               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 05a0841n.06
                         Filed: October 12, 2005

                                          03-4561

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


BREWERY DISTRICT SOCIETY,                     )
DENNISON PLACE ASSOCIATION, and               )
MALCOLM COCHRANE,                             )
                                              )
       Plaintiffs-Appellants,                 )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
FEDERAL HIGHWAY ADMINISTRATION,               )   SOUTHERN DISTRICT OF OHIO
                                              )
       Defendant-Appellee.                    )




       Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.


       PER CURIAM. The action giving rise to this appeal was filed in district court by a

coalition of preservationists who sought to prevent demolition of the historic Ohio State

Penitentiary in downtown Columbus and, having failed in that endeavor, now seek “an

appropriate mitigation alternative for the adverse impacts upon the site” of the demolition.

The plaintiffs claimed that the defendant, the Federal Highway Administration (FHWA), had

violated a federal statute requiring federal construction projects to include measures to

preserve sites of historical significance by allowing the City of Columbus to “de-federalize”

a construction project (the “B-4 connector”) related to a long-term federal highway

construction program (the Spring/Sandusky Interchange Project or “SSI Project”) and to
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Brewery District Society v. FHWA

proceed with alternative, non-federal construction that led to the razing of at least part of

the state’s original penitentiary buildings. After the plaintiffs presented their evidence at

trial, the district court dismissed the case pursuant to Fed. R. Civ. P. 52(c), holding that “the

plaintiffs ha[d] failed to prove an essential element of the case, that is that B-4 was not

separate and independent (from the federally-funded SSI Project).”


       We review facts found by the district court as a basis for dismissal pursuant to Fed.

R. Civ. P. 52(c) for clear error. The district court’s legal conclusions are reviewed de novo.

See Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440, 442 (6th Cir. 2005).

“Clear error will be found only where the reviewing court is left with the definite, firm

conviction that a mistake has been made. The issue is not whether the district court

reached the best conclusion, but whether the evidence before the court supports the district

court’s findings. Also, the district court’s findings based on the credibility of the witnesses

before it are entitled to great deference on appeal.” Isabel v. City of Memphis, 404 F.3d

404, 411 (6th Cir. 2005).


       Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in dismissing

the complaint. The record indicates that the SSI Project was intended to complete and

upgrade I-670 at its intersection with State Route 315 in downtown Columbus.

Independent of that federally funded program, the city proposed a project designed to

improve traffic flow in the general area of the SSI Project. The design originally included


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03-4561
Brewery District Society v. FHWA

the construction of a local road connecting Neil Avenue and Nationwide Boulevard near

Front Street and was designated B-4 on project maps. The defendant’s exhibits indicate

that despite the appearance of the B-4 connector on SSI Project maps, it was never

considered part of the larger construction program and was subject to a different

environmental assessment process than that undergone by the proposed SSI construction.


       Apparently, the city had received federal funds for the B-4 connector from a source

other than the SSI Project funding and in 1997, when the city initiated a new plan for the

development of an arena in the same vicinity, it cancelled the B-4 connector project and

returned the federal funds. As part of the arena development, another plan for dealing with

local traffic was designed that necessitated the demolition of some of the penitentiary

buildings, leading to the filing of this action. In their original complaint, the plaintiffs

contended that the B-4 connector had been improperly segmented out of the SSI Project

and that the replacement project, even though not part of the federally-funded construction,

constituted an “end run” around the environmental review procedures applicable to federal

highway construction such as the SSI Project. After the city razed the buildings at issue

in this case, the plaintiffs supplemented their complaint, contending that the FHWA should

be held responsible for mitigating the effects of the demolition of the penitentiary buildings.


       However, there was no proof that the B-4 connector was ever part of the SSI

Project, nor – as the district court found – could the later replacement construction, locally




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03-4561
Brewery District Society v. FHWA

initiated and financed, be considered a federal project “merely because it will relieve some

of the same congestion that B-4 would have.”


       For the reasons set out above, as well as those articulated by the district judge in

granting the defendants’ Rule 52 motion, we find no clear error and, therefore, AFFIRM the

judgment of the district court.




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