” under the APA. See Or. Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 979 (9th Cir. 2006); Citizens Alert Regarding Env’t v. EPA, 102 Fed. App’x 167, 168 (D.C. Cir. 2004). 7 The Record of Decision “[s]tate[s] what the decision is.” See also Oregon Natural Desert Ass'n v. Bureau of Land Management, 625 F.3d 1092 (9th Cir. 2010).


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agreement. For example, Plaintiffs contend that Section 111 of the NHPA “requires a determination

‘that the lease or exchange will adequately insure [sic] the preservation of the historic property.”’ Am.

Compl. ¶ 46. But without an actual lease, it is entirely unclear on what document this Court would base

its decision.

That the 2013 Final Determination remains the extant target of Plaintiffs’ ire does not alter the

analysis, either. Plaintiffs did not challenge the Final Determination in this Court when it was first

issued in August of 2013. Nor did they bring suit after the Commission concluded their appeal was

unripe. They instead waited to bring suit and seek emergency injunctive relief once the Postal Service

had entered into a purchase a sales agreement, an action they have since described as the reviewable

final agency action. ECF No. 3 at 3.

Plaintiffs cannot overcome the fact that the Final Determination is “final” in name only. It did

not guarantee the relocation of services, as Plaintiffs conceded. See City of Berkeley Mot in PRC. And

the Final Determination is entirely devoid of any authorization that would commit the Postal Service to

any sale. That decision is instead found in the purchase and sales agreement. It is therefore unsurprising

that the only two decisions to challenge the Postal Service’s sale of a building only happened after the

Postal Service had actually reached an agreement to sell the building. See Nat’l Post Office Collaborate

v. Donahoe, No.13-1406, 2014 WL 6686691 (D. Conn. Nov. 26, 2014); See Comm. for Pres. of Seattle,

2010 WL 1138407.

So Plaintiffs are, in essence, asking this Court to prematurely grapple with documents from

which no legal obligations flow, to assume the existence and substance of documents—such as a lease—

that do not yet exist, and to guess as to what future actions the Postal Service may or may not take.

Arkansas Nature Alliance, Inc. v. U.S. Army Corps of Engineers, 266 F. Supp. 2d 876 (E.D. Ark. 2003)

(finding that the final agency action was the Corps’ Letter of Permission, issued pursuant to a

categorical exclusion, which authorized reconstruction of a bridge).

CONCLUSION

Both Claims One and Two in Plaintiffs’ Amended Complaint are not of sufficient immediacy

that would merit this Court’s review. The only agency action that may have given rise to an actual

injury traceable to the Postal Service was the purchase and sales agreement. Because that agreement



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was terminated, mootness may therefore be used to reach the conclusion that there is no need for a

remedy because there is no injury.

The doctrine of ripeness should likewise prevent Plaintiffs from maintaining what remains a

wholly speculative lawsuit:

[C]ourts should not render decisions absent a genuine need to resolve a real dispute. Unnecessary decisions dissipate judicial energies better conserved for litigants who have a real need for official assistance . . . Defendants, moreover, should not be forced to bear the burdens of litigation without substantial justification, and in any event may find themselves unable to litigate intelligently if they are forced to grapple with hypothetical possibilities rather than immediate facts.

FEDERAL PRACTICE AND PROCEDURE, § 3532.1, at 114–5, Ripeness. Waiting for an actual controversy

and any challengeable decision will sharpen the issues for this Court’s resolution and ensure that the

contours of those decisions are fully illuminated.

Regardless, whether framed as jurisdiction (as with mootness and ripeness) or a failure to state a

cause of action (as a result of the Postal Reorganization Act and the lack of a final agency action), both

of Plaintiffs’ claims should be dismissed.

DATED: February 27, 2015 Respectfully submitted,




ERICA BLACHMAN HITCHINGS SARA WINSLOW (DCBN 457643) Assistant United States Attorneys


OF COUNSEL: JANINE CASTORINA Appellate and Commercial Litigation United States Postal Service


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I hereby certify that on February 26, 2015, I filed the above pleading and its attachments with the Court’s CMS/ECF system, which will send notice of such to each party.

/s/ Kenneth Rooney KENNETH D. ROONEY


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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice

MELINDA HAAG (CABN 132612) United States Attorney ALEX G. TSE (CSBN 152348) Chief, Civil Division SARA WINSLOW (DCBN 457643) Assistant United States Attorneys


KENNETH ROONEY (NM BN 128670) Trial Attorney Natural Resources Section U.S. Department of Justice






Plaintiffs, v.

UNITED STATES POSTAL SERVICE; PATRICK R. DONOHOE AS POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE; TOM A. SAMRA, VICE PRESIDENT-FACILITIES OF THE UNITED STATES POSTAL SERVICE; DIANA ALVARADO, DIRECTOR, REAL ESTATE, USPS PACIFIC REGION,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 3:14-cv-04916-WHA

NOTICE OF THE STATUS OF THE UNITED STATES POSTAL SERVICE’S 2013 FINAL DETERMINATION

)

Case3:14-cv-04916-WHA Document54 Filed04/02/15 Page1 of 3Case 3:16-cv-04815-WHA Document 12-3 Filed 10/27/16 Page 1 of 3

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This Court requested that, “[w]ithin one week defendant shall advise the Court if it rescinds the

final determination regarding relocation of retail services in Berkeley, CA.” ECF No. 53. The answer is

yes. The 2013 Final Determination was superseded—now having no further force an effect—by the

September 2014 decision to maintain services in the Berkeley Main Post Office. Should the Postal

Service at some future time decide again that it would be in the best interest of its operations to relocate

retail services, the Postal Service will reinitiate the process pursuant to 39 C.F.R. § 241.4.

The 2013 Final Determination Regarding Relocation, issued pursuant to 39 C.F.R. § 241.4,

provides that the Postal Service may relocate retail services. ECF No. 24-1. Under the Postal Service’s

regulations, there is no formal procedure for withdrawal of these types of determinations, as any further

action following the determination would require additional regulatory and internal approvals. Although

the Postal Service does not have a formal procedure for withdrawal of the 2013 Final Determination, the

Postal Service retains the discretion not to proceed with such a decision. The Postal Service has

exercised this discretion as set forth in our briefs that are currently before the Court. See ECF No. 47 at

2-3, 14; ECF No. 51 at 4; see also Alvarado Decl. 24, ¶ 7; Lowe Decl. ECF No. 25, ¶ 3.

The Postal Service has indicated on a number of occasions that it would explore potential sales

transactions that would include a lease-back provision, thereby allowing the Postal Service to lease a

portion of the Berkeley Main Post Office for continued retail services. See ECF No. 24-1 at 2. The

Postal Service clarified in two declarations, dated November 24, 2014, that the Postal Service had

finalized a plan in September of 2014 in which the Postal Service would maintain retail operations at the

Berkeley Post Office. See Alvarado Decl., ECF No. 24, ¶ 7; Lowe Decl., ECF No. 25, ¶ 3. The Postal

Service therefore considers the Final Determination Regarding Relocation to have been rendered

obsolete as of September 2014.

Should the re-initiated process culminate in a closure or consolidation of retail postal services

from the Berkeley Post Office, Plaintiffs can seek to challenge that decision in the venue that has

exclusive jurisdiction over such a claim: the Postal Regulatory Commission. In 39 U.S.C. § 404(d)(5),

Congress provided that the Postal Regulatory Commission was the exclusive avenue for the limited

review of closure and consolidation of post offices. Mittleman v. Postal Regulatory Comm’n, 757 F.3d

300, 302, (D.C. Cir. 2014) (emphasis added). When review under 404(d) is triggered, the Commission



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may set aside the Postal Service’s determination and remand it for further consideration if the

Commission finds the determination to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law; (B) without observance of procedure required by law; or (C)

unsupported by substantial evidence on the record.” Id.

DATED: April 2, 2015 Respectfully submitted,




SARA WINSLOW (DCBN 457643) Assistant United States Attorneys


OF COUNSEL: JANINE CASTORINA Appellate and Commercial Litigation United States Postal Service


I hereby certify that on April 2, 2015, I filed the above pleading and its attachments with the Court’s CMS/ECF system, which will send notice of such to each party.

/s/ Kenneth Rooney KENNETH D. ROONEY


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CITY OF BERKELEY, MAYOR, ANDMEMBERS OF THE CITY COUNCIL OF THECITY OF BERKELEY,

Plaintiffs,

v.

UNITED STATES POSTAL SERVICE,PATRICK R. DONAHOE, TOM A. SAMRA,AND DIANA ALVARADO,

Defendants.

NATIONAL TRUST FOR HISTORICPRESERVATION IN THE UNITED STATES

Plaintiff,

v.

UNITED STATES POSTAL SERVICE;ESTATE, SERVICE PACIFIC REGION,

Defendants./

No. C 14-04916 WHANo. C 14-05179 WHA

ORDER DISMISSING CASE AS MOOT

INTRODUCTION

In these related NEPA and NHPA actions seeking injunctive and declaratory relief,

defendants move to dismiss under Rule 12(b). For the reasons stated below, defendants’ motions

are GRANTED.

STATEMENT

This litigation relates to the potential sale of the Berkeley Main Post Office, located at

2000 Allston Way, Berkeley, CA, 94704. Plaintiffs are the City of Berkeley (along with its

mayor and members of the city counsel) and the National Trust for Historic Preservation, a



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2

nonprofit organization. Defendants are the United States Postal Service and several of its

employees.

In the spring of 2012, the USPS issued an advisory to its postal patrons that it intended to

sell the Berkeley Main Post Office building. Over the next two years, the USPS took various

steps to sell the building, such as issuing a notice of its intent to relocate, officially listing the

building for sale, and actively pursuing bids for the property. USPS’s broker actively marketed

the property, listed it for sale, and distributed various marketing materials. The USPS also took

preliminary steps to comply with the National Environmental Policy Act and the National

Historic Preservation Act (City of Berkeley First Amd. Compl. ¶¶ 1, 13).

In the fall of 2014, the USPS posted on its website that it was “in contract” with respect to

the Berkeley Main Post Office. Upon learning of the potential sale, plaintiff City of Berkeley

filed a motion for a TRO and a preliminary injunction to enjoin the pending sale. The

undersigned judge granted the TRO (Dkt. No. 8). Two weeks later, plaintiff National Trust for

Historic Preservation filed its own lawsuit against the USPS attempting to block the pending sale,

and the cases were related. Both original complaints sought declaratory and injunctive relief

blocking the pending sale and alleged that the USPS violated NEPA by declaring a categorical

exclusion in secret, and in an arbitrary and capricious manner. Plaintiffs further alleged that

defendants violated the NHPA in an arbitrary and capricious manner by failing to complete

Section 106 review prior to entering into a contract for sale and by relying on an inadequate

covenant. Plaintiffs argued that by entering into the sales agreement, the USPS had completed a

final and reviewable agency action (City of Berkeley First Amd. Compl. ¶¶ 1, 39).

Before plaintiffs’ motion for a preliminary injunction could be ruled on, the potential

buyer, Hudson McDonald, LLC, backed out of the deal. The proposed deal included a five-year

leaseback provision, such that the USPS would maintain its retail services in the current post

office building while it searched for a relocation site. As a consequence, no pending sale exists

and the property is not currently even listed for sale. The USPS stated that it has not decided

when, if ever, to re-list the Berkeley Main Post Office for sale (Lowe Decl. ¶ 4).


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Nevertheless, plaintiffs allege that the cancellation of the pending sale does not render

their case moot and have amended their complaints. Plaintiffs’ amended complaints seek

declaratory and injunctive relief that would prevent the USPS from moving forward with any

potential post office sale and/or relocation until it has rescinded the following three actions: (1)

the “Final Determination Regarding Relocation of Retail Services in Berkeley, California,” which

the USPS issued in 2013 and stated that the USPS “has not yet identified the potential relocation

site and thus it is premature to evaluate potential impacts” (USPS Exh. 1 at 6); (2) the USPS’s

Record of Environmental Consideration, which determined that a sale of the post office building

was categorically excluded from NEPA review; and (3) a letter to the Advisory Council on

Historic Preservation from the USPS stating that it had concluded the Section 106 process (City

of Berkeley First Amd. Compl. ¶¶ 1, 57).

Now, defendants move to dismiss under Rules 12(b)(1) and 12(b)(6). Defendants argue

that because Hudson McDonald terminated the pending sales agreement, plaintiffs’ case is moot.

Additionally, defendants contend that plaintiffs lack standing to bring a private right of action

under the Administrative Procedures Act.

At oral argument, the undersigned judge requested that the USPS inform the Court as to

whether it would rescind the document titled “Final Determination Regarding Relocation of

Retail Services in Berkeley, California.” In response, the USPS stated (Dkt. No. 54) (emphasis

added):

The answer is yes. The 2013 Final Determination was superseded— now having no further force an [sic] effect — by the September2014 decision to maintain services in the Berkeley Main PostOffice. Should the Postal Service at some future time decide againthat it would be in the best interest of its operations to relocateretail services, the Postal Service will reinitiate the processpursuant to 39 C.F.R. 241.4.

This order follows full briefing and oral argument.

ANALYSIS

Under Rule 12(b)(1), the “basic question in determining mootness is whether there is a

present controversy as to which effective relief can be granted.” Feldman v. Bomar, 518 F.3d

637, 642 (9th Cir. 2008) (quoting Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.



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4

1988)). Moreover, in reviewing agency decisions, “federal courts lack power to make a decision

unless the plaintiff has suffered an injury in fact, traceable to the challenged action, and likely to

be redressed by a favorable decision.” Snake River Farmers’ Ass’n v. Dep’t of Labor, 9 F.3d 792,

795 (9th Cir. 1993).

