The following is a chapter from a soon to be published book tentativly to be entitled "Saving Places With Section 106 of the National Historic Preservation Act," by Tom King, and published by Left Coast Press (www.lcoastpress.com )

- Copyrighted and used by permission of Left Coast Press and Tom King. -


Chapter Five

Place-Saving Strategies: Getting Into the Action

(Sidebars this chapter:  Regulations on initiating the process)

(Illustrations this chapter:  Columbia River)

   

Tom King
Thomas F. King, PhD
P.O. Box 14515, Silver Spring MD 20911, USA
240.475.0595, tfking106@aol.com
Consultation, training, writing in Cultural Resource Management
Training: www.swca.com
Books: www.altamirapress.com and www.LCoastPress.com
Recently published: Doing Archaeology: A Cultural Resource Management Perspective. 2005, LeftCoast Press.
Recently published: Amelia Earhart's Shoes (updated edition), 2004, AltaMira Press; Cultural Resource Laws and Practice: an Introductory Guide (2nd edition), 2004, AltaMira Press; Places That Count: Traditional Cultural Properties in Cultural Resource Management. 2003, Altamira Press.

So far, we’ve discussed what Section 106 of the National Historic Preservation Act (NHPA) requires, and we’ve looked at how the ways it and other laws are interpreted and implemented can make hash of those requirements, depriving your important place of the consideration it’s entitled to under the law.  Now let’s turn to what you can do about it.

 

In this chapter we’ll begin with some things you need to think about in plotting any strategy to save a place.  Then we’ll walk through what is supposed to happen as project planning gets underway – how project review under Section 106 is supposed to get started – and the ways in which it often doesn’t get started.  And we’ll highlight some ways that you can make sure that review does start on a project you’re concerned about.  In the following couple of chapters we’ll go into how the Section 106 process proceeds, how impacts on valued places are often missed, ignored, or covered up, and ways to bring them out and force them to be considered.


Strategics - Timing, Timing, Timing

 

A gentleman called me the other day wanting help saving his family farm – it’s been in the family five generations – from a highway interchange.  He’d just received a preliminary eviction notice.  The final Environmental Impact Statement has been filed, along with the Record of Decision; there’s a Section 106 Memorandum of Agreement on the project.  The bulldozers are about ready to roll.  I’ll try to help him, but there aren’t many tools left to work with.  He’s waited till way, way too late.

 

The first, most basic thing I can think of that you should do in trying to save a place is start early.  As soon as you learn that the project is a twinkle in some planner’s or developer’s eye, get to work doing the things we’ll talk about in the rest of this book.  Don’t wait.

 

There will be times, as things go along, when you have to wait – while studies are done, or decisions are made that you can challenge.  There are times when you’ll have to be very patient.  And there’s no need to panic; if you do start early in the project planning process, you should have plenty of time to give it your best shot.  If you don’t start early, you’re likely to be in trouble no matter how good a case you make.

 

Find the Federal Connection

 

This is absolutely critical.  If there’s no federal connection – no federal money, no federal permit, no federal land – there isn’t going to be any federal review process.  So if you want to use Section 106 or most other Federal project review laws, you must find the federal connection. 

 

Sometimes it will be obvious – a federal agency will be the project proponent, or you’ll see a public notice that a federal agency is considering a permit application, or issuing a grant.  Other times it won’t be obvious at all.  You might be surprised at how long the reach of the federal government is, and how entwined it is in all our lives.  The Federal Communications Commission licenses cellphone antenna towers; the Federal Deposit Insurance Corporation licenses automated teller machines.  The Department of Housing and Urban Development (HUD) gives Community Development Block Grants to local governments, which then use the money for all kinds of things.

 

How do you find the federal connection?  You inquire.  Ask the project proponent (who may, of course, lie, or honestly not know the answer to your question).  Ask the local planning department.  Ask any federal agency that you suspect is involved.  Ask people who deal with the federal review process all the time – the State Historic Preservation Officer, for example.  Check public notices about the project, and any not-so-public documents you can get your hands on. 

 

Sometimes the federal connection isn’t very tight.  In the case of Community Development Block Grants, for instance, Congress has allowed the local governments to act for HUD in carrying out the federal review process.  HUD is kind of hovering in the background, but it’s the city or county government that’s actually managing the review, just as though it – the local government – were a federal agency.  The Federal Highway Administration (FHwA) lets state departments of transportation manage most of the review process, though its oversight is a good deal more hands-on than HUD’s.  You can usually get FHwA involved if you make enough noise about a state DOT project that’s using federal funds; it’s a lot harder to get HUD to take a hand in a Block Grant case.  But even in the case of a Block Grant, if it’s from the federal government, then somebody is going to have to go through, and manage, the federal environmental review process, including Section 106 review. 

 

Do you need a lawyer? 

