1976, February, Pg. 151. Historic Preservation.

• Author: by Charles M. Elliott

5 Colo.Law. 151

Colorado Lawyer

1976.

1976, February, Pg. 151.

Historic Preservation

151Historic Preservationby Charles M. ElliottThe Centennial/Bicentennial period is an appropriate time for a review of the law of historic preservation. As the citizens of our state and country focus attention upon the past, the value of preserving the irreplaceable, tangible reminders of our heritage is vividly clear. Colorado has already taken significant steps to safeguard the ghost towns, mining districts, forts, Victorian mansions and archeological resources which so keenly reflect the rich history of our state. However, as interest in historic preservation intensifies, concern grows not only for stronger protection of august landmarks but for conservation of structures, neighborhoods and sites of more modest pretensions which, nevertheless, demonstrate unique historical significance. The legal profession can expect to be called upon with increasing frequency to deal with the problems generated by historic preservation efforts.

Federal Law

The Antiquities Act of 1906(fn1) authorized the President to reserve as a national monument any historic or prehistoric structure or landmark, or other object of historic or scientific interest on federal land. The Secretary of the Interior may accept private sites suitable for such designation. Field investigations are restricted to educational and scientific operations which have been approved by the Smithsonian Institution and the responsible land agency. Criminal penalties for the excavation, appropriation, or destruction of objects of antiquity apply to both national monuments and to any lands owned or controlled by the United States. There are now over 80 National Monuments including the Great Sand Dunes, Dinosaur, Colorado, Black Canyon of the Gunnison, Yucca House, Hoven-weep, and Florissant Fossil Beds National Monuments in Colorado. National Parks also frequently contain outstanding historic and archeologic resources such as the cliff dwellings and cultural remnants of early Indians in Mesa Verde National Park in southwestern Colorado. Congress has authorized the incorporation of historical sites and historical parks as units of the national park system.(fn2)

Congress inaugurated a historic preservation program in the Historic Sites Act of 1935(fn3) which declared:... a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States. . . .(fn4) The Secretary of the Interior was empowered to acquire, rehabilitate, maintain, and survey historic and archeologic objects and places. The Secretary implemented this last authority through the Historical Survey of Historic Sites and Buildings in 1937. Many of the outstanding properties listed in

152the Survey were included in the Registry of National Historic Landmarks, which was instituted in 1960. Inclusion in the Registry provided no permanent protection to the privately or publicly owned property, but merely constituted an agreement that the designation would continue for as long as the owner preserved the historic character of the property in both appearance and use.(fn5)The National Historic Preservation Act of 1966 (NHPA)(fn6) intensified federal efforts to preserve our historic resources. NHPA directed the continuation and expansion of the inventory of historical resources, to be known as the National Register of Historic Places. Each state now has a state historic preservation officer who is responsible for developing a state preservation plan and for submitting nominations to the National Register. Both states and historic preservation groups are eligible for grants-in-aid. An Advisory Council on Historic Preservation, comprised of private citizens and cabinet-level officers, also has major responsibility under NHPA.

Listing on the National Register makes the property eligible for financial assistance and invokes the protections of § 106.(fn7) The thrust of § 106 is to require all federal agencies, prior to any...