When a plaintiff seeks declaratory relief, as here, the “test for mootness . . . is ‘whether the

facts alleged, under all the circumstances, show that there is a substantial controversy, between

parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance

of a declaratory judgment.’” Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174–75 (9th

Cir. 2002) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

This order holds that the case is moot because (1) Hudson McDonald terminated the sales

agreement and (2) the USPS has rescinded the 2013 final determination, such that if the USPS

later decides to relocate, it will go through the process all over again under 39 C.F.R. 241.4.

Moreover, in late 2014, the City of Berkeley passed new zoning restrictions on the district

in which the Berkeley Main Post Office resides. The zoning overlay goes so far as to permit only

the following new uses in the Civic Center District: libraries; judicial courts; museums; parks and

playgrounds; public safety and emergency services; government agencies and institutions; public

schools/educational facilities; non-profit cultural, arts, environmental, community service and

historic organizations; live performance theatre; and a public market (Berkeley City Ordinance

No. 7,370-N.S., Chapter 23E.98). This will substantially shrink the possible universe of

purchasers or alternative users for the building, making it ever more unlikely that the controversy

will ever rise from the dead.

Our court of appeals has definitively held that: “A case or controversy exists justifying

declaratory relief only when ‘the challenged government activity . . . is not contingent, has not

evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be

a substantial adverse effect on the interests of the petitioning parties.’” Headwaters, Inc. v.

Bureau of Land Mgmt., Medford Dist., 893 F.2d 1012, 1015 (9th Cir. 1990) (quoting Super Tire

Engineering Co. v. McCorkle, 416 U.S. 115, 122 (1974)).



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The three agency actions that plaintiffs still challenge, now that the pending sale has

evaporated and the relocation decision has been rescined, are intermediate steps that do not bind

the USPS to anything. Any injury plaintiffs could conceivably suffer in the future turns on

several unknown contingencies, such as: (a) an actual decision to re-list the property; (b) the

existence of a contract binding the USPS to a sale and/or a contract binding the USPS to

relocation; and (c) that the terms of that future sale and/or relocation, and the actions taken by the

USPS leading up to them, actually violate NEPA and the NHPA. These hypothetical events are

“too uncertain, and too contingent upon the [defendant’s] discretion, to permit declaratory

adjudication predicated on prejudice to [plaintiff’s] existing interests.” Headwaters, 893 F.2d at

1015–16.

In Nome Eskimo Community. v. Babbitt, 67 F.3d 813 (9th Cir. 1995), our court of appeals

reviewed similar facts to those in our case. In Nome, the United States Department of the Interior

announced that it planned to accept bids for the right to lease areas of the Norton Sound in Alaska

for gold dredging. The plaintiffs then sued for an injunction enjoining the leases and for a

declaratory judgment establishing plaintiffs’ rights to the land at issue. Before the district court

could rule on the injunction, the government announced that it had received no bids for the

property, that no lease was pending, and that the property was no longer listed for lease. Our

court of appeals affirmed the district court’s dismissal of the case as moot. In doing so, our court

of appeals stated: “Plaintiffs have suggested that, even absent a continuing case or controversy,

we should provide a declaration of their rights in the Norton Sound area. However, a declaratory

judgment may not be used to secure judicial determination of moot questions.” Id. at 816.

Plaintiffs argue that their case is not moot, despite the fact that the original buyer backed

out, the property is not currently listed for sale, and the USPS rescinded the final determination

regarding relocation. Instead, plaintiffs argue that harm is imminent and that a present

controversy exists for which effective relief can be granted. Plaintiffs contend that the following

three actions, undertaken by defendants, created a cognizable injury: (1) the “Final

Determination Regarding Relocation of Retail Services in Berkeley, California,” which the USPS

issued in 2013 and stated that the USPS “has not yet identified the potential relocation site and


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thus it is premature to evaluate potential impacts” (USPS Exh. 1 at 6); (2) the USPS’s Record of

Environmental Consideration, which determined that a sale of the post office building was

categorically excluded from NEPA review; and (3) a letter sent to the Advisory Council on

Historic Preservation by the USPS stating that it had concluded the Section 106 process. In doing

so, plaintiffs rely on the long-held exception to the mootness doctrine, that cases which present

issues that are “capable of repetition, yet evading review” are not moot. S. Pac. Terminal Co. v.

ICC, 219 U.S. 498, 515 (1911).

The central decision plaintiffs rely on is Super Tire Engineering Co. v. McCorkle, 416

U.S. 115 (1974). In Super Tire, a group of New Jersey employers challenged a state statute

requiring employers to pay benefits to striking workers, arguing that the statute interfered with the

policy of free collective bargaining expressed in the Labor Management Relations Act. Before

the case could be tried, the parties settled the labor dispute and the strike ended. Despite this, the

Supreme Court held that the case was not moot and that declaratory relief could be granted. The

Supreme Court reasoned (id. at 123–24) (emphasis added):

[T]he challenged governmental action has not ceased. The NewJersey governmental action does not rest on the distantcontingencies of another strike and the discretionary act of anofficial. Rather, New Jersey has declared positively thatable-bodied striking workers who are engaged, individually andcollectively in an economic dispute with their employer areeligible for economic benefits. This policy is fixed and definite. Itis not contingent upon executive discretion. Employees know thatif they go out on strike, public funds are available. The petitioners'claim is that this eligibility affects the collective-bargainingrelationship, both in the context of a live labor dispute when acollective-bargaining agreement is in process of formulation, andin the ongoing collective relationship, so that the economic balancebetween labor and management, carefully formulated andpreserved by Congress in the federal labor statutes, is altered bythe State's beneficent policy toward strikers. It cannot be doubtedthat the availability of state welfare assistance for striking workersin New Jersey pervades every work stoppage, affects everyexisting collective-bargaining agreement, and is a factor lurking inthe background of every incipient labor contract. The question, ofcourse, is whether Congress, explicitly or implicitly, has ruled outsuch assistance in its calculus of laws regulatinglabor-management disputes. In this sense petitioners allege acolorable claim of injury from an extant and fixed policy directiveof the State of New Jersey. That claim deserves a hearing.



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Our facts are distinguishable from those in Super Tire in several respects. Primarily,

Super Tire found the policy at issue was fixed and definite, did not rest on future contingencies,

and had an impact on the economic balance between labor and management. In our case, on the

other hand, any potential injury to plaintiffs does rest on indefinite future contingencies. For

plaintiffs to be injured, the USPS must re-list the property for sale, actually enter into a sale

agreement with a buyer, and must go through the procedure laid out in 39 C.F.R. 241.4 all over

again. Moreover, as stated above, Super Tire stressed that the challenged policy created a

cognizable injury because its very presence affected the ongoing labor relationship between the

parties. In our case, there is no analogous relationship or injury that would keep the case alive.

Lastly, Super Tire concluded that because “the great majority of economic strikes do not

last long enough for complete judicial review of the controversies they engender” they fall into

the “capable of repetition, yet evading review” exception. Id. at 125–26 (quoting Southern Pac.,

219 U.S. at 515). Our case does not fall into this exception. The facts that prompted plaintiffs’

original suit — an actual pending sale — are capable of repetition. They would not, however,

evade review. This exception is typically applied to actions that have a short duration. In Super

Tire, the exception applied to a labor strike. In the environmental context, this exception

typically applies to short-term policies or leases. See, e.g., Alaska Cent. for the Env’t v. U.S.

Forest Serv., 189 F.3d 851, 854–55 (9th Cir. 1999).

In our situation, however, if the USPS enters into a sale agreement for the property, and if

plaintiffs contend that future agreement violates NEPA and the NHPA, then that case would not

evade review. In two recent cases that had similar facts to ours, in which the federal government

attempted to sell a building and a group of plaintiffs sued under NEPA and the NHPA, courts

granted preliminary injunctions and were able to review the cases on the merits. See Nat’l Post

Office Collaborate v. Donahoe, No. 13–1406, 2014 WL 6686691 (D. Conn. Nov. 26, 2014)

(Judge Janet Arterton); Comm. for the Pres. of the Seattle Fed. Reserve Bank Bldg. v. Fed.

Reserve Bank of San Francisco, No. 08–1700, 2010 WL 1138407 (W.D. Wash. Mar. 19, 2010)

(Judge Robert Lasnik). Similarly, in our case, when there was an actual pending sale, plaintiffs’

request for a TRO was granted and the case would have been reviewed on the merits, had the


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pending sale not fallen through. Thus, our situation does not fall into the “capable of repetition,

yet evading review” exception to the mootness doctrine.

Plaintiffs next argue that courts rarely dismiss NEPA and NHPA challenges based on

mootness grounds. Each of the decisions plaintiffs rely upon, however, is distinguishable from

our facts. In Tyler v. Cisneros, 136 F.3d 603 (9th Cir. 1998), our court of appeals held that the

plaintiffs’ NEPA and NHPA claims were not moot. In Tyler, however, the Department of

Housing and Urban Development had already agreed to the parameters of the housing project at

issue with a local developer and had already disbursed the funds for the project. The challenged

project did not depend on hypotheticals or contingencies. Our court of appeals concluded that

plaintiffs’ claims were not moot despite the fact that HUD had already distributed the funds for

the specified project. Thus, the plaintiffs had suffered a cognizable injury.

In four other decisions plaintiffs rely on, substantial portions of the projects at issue had

already been completed when the plaintiffs filed suit. Those decisions all held that although the

challenged projects had largely been constructed, plaintiffs could still assert their NEPA and

NHPA claims. See Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F. 2d 585 (9th Cir.

1981); West v. Sec’y of Transp., 206 F.3d 920 (9th Cir. 2000); Earth Island Inst. v. U.S. Forest

Serv., 442 F.3d 1147 (9th Cir. 2006); Vieux Carre Prop. Owners, Residents & Assocs., Inc. v.

Brown, 948 F.2d 1436 (5th Cir. 1991). In our case, however, substantial portions of the

challenged project have not been completed. In fact, no real and definite challenged project

exists; it is merely hypothetical. No specific architectural plans have been drawn up, no money

has changed hands, and the USPS is not contractually bound to do anything. Frankly, in light of

the new zoning ordinance, it seems highly unlikely that this controversy will ever recur in the

foreseeable future.

Lastly, plaintiffs argue that their case is not moot, and is ripe for review, based on the

Supreme Court’s statement in Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 737

(1998). There, the Supreme Court stated that “a person with standing who is injured by a failure

to comply with the NEPA procedure may complain of that failure at the time the failure takes

place, for the claim can never get riper.” Plaintiffs rely on two decisions interpreting Ohio



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Forestry to allow challenges to projects under the NHPA and NEPA. See Dugong v. Gates, 543

F. Supp. 2d 1082, 1097 (N.D. Cal. 2008) (Judge Marilyn Hall Patel); Kern v. BLM, 284 F.3d

1062, 1070–71 (9th Cir. 2002).

These decisions are distinguishable as well. In Dugong, the Department of Defense had

already approved specific plans for the construction of a military air station in Japan. Thus, the

decision reasoned, plaintiffs’ NHPA claim was ripe for adjudication. Dugong stressed that the

claim was ripe because “the 2006 Roadmap is not an abstract proposal. It sets forth detailed

specifications regarding the location and configuration of the replacement military facility. Two

runways aligned in a V-shape will be built largely on landfill adjacent to the existing Camp

Schwab, but will also extend more than a mile into the waters of Oura and Henoka Bays.”

Dugong, 543 F. Supp. 2d at 1097. Similarly, in Kern, the plaintiffs challenged a specific

environmental impact statement regarding proposed timber sales in the Coos Bay District of

Oregon, arguing that it did not adequately take into account the potential effects on a pathogenic

root fungus that grew on the trees. Relying on that environmental impact statement, defendants

entered into eight specific timber sales and had concrete plans in place to allow logging to go

forward. Thus, Kern found that there existed “an imminence of harm to the plaintiffs and a

completeness of action by the agency.” Kern, 284 F.3d at 1070.

CONCLUSION

For the reasons stated above, defendants’ motions to dismiss are GRANTED, subject to the

following condition. Defendants must provide plaintiffs with written notice at least 42 calendar

days in advance of the closing of any future sale of the Berkeley Main Post Office or any final

determination to relocate retail post office services.

IT IS SO ORDERED.

Dated: April 14, 2015.WILLIAM ALSUPUNITED STATES DISTRICT JUDGE



i-orm 10-SOU (Oct. 1SSO)

United States Department of the Interior National Park Service

National Register of Historic Places Registration Form

This form is for use in nominating or requesting determinations for individual properties and districts. See instructions in How to Complete the National Register of Historic Places Registration Form (National Register Bulletin 16A). Complete each item by marking "x" in the appropriate box cr by entering the information requested. If an item does not apply to the property being documented, enter "N/A" for "not applicable." For functions, architectural classification, materials, and areas of significance, enter only categories and subcategories from the instructions. Place additional entries and narrative items on continuation sheets (NPS Form 10-900a). Use a typewriter, word processor, or computer, to complete all items.

1. Name of Property___________________________________________________________

fNAT

!?r RECEIVED 2280 '

JUL i u P*d

REGISTER Of HiSlUKIl Pl> NATIONAL PARKSERVICE.

'V '.••.

CES•^i i 1 1"^

historic name Berkeley Historic Civic Center District

other names/site number N/A

2. Location

street & number

citv or town __

not for publication

Berkeley N/A Q

state California code CA county A lame da code _201 Zip code

3, State/Federal Agency Certification

As the designated authority under the National Historic Preservation Act, as amended, I hereby certify that this 23 nomination Q request for determination of eligibility meets the documentation standards for registering properties in the National Register of Historic Places and meets the procedural and professional requirements set forth in 36 CFR Part 60. In my opinion, the property CS3 meets G does not meettlie National-Register criteria. I recommend that this property be considered significant D nationaHy-G statewide Of locally. (Q See continuation sheet for additional comments.)

Signature of codifying State Historic'

Date

reservation Officer

L_State of Federal agency and bureau

..__i

!n my opinion, the property D meets G does not meet the National Register criteria. (Q See continuation sheet for additional comments.)