 

Yes and no.  You’re dealing with legal requirements, and hence laws, so it’s very good to have a lawyer’s advice and assistance.  But not just any lawyer’s.  And there’s a lot you can do without a lawyer. 

 

Of course, there are many kinds of lawyers – divorce lawyers, insurance lawyers, tax lawyers.  You want a lawyer who knows about environmental laws, and preferably about Section 106.  An environmental lawyer who knows only the toxic waste laws may not do you much good.  If you can find a lawyer who knows about Section 106, he or she will definitely be helpful.  But also, probably, expensive, and there aren’t too many of them around. 

 

Section 106 and its regulations aren’t so complex or esoteric that you can’t understand them yourself.  So, get a lawyer if you can, but don’t despair if you can’t.  And don’t hesitate to insist that your lawyer make sense when he or she talks about the laws, and that he or she make things understandable to you.

 

Of course, if you go to court, you’ll definitely need a lawyer.  Which raises the question…

       

To Court or Not to Court

 

As you get ready to challenge a project, you need to think about whether you’re prepared to take your challenge to court.  There’s a great deal you can do without taking it to court, and there’s a reasonable chance you can be successful, but if the project’s proponent digs in its heels, if the federal agencies involved aren’t responsive to you, the time is going to come when you have to decide – am I going to put up the money, time, and trouble to put my issues before a judge, or am I not?

 

I’m not suggesting that you need to decide on your answer to this question before you take any action at all, but at some point you ought to think through how far you’re prepared to go, and plan accordingly.  Litigation is a fairly complicated and expensive proposition.  You’ll need a lawyer, who’ll need to pull together a lot of information in order to prepare the necessary pleadings, and he or she will need a lot of help from you – besides paying his or her fees and expenses.  If you’re not prepared to bear the expense and take the time, that doesn’t mean you should give up, but you should think through your options in a clear-headed way, and prepare for different outcomes.  Maybe you can find help in funding and carrying out litigation, or maybe you’ll have to acknowledge – to yourself; you certainly don’t want the opposition to find out – that there’s a point at which, if you haven’t won, you’re going to have to cut the best deal you can and throw in the towel.

 

Although you ought to be prepared for it, there’s a good chance that you won’t have to go to court.  There are quite a few ways to get attention paid to your concerns without it.  In fact, you won’t be able to go to court until you’ve exhausted all your “administrative remedies” – for example, using an agency’s internal appeals process.  And it won’t be appropriate to take it to court until some action has happened that arguably can’t be reversed without the court’s intervention – for example, a government decision that allows a project to move forward, a spurious determination that a project won’t adversely affect a historic property, or a decision not to prepare an environmental impact statement under NEPA where significant environmental effects will occur.  Jumping the gun – trying to file a case before it’s “ripe,” will just waste your time and money as well as the court’s patience.

 

What about pro bono help? 

 

Most lawyers do a certain amount of pro bono – that is, free – work for people with special problems (like being really poor) and/or important cases.  And there are organizations with lawyers who can take on environmental and historic preservation litigation; EarthJustice is one, the National Trust for Historic Preservation is another.  Such organizations usually take on only cases where they think a favorable decision will set good precedents for use in other litigation – in other words, where their efforts can produce “good law.”  You may think that your case is easily important enough to merit help from such an organization, and it may well be, but there are an awful lot of good litigation targets out in the world and (believe it or not) only so many attorneys to pursue them.  You shouldn’t count on getting free assistance.

 

Non-lawyer consultants

 

People like me – I’m generally thought of as a “cultural resource consultant” are sometimes accused of practicing law without licenses, and there’s some truth in that.  There are lots of consultants and consulting firms to which you can turn for help with the place laws, and we’re usually a good deal less expensive than lawyers.  But we can’t take a case to court, and we’re not bound by the same standards lawyers are.  We don’t know the ins and outs of legal practice like lawyers do.  And a lot of consultants have only vague, limited, or downright incorrect notions about how the laws work.  Finally, most consultants work most of the time for project proponents.  That doesn’t mean they can’t or won’t help you, or that they’re not sympathetic to your interests.  Quite the opposite; they may be raring to go, happy to do something other than helping some change agent build things that they, personally, don’t much like.  Still, though, their experience is likely to be mostly with helping proponents, and that necessarily influences their knowledge and world-view.  So be careful in choosing a consultant, take anything they say with a grain of salt, and always, always ask questions.  Of course, this goes for your relationships with lawyers, too.

 

Learn about the law

 

Even if you get a lawyer or a consultant, that doesn’t relieve you of the need to know what the laws are about, what options you have.  You need to get acquainted with the laws and regulations you, your lawyer, or others think may be helpful in fighting your battle, if for no other reason than to be able to ask good questions.  The laws are all available on the worldwide web, along with their regulations and lots of guidelines for applying them (See Appendix I).  There are lots of sneaky little tricks to the trade of applying the place laws, but as a general matter they’re not terribly complicated.  Of course, this book is designed to help you with them.

