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:
| 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
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
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:
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
(
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
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
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).