I Signature of commenting official/Title Date

State or Federal agency and bureau

4. National Park Service Certification1 hereby certify that the property is:

Y^6»-«Qtered in the National Register. V Q See continuation sheet.

Q determined eligible for the ' National Register

D See continuation sheet.

D determined not eligible for the National Register.

Q removed from the National Register

L; other, (explain:)

Date of Action


Name of PropertyH J. am eua.County and State

5. ClassificationOwnership of Property(Check as many boxes as apply)

5 private6 public-local D public-State & public-Federal

Category of Property(Check only one box)

D building(s) & district D site D structure D object

Name of related multiple property listing(Enter "N/A" if property is not part of a multiple property listing.)

N/A_______________________

Number of Resources within Property(Do not include previously listed resources in the count.)

Contributing

7

1

1

0

9

Noncontributing

3

0

0

0

3

buildings

sites

structures

objects

Total

Number of contributing resources previously listed in the National Register

6. Function or UseHistoric Functions(Enter categories from instructions)

Current Functions(Enter categories from instructions)

(See attached continuation sheet)

7. DescriptionArchitectural Classification(Enter categories from instructions)

(See attached)

Materials ,(Enter categories from instructions)

foundation __________

walls _____________

roof

other

Narrative Description(Describe the historic and current condition of the property on one or more continuation sheets.)

(See attached)


.berKeiey u.iviuName of Property County and State

8. Statement of SignificanceApplicable National Register Criteria(Mark "x" in one or more boxes for the criteria qualifying the property for National Register listing.)

H A Property is associated with events that have made a significant contribution to the broad patterns of our history.

D B Property is associated with the lives of persons significant in our past.

E C Property embodies the distinctive characteristics of a type, period, or method of construction or represents the work of a master, or possesses high artistic values, or represents a significant and distinguishable entity whose components lack individual distinction.

D D Property has yielded, or is likely to yield,information important in prehistory or history.

Criteria Considerations(Mark "x" in all the boxes that apply.)

Property is:

D A owned by a religious institution or used for religious purposes.

D B removed from Us original location.

D C a birthplace or grave.

D D a cemetery.

D E a reconstructed building, object, or structure.

D F a commemorative property.

n G less than 50 years of age or achieved significance within the past 50 years.

Narrative Statement of Significance(Explain the significance of the property on one or more continuation sheets.)

Areas of Significance(Enter categories from instructions)

Politics/Government

Social HistoryArchitecture

Community

Period of Significance1909 - 1950

Significant Dates

Significant Person(Complete if Criterion B is marked above)

N/A________________

Cultural Affiliation

N/A_______

Architect/Builder

Bakewell, John R.; Brown, Arthur, Jr.; Corlett, William, Sr.; Gutterson, Henry Higby; Maybeck, Bernard Ralph; Morgan, Julia; Meyers, Henry H.; Plachek, James W.; Schnier, Jacques; Howard, Robert Boardman

9. Major Bibliographical ReferencesBibliography (See attached)(Cite the books, articles, and other sources used in preparing this form on one or more continuation sheets.)

Previous documentation on file (NFS):D preliminary determination of individual listing (36

CFR 67) has been requested D previously listed in the National Register D previously determined eligible by the National

RegisterD designated a National Historic Landmark D recorded by Historic American Buildings Survey

Primary location of additional data:S State Historic Preservation Office D Other State agency D Federal agency S Local government S University D Other

Name of repository:

D recorded by Historic American Engineering Record # _____________


Name of PropertyCivic Gpnt.pr District Alameda County, uamornia

County and State

10. Geographical Data

Acreage of Property (Under 10 acres)

UTM References(Place additional UTM references on a continuation sheet.)

Zone Easting

2 I I I I I I I I

Northing

I I I l I I l

Zone Easting

4 ___I I____

Northing

1,1,1,D See continuation sheet

Verbal Boundary Description(Describe the boundaries of the property on a continuation sheet.)

Boundary Justification(Explain why the boundaries were selected on a continuation sheet.)

11. Form Prepared By

name/title Susan Cerny/Arch'l Historian; Jerri Holan/Arch'l Historian; Linda Perry/

organizatiorBerkeley Architectural Heritage Assoc. date March 2, 1998

street & number23l8 Durant Avenue______________ telephone (510)841-22^2

city or town Berkeley__________________ state CA zip code

Historian

Additional DocumentationSubmit the following items with the completed form:

Continuation Sheets

Maps

A USGS map (7.5 or 15 minute series) indicating the property's location.

A Sketch map for historic districts and properties having large acreage or numerous resources.

Photographs

Representative black and white photographs of the property.

Additional items(Check with the SHPO or FPO for any additional items)

Property Owner______________________________ (Complete this item at the request of SHPO or FPO.)

name (Varies - please see attached)_______________________

street & number

city or town __

telephone

state zip code

Paperwork Reduction Act Statement: This information is being collected for applications to the National Register of Historic Places to nominate properties for listing or determine eligibility for listing, to list properties, and to amend existing listings. Response to this request is required to obtain a benefit in accordance with the National Historic Preservation Act. as amended (16 U.S.C. 470 et see/.).

Estimated Burden Statement: Public reporting burden for this form is estimated to average 18.1 hours per response including time for reviewing instructions, gathering and maintaining data, and completing and reviewing the form. Direct comments regarding this burden estimate or any aspect of this form to the Chief, Administrative Services Division. National Park Service. P.O. Box 37127. Washington, DC 20013-7127; and the Office of Management and Budget. Paperwork Reductions Projects (1024-0018). Washington. DC 20503.

US GOVERNMENT PRINTING OFFICE : 1993 O - 350-416 QL 3


NPS Form IO-900-a

United States Department of the Interior National Park Service

National Register of Historic Places Continuation Sheet

OM8 Appnov* Mo. 10S4-OOia

BERKELEY CIVIC CENTER DISTRICT ALAMEDA, CALIFORNIA

Section number Page

# 6 Function or Use

Historic Functions____ Current Functions

1. 2134 Martin Luther King, Jr. WayGOVERNMENT/city hall EDUCAHON/administrative

2. AIIston-MLK Jr. Ways-Center Street

3. 1931 Center Street .SOCIAL/civic

4. 2180 Milvia StreetGOVERNMENT/banking

5. 193X) Allston WayEDUCATION/CULTURE/theater

6. 2001 Allston WaySOQAL/civic-recreational

7. 2000 Allston WayGO VERNMENT/post office

8. 1947 Center StreetCOMMERCE/business

9. 1835 Allston WayGOVERNMENT/city hall annex

10. 2171 McKlnley StreetGOVERNMENT/poHce-jan

11. 2117 McKinley StreetGO VERNMENT/health services

LANDSCAPE'park

SOCIAL/civic

GOVERNMENT/city hall

EDUCATION/CULTURE/theater

SOdAL/civic-recieadonal

GO VERNMENT/post office

COMMERCE/business

EDUCAHON/administrative

GOVERNMENT/police-jail

GOVERNMENT/fire station- headquarters

12. 21JO Martin Luther King Jr. WayGOVERNMENT/court house

13. 2111 McKinleyHOUSING/private

GOVERNMENT/court house

HOUSING/public


NPS form 10-900-4 O*8 *f»**»*l **x 1074-OOffl (8-86)

United States Department of the Interior BERKELEY.CIVIC CENTER DISTRICT National Park Service ALAMdEA COUNTY, CALIFORNIA


Section number —!— Page * ft—

7 DESCRIPTION___Architectural Classification and Narrative Description (continued)

Architectural Classification

EARLY 20TH CENTURY Beaux Arts Classicism Moderne ArtDeco

Materials

foundations-concretewalls-painted concrete-stuccoroof- hidden behind parapet, slate, clay tile

other:painted sheet metal cupolaART/bas relief sculptureterra cotta decorative elementsmarble columns


NPS Form 10-900-a OMB Approval No. 1024-O01S (8-86)

United States Department of the Interior BERKELEY CIVIC CENTER DISTRICT National Park Service ALAMDEA COUNTY, CALIFORNIA


Section number ——I— Page ———

7. DESCRlFllON___Architectural Classification and Narrative Description (continued)

CIVIC CENTER HISTORIC DISTRICT: GENERAL DESCRIPTION

Berkeley, California's Civic Center Historic District comprises portions of a five block area surrounding Martin Luther King Jr., Civic Center Park, the district's central feature. The area is located approximately a 1/4 mile to the| East and South of the physical center of the city, and one block west from the center of downtown. Thb area is bordered on the west by McKinley Street, on the east by Milvia Street, on the south by Allston Way and on the north by Center Street The district provides predominantly public services. Thirteen buildings, one site and one structure are in the district There are nine contributing buildings, one contributing site and one contributing structure, there are four noncontributing buildings. Civic Center Park is located on the west side of the block boardered by Allston Way, Center Street, Milvia and Martin Luther King, Jr. Way. This block is 315' x 590'. The civic center's four major contributing buildings are located on an axis with one another, forming a cross axis at the center of Civic Center Fountain located in the park. The four buildings which form the cross-axis are: "Old" City Hall, on the west, across Martin Luther King, Jr. Way; the former Federal Land Bank Building, located on the eastern third of the park block; the Veterans Memorial Building, located on the north, across Center Street; and the Berkeley Community Theater located on the south, across Allston Way. The architectural styles of contributing buildings are representative of the period of significance 1909-1950. The buildings range from one to six stories. "Old" City Hall (1909), in the Beaux Arts Classic style, and the Post Office (1914), in the Classic Italian Renaissance Style, are among the earliest buildings and the most decorative. Six contributing buildings date from 1928-1950 and are variations of the simpler Moderne Style. All share a high degree of workmanship, materials, quality of design, decoration, and are painted in a compatible palette of pale golds, greens, rose, blues, grays and cream.

The block on the west, across Martin Luther King Jr. Way, where the "Old" City Hall stands, is owned by the City. There are seven buildings on this block. Three are contributing buildings and four are noncontributing buildings. The three contributing buildings include "Old" City Hall and are on the south end of the block and were built to house civic functions. The County Court House and the Fire Department Headquarters, generally in the center of the block, were built after the period of significance. Most of the north third of the block is a surface parking lot and includes two noncontributing buildings which were originally private dwellings but now owned by the city.

Berkeley's Civic Center area is bordered by the downtown commercial and retail district on the east and north, and residential neighborhoods to the west and south. Characteristics that distinguish the Civic Center are achieved by the presence of the park with its tall green background of mature trees, and the siting of contributing buildings back from the sidewalk with some planted landscape features in front or next to them. Major landscape features are present in Civic Center Park and in front of "Old" City Hall. The elements that make up these major landscape features include concrete paths, lawns, mature evergreen trees and Civic Center Plaza and Fountain.


NPS Fonti 10-900-a



1 7Section number ——I— Page _r±——

7. DESCRIPTION___Architectural Classification and Narrative Description (continued)

The creation of a clearly defined civic center required more than three decades of planning and land acquisition to achieve. Despite the decades of planning, and the separate nature of each individual project, a cohesive ensemble was created. The appearance of the district retains a high degree of integrity because there have been few changes since the district achieved significance when the Berkeley High School Community Theater was completed in 1950, after 11 years of construction. However, since the district evolved over more than three decades, significant changes did occur between 1909-1950. For example, the land for Civic Center Park, the Veterans Building and the Old City Hall block was purchased from private owners; buildings were removed for the park, parking lots, the Community Theater, Veterans Building, and County Court House. The general condition of the buildings is good to excellent and there have been no significant alterations to the park or individual contributing buildings.

No known archeological resources have been recorded. Strawberry Creek, which once flowed through the park has been culverted and there is no evidence of the creek today. However, creekside areas often contain evidence of indigenous people. All features of the district are manmade. There are no natural prominent features. Vegetation, even large trees, were planted. The topography gently slopes to the west,

1. City Hall - Contributing Building2134 Martin Luther King, Jr. WayJohn Bakewell & Arthur Brown. Jr.1908-9Listed on the National Register of Historic Places

City Hall is located on the west side of Martin Luther King, Jr. Way across the street from Civic Center Park, facing east towards the park. City Hall is an example of early 20th Century Revival Beaux-Arts classicism, using decoration derived from Greek and Roman sources in a symmetrically composed three part arrangement. The design of the Berkeley City Hall was inspired by the Town Hall at Tours, France which was designed in 1901 by Arthur Brown's professor at the Ecole des Beaux Arts, Victor Laloux. John Bakewell and Arthur Brown's design was selected as the winner of a 1907 competition. The center of the facade is on axis with the center of Civic Center Park.

City Hall is a rectangular shaped building containing two main floors over a raised concrete basement The surface of the building is blue/gray painted plaster over concrete; the window trim, wrought iron balconies and the cupola is painted a grayed blue/green. The building is set back from the street approximately 30'. Three concrete pathways lead to the entrance staircase; approaching from the south and north the pathways form a semi-circle and there is one in the center. These pathways surround a lawn. Large redwood trees on either side of the building create a green backdrop. A central concrete staircase rises in two sections. The wide three-sided lower staircase rises from the pathways at ground level. The center portion of this staircase is the widest side. The lower staircase rises to a wide landing enclosed by classic balustrades on the north and south. The upper section of the staircase


NFS F<xm 10-900-a



•13Section number —!— Page ———


terminates at the entrance. The entire composition of the entrance staircases is wide at the bottom and progressively gets narrower towards the top.

The central element on the east side is recessed, contains the entrance and is flanked by two projecting side bays that are smaller, decoratively simpler and shorter than the dominant central element The central element is 86'x 66" and is divided into five equal sized bays with the entrance in the center. Each bay is separated by engaged Ionic styled columns that rise the full two stories and support six projecting cornice elements that serve as bases for ornamental dentels and monumental urns. Behind the urns is a blank frieze terminating in a secondary cornice molding, with a cartouche in the center. The columns stand on large square bases that are approximately 5' on each side. Each base is separated by Classical balustrades below each arched window. The central portion has a raised, hipped gray slate roof, which provides a large attic storage space. There are ornamental flames at either end of the metal capped ridge. At the center of this hipped grey slate roof is a lantern styled 60f cupola and spire constructed of painted sheet metal on wood frame. The cupola was restored and the building painted original pale blue/gray colors in 1991. There are two small bulls-eyed dormers on the lower portion of the roof, above and between the central bay.