 

And not just Section 106

 

Although this book is about Section 106 review, it’s important to keep track of all the other laws that may be relevant, and either help or hurt you.  It’s especially important to stay on top of how local law, and local decision-making, may affect you, the place you’re trying to protect, and the project(s) you’re trying to protect it from.  The project may be a federal one, or federally funded or licensed, but it probably needs local approvals, too, and a project proponent can play one level of government off against another.  “We have our local approvals, so why should the big, remote, bureaucratic feds get in our way; surely locals know best” – and – “All we need is Board of Supervisors approval in order to open up this big pot of federal money….”  If you don’t stay abreast of all the kinds of review the project is going through, you may find yourself blindsided by a decision made without your knowing, and without a full understanding of the situation on the part of the decision maker.  And once a decision has been made – like a local project approval – it’s awfully hard to get the decision makers to reconsider.

 

Don’t be the Lone Ranger

 

Make, welcome, seek alliances with others who may help you.  Allies can be useful even if they don’t share your precise interests.  Perhaps you’re interested in saving Grandpa’s homestead and the local Audubon Society wants to save the Grey Bearded Owl, which roosts in the trees along the adjacent creek.  They may not care about Grandpa and you may not give a hoot for the owl, but your interests coincide in keeping the area from being overwhelmed by a highway or shopping mall.  Even if you don’t speak to each other under other circumstances, recognizing the coincidence of interests and working together on this area of common concern may help you both. 

 

Right is not necessarily might

 

The fact that the place you want to save really is important – the oldest house in the county, the neighborhood where the Polish American community has been centered for a hundred years, the burial place of the ancestors – will take you only so far.  You don’t want to be wrong, of course; that would definitely undermine your credibility.  But being right isn’t necessarily going to save your place.  You have to be able to demonstrate your rightness, and use your rightness, at the right times in the right ways to make a difference.  Your strategy, your ability to play the project review system, may be as important as, or even more important than, your facts. 

 

Be particularly cautious if you find yourself relying on moral, ethical arguments – what you think is the morally right thing to do.  If you’re quite sure of where the boundary is between good and bad, you certainly want to be on the good side, but being there isn’t necessarily going to help you much, even in the (rather unlikely) event that everybody agrees with you about where that line is.  However much you may think yourself to be on the side of truth and virtue, you still need to know how to work the system.  There’s a management mantra that urges executives not only to “do the right thing” but to “do the thing right.”  It applies to people in your position, too. 

 

Eschew emotion – except when it’s useful

 

You may feel passionate about saving your place, and that’s fine, but don’t expect passion to win the day.  Weeping, shouting, swearing, even raising your voice is usually not helpful.  Don’t think you can shame people into agreeing with you, or bludgeon them into doing so – no matter how righteous your cause is.  It probably won’t work, and it may be counterproductive.  You may just drive them to avoid talking with you, and hence listening to you.

 

That said, there are certainly times and places where a display of emotion is useful.  Tribal elders getting emotional about destruction of the ancestors’ graves can convince people that there’s a serious problem that they should pay attention to; a bunch of kids pleading for the preservation of their neighborhood can twang heartstrings.  There are strategic times to use such displays of emotion, but there are other times when it just gets in the way, even turns people against you. It may seem terribly cold and calculating, but you’ll get farther if you use emotion sparingly and strategically.  Have the elders or the kids emote, but then let them fade into the background while the hardheaded realists negotiate.

 

Keeping these general ideas in mind, let’s consider the things that happen – or are supposed to happen – during the early stages of Section 106.  We’ll also look at how project proponents and review agencies cut corners, bend required procedures, and simply screw up.  And we’ll consider what you can do to make the most of their mistakes.

 

We’ll start with the first steps in review under Section 106, not only because it’s commonsense to discuss things in sequence, but also because it’s so important for you to get engaged in the review process as early as possible.  To start early you need to do two things: find out that a threatening project is planned, and prevail upon people in positions of authority to pay attention to you.  Let’s look at how you can do those things as review begins.

 

The First Steps in Project Review

 

Somebody has an idea – for a highway, a housing development, an oil tanker port, or whatever – and that somebody, that project proponent, either is a federal agency or needs assistance or a permit from a federal agency.  What happens then?

 

Although Section 106 applies in essentially the same way to both the projects of federal agencies and projects that require federal assistance or permits, there are some important practical differences.  When a federal agency comes up with a proposal, the agency obviously knows about the proposal from the get-go.  But if the proponent is somebody other than a federal agency – a land developer, for instance – he may be pretty far advanced in planning his project before the agency that’s going to be involved even knows about it.  He may march in the agency’s door, drop a bunch of completed project plans on the desk, and ask how soon he can get his permit or assistance.  He may already have approvals from local government; he may own the land; he may have assembled his financing.  He may have lined up his elected representatives to lean on the agency.