The fenestration of the central section consists of one large window (almost a full floor tall) in each bay, on both floors. The windows on the first floor are arched and framed by an arched molding fabricated from the same concrete plaster as the walls. This window molding is bisected in the center of the arch by a decorative volute keystone element The central arched opening contains the entrance. On the second floor the windows are framed by rectangles. Both have keystone elements in the center of the window frames. Under the first floor windows is a Classic balustrade and under the second story windows are individual balconies with decorative iron railings, supported by brackets. The two wings (each 31 f x 77") are identical and are set perpendicular to the central portion. The details and materials of the wings are the same as the central section, but treated more simply. Under their second floor windows, on the south and north sides, are balconies, supported by large curved foliated brackets, which run the entire length of the windows; they have the same decorative iron railings as on the main facade. These wings have hipped roofs, capped with a metal ridge with ornamental flames at either end. The interior is also significant for the decorative techniques exhibited in the painted columns at the base of the main stairway and in the trompe 1'oeil painting of the walls and ceiling of the stairwell These are perfectly preserved examples of decoration that was popular at the turn-of-the- century.

There have been few alterations to the building since it was completed in 1909. The only change on the main facade was the replacement of the operable sections of the original wood sash with aluminum, but the pattern of the window divisions has been retained. The major alteration occurred in 1950 when the rear of the building was extended about 10* on each side of the stair-bay to create additional office space. The windows on either side of the stair bay were enclosed as part of this work so that the main staircase is now much darker than it was originally. The building retains a high degree


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of integrity and was designated a City Landmark in 1975. It is also listed on the National Register of Historic Places.

2. Civic Center Park - Contributing Site Civic Center Fountain - Contributing Structure 2100 Block of Martin Luther King Jr. Way Henry Gutterson, Chair of the Design Committee Bernard Maybeck, Julia Morgan, John Gregg, East side between Allston Way and Center Street 1938-1942

Martin Luther King, Jr., Civic Center Park occupies the western 2/3 of a block. The land slopes gently to the west The park is composed of seven major elements: Fountain Terrace, Christmas Tree Terrace, Civic Center Fountain, large open lawn area, shuffle board court, playground and flag pole. All original elements date from the completion of the park in 1942. At the east side, the park ends at the Fram Credit Building and its driveway/parking lot Between the formal park spaces and the Farm Credit Building, is a green backdrop created by of groves of trees, including redwood, deodar cedar, and magnolia. Sheltered in the groves were two concrete restroom structures; the southern structure remains, but the northern bathroom was removed in the 1970s. Between the groves of trees is a raised terrace with original concrete perimeter walls; in the center stands Berkeley's "Municipal Christmas Tree", a Giant Sequoia (approximately 90' tall) lit with colored lights during the winter holiday season. This terrace forms the narrow eastern end of a hardscape area that widens out in the center of the park into Fountain Terrace. Fountain Terrace is a circular flagstone terrace. Half the terrace is surrounded by tile covered concrete walls with five opennings to paths. The original wall was reconstructed to display the brightly colored hand painted tiles of the Peace Wall in 1987. The location and size of the reconstructed walls replicate the original perimeter walls of the terrace with the exception of a new openning on the west side, but the colors of the tiles are not compatable with the creamy colors of the district The Fountain is in the center of this terrace. It is a 50 foot diameter circular concrete fountain composed of a large outer pool with two tiered levels that step up to a cylindrical core where water jets and colored lights were once mounted. It has not been determined when the fountain water jets and lights were removed. The cross-axis formed by the district's four major buildings (City Hall to the Farm Credit Building running east-west, and north-south from the Veterans' Memorial Building to the Community Theater) is located here. All of the fountain structure is original, as is the flagstone terrace surrounding the fountain. The fountain is Moderne in character, constructed of unadorned concrete with the original board marks still showing. West of the fountain terrace is a large lawn surrounded by wide paths in their original configuration, and most in original concrete. The lawn is the open centerpiece of the park, intended for large gatherings and recreational use. West of the lawn is a narrow, linear hard surfaced area, flanked by trees and shrub plantings, along the Martin Luther King, Jr. Way frontage of the park. The southern end of this area was intended for the elderly, and retains


NPS Form 10-900-. °**a *V«>"* No. 10244018 (8-86)



Section number —!— Page


shuffleboard courts, although in damaged condition. The northern portion is a children's play area, which is its original use, although the play equipment is modern. Between the play area/shuffleboard courts and the central lawn is a flagpole, the first feature installed in the park during construction. Surrounding the park are a number of original light poles, although their heads have been removed and replaced with modern fixtures.

Most of the plantings in the park, including an array of camphor trees flanking the central lawn and western end, are original. Original elements of the park furniture still remain, including.a number of concrete and wooden benches. Although Civic Center Park was not completed until 1942 it was anticipated as early as 1908 when "Old" City Hall was designed. Bonds were finally approved in 1940 making $125,000 available to buy and develop the land. A committee was appointed to design the park. The chair was architect Henry Gutterson, with architects Bernard Maybeck and Julia Morgan and Landscape Design Professor, John Gregg Henry Gutterson, with William Corlet, Jr., desgined the Community Theater in 1937, and had located the theater on axis with the Veterans Building. As chair of the park design committee it is not surprising that the major significant element in the cross axial plan is the Civic Center Fountain. Civic Center Park is a Berkeley Landmark, designated hi 1997

3. Veterans Memorial Building - Contributing Building 1931 Center Street Henry H. Meyers 1928

The Veterans Building is an example of the Classic Moderne style. The facade is a simplified, horizontal three-part vertical composition, two stories with a raised concrete basement as the base, a two-story shaft, and parapet entablature above a simple cornice molding. The building is constructed of reinforced concrete-plaster, painted cream with pale rose and blue accents, and is T-shaped in plan. Overall the building is 180' wide and 120' deep. The central entrance section is recessed and slightly taller than the wings. Each wing is about 40* feet wide and articulated into 3 bays by 4- two-story fluted pilasters. There is one window between the pilasters on each floor with ornamental spandrel panels. The parapet has panels with a scrolled tendril motif and projecting acanthus leaf cornice at the top. The words "Veterans Memorial" are incised in the frieze between the seals of the United States and the State of California. The building has not been altered. A disabled ramp was added on the east side of the entrance in 1990, which removed some planting, but this is not a significant alteration, and it was retrofitted and repainted by the City in 1996.

Most of the interior is finished in dark wood paneling and smooth plaster. The main lobby has a tile floor and polychrome tile baseboard. Display cases with contain mementos of veterans organizations. Tile faced staircases with wrought iron handrails rise to the second floor at either end of the lobby. In the center of the building is a large two-story auditorium. The building was designed by Alameda County Architect Henry H. Meyers and architects Mildred Meyers, his daughter, and George R. Klinkhardt The building was designated a City of Berkeley Landmark in 1985.


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4. Federal Land Bank - Contributing Building 2180 Milvia Street James W. Plachek 1938

The Federal Land Bank building is a classic WPA Moderne style with a symmetrical three part composition repeated around the building in different ways. The building was designed by James W. Plachek. On the Milvia Street side the main entrance to the building is in the center of a slightly recessed central section. On the west side of the building, overlooking Civic Center Park, the building is a deep U-shape with two towers, one containing stairs and the other containing the elevators, that create an exaggerated Art Deco zigzag design. Above the central section is a penthouse, containing mechanical equipment, with a hipped roof. Windows are grouped in threes and these groups are separated by wide bands of concrete-stucco. On the north and south sides the window groups are again treated in a three-part composition. The five-story building has understated, shallow decoration incised into its concrete-stucco siding. The building is painted gray with pale blue/green and rose beige accents. The blue/green color is also used for the window trim. These are colors are believed to be original. Most of the interior remains intact and the exterior of the building has not been altered. The entrance lobby is notable for its original Moderne details. The building became Berkeley's new City Hall in 1977 and was designated a City of Berkeley Landmark in 1985.

5. Berkeley High School Community Theater 1937, completed 1950 and LittleTheater 1937/40 -Contributing Building1930 & 1920 Allston WayHenry H. Gutterson and William Corlett, Sr., ArchitectsRobert Howard, Sculptor-1937-50

The Florence Schwimley Little Theater and Berkeley High School Community Theater along with associated classrooms, offices, storage and shop rooms, are located on Allston Way in the center of the block bordered by Martin Luther King Jr. Way on the west, and Milvia Street on the East. The entire composition is nearly symmetrical in plan with three major divisions: the large four story theater proper in the center, the 2 1/2 story west wing containing the Little Theater, and the 1 1/2 storey east wing containing the music and drama classrooms and offices. On the north side of the building overlooking Civic Center Park, the stage area of the Community Theater is expressed as the tall central portion of this composition, set above a rectangular one-story base. In the center of this is a deeply carved bas-relief of seven figures, designed by sculptor Robert Howard, depicting from the bottom to top, sculpture, painting, music, dance, poetry and drama. The center of this work of art is directly on axis with Civic Center Fountain and the entrance to the Veterans Building on the north side of the park.


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7. DESCRlFilON___Architectural Classification and Narrative Description (continued)

On the flanking wings are two bas relief heralds, one female and the other male, also by Robert Howard. The Little Theater is the high school's old auditorium, built in 1907, which was extensively remodeled and incorporated into the plan. It has a broad entry staircase to an open entrance balcony on its west side, it is approximately 1/2 a story higher than on the east wing.

The south side of the theater complex faces into the school campus on axis with the entrance to the main classroom building (the "C" building) across an open courtyard. The entrance vestibule and exhibition halls are contained in a one-story section which is set in front of a second story section so that the height and mass of the theater is minimized on the interior of the campus. On either side of the entrance are two panels with bas-reliefs also by Robert Howard; the one on the west is a figure representing drama, dance, music and the figure on the east represents poetry, sculpture and painting.

The seating area of the Community Theater is circular. The rectangular stage, with a slightly curving north wall, is located on the north side. The Little Theater is on the west side of the Community Theater and the classrooms, shops and offices are on the east side. On the south side of the Community Theater, curving around approximately 3/4 of the seating area, is the entrance vestibule flanked by two exhibition halls. The School Board Journal Vol. 122 #1,1951 further describes the interior: "The interior diameter of the main theater is 160 feet, with an orchestra floor of 2406 seats and a balcony of 1091 seats, a total of approximately 3500 seats. The stage is 100 by 55 feet and the proscenium opening is 50 feet wide and 30 feet high. Trie orchestra pit, which is raised and lowered by electrically operated screws, accommodates 84 musicians with their instruments. This orchestra pit may also be raised to stage a height to enlarge the stage apron....The Little Theater seats 628."

Its basic method of construction is steel and reinforced concrete, made up of pre-fabricated rectangular panels hung on a steel frame. The repetitive rectangular shapes created by these panels are decorative as well as functional. The Moderne/Art Deco styled building is sheathed in cream-colored concrete-plaster; window trim and doors are pale pink. The colors are original The building express a hierarchy of space through the use of simple geometric volumes emphasized by the decorative and artistic bas-relief murals and other surface embellishments molded or carved into the concrete-stucco walls. Decoration also includes: lettering and stripes carved into the concrete-stucco exterior surfaces; fluted pilasters and columns; rounded bays and corners; curved overhangs over some entrances; and concrete and brick-faced planter boxes.

Berkeley High School moved to a newly built school building located at the corner of Martin Luther King, Jr. Way and Allston Way in 1901. By 1934 three additional buildings had been constructed along Allston Way. Two of the older building were demolished for the construction of the Science Building and the Community Theater in 1934. As noted above, the auditorium building was remodeled and incorporated into the theater building.

The Berkeley High School Community Theater was dedicated June 5th, 1950 twelve years after the school board entered into an agreement with architect William Corlett Sr. and Henry Gutterson "for the preparation of plans and specifications for the erection and construction of a new auditorium at Be±eley High School and for the remodeling of the old auditorium" (Minutes of the


NPS Form 10-900-a (8-86)

United States Department of the InteriorNational Park Service


BERKELEY CIVIC CENTER DISTRICT ALAMDEA COUNTY, CALIFORNIA

Section number Page

7. DESCRIPTION ___ Architectural Classification and Narrative Description (continued')

School Board January 31, 1938) Construction of the theater was begun in late 1940, and by . December 1941 the steel frame of the almost circular building was nearly complete when the United States entered World War n and construction came to a standstill. It was not until 1949 that construction resumed. The open steel-frame theater stood for almost a decade and became known as the "bird cage".

The Berkeley High School Community Theater is oriented with its back to the Civic Center and its entrance from the interior of the school campus. However, a sketch of a "General Scheme of Expansion and Development" dated October 1937 shows the auditorium facing a Civic Center Park, which didn't yet exist. School Board minutes of November 1, 1939 report that "Architects Corlett and Gutterson presented sketches of a new idea for the orientation of the auditorium unit for Berkeley High School previously approved June 28,1939. The architects pointed out that on further study, the required high scene house, as originally located opposite the north front of the academic Building, would be, in their judgment over-powering in mass and an obstacle to the openness and unity of the courtyard and that the reversal of the plan...would eliminate that difficulty. Other advantages cited: direct access to the auditorium by the students, lower cost of the vestibule, more space between "C" building and auditorium, less glare, avoidance of traffic hazard on Allston Way and removal of heating plant to separate building. Architects stated that the new front on Allston would be adequate and appropriate for the proposed Civic Center. "

The theater building retains a high degree of integrity. The exterior of the building, its color, windows, brick side walks, retaining walls and planter beds, stairs and pathways, have had little modification or alteration, and are present in photographs for the theater's opening celebrations. Even some plant material has been partially retained. Most of the major interior spaces are also original including upholstery, drapery and rugs. The Florence Schwimley Little Theater and Berkeley High School Community Theater were designed as an ensemble of high school related buildings in 1937 and include the Shop and Science Buildings located to the west, and buildings to the east that were never built For purposes of the Civic Center Historic District Application, only the Community Theater and the Florence Schwimley Little Theater are included in the Civic Center District application because of their community uses. The Florence Schwimley Little Theater, Berkeley High School Community Theater and Shop and Science Buildings are City of Berkeley Landmarks, designated in 1992.