 

Agency people hate this, and it’s often a poor strategy for a proponent to use.  When people feel like they’re being railroaded, they’re likely to be suspicious of the railroader’s motives, and if they’re responsible public servants they’re likely to feel like the public interest is getting shafted.  Smart non-federal proponents get together early with the agencies they’re going to need to work with, when they’re just starting to develop conceptual plans.  Even though the agency may then say they don’t have enough information to review, so please come back when you’re farther advanced, early consultation at least makes the agency folks feel like they’re being respected, and that makes later consultation easier.  But lots of project proponents aren’t smart enough, or humble enough, to realize this, and a fair number respect neither agency employees nor the public the agencies are supposed to serve.  These are the guys who plop the plans down on the desk and say “I need my permit in 30 days.”

 

If the proponent of a project that’s dangerous to your valued place acts like this, it’s obviously a problem for you.  If the agency from which the guy needs his assistance or permit doesn’t know about the plan, you probably don’t either.  When you do learn about it, you’re both going to have to scramble to respond.  But attempts to railroad a project through also create huge vulnerabilities for the proponent, and you may be able to exploit them. 

 

What are those vulnerabilities?  For one thing, as I said above, the proponent has probably alienated at least some of the people in the agencies whose help he needs to make his project go.  For another thing, the very fact that he thinks he can blast his way through the federal review process suggests that he isn’t very knowledgeable about how the process works, so he’s likely to make mistakes.  He’s also almost certainly invested heavily in his plan.  He’s probably got bankers or investors or both all lined up in support of his plan, and he’s promised them that it’s a done deal.  He’s probably paying a good deal of interest on whatever loans he’s taken out.  He’s got his lawyers on retainer, his engineers and architects under contract, maybe even his construction team mobilized.  He can’t afford delay; in fact, delay may kill his project stone cold dead. 

 

So you want to find every possible way to delay him. 

 

Where a federal agency is itself the proponent, it’s likely to go through project review in a fairly orderly, deliberate manner.  But not always.  Sometimes political pressures or even just the ego of a regional office head can cause an agency to behave as badly as the most unruly of private developers.  And become subject to about the same vulnerabilities.  They don’t have investors holding their purse strings, but they do have higher-ups in the agency, and the agency’s budget people, and they’re subject to the tyranny of the federal (or state) budget cycle.  In most cases, funds budgeted for a project expire after awhile, or have to be reauthorized; the agency may have to go back to Congress for more money if the project gets delayed.  So delay is something that agencies hate, too.

 

So is it the best idea to lie low while the project proponent shapes up his plans, develops his funding, and crawls out on a financial limb, and then spring out to cut it off?  Maybe sometimes, but it’s a chancy proposition, and I’d not usually recommend it.  As soon as you hear about a project, you ought to start figuring out what to do about it, and encouraging everyone concerned to get started doing what law requires. 

 

Which is?  Let’s look.

 

First Steps

 

The Section 106 regulations are very explicit about the first steps in the process, and the necessity to take them.  But those first steps are pretty much in the hands of the agency, and you may not have a good way of knowing whether and how they’re happening.

(a) Establish undertaking. The agency official shall determine whether the proposed Federal action is an undertaking as defined in §800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.

(1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part.

The agency first decides whether the project even needs review under Section 106.  Since Section 106 is about dealing with effects on historic properties, the question the agency has to ask itself is: “Is this the type of project that has the potential to affect historic properties, if any are out there?”

 

And here is where a lot of agencies, project proponents screw up.  Unfortunately, project opponents often do the same.

 

Critical point: the project requires review if it’s the type of project that has the potential to affect historic properties.  We may not have any idea whether there are historic properties out there in the world where the project may do damage to them.  If it’s the type of thing that could affect them, if they turn out to be there when somebody studies the area, then it has to be reviewed.

 

Project opponents often think that you have to know there’s a historic place that will affected – that maybe you have to nominate the old house to the National Register of Historic Places, or somehow otherwise get it “designated historic” – before Section 106 applies.  Not true!  If the project will mess up buildings, dig up soil, or otherwise change the landscape, it has the potential to affect historic places, including places that haven’t even been found yet. 

 

And the effects don’t necessarily have to be direct, physical, knock-em-down or dig-em-up kinds of effects.  Visual effects may count, too, and auditory effects; changes in land use, changes in traffic patterns.  Sometimes it’s a trick to demonstrate such effects, and there are some fine angels-on-pinhead arguments that people can have about them – we’ll go into some of these in the next chapter – but the bottom line is that all reasonably foreseeable effects are supposed to be considered.

 

So what do you do if the project proponent or agency official says “we don’t have to do Section 106 review, because there aren’t any National Register properties there?”   Direct their attention to 36 CFR 800.3(a)(1) – the section of the regulations on how to decide whether a project requires review.  Note that it says that an agency “undertaking” (anything an agency does, assists, or permits) need not be reviewed under Section 106 only if it is –

 

-- the type of activity that does not have the potential to cause effects on historic properties, assuming such properties were present (36 CFR 800.3(a)(1)).

 

Which means that if it does have such potential, then it does need to be reviewed.

 

Then ask them some questions, like –

 

            “Is this not the type of undertaking that has the potential to affect historic properties?  If not, why not?

 

            “Do you actually know that there aren’t any historic properties present?  If so, how do you know it?

 

            “Do you understand that there are lots of historic properties that haven’t yet been found or recorded?”

 

And put them in touch with your State Historic Preservation Officer, who – assuming he or she is alert, knowledgeable, and willing – ought to be able to set them straight.

 

Of course, when I say to tell an agency this and ask them that, I’m assuming that you’re able to communicate with them somehow.  Luckily, the Section 106 process is set up to make that happen, though it doesn’t always work very well.

 

Consultation is at the heart of Section 106 review.  The responsible agency – the one proposing, or assisting, or considering permitting the project – is required to consult with the State Historic Preservation Officer, the project proponent, local governments, and Indian tribes, and it’s also supposed to consult with other interested groups and individuals – in other words, you.  One of the first things an agency is supposed to do once it’s decided that it needs to do Section 106 review is to identify consulting parties.  Then it’s supposed to consult them, starting as early as possible and continuing  throughout the review process.  And consultation is defined in the Section 106 regulations as actually discussing, considering, sitting down and talking with one another, trying to work things out and come to an agreement – not just filing notices and holding public hearings.

 

(c) Identify the appropriate SHPO and/or THPO. As part of its initial planning, the agency official shall determine the appropriate SHPO or SHPOs to be involved in the section 106 process. The agency official shall also determine whether the undertaking may occur on or affect historic properties on any tribal lands and, if so, whether a THPO has assumed the duties of the SHPO. The agency official shall then initiate consultation with the appropriate officer or officers.

(f) Identify other consulting parties. In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward.

 

But consultation is not something that either agencies or non-governmental project proponents necessarily do very well, not something most agency people, engineers, and lawyers are trained very well to do.  As a result, there are several ways that consultation tends not to get started under Section 106, or tends to devolve into a meaningless exercise in paper-passing or public relations.

 

NEPA-think.  Agency environmental review people tend to be much more familiar with NEPA than with Section 106, and NEPA doesn’t require the sort of intensive consultation that Section 106 does.  As a result, it’s often difficult for NEPA experts to understand that Section 106 does require consultation, or what consultation means.  An extreme but not uncommon example is for the agency to figure that if a project is categorically excluded from NEPA review, it must be categorically excluded from Section 106 as well.  That’s not at all true; the two statutes are entirely separate (though it’s fine, indeed recommended, that compliance with them be coordinated).  But if the agency thinks it’s true, it may not get started doing any sort of 106 review on a categorically excluded project, which means it won’t consult anyone, which means you may not know the project is being planned, so you’re not in a position to insist on consultation….

 

Consulting only with those they must consult.  The only specific person the regulations insist that an agency consult is the State Historic Preservation Officer (SHPO).  Others must be consulted under particular circumstances – for example, Indian tribes and Native Hawaiian groups must be consulted if places of cultural importance to them may be affected by a project, and local governments are entitled to be consulted if effects will take place within their jurisdiction.  If you’re just an ordinary concerned citizen, or even an affected property owner, the regulations allow an agency the discretion to consult or not consult.  Often enough, an agency will decide it doesn’t want to consult with people or groups it finds troublesome.

 

Confusing consultation with public notice.  The agency may figure that if it publishes a legal notice in the newspaper saying it’s reviewing a project under Section 106, it’s initiated consultation.  That may not be an entirely unreasonable assumption in the case of a little project with low potential for doing damage to anything, but it’s certainly not reasonable, not sufficient, where the project is bigger or otherwise more likely to cause injury.  Unfortunately, agencies tend to want to do things the same way every time; it’s hard to build flexibility and a recognition of variable circumstances into agency procedures.  So an agency that’s used to dealing with little, unproblematic projects may try to deal with a big, dangerous one in the same way, and be terribly surprised when it doesn’t work.

 

Confusing consultation with review and comment.  The idea of consultation as a back and forth discussion, aimed at solving problems, is not one that all agency people are ready or willing to embrace.  To some, it is downright scary; it involves surrendering a degree of control.  Few agencies train their people in consultation methods, and such training is pretty rare in law schools, too (though more and more, to their credit, are offering classes and programs in “alternative dispute resolution, involving methods of consultation, mediation, and negotiation).  So the knee-jerk agency response, when somebody mentions consultation, may be to say: “OK, we’ll send out our proposal/notice/plan for 30-day review and comment.”  Tell us what you think, folks, and we in our wisdom will take a look at what you have to say and then make our decision.  It’s deeply insulting to the interested public, or ought to be – though it surprises me how often concerned citizens are willing to accept it – but it’s very, very common. 