6. Young Men's Christian Association - Contributing Building 2001 Allston Way Benjamin G. McDougall 1910

The Young Men's Christian Association building is a four story rectangular building above a raised basement. The building sits flush with the sidewalks at the north east comer of Allston Way and Milvia Street The main entrance is on Allston Way with a secondary entrance on Milvia Street. The building is a three part composition vertically and horizontally on both sides, with the entrances in the .


NPS Form 10-900-a OMB Apptmtl No. 1O24-OO18 (8-66)


National Register of Historic Places RECEIVED Continuation Sheet

SEP 15 1998-1Section number ——L— Page —:— OHP

7. DESCRIPTION___Architectural Classification and Narrative Description (continued^

center of the composition. The walls of the raised basement and first floor are cream colored concrete plaster, formed to look like stone, and serve as the base of the composition. The walls of the third, fourth and fifth floors are faced with dark red brick. The "shaft" of the composition, the third and fourth floors, is separated from the "base" by a horizontal belt course; the fifth floor is also separated by a horizontal belt course and is capped by a heavy cornice supported by dentils. A parapet completes the composition. All decorative elements are cream colored concrete plaster. Quoins, also of concrete plaster define the corners and separate the central sections from the sections on either side. The central element on the Allston Way facade contains a recessed entry, with marble floors and kick-plate, framed by Tuscan columns; and above is a classic Palladian styled window. The entrance on the Milvia street side is framed by an arch of concrete plaster made to look like stone. Above the central element on the Allston Way facade, under the cornice are the words "Young Men's Christian Association" in gold lettering. The style of the YMC A building is Early 20th Century Revival/Colonial/Georgian.

The YMCA building has had two additions of almost equal size to the original building. Both these additions are on the east side of the building, along Allston Way.

The first addition was constructed in 1960 in a style consistent with mid-century utilitarian architecture in cream colored concrete plaster. The second addition was constructed in 1992 and is sheathed in red brick. It was designated a City Landmark in 1990.

7. United States Post Office - Contributing Building2000 Allston WayOscar Wenderoth1914Listed on The National Register of Historic Places

The elegant facade of the Post Office could be described as a ^ree adaptation of Brunelleschi's Foundling Hospital" in Florence with its arcade high round arches on plain Tuscan columns gracing its facade. The style of the Post Office is referred to as Second Renaissance Revival. The two story, raised basement rectangular shaped building is set back from the sidewalk about 15 feet The building faces Allston Way. A series of entrance doorways are recessed behind the entrance loggia of eleven vaulted arches extending almost the full width of the building. Marble Tuscan columns support the arches. Concrete plaster made to look like stone define the corners of the building. The arches are outlined in molded terracotta. A wide terra cotta belt-course, with dentils, swags, medallions, and wave patterns, visually separates the ground floor from the second floor and continues around the whole building. A smaller terra cotta frieze, with other Classical motifs, tops the second-story just below the eaves. The corners of the facade are heavily rusticated with cast blocks simulating stone. The roof is hipped, red tile over wood sheathing, and has a wide overhang with two rows of curved wooden brackets framing rectangular panels. The arches on the exterior are repeated on the inner wall of the loggia and again in the wall between the lobby and the workroom. These arches are identically


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glazed. The Postmaster's office door is framed in carved wood, similar to the vestibule, and in the arch around the door is a mural of figures from the Spanish and pioneer period of Berkeley's history, painted in 1936-7 by Suzanne Scheuer for the Treasury Relief Art Project. A 130 'addition was constructed in 1931/2 at the rear of the original 35' deep building, along Milvia Street. This addition has a flat-roof and is one-story plus basement It has the same wall, cornice and window motif as the facade, even on the sides facing the driveway and loading dock. The Berkeley Main Post Office is well preserved and its fine materials have endured well. The Post Office was designated a City of Berkeley Landmark in 1980 and is listed on the National Register of Historic Places.

8. State Farm Insurance Companies Building-Contributing Building 1947 Center Street James Plachek 1947/8

The State Farm Insurance Company Building is a six-story, 115,000 square feet, steel- reinforced concrete structure in Classic Moderne style. The building is divided horizontally and vertically into three sections. The recessed entrance opening is two stories high in the center of the facade. The central section, which contains a group of three windows on each flood projects several feet from the side sections. The side sections contain two groups of three windows on each floor. The corner element, set back about 4 feet, has a single window on each floor. The base of the building is rose colored polished stone and the rest of the building is concrete stucco painted pale rose. The building has not been significantly altered. A huge neon sign, which sat on the roof of the building, was removed in 1963 when the company sold the building.

9. City Hal! Annex - Contributing Building 1835 Allston Way James W. Plachek 1925

The building is a one story stucco-sided building with a red tile roof. It is located on the corner of Allston Way and McKinley Street The roof line repeats and continues that of "old" City Hall and the fenestration follows the same simple elongated vertical lines which are evenly spaced around the building. Small hipped ventilation dormers are set into the roof. It is a free standing building set apart from the City Hall. From Civic Center Park the building is not visible behind bushes and trees. The interior was alterationed in 1983, but the the exterior of the building has not been altered and retains its integrity .The building was designated a City of Berkeley landmark in 1988.

10. Hall of Justice - Contributing Building 2171 McKinley Street

10


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James Plachek 1938/39

Groundbreaking for Berkeley's Hall of Justice, commonly known as the police station, was March 28,1938 and the building opened November 12,1939. The building is a three-story L-shaped building with its horizontal facade facing McKinley Street, and the end of the L facing east to Center Street It is constructed of re-reinforced concrete. The building is larger than "old" City Hall approximately 130' long x approximately 75 feet deep, with an ML" on the north/east side approximately 40' x 25'.

On the McKinley street facade the building is a three part composition with the entrance in the center of a projecting bay, which is approximately 1/2 the width of the flanking bays. This central element has a slightly rounded comer element Verically the building is a two part composition, with the first floor treated like a raised basement with two main floors above. On the ground floor of the entrance bay is a single doorway opening. On each of the two floors above the entrance there are three windows. At the cornice in the center is an incised sign proclaiming: "Hall of Justice". The two bays flanking the entrance have five windows on the ground floor; and on the two main floors there is a single window next to the central bay and then four large windows divided into three sections except for the north second floor where the are only three "slits" for windows (where the jail is located) These slit windows are probably an alteration; early drawings for the building show the fenestration the same on both sides and this would be more consistant with the Classic Moderne style of the building. The windows contain three lights each resulting in an overall horizontal composition.

Stylistically the building is simple Moderne, with subtle overtones of plassic revivalism popular in the early 20th Century. Except for the slit windows and some small additions at the rear, the building has not been altered.

11. Berkeley Public Health Building - Noncontributing Building 2117 McKinley Street Michael Goodman 1955

Berkeley Public Health Building, now the main administrative office building for the Fire Department, is a two story rectangular building with a cut-out, recessed entry on the south side of the building creating a small L. The building is faced with rose colored concrete blocks. Window frames are rusticated concrete block to look like stone one block wide; Window frames are brown steel divided into three parts; upper and lower sections are the same size, fixed, narrow and horizontal; the center section is taller and divided in the center with two operable windows. The windows are evenly space around the building and are the same size on the two floors.: six on the south sides, 2 on the south facing wall of the entry, four across the front, and 8 on the north side. The entrance, on the south-west side of the building, facing McKinley Street, is sheltered by a simple, tar-roofed awning supported by steel poles that are very typical of the building's period. There is a gray concrete sided .

11


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17 Section number — ! —— Page -J


utility box on the roof. Two dwellings were demolished for this building. The building has not been altered and retains intergrity. The building is a noncontributor because it was built after the period of significance.

12. Alameda County Court House - Noncontributing Building 2120 Martin Luther King Jr. Way John Hudspeth 1958/9

The Alameda County Court House, dedicated June 30,1959, is a two story rectangular building facing Martin Luther King Jr. Way and is located to the north of "Old" City Hall. The two story recessed glazed entrance is on the south side of the building approached under a projecting two story porch. A string course of windows along the first floor are set above blue tile panels and wrap around the south corner of the building. The second floor string course of windows are centered in the center half of the building. The exterior of the building has'had little modification, only a small addition to the north side was added in the 1980s and is very compatible with the original design. The building appears to be in good condition and retains its integrity. It is a noncontributing building because it was constructed after the period of significance.

13. McKinley House - Noncontributing Building2111 McKinleyc!925/moved to site in 1950s ,

Three story multi-unit dwelling, rectangular in shape. The narrower side of the building faces McKinley Street The ground floor is treated like a raised basement. The two main floors are treated identically: a pair of French doors with three lights each, open to a very narrow wrought iron balcony on the north side; on the south side on each floor is a large window with a single pane central section flanked by side panels with three lights each. The entry is on the south side in the center of the building. It is covered by a small entry porch with a clay tile roof. A single row of clay tiles decorate the front parapet The walls are gray textured plaster painted gray, with white painted simulated quoins at the corners. The "raised" basement walls and quoins are painted a darker gray than the main floors. It is a representative example of a 20th Century Revival Italianate Style. It is a noncontributing building because it was moved to the site after the period of significance.

1 2


NPS Form 10-900-. OMB XpfvwW No. 1024-0018 (8-86)

United States Department of the Interior BERKELEY CIVIC CENTER DISTRICT National Park Service ALAMEDA COUNTY, CALIFORNIA


• •Section number — ̂ — Page

8. Statement of Significance ___________________Narrative Statement of Significance

BERKELEY'S CIVIC CENTER HISTORIC DISTRICT

The solemnity and seriousness of democratic community government, the jubilance and pageantry involved with public fest&als and other cultural events taking place in the civic center complex and a bit of the grandeur and pomp inevHably associated with formal aspects of government anywhere,. .are expressed within Berkeley's Civic Center as a whole... From its earliest and most primitive beginning amongst neolithic cultures, the civic square or park was the center of community activity, whether the activity was play, pageantry, religion, government or commerce. As time passed, structures arose around it to house one or more of these functions. So in a very real sense, the central square or park should remain the dominant element of a governmental center. As a key element in Berkeley's civic center complex, the park, then, is an important place and the means by which the expression of local civic character can be achieved.

-Lawrence Halprin, Halprin & Associates, Landscape Architects "Report on Master Plan for Berkeley Civic Center Park" January, 1964, pp. 1-3

I. SUMMARY FOR NATIONAL REGISTER CRITERIA A AND C

For almost one hundred years, Berkeley's civic center district has served the needs of its government and small community. Beginning in 1899 when the first City Hall building was strategically relocated to its current site, the district took over a half century to plan and develop. It embodies the political trends of the nation as well as the region and the city during the district's period of significance, 1909-1950. Both World Wars, the Depression, and local politics influenced the district's development. The district also represents the town's importance as an agricultural center for the surrounding region due to the influence of the first state university, the University of California, Berkeley.

The civic center district includes federal, regional, and local government buildings, along with a community theater, a YMCA, and a Veteran's Memorial Building all surrounding a central park. These diverse community buildings, located in Berkeley's most important public space, reflect significant social aspects of Berkeley's history, important to the citizens' health, safety, and welfare. The park plan and its collection of civic buildings illuminate the variety of architectural and design influences (the City Beautiful Movement, Beaux Arts and Art Deco/Moderne) that prevailed during the first half of this century. The park layout and its buildings were executed by renowned designers and fortunately the district is largely unaltered and retains a high degree of integrity. As a result, Berkeley's Civic Center is locally significant as an ensemble of harmoniously planned buildings and as a collective body of civic architecture.


KPS Form 10-900-a OMB Approval No. 1O24-OO1B (8-86)



Pi ~7 Section number —(-^ Page *—'—

8. Statement of Significance__________________Narrative Statement of Significance (contin.)

II. AREAS OF SIGNIFICANCE

A. Politics/Government/Social History

By its very nature, Berkeley's Civic Center District has been intimately intertwined with the political and social history of the city. The land was acquired, and the buildings designed and constructed, with public approval and funding. Every significant government decision in Berkeley, from 1899 onwards, occurred somewhere in the Civic Center District. The enactment and administration of laws by which the city was governed, and most activities related to political processes, took place within the district's buildings. In addition, the community's most cherished public service, its renowned police department, resides in the district. From its elegantOld City Hall to its streamlined Community Theater, the district has survived almost 100 years of local politics amazingly intact. From festive Christmas celebrations at the fountain to solemn Memorial Day gatherings with the Veterans, Civic Center Park has been the center of a democratic community's pattern of life. Not surprisingly, the district has been ~ and still is — the most important site in Berkeley's history.

Berkeley incorporated as a city hi 1878 in order to prevent annexation by the neighboring City of Oakland. The process also identified a need for better law enforcement: settlers from the Gold Rush had brought commerce as well as shiftless characters. Consequently, law enforcement was an important concern for the City's early residents which has continued to the present day. While uniting its different communities, the incorporation was an uncomfortable union of contrasting interests: the University at one end and commerce at the other, separated by farmers who were reluctant to have their land made part of the town in the first place. Tensions were reflected in civic decision-making and the location of the Town Hall became a chronic source of controversy. Initially, Berkeley did not have any civic buildings and Town Trustees met in rented or borrowed buildings, trying to adjust their meeting place from east to west and back again to satisfy both parts of town. In 1884, a Hall was built at Sacramento and University Avenues which was used for twenty years. It satisfied neither district and was difficult to get to. This Hall, in 1895, witnessed the adoption of the Town's Charter. By 1897 considerable community sentiment for removal of the Hall to the eastern part of town was evident and in 1899, Trustees decided that the Hall would have a new home on Grove Street (now Martin Luther King Jr. Way). The new building site was reasonably centered in town enough to avoid the claim that any one district had been disadvantaged by the relocation.