 

Public hearing.  It’s also very common for agencies to think – or act like – they’ve done consultation if they’ve held a public hearing.  Possibly one of the most useless, time-and-money-wasting enterprises around, but deeply embedded in the psyche of the American public and the U.S. government, a public hearing is a set-piece exercise in “let’s pretend.”  Let’s pretend that the agency is really interested in what the public has to say, will really consider, really think about it.  So we give the public an opportunity to speak.  We hire a hall, invite everybody to come in and say their piece.  We line our people up on a stage or behind a podium, and we make a bunch of presentations about the project.  Then – protocol being protocol, after all – we invite elected local officials to speak, and they do, on and on.  Then maybe there are state or federal legislators or their staffs; they get to speak.  Then finally members of the public get up, usually with strict time limits, and by this time everybody’s bored and angry anyhow.  So people speak, often angry to the point of incoherence, and in any event so constrained by time that they can’t do more than lob rhetorical hand grenades.  Then the meeting’s over and the agency goes solemnly off to consider the public’s comments.  Which by and large it rejects – after all, they’re mostly incomprehensible and emotional.  The public hearing is an institution that made sense when practiced by small communities in colonial New England, and maybe still works in small communities now, but makes no sense whatsoever when practiced by a federal agency dealing with a large project with complicated environmental impacts.  But it is an institution so deeply embedded in our political systems that it’s taken for granted as a Good Thing To Do.  I’ve seen project opponents rant and rave about the fact that an agency has failed to hold a public hearing, and therefore hasn’t done a proper job of involving the public in its project.  Bad strategy; all the agency has to do is hold a hearing and (as usual) ignore the results, and it’s taken the wind right out of its opponents’ sails.

 

So, what to do?  You need to convince the agency that it’s got to do real consultation – really talk with you, listen to you, give thoughtful consideration to what you say.  Pay attention and either do what you say it ought to do, or explain why it does something else.  The place to start is with the letter of the regulations.  The Section 106 regulations include a definition of “consultation” that goes like this:

 

Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. The Secretary's “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the

National Historic Preservation Act” provide further guidance on consultation (36 CFR 800.16(f).

 

Those Secretary’s Standards – “Secretary,” in the Section 106 regulations, always meaning Secretary of the Interior – can be found on the worldwide web at http://www.cr.nps.gov/hps/pad/sec110.htm.  They elaborate on what’s laid out in the regulations, and though they don’t themselves have the force of law – in other words, agencies don’t have to follow them – the fact that they’re referenced in the regulations means that agencies really ought to follow them unless they have some good reason to do otherwise.

 

The key words and phrases to emphasize in the definition are:

 

  • Process:  Consultation isn’t simply an action – sending out a letter, holding a hearing, posting a notice; it’s a process.  A process is something that develops over time, and that involves interactions among whatever entities are involved in it.  One part of this interaction under Section 106 is –
  • Seeking: The agency needs to reach out and try to find out what people think.  Another part is –
  • Discussing:  The agency is supposed to talk with people about what they think.  Another part is –
  • Considering:  The agency is supposed to think about what people tell it.  And who is it supposed to be interacting with?
  • Other participants:  Not just the State Historic Preservation Officer, or the technical experts, but whoever’s involved.  Finally, what is the purpose of the interaction?
  • Seeking agreement:  A key phrase.  The agency is supposed to negotiate, to try to reach agreement with the other participants about whatever it’s considering – like how to identify historic places, whether a given place is significant, what effects a project will have on a significant place, and what to do about such effects.

 

So you need to argue for real consultation, and quite possibly educate the agency about what the regulations say.  And moreover, you want to make sure that the agency consults you.  In the jargon of the Section 106 regulations, you want the agency to regard you as a consulting party. 

 

So why should the agency consult with you?  You need to think of all the reasons, so you can use them as ammunition if you need to.  Are you an Indian tribe or a local government?  If so, you have special rights to be consulted.  Are you a property owner?  A local or national environmental or historic preservation group?  Simply a concerned citizen?  Then the regulations aren’t terribly directive.  However, they do say that:

 

Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties  (36 CFR 800.2(c)(5)).

 

So you need to demonstrate to the agency, and to anyone else who’ll pay attention (like the State Historic Preservation Officer) that you have an interest – that is, that you’ll be affected somehow by the project and/or that you’re concerned about how historic properties may be affected. 

 

In asserting such an interest, I usually recommend being polite but not subservient.  Act like you respect the agency and its work, and understand that it wants as simple and straightforward a planning process as it can get.  Request consulting party status, respectfully but forcefully.  Never forget that agency officials are public servants, and you’re part of the public.  They have no business mounting high horses.