In 1900, after two unsuccessful tries, Berkeleyans approved a bond issue to build an adequately-sized public high school. A permanent site was purchased on an adjacent block southeast of the Town Hall site. The school was built in 1901 and, in combination with the Town Hall, the two municipal functions formed the beginnings of Berkeley's historic Civic Center district.

In 1904, the Town Hall burnt down and the city's volunteer fire department was transformed into a full- time paid force. In 1905, August Vollmer (1905-45) was elected as Town Marshal and over the next forty


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years, with much support from the Berkeley community, he developed one of the most highly respected police departments hi the United States. In 1906, with community support, the Berkeley police developed the first electric signal light system in the United States.

At this time, the city entered a new era, politically, socially and economically. A spirit of political reform was abroad in the nation and California. The "Progressive Era" was well underway: industrial trusts were being attacked, government corruption exposed and reform proposed, the power of the individual citizen strengthened through direct primary elections and the initiative process, and far-sighted enterprises in the public interest were created or expanded. The 1906 earthquake and fire in San Francisco brought a flood of new residents to Berkeley and the town was becoming one of the leading cities in California. The University of California was flourishing, with enrollment rising and grand new permanent buildings of the Phoebe Apperson Hearst Architectural Plan completed on the campus nearly every year. New residential subdivisions were being planned on all sides, the business district was prospering and busy, and municipal facilities were growing. In 1903, Berkeley housed its Public Library Building (at Kittredge and Shattuck) hi a substantial Carnegie- sponsored building designed by University Architect John Galen Howard. The newly minted high school campus, adjacent to the proposed new City Hall, was a source of community pride.

As a result of these forces, the City Beautiful Movement was introduced to Berkeley's civic-minded leaders as a fitting way to design Berkeley's most important and public building, the new Town Hall. Built hi 1909, the new Hall marks the formal beginning of Berkeley's progressive political history. It was the first civic building constructed in the district's Period of Significance. In 1909, citizens amended their City Charter to make Berkeley a city, not a town, and the "Town Hall" became "City Hall."

Located in traditional proximity to City Hall, Berkeley's first federal government office, the Post Office, was authorized hi 1910 but not completed until 1915. Across from the Post Office, built with funds raised by civic leaders in 1910, the YMCA was located catty corner from the high school and was one of the community's most beneficial social organizations. Lodges and fraternal orders such as the YMCA and the Elks Lodge were important hi America hi the late nineteenth and early twentieth centuries. They were centers of community life where 'prestigious' citizens socialized. Not surprisingly, most early civic leaders were associated with one organization or another. In the early 1900s, as there were not a lot of public facilities available, these buildings provided an important service for the community. In Berkeley, a number of large buildings were erected to house such groups, the largest being the Elks Lodge next to the Post Office. Because many of the groups were socially active, they were usually involved with controversial issues and hi Berkeley, they were an integral part of the city's early political history. The YMCA was especially significant because it was not exclusive and open to the general public, including women.

About the time the YMCA was being completed, the Police Department, firmly established hi the basement of new City Hall, was competently overseeing the safety of its community. Berkeley became the first American city to put all of its officers on bicycles. Later, in 1912, the force became the first completely


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motorized department in the country with motorcycles. In 1914, the entire force was equipped with cars. In 1915, Dr. Albert Schneider of the Berkeley Police Force created the nation's first scientific crime detection laboratory. That same year, the first Junior Traffic Police Force hi the country was organized by Berkeley's police force hi cooperation with its public schools in order to prevent crime among juveniles.

Contemporaneously, efforts to improve cities and apply the lessons of the new planning profession were changing communities throughout the nation. The "White City" of the Chicago's Columbian Exposition of 1892 and the City Beautiful Movement had awakened civic-minded leaders to the concept that America's increasingly crowded, dirty, and disorganized urban centers could be transformed into pleasant, attractive, healthful communities. Public-spirited citizens brought Chicago's Daniel Burnham to San Francisco just before the 1906 earthquake to plan its civic areas. His designs widely influenced government planning throughout the region. In the midst of the many important public buildings being constructed hi Berkeley, city officials in 1911 and 1915 commissioned master plans for the City's growing civic center. Influenced by the City Beautiful Movement, the plans were intended to transform the messy area into a healthy, rationally-organized park district which would improve urban life, uplift the spirit and inspire civic pride and good citizenship. The plans denote a central park surrounded by harmoniously designed civic buildings. At about this tune, to bolster public interest, the city initiated an annual fair in the civic center district and promised to include a children's playground hi developing the park.

The same public spirit, hi 1911, elected Berkeley Mayor J. Stitt Wilson who became the first Socialist Mayor elected in the United States. For purposes of civic betterment hi 1923, after many years of debate, Berkeley also became one of the country's first cities to adopt a "City Manager" type of government. This meant closer collaboration between legislative and administrative branches of city government, budget control, greater efficiency, and integration of municipal departments. It was intended to reduce corruption and waste in the provision of municipal services. Similarly, Berkeley's Police Force was gaining recognition at the time under its progressive Chief August Vollmer and was beginning experiments in "scientific policing." In 1923, lie detectors were invented at the University of California in Berkeley and the first practical model was used by the City's police force. In addition, as a result of extensive training programs, Berkeley's police department recruited the first college-trained woman police officer in the United States.

World War I interrupted further development of city government and the Civic Center. Not surprisingly, the first civic building to be constructed hi Berkeley after the War was the Veterans' Memorial hi 1928, an important part of the civic center's development. An ambitious statewide building program was passed by the state legislation in the 1920s reflecting the political and social influence of World War I veterans. It enabled counties to include in their tax rate a certain portion for construction of memorial buildings dedicated to war veterans. As a result, Alameda County contains an impressive collection of veterans' memorial buildings, including .Berkeley's, still in use today.

The Depression stifled Berkeley's grand plans for a government center and funding for "the civic park"


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OMB Approval No. 1O24-OO1B


BERKELEY CIVIC CENTER DISTRICT ALAMEDA COUNTY, CALIFORNIA


Section number Page

8, Statement of Significance Narrative Statement of Significance (contin.)

was slow in materializing. It was not until federal relief programs of the late 1930s that a second phase of civic improvements began. Because the university was a land grant college and the center of agricultural education and research in the state, Berkeley was, by 1917, one of twelve regional locations in the United States for the Federal Land Bank. After the Depression, the Agricultural Adjustment Act of 1933, required the Farm Administration, through the Federal Land Bank, to refinance farm mortgages in order to help farmers reestablish themselves. As part of President Roosevelt's "New Deal" policies, universities were to educate farmers to farm more efficiently in order to better feed the millions of hungry people. Because the School of Agriculture and Extension Services at the University of California in Berkeley were the center of agricultural education in the state, the Federal Land Bank, in 1937, needed to build new regional headquarters in Berkeley to administer the federal relief program and implement its policies. Strategically, the city sold the land it had acquired for the eastern portion of civic park to the Bank for its headquarters and then used income from the sale to purchase private parcels on the rest of the block for the rest of the park.

The further development of the civic center is also related to the Federal Land Bank. From the 1920s through the 1950s, the State Farm Insurance Company sold insurance to county Farm Bureaus throughout the country. Based in Illinois, the company typically positioned itself in medium-sized university towns and located its offices in civic or city centers, very often close to Federal Land Banks. In the 1940s, the company expanded its insurance to include auto and life. As a result, in 1946, it built its new offices across the street from the Federal Land Bank, its largest client, while other similar business located in Berkeley's downtown business district on Shattuck Avenue.

In order to continue serving citizens with a top-notch police force, in 1 939, the city built new headquarters for its most popular branch of city services. The force moved out of the basement of City Hall and into the new Hall of Justice, located directly behind City Hall, in close proximity to other municipal services. The Hall of Justice contained a dual radio/telephone switchboard installed by telephone engineers and police technicians and the department became the first in the country to use radios in its police cars.

Ironically, by this time, all of Berkeley's civic buildings were in place surrounding the central park, but the City had yet to acquire the remaining private parcels for the civic district's central park.

In 1939, the Golden Gate International Exposition opened on Treasure Island in San Francisco Bay. Glowing in the center of the Bay and clearly visible from Berkeley, it provided a fantasy city of designs and attractions. Berkeley residents flocked to the Exposition which held 'Berkeley' and 'University of California' Days. Perhaps it was the threat of impending World War, or perhaps it was the appeal of preserving memories of Treasure Island in the form of a civic fountain centerpiece, whatever the cause, Berkeley citizens finally approved a bond measure in 1940 — after rejecting a few other measures beginning with one in 1914 - that enabled the City to purchase the remaining land for its civic center park. The park was one of the last park projects undertaken by the Works Progress Administration which assisted the City with construction.

Once approved, the development of Civic Center's park moved rapidly forward. Civic leaders, local


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organizations, and the WPA all contributed to the Park's realization by donating funds, flagpoles, benches, memorial trees, and the promised children's playground equipment. In the midst of World War II, in 1942, the park was completed, over 30 years after its original conception by City Beautiful planners. It culminated three decades of public effort to create a formal open space in Berkeley's civic core. It was one of the community's most important events. The new park was dedicated on Memorial Day, 1942, with patriotic pageantry appropriate to a nation at war. Crowds ringed the central lawn. Soldiers in World War I uniforms proceeded a young woman ia flowing white dress and crown, (presumably Lady Victory), borne by Boy Scouts, through the park. An orchestra performed on a temporary stage and speeches were made. Photographs of the event reveal Berkeley's definite small-town character, with young children scurrying around on the lawn to get the best view of the parade, people of all ages, and knots of spectators gossiping on the margins of the crowd. In the 56 years since the Park was dedicated, a broad array of political, cultural, and other events have taken place in the park enriching the physical space with social and historical associations.

At about the same time that the Federal Land Bank was being constructed, Berkeley's school system was also being affected by President Roosevelt's New Deal policies. The school administration, in 1937, planned an expansion of the high school facing the central park. The school was a great source of civic pride and the expansion was to take up the whole block directly south of the park. The expansion not only included the typical science and math laboratories, but the planners also included a performing arts facility because such arts were an integral part of education. Furthermore, the sophisticated Berkeley community ~ where amateur drama had been popular since the turn of the century -- lacked a good facility for performing arts. The idea to merge the community's need for a theater with the philosophy of broad education seemed to suit the nature of Berkeley's growing civic center. When proposed in the late 1930s, the theater building was conceived with the spirit that a school should be a community center, not a blackboard jungle. It was part of the 1930s Model City Program which envisaged, among other things, an exemplary school system and a Civic Center complex for Berkeley.

Because the building trades were badly affected during the Depression, Roosevelt created the Works Progress Administration, commonly known as the WPA. Because of a WPA grant hi 1939, construction for the theater began in 1940 and was rushed to avoid conflict with the national defense program of World War II. But with the attack on Pearl Harbor, construction stopped and was not resumed until 1949. For an entire decade, the auditorium sat an unfinished skeleton on the local skyline and was known familiarly as the Bird Cage. The Community Theater was finally completed in 1950, the last civic building constructed during the Civic Center District's Period of Significance (1908-1950).

In October, 1949, the local school board decreed the name of the facility would be the Berkeley High School Community Theater. Local veteran groups favored a name which would commemorate the 137 student who died in World War II. After a prolonged debate which considered such suggestions as a beacon light atop the auditorium and even an eternal light within, the board decided instead to incorporate a Memorial Court into


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the project. It should be noted that in January, 1965, the adjacent Little Theater became officially the Florence T. Schwimley Little Theater in honor of a long-time drama teacher at the High School.

The Berkeley High School Community Theater was formally dedicated on June 5,1950. With a program devoted to the history of Berkeley, then Governor Earl Warren spoke at the opening ceremonies. On June 10,1950, the local Lions Club sponsored a presentation of Art Linkletter's "People Are Funny" radio show in the theater as a charity. For years, the Berkeley Community Theater was One of the best-equipped theaters in

*the Bay Area and was rivaled only by the War Memorial Opera House in San Francisco. In the early 1950s, it was lauded as Berkeley's "Temple of Beauty" of as the largest indoor auditorium on the Pacific Coast and one of the largest in the country. In an article published in the 1951-52 (23rd Edition) of the American School and University, Superintendent Nelson reported that George Ford, manager of the Ballet Russe de Monte Carlo, called this one of me finest theaters in the world. Since then, it has been eclipsed by such facilities as UC- Berkeley's Zellerbach Hall and the Center for the Performing Arts in San Jose —just as it superseded the once popular and heavily used Greek Theater on the UC-Berkeley campus.

As the anchor for the community's performing arts, the Berkeley High School Community Theater has been a mainstay for the cultural life in Berkeley and the East Bay. It was ~ and is ~ supported by Berkeley's adjacent downtown district which contained a variety of entertainment venues, restaurants, and the like. The Park, too, was the site of many community festivities, city-wide gatherings, and cultural events of importance. It was — and is — used for a wide range of civic purposes including celebrations, rallies, fairs, holiday celebrations, and concerts. In combination with the Berkeley Community Theater, the park has been the stage for a broad array of performing events all of which express the diverse lifestyles of Berkeley citizens.

The Civic Center District has continued to serve Berkeley's government and community until the present day. Between 1955-63, the City purchased the northern half of the City Hall block and in 1958, the Alameda County Courthouse was built on this block. Later, Berkeley's Fire Department built its headquarters here and other city services have located in smaller buildings on this block. The City Council outgrew its quarters and moved the City Hall into the Federal Farm Credit Buildings in the 1970s and the School Administration moved into the Old City Hall. Lastly, in the 1980s, a "Peace Wall" was constructed to celebrate peace with the Soviet Union and Hiroshima. The Wall was among the first of its type and has led to similar memorials throughout the world.

By its very nature, Berkeley's Civic Center District has been intimately intertwined with the political/social history and welfare of the city. Every civic and social function within the district promoted the welfare of citizens. The district is significant for efforts during the first four decades of the twentieth century to establish good public parks and buildings — not only as a way to beautify communities, but as a means of fostering public-minded behavior and good citizenship. Currently, many civic projects, large and small, are being considered for the district. A county courthouse, a public safety building, a new high school building, and a replacement fountain have all been proposed for Berkeley's historic Civic Center District.


CMS Appfovnl No. *024-4XJTfl

United States Department of the interior BERKELEY CIVIC CENTER DISTRICT NationalPark Service ALAMEDA COUNTY, CALIFORNIA

National Register ©f Historic Places

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._Narrative_..$tatcmenLQf Significance fcmti&j

II /WEAS OF SIGNIFICANCE

B v Ar^hitegUire/CQt^iurut>vPknnmg and Development

Berkeley, California*$ Civic Center Historic District is significant locally for its ensemble of civic, buildings which are characteristic of architecture and city planning during the period of significance 1909-1950. Hie district embodies tl\e distinctive characteristics common to many earlyJIOtHftcentury civic centeis inspired by the City Beautiful movement and Beaux Arts classicism popularized by the 1893 Chicago World's Fair. Such civic centers often liave a central park fl^laza area surrounded by a group of compatible or harmonious buildings whose • fimct||^s®re primarily civic. Individual buildings are symmetrically designed and usually form, an axgjfeDr axes with one another. A Beaux Arts plan for Berkeley's civic center was published in. I9I4|p«Sniiing a central'park with a fountain in the center and surrounded by a harmonious group of buildings. 'These characteristics are present in. today's Chic Center District

Old City Hall (1909) aoc! the Post Office (1914) were built before the First World War and are representative of Beaux Arts classic revival styles with richly decorated, but harmonious, facades. Three major *-contributing buildings and the park were built between 1928-1950, and are representative-of the artistic values and economic restraints of Classic Moderae. Ail .contributing buildings-have the symmetrical facade arrangement typical of classicism., and four-of these buildings create a cross axial composition running east-west (from Old City Kali to the Farm Credit Building) and north-south (from the Veterans' Memorial Building tc the Community Theater) which aieets in the center of Civic Center Fountain. The area conveys its significance through the •spatial relationships between these major features that were created by conscious community 'planning beginning in 1909 and culminating in. 1950. Despite the length of time ii took the city to assemble the property and construct the buildings, the resulting district is a clear expression of aesthetic ideals and preferences at the tarn of the century. The major contributing site (the park) and fountain, and individual contributing buildings reflect historic and current functions which remain essentially the same and have retained a high degree of integrity. All are located on their original sites; few, if any, physical alterations or changes have been made to the individual buildings or the park; the original harmonious colors of the, buildings have been retained; most of the interiors are intact. The relationship between contributing buildings, the downtown and the park has not been changed since the area achieved significance.

When Old City Hall was completed in 1909, its design, scale, and elegant silhouette reflected Berkeley's growth from a town to a city. Its design was a conscious community planning decision because it proclaimed the city's new image as the "Athens of the West" m keeping with the beautiful neo-classic buildings being built on the University campus under


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University architect, John Gaien Howard. Despite the ambitious plans published in 1914 for a grand colonnaded, tile-roofed ensemble of buildings, the citizens of Berkeley repeatedly rejected bond issues for its construction. While the larger and more fully realized Beaux- Arts University of California Campus was being built between 1902 and the late 1920s, Berkeley's Civic Center remained uncompleted

1. Old City Hall, 1909, was the first building to be constructed in what would become Berkeley's more fully developed civic center. It set the stage and became the keystone for the future civic center. It embodies the distinctive characteristics of Beaux Arts Classicism, a significant style of architecture for primarily institutional and civic buildings during the late 19th and early 20tbcenturies. It was designed by John Bakewell and Arthur Brown, Jr. who studied at the Ecote des Beaux Arts in Paris, after graduating from the University of California in the 1890s. They established a partnership in 1906 and the Berkeley City Hall was one of their earliest commissions. Other works by the firm include the more elaborate San Francisco City Hall (1912-1916), and the San Francisco Opera House (1932). Their design was selected as the winner of a 1907 competition to replace the original Berkeley Town Hall (Samuel and J. C. Newsom, 1884) which had burned in 1904. As the keystone to the future Civic Center and in anticipation of a larger complex, the "new" City Hall was constructed a few feet to the north of the previous building so that it was on axis with the block to the east Thirty-three years later Civic Gaiter Park was built on this block

Old City Hall is an expression of aesthetic ideals and preferences during the period of significance and is a characteristic example of a particular time. The building illustrates the physical features that occur in Beaux Arts Classicism by the form and proportion of the structure, its plan, style and materials. The building is reinforced concrete over a steel frame, a method of construction typical of large buildings during this period. Its decoration is derived from Greek and Roman sources in a symmetrical arrangement

The building retains a high degree of integrity. There have been few alterations to the building since it was completed in 1909. The interior exhibits decorative techniques used at the time for the painted columns at the base of the main stairway and in the trompe 1'oeil painting of the walls and ceiling of the stairwell. These are well preserved examples of decoration and representative example of a period.

The only change in the main facade has been the replacement of the operable sections of the original wood sash windows with aluminum, but the pattern of the window divisions has been retained. The major alteration occurred in 1950, when the rear of the building was extended about 10 feet on each side of the stair-bay to create additional office space, but this can not be seen from any public right-of-way. The windows on either side of the stair bay were enclosed as part of this work, so that the main staircase is now much darker than it was originally.


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2. Martin Luther King, Jr., Civic Center Park and Fountain, 1938-1942, are the physical centerpieces of Berkeley Civic Center District Although the second-to-last part of the Civic Center complex to be completed, the park was anticipated in 1908 when City Hall was designed. Its acquisition and construction culminated more than three decades of planning and attempts to achieve a unified civic center of public buildings arranged harmoniously around a central park/plaza. The park retains a high degree of integrity. Most of its original features, and almost all of the park hardscape and most of its permanent landscape plantings have survived intact.

Tie park is significant because it embodies the distinctive characteristics of a civic center park conceived in the early 20th century as an expression of the City Beautiful movement which emphasized the creation of parks and other public amenities as a way to beautify communities and inspiie public-minded behavior. These characteristics include: a symmetrical plan; an open lawn space for public gatherings and relaxation; two raised performance spaces, one above the lawn and€nother above the fountain plaza; a water element in the form of a fountain; the community Holiday Tree; and paved pathways, benches and trees. It also displays distinctive stylistic characteristics in the form of physical features such as the fountain, steps and walls that use Streamline, Art Deco or Moderne design themes from the 1930s when the park was constructed. The park is associated with regionally and nationally significant designers including Henry Gutterson, Bernard Maybeck, and Julia Morgan (all studied at the Ecole des Beaux Arts in Paris) and university Professor and landscape architect John Gregg.

The park is associated stylistically with the 1939 Golden Gate International Exposition (on Treasure Island in San Francisco Bay), a major cultural and design milestone in regional history. The inspiration for a large, lighted fountain and the actual plumbing and pumps of the fountain came from the Exposition, which closed in 1940 while the park was being planned. It is likely that the direct model for the fountain was the Exposition's monumental "Fountain of Western Waters" in the "Court of Pacifica" which had a closely similar arrangement of circular basins, water jets, and colored lights. All of the fountain structure remaining is original, as is the flagstone terrace surrounding the fountain and an underground concrete vault where the pumps were located. The fountain is Moderne in character, with symmetrical circular and curved elements and constructed of unadorned concrete with the original board marks still showing.

3. The Veterans Memorial Building, 1928, is an important part of the development of the Civic Center and expresses the community's desire to create a cohesive unity. The building is a characteristic example of the Classic Moderne Style: while it lacks the highly decorative plastic qualities of Beaux Arts classicism, it retains the symmetry and classic references of that style in a simpler and less three-dimensional manner. Its classic colonnaded recessed entry refers to both Old City Hall and the Post Office, and to three High School buildings (now gone) which were in the classic revival style and standing at the time this building was built The building exemplifies a simplified handling of classicism that was popular for civic buildings between 1920-1950. This


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uSection number — fci — Page -11


form of classicism has not been highly regarded and is sometimes referred to as "stripped" classicism. It was not a style associated with avante garde design at the time, but the style was appropriate for the area and supported the Beaux Arts concept of a harmonious grouping of buildings and its function as a Veterans Memorial Building. The building is the work of a regionally noted architect who designed other Veterans buildings in Alameda County, and with his daughter, who was also an architect

4. The Federal Land Bank Building is significant for its contribution as a major element in the district's axial plan: it is the east element on the east/west axis through the park to Old City Hall and shows the conscious planning decisions made by the community to organize the civic center space. Used as Berkeley's City Hall since 1977, the building exemplifies its heritage as a Federally sponsored Depression era building project through its restrained classic ornamentation and symmetrical three-part classical composition. Its most notable exterior feature is the exuberant zigzag design of the twin elevator towers, which are both practical and decorative, flanking the west entrance to the building and emphasizing the axial composition with Old City HalL The interior is also intact and distinctive for its Art Deco detailing, especially in the lobby. It was designed by locally prominent architect James W. Plachek in 1938. The building retains a high degree of integrity.

5. The Berkeley High School theater complex building: Florence Schwimley Little Theater, 1937, and Berkeley High School Community Theater, 1937-50, is a significant component of the Civic Center District The center of the 1/2 block long 1 to 21/2 story building is the four story Community Theater. In the center of its north facing exterior wall, overlooking Civic Center Park, is an exuberant three story bas relief sculpture which rises above the stage door. The center of this is the south element of the north/south axis of the Civic Center District The building was designed by Bay Area architects Henry H. Gutterson and William Corlett Sr. Architect Henry Gutterson was a 1907 graduate of the University of California at Be±eley and had studied at the Ecole Des Beaux Arts in Paris. Gutterson was appointed chair of the Civic Center Park project in 1937. He and Corlett created the north/south axis by designing the center of the theater building on axis with the Veterans Building with the fountain in the center. The building is also a characteristic example of the Art Deco/Moderne style popular after the 1925 Paris fair entitled "Arts Decoratifs et Industriels." The bas relief sculptures by Robert Howard are examples of a Depression era federally funded public work project This building, along with the Shop and Science Buildings on the Berkeley High School Campus, are significant as the only planned ensemble of Art Deco styled buildings in the city. The theater building complex, both on the exterior and interior, has had little modification or alteration and retain a high degree of integrity.

6. The Young Men's Christian Association Building, 1910, embodies the distinctive characteristics of the early 20th century revival style in the form of the Georgian Colonial type. It


NPS Form 10-900-a OMB Approval No. 1024-O018 (8-86)

United States Department of the Interior BERKELEY CIVIC CENTER DISTRICT National Park Service ' ALAMEDA COUNTY, CALIFORNIA


Section number £X — Page

8. Statement of Significance_____________Narrative Statement of Significance (contin.^

is the work of noted local architect Benjamin McDougall. It is an expression of the aesthetic ideals of the period as illustrated by its materials and form of decoration. This building is related to the Civic Center by its semi-public function as a social, cultural and recreational center.

7. The United State Post Office, constructed hi 1914, embodies the distinctive characteristics of the Beaux Arts Classic Renaissance Revival style. The bunding is an expression of the aesthetic ideals of the government to "educate and develop the public taste and eventually elevate it to a higher plane" and was designed by the Treasury Department Supervising Architect's Office headed by Oscar Wenderoth. The building conveys its significance through its colonnaded recessed entry, ornamentation and materials. The Post Office is related to the Civic Center by its location, function, date and style. The building retains a high degree of integrity of materials and workmanship; and has not been significantly altered since a 130 foot addition was constructed in 1931/2 at the rear of the original 35 foot deep building, along Milvia Street, which has the same wall, cornice and window motif as the facade.

8. The State Farm Insurance Companies Building, 1947/8, relates to the Civic Center through its architectural design. Built by a private company, but located in the Civic Center District, the building was designed by James Plachek who built the Federal Land Bank Building a decade earlier. Designed to appear as part of the Civic Center, the building, through its method of construction, style of architecture, form, proportion, materials, fenestration, color and details, clearly relates to the Civic Center. The building retains its integrity of materials, workmanship, association, location, and design and has not been altered on the exterior.

9. City Hall Annex, 1925, is related to the Civic Center by its function, location, date and style. It is an expression of an aesthetic ideal and a preference to build a modest, but pleasant addition for city functions. It was also designed by local architect James Plachek. It is residential in scale, showing a preference to be compatible with the residential neighborhood that it faces. The building retains its integrity of materials, workmanship, feeling, association, location, and design. It has not been altered or changed.

10. The Hall of Justice was constructed in 1938 and is characteristic of a utilitarian building (a police department and jail) constructed of reinforced concrete, with sparse decorative detailing found only on its entrance bay. Designed by James Plachek, it is stylistically representative of the period in which it was built and is in a less visually prominent location behind Old City Hall. It is related to the civic center by its function, location and date.