 

And they may well mount them.  For instance, the agency people may tell you that you can’t be a consulting party unless you write them a letter that says just the right things, citing just the right regulations just the right ways.  Nonsense; this is supposed to be a government of, by and for the people, not just the people who can write the “right” kind of letter.  Sure, you need to write them a letter – otherwise there would be no record of what you did – but it doesn’t’ have to say things just the way the agency wants them said.  That said, it really is a good idea to cite all the relevant regulations, and spell things out in language the agency can understand.  Or they may tell you that if they let you be a consulting party, they’ll have to give every other Tom, Dick, and Harriett a seat at the table, too.  That’s not true, but even if it is I’d suggest not fearing it.  It’s probably a bluff, but even if it isn’t, who cares?  Other people have the right to be consulting parties, too, and if they don’t have anything to contribute to the consultation they’ll soon enough get bored and drop out.  You’ll seldom go wrong promoting an open door policy.

 

Another high-horse strategy is simply to ignore you, hoping you’ll go away.  If called on this, the agency people will probably say that gee, they lost your letter.  So send letters with return receipt requested, or get some other record of receipt, and keep bugging them.

 

Seek allies, especially the State Historic Preservation Officer.  But don’t ask the SHPO to take your side unless it’s obvious that he or she agrees with you.  Just ask him or her to help you get a seat at the consultation table so your voice can be heard.

 

Bring up legal authorities other than Section 106 to bolster your argument.  Are you a member of a minority group, or is your income low relative to that of other people in the area?  If so, Executive Order 12898 pushes agencies to consult with you.  Are you a local property owner?  Then Executive Order 13352 tells agencies to engage you in a collaborative manner.  The Administrative Procedures Act (APA) encourages transparent agency decision making, and consultation is one way to achieve transparency.  The Federal Advisory Committees Act (FACA) discourages closed-door meetings with select groups of people unless they’re formally established according to FACA’s regulations.  You shouldn’t have to throw all these authorities at the agency, but if you have to, they’re there to be thrown.

 

If you make enough noise, convince the agency that you’re not going to go away, but avoid looking like a nutcase, you ought to get recognized as a consulting party.  This will entitle you to get copies of correspondence, study reports, and other documents that get generated as the 106 process continues, and will give you a “seat at the table” (though there isn’t necessarily a real table) in negotiating how the process will be carried out and what its outcome will be. 

 

If you don’t get recognized as a consulting party, though, you’re not completely out of the loop.  The agency is required to involve the public throughout the process, and you’re clearly a member of the public.  You’ll just have to work harder to keep track of what’s going on.  You’ll have to ask – repeatedly.

 

A useful court finding to cite – though it’s unambiguously binding only in the district where it was handed down (Oregon), is in Bonnichsen v. United States (217 F. Supp. 2d 1116 (D. Or. 2002).  Bonnichsen dealt mostly with the Native American Graves Protection and Repatriation Act (NAGPRA) – it was a fight between Indian tribes and various non-Indian scientists over a 9,000 year old skeleton that washed out of the bank of the Columbia River.  But a tiny part of the case was about Section 106.  The Corps of Engineers had dumped fill on top of the site where the skeleton washed out, and had to do Section 106 review before dumping.  The Corps had consulted with the State Historic Preservation Officer, the National Park Service, and various tribes.  The scientists argued that they should have been consulted, too.  The defendants said no, the regulations gave the Corps discretion to let the scientists in or leave them in the cold, and the Corps had decided quite legally to do the latter.  The Court found for the scientists, saying:

 

In sum, I conclude that the Corps violated the NHPA requirements that the views of "interested parties" be considered. 

 

So that particular court seems to have concluded that interested parties – like the scientists, and like you, had a sort of right to be consulted, though one could probably argue that there are other ways their “views” could have been “considered.”

 

So, you muster your best argument for consulting party status, you recruit allies who will support you, particularly among groups that are already consulting parties, like tribes and the State Historic Preservation Officer, and you either get to the table or you don’t.  No guarantees, but not being a consulting party doesn’t knock you out of the game.  In the next chapter we’ll see what you can do if you are a consulting party, and what you can do if you’re not.

 

 

 

Sidebar: For regulatory language pertinent to this chapter go to http://www.achp.gov/regs-rev04.pdf and see 36 CFR 800.3

 

 

 

    

§ 800.3 Initiation of the section 106

process.

 

(a) Establish undertaking. The

agency official shall determine whether

the proposed Federal action is an

undertaking as defined in § 800.16(y)

and, if so, whether it is a type of activity

that has the potential to cause effects on

historic properties.

(1) No potential to cause effects. If

the undertaking is a type of activity that

does not have the potential to cause

effects on historic properties, assuming

such historic properties were present,

the agency official has no further

obligations under section 106 or this

part.

(2) Program alternatives. If the

review of the undertaking is governed

by a Federal agency program alternative

established under § 800.14 or a

programmatic agreement in existence

before January 11, 2001, the agency

official shall follow the program

alternative.

(b) Coordinate with other reviews.

The agency official should coordinate

the steps of the section 106 process, as

appropriate, with the overall planning

schedule for the undertaking and with

any reviews required under other

authorities such as the National

Environmental Policy Act, the Native

American Graves Protection and

Repatriation Act, the American Indian

Religious Freedom Act, the

Archeological Resources Protection Act

and agency-specific legislation, such as

section 4(f) of the Department of

Transportation Act. Where consistent

with the procedures in this subpart, the

agency official may use information

developed for other reviews under

Federal, State or tribal law to meet the

requirements of section 106.

 

(c) Identify the appropriate SHPO

and/or THPO. As part of its initial

planning, the agency official shall

determine the appropriate SHPO or

SHPOs to be involved in the section 106

process. The agency official shall also

determine whether the undertaking may

occur on or affect historic properties on

any tribal lands and, if so, whether a

THPO has assumed the duties of the

SHPO. The agency official shall then

initiate consultation with the

appropriate officer or officers.

(1) Tribal assumption of SHPO

responsibilities. Where an Indian tribe

has assumed the section 106

responsibilities of the SHPO on tribal

lands pursuant to section 101(d)(2) of

the act, consultation for undertakings

occurring on tribal land or for effects on

tribal land is with the THPO for the

Indian tribe in lieu of the SHPO.

Section 101(d)(2)(D)(iii) of the act

authorizes owners of properties on tribal

lands which are neither owned by a

member of the tribe nor held in trust by

the Secretary for the benefit of the tribe

to request the SHPO to participate in the

section 106 process in addition to the

THPO.

(2) Undertakings involving more than

one State. If more than one State is

involved in an undertaking, the

involved SHPOs may agree to designate

a lead SHPO to act on their behalf in the

section 106 process, including taking

actions that would conclude the section

106 process under this subpart.

(3) Conducting consultation. The

agency official should consult with the

SHPO/THPO in a manner appropriate to

the agency planning process for the

undertaking and to the nature of the

undertaking and its effects on historic

properties.

(4) Failure of the SHPO/THPO to

respond. If the SHPO/THPO fails to

respond within 30 days of receipt of a

request for review of a finding or

determination, the agency official may

either proceed to the next step in the

process based on the finding or

determination or consult with the

Council in lieu of the SHPO/THPO. If

the SHPO/THPO re-enters the section

106 process, the agency official shall

continue the consultation without being

required to reconsider previous findings

or determinations.


 

(d) Consultation on tribal lands.

Where the Indian tribe has not assumed

the responsibilities of the SHPO on

tribal lands, consultation with the

Indian tribe regarding undertakings

occurring on such tribe's lands or effects

on such tribal lands shall be in addition

to and on the same basis as consultation

with the SHPO. If the SHPO has

withdrawn from the process, the agency

official may complete the section 106

process with the Indian tribe and the

Council, as appropriate. An Indian tribe

may enter into an agreement with a

SHPO or SHPOs specifying the SHPO's

participation in the section 106 process

for undertakings occurring on or

affecting historic properties on tribal

lands.

(e) Plan to involve the public. In

consultation with the SHPO/THPO, the

agency official shall plan for involving

the public in the section 106 process.

The agency official shall identify the

appropriate points for seeking public

input and for notifying the public of

proposed actions, consistent with §

800.2(d).

(f) Identify other consulting parties.

In consultation with the SHPO/THPO,

the agency official shall identify any

other parties entitled to be consulting

parties and invite them to participate as

such in the section 106 process. The

agency official may invite others to

participate as consulting parties as the

section 106 process moves forward.

(1) Involving local governments and

applicants. The agency official shall

invite any local governments or

applicants that are entitled to be

consulting parties under § 800.2(c).

(2) Involving Indian tribes and

Native Hawaiian organizations. The

agency official shall make a reasonable

and good faith effort to identify any

Indian tribes or Native Hawaiian

organizations that might attach religious

and cultural significance to historic

properties in the area of potential effects

and invite them to be consulting parties.

Such Indian tribe or Native Hawaiian

organization that requests in writing to

be a consulting party shall be one.

(3) Requests to be consulting parties.

The agency official shall consider all

written requests of individuals and

organizations to participate as

consulting parties and, in consultation

with the SHPO/THPO and any Indian

tribe upon whose tribal lands an

undertaking occurs or affects historic

properties, determine which should be

consulting parties.

(g) Expediting consultation. A

consultation by the agency official with

the SHPO/THPO and other consulting

parties may address multiple steps in §§

800.3 through 800.6 where the agency

official and the SHPO/THPO agree it is

appropriate as long as the consulting

parties and the public have an adequate

opportunity to express their views as

provided in § 800.2(d).