NPS Form 10-90O* OM8 Appro** Ha. »<S*-00»8 (W6»

United States Department of the Interior BERKELEY CIVIC CENTER DISTRICT National Park Service ALAMEDA, CALIFORNIA


q Section number ——!— Page _

9. Maior Bibliographical References

.Berkeley Historical Society, Exactly Opposite the Golden Gate. Berkeley,The Berkeley Historical Society, 1983

Bender, Richard, Director, Campus Historic Resources Inventory. Berkeley, University of California Planning Office, 1978

Bemhapdi. Robert The Buildings of Berkeley. Berkeley, Berkeley Architectural Heritage Association, 1985

Bonn, David, East of these Golden Shores. Oakland, Scrimshaw Press, Oakland Junior League, 1971

Sara Holmes Boutelle, Julia Morgan: Architect New York, Abbeville Press, 1988

Bruce, Anthony, John Galen Howard, Architect, Berkeley Architectural Heritage Association House Tour Pamphlet, 1978

Cardwell, Kenneth H., Bernard Mavbeck Salt Lake City, Peregrine Smith Books, 1983

Cerny, Susan DinkelspieL Berkeley Landmarks. Berkeley Architectural HeritageAssociation, Berkeley 1994

•Cerny, Susan D. Stern, Henry Higby Gutterson, House Tour Brochure, Berkeley

Cerny, Susan D. Stem, Northside: A survey of a North Berkeley Neighborhood before and After the 1923 Berkeley Fire, Berkeley Architectural Heritage Association, 1990

Ferrier, William, The History of Berkeley. Berkeley, 1933

Freudenheim, Leslie, Sussman, Elizabeth.Building with Nature. Roots of the San Francisco Bay Region Tradition. Santa, Barbara and Salt Lake City, Peregrine Smith, Incl974

Hegemann, Wemer, Report on a Citv Plan for the MvTnicJpfllities of Oakland and Berkeley. 1915

Jones, William Carey, Illustrated History of the University of California , 1895, Berkeley, University of California

Civic Center National Register Landmark Application, Berkeley. California March 2, 1998 page 1


NFS Form 10-900-4 OM8 «8-86|



Section number —It— Page.

9. Major Bibliographical References

Keeler, Charles, The Simple Home, 1904, Berkeley, The Hillside Club, republished, 1979, with introduction by Shipounoff, Dimitri, Santa Barbara and Salt Lake City, Peregrine Smith, Inc.

_______.Domestic Architecture of the San Francisco Bav Region. San Francisco 3 F Museum of Art, 1949, S F Museum of Art

Lebovich, William L. America's City Halls.The Preservation Press, Washington, 1984

Longstreath, Richard, On The Edge of the World. Four Architects in San Francisco at the Turn of the Century. Massachusetts, MTT Press, New York, The Architectural History Foundation, 1983

McCoy, Ester. Five California Architects. New York, Reinhold Publishing Corp, 1960

Partridge, Loren W., John Galen Howard and The Berkeley Campus. Berkeley, The Berkeley Architectural Heritage Association, 1978

Pettitt, George, History of Berkeley. Berkeley, Alameda County Historical Society, 1977

Pettitt, George, BERKELEY: The Town and the Gown of It, Howell North Books,Berkeley, 1973 iWoodbridge, Sally, Editor, Bay Area Houses. New York, Oxford University Press, 1976

Woodbridge, John & Sally, Thiel, Phillip, Buildings of the Bav Area. New York, Grove Street Press,1960

UNPUBLISHED RESOUCES

Individual Landmark Applications

Civic Center Park, recorders: Steve Finacom, Linda Perry, Gale Keleman, 1997Berkeley High School, recorder Susan Cerny, 1992YMCA, recorder. Charles Bucher, Jr. 1989Veterans Memorial Building, recorder, Betty Marvin, 1985City Hall Annex, recorder. JoAnn Price, 1983United States Post Office, recorder: Betty Marvin, 1980City Hall, recorder. Trish Hawthorne, 1980Federal Land Bank, recorder Richard Ingersoll, 1977

Civic Center National Register Landmark Application, Berkeley, California March 2,1998 page 2


NPS FOIW 10-900-a OM8 Appravtf Mb. JOJ4-OOT« (S-M)



Section number —IJ— Page ^

9. Major Bibliographical References

Landmark applications can be obtained from the Secretary to the Landmarks Preservation Commission, Zoning Department, City of Berkeley

The archives of the Berkeley Architectural Heritage Association; The Berkeley Historical Society; Berkeley Public Library: Swingle Collection; The Bancroft Library, University of CaUfornia; and the Documents Collection of the Environmental Design Library, University of California, Berkeley.

• Oral Histories Bancroft Library, UC Berkeley: Jacques Schnier

Public Records: Berkeley School Board Minutes 1938-40

___;___ John Galen Howard Papers, Bancroft Library, University of California

Civic Center National Register Landmark Application. Berkeley, California March 2, 1998 page 3


NPS Form 10-900-a (8-B6) OMB Approval No 1024-O018




Section number Page*

Mailing Address Property Location

Mayor Shirley Dean Members of the City Council James Keene, City Manager City of Berkeley 2180 Mflvia Street Berkeley, California 94704

(1) 2134 Martin Luther King Jr. Way Berkeley, California

(2)

(3)

(4)

(5)

(6)

1835 Allston Way (Annex) Berkeley, California

Civic Center Park Berkeley, California

2180 Milvia Street (City Hall) Berkeley, California

1931 Center Street (Veterans Bldg.) Berkeley, California

(7)

<*)

(9)

(left

2111 McKinley Street Berkeley, California

2121 McKinley Street (Fire Department) Berkeley, California

2131 McKinley Street (Police Department) Berkeley, California

CA


NPS Form 10-900-a (8-86)

OMB Approval No. 1O24-0018




Section number Page

Mailing Address Property Location

Larry Bush, President and CEO Board of Directors Berkeley YMCA 2001 Allston Way Berkeley, California 94704__

(1) 2001 Allston Way Berkeley, California

Jack McLaughlin, Superintendent Berkeley Unified School District 2134 Maftin Luther King Jr. Way Berkeley, California 94704

(1) Berkeley Community Theater 1930 Allston Way Berkeley, California

(2) Florence Schwimley Little Theater1920 Allston Way

____Berkeley, California_______

United States Postal Service c/o George Banks, Postmaster 2000 Allston Way Berkeley, California 94704

(1) 2000 Allston Way Berkeley, California

G. Bakar Partnership201 Filbert Street, #700San Francisco, California 94133

(1) 1947 Center Street Berkeley, California


NPS Fomi 10-900-a OMB Approval No. 1024-O018 (8-86)

United States Department of the InteriorNational Park Service BERKELEY CIVIC CENTER DISTRICT

ALAMEDA, CALIFORNIANational Register of Historic Places Continuation Sheet

Section number — — Page — 1

Verbal Boundary Description

The boundary of the nominated property includes the entire block bounded by McKinley and Addison Streets and Allston and Martin Luther King Jr. Way. It also includes the adjoining block bounded by Center Street, Milvia Street, Allston Way and Martin Luther King Jr. Way. North across Center Street is included the Veteran's Building at 1931 Center St. and the State Farm Insurance Building at 1947 Center Street, both to the rear property line. To the East, at the NE comer of Milvia St. and Allston Way is included the Berkeley YMCA at 2001 Allston Way and at the SE corner is the Berkeley Post Office at 2000 Allston Way. The property at the SW corner of the intersection of Milvia and Allston and the Berkeley Community Theater/Florence Schwimley Little Theater at 1930/1920 Allston Way are included. The final piece of the boundary of the nominated property contains the structure at the SW corner of Martin Luther King Jr. Way and Allston Way, at 2200 Martin Luther King Jr. Way

Boundary Justification

The proposed district boundaries were determined by the civic function of the individual properties surrounding Civic Center Park.


SKETCH MAF

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BERKELEY CIVIC CENTER HISTORIC DISTRICT


Berkeley Civic Center District, Bekeley, Alameda County, California

BE:RK:sL:5Y civic C:^NT:SRHISTORIC DISTRICT

1 able ©i JP JDLofosPHOTO

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BUILDING NAME/ADDRESS VIEW DESCRIPTION/DIRECTION

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Civic Center Park

Old City Hall, 2134 Martin Luther King Jr. Way



Civic Center Park

Civic Center Park

Central Fountain, Civic Center Park

Central Fountain, Civic Center Park

Civic Center Bldg. (Federal Land Bank), 21 80 Milvia Street




Young Mens Christian Association (YMCA), 2001 Allston Way

Young Mens Christian Association (YMCA), 2001 Allston Way

Milvia Streetscape

Aerial view from Civic Center Bldg. (Federal Land Bank) looking west over park towards Old City Hall

Front elevation looking west

Front elevation looking west

Side elevation looking north

Aerial view looking east over park w/Veterans Bldg., Civic Center Bldg., and Community Theater

Aerial view looking east over park w/Civic Center Bldg. and Fountain

Looking east to Civic Center Bldg. w/fountain and Christmas Tree

Looking east to Civic Center Bldg. w/fountain and Christmas Tree

West elevation overlooking Park

South elevation, looking northeast

Front/east elevation, looking southwest

Front and south elevation, looking norhtwest with YMCA in foreground

West elevation, looking east

Front elevation, looking north

Looking north on Milvia Street with Civic Center Bldg. on left and YMCA on right


Berkeley Civic Center District, Berkeley, Alameda County, California

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United States Post Office, 2000 Allston Way

United States Post Office, 2000 Allston Way

Empty lot w/temporary school buildings on corner of Allston Way

Berkeley Community Theater, 1930 Allston Way

Beikeley Community Theater, 1930 Allston Way

Berkeley Community Theater, 1930 Allston Way

_*Florence Schwimley Little Theater, 1920 Allston Way

Florence Schwimley Little Theater, 1920 Allston Way, and Berkeley High School Science Building

The Science Building of Berkeley High School at the&orner of Allston and Martin Luther King Jr.

Thi Science Building of Berkeley High School at the^corner of Allston and Martin Luther King Jr.

Civic Center Park

Civic Center Park

Civic Center Park

Civic Center Park

Civic Center Park

Front elevation, looking south

Side/west elevation, looking east

Looking south to corner of Berkeley High School

North elevation, looking southwest

North elevation w/ sculptures overlooking Civic Center Park



North elevations of the Little Theater and Berkeley High School [the High School is not hi the proposed civic center district] fronting Civic Center Park

Looking southeast at the corner of Berkeley High School Science Bldg. [the High School is not in the proposed civic center district]

Sculpture on the corner of Berkeley High School Science Bldg. which relates to sculpture at the Community Theaters [the High School is not in the proposed civic center district]

Looking southwest from corner of Civic Center Park towards Credit Union

Civic Center Park sidewalk, looking west through mature foliage, Theater is at left, fountain wall is to right

Aerial view from Old City Hall, looking southeast towards Community Theater with corner of Park in foreground

Aerial view from Old City Hall, looking northeast towards Veterans Bldg. with corner of Park in foreground

Looking northwest across Park towards noncontributory buildings [PG & E and Apt. Bldgs.] at corner of Center and Martin Luther King Jr. , portion of Veterans Bldg. is on right


TH gi-T--? Alameda County, California

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Veterans Memorial Building, 1 93 1 Center Street

Veterans Memorial Building, 1 93 1 Center Street

State Farm Office Building, 1947 Center Street

State Farm Office Building, 1947 Center Street

Center Streetscape

Corner of Milvia and Center Streets

Corner of Milvia and Center Streets

Center Streetscape

Martin Luther King Jr. Way Streetscape

Health Dept., Berkeley/Oakland Support Services (BOSS), 2100 Martin Luther King Jr. Way

Martin Luther King Jr. Way Streetscape

Alameda County Courthouse, 2120 Martin Luther King Jr. Way



Parking Lot for City services

j ' View from Old City Hall to Veterans Bldg., looking northeast.

Front/south elevation of bldg. from Park

Front/south elevation of bldg. from Park with adjacent Veterans Bldg., looking northeast

Front/south elevation of bldg. from Park, looking northeast

View looking east from Center Street towards downtown Berkeley with University of California Campanile in background

Looking northeast from Park to noncontributory office bldgs.

Looking east from Park to noncontributory office bldgs. across Milvia St., Civic Center Bldg. is on right

View looking east on Center Street towards downtown Berkeley from County Courthouse, Park is on right, PG&E Bldg. is on left

View looking southeast from corner of historic district, noncontributory historic bldg. [Landmark Framat Lodge] is on left

BOSS Bldg. at corner of Addison and Martin Luther King Jr.

View looking south down Martin Luther King Jr. Way, Old City Hall on right, Park on left, High School in background

Front/east elevation, looking southwest with Old City Hall behind

Front/east elevation, looking northwest

Side/north elevation, looking south across parking lot with Old City Hall behind and Fire Dept. And Emergency Housing to right

View looking north across parking lot showing residential neighborhood surrounding this portion of civic center district


Berkeley Civic Center District. Berkeley, Alameda County, California

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Emergency Public Housing, 2111 McKinley Avenue

Fire Dept., 2121 McKinley Street, and Police Dept., 2131 McKinley Street

Fire Dept., 2121 McKinley Street,

Polic&Dept, 2131 McKinley Street

Police Dept., 2131 McKinley Street

City Hall Annex, 1835 Allston Way

City Hall Annex, 1835 Allston Way

Municipal Employees Federal Credit Union, 2200 MartM Luther King Jr. Way

Front/west elevation of historic, noncontributory building, looking east

View of McKinley Ave. streetscape looking southeast, with Fire Dept. Bidg. in foreground and Police Dept. Bldg. behind

View of entry to Fire Dept., looking northeast, a noncontributory bldg.

Front/west elevation of Police Dept. Bldg., looking east

Front view of Police Dept. with Old City Hall behind, looking east

View of McKinley Ave. streetscape, looking north, with west elevation of City Hall Annex in right foreground

Front/south elevation of City Hall Annex, looking north

Front/east and Side/north elevations of Credit Union Building, looking southv/est

*Notes:

1) * All buildings are located in the City of Berkeley, Alameda County, California.2) All photographs were taken by Jerri Holan, Director, BAHA,3) All photographs were taken February 27,1998.4) The original negatives are located at the Berkeley Architectural Heritage Association (BAHA) Office,

2318 Durant Avenue, Berkeley, CA 94704 (Phone: 510/841-2242).
