Chapter 5 Historic and Cultural Resources Management on Federal Public Land

• Jurisdiction: United States

Chapter 5 Historic and Cultural Resources Management on Federal Public Land
Stan N. Harris Walter E. Stern¹ Modrall Sperling Albuquerque, NM

WALTER STERN is a Shareholder with Modrall Sperling in Albuquerque. A native Californian with a B.S. in Forestry from that great public research institution, the University of California at Berkeley, brings almost forty years of experience providing representation, advice and counsel to businesses and individuals in their dealings with Indian tribes and nations, as well as with public land management agencies. Clients throughout the west and across the country seek Walter's advice in matters involving transactions, disputes and consultations with Indian tribes and other Native American groups. In addition, clients look to Walter when pursuing federal lands leasing, development, and related permitting and environmental compliance efforts under the National Environmental Policy Act ("NEPA"), Section 106 of the National Historic Preservation Act, the Endangered Species Act, and related federal statutes. Walter is actively involved in community and professional non-profit organizations. In 2009-10, after serving in a range of capacities for the organization, Walter served as President of the Foundation formerly known as the Rocky Mountain Mineral Law Foundation. Walter is a Trustee with the Albuquerque Community Foundation ("ACF"), currently serving as the Chair of that Foundation's Impact Investment Committee. Previously, he served as Chair of ACF's Board of Trustees. He also serves as the Chair of the Board of Directors of the New Mexico Land Conservancy, whose mission is to help preserve natural landscapes on private lands through the use of conservation easements. In addition, Walter is a past Chair and former member of the Board of Trustees of the Albuquerque Academy, an independent day school. For six years pre-pandemic, Walter served as President of Modrall Sperling and Chair of the firm's Executive Committee.

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I. Introduction.²

For much of the past half century there has been an increased understanding of the importance of the nation's historic and cultural heritage. This in turn has prompted the passage of numerous federal laws intended to address and protect that heritage. There is, however, no single comprehensive federal law dealing with cultural resources under federal jurisdiction. Instead, Congress has enacted a patchwork of laws addressing various aspects of cultural resource protection through various means and for various specific purposes. Further, although these statutes are triggered by activities implicating federal land, these laws can in some circumstances also have effect on and limit the use of state, tribal, and/or private lands.

Property owners, land use managers, and practitioners will therefore want to be aware of this often complex legal landscape. This paper lists and describe some of the most important federal statutes and regulations that address cultural resource issues. Further, and although outside the scope of this paper, it should be noted that states, tribes, counties, and municipalities may also have their own laws addressing cultural properties, of which the practitioner will also want to be aware.

II. NHPA and NEPA

Two particularly important federal statutes that address historic and cultural resources are the National Historic Preservation Act of 1966 (NHPA),³ and the National Environmental Policy Act of 1969 (NEPA).⁴ These two federal laws have resulted in separate procedures requiring federal agencies to consider, among other things, the effects of federal actions on historic and cultural properties prior to approving such actions. The two processes created by the NHPA and NEPA are implicated in most of the actions that federal agencies are asked to take.

The goals of the NHPA and NEPA processes - to ensure that an agency takes into account the impact of a federal action upon, among other things, historic and cultural properties are quite similar. However, because each process is the creation of a distinct statute with its own specific requirements, the NHPA and NEPA processes themselves are in many ways very different. This

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can be a challenge for practitioners because, ultimately, it is the process for each statute that must be followed for any subsequent agency decision to be considered valid.

In particular, the NHPA and NEPA have both been characterized as "stop, look, and listen" statutes.⁵ Thus, although the agency's ultimate decision about the action is never mandated by the NHPA or NEPA processes, and although reviewing courts do not judge the wisdom of such a process-informed decision,⁶ an agency must have adhered to the NHPA/NEPA processes for the decision to be considered valid. It is when an agency fails to follow the processes that its decision may be subject to attack.⁷

Both the NHPA and NEPA, however, allow for their respective processes to be coordinated with each other, in the hope that an agency's decision may be made in a timely and efficient -while still procedurally thorough - manner. Thus, the NHPA regulations encourage federal agencies "to coordinate compliance with Section 106 with any steps taken to meet the requirements of NEPA."⁸ Similarly, NEPA requires that federal agencies "use all practicable means, consistent with other considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . preserve important historic, cultural, and natural aspects of our national heritage."⁹

To this end, in March 2013 the two agencies charged with promulgating regulations for the NHPA and NEPA - the Advisory Council on Historic Preservation (ACHP) and the Council on Environmental Quality (CEQ), respectively issued a joint handbook entitled "NEPA and NHPA: A Handbook for Integrating NEPA and Section 106" (NEPA/NHPA Handbook).¹⁰ The NEPA/NHPA Handbook, in turn, describes and details integration of the two processes through two methods: (1) coordination of NHPA and NEPA processes; and (2) substitution of the NHPA process with the NEPA process.

For one to understand how to integrate the NHPA and NEPA processes, however, one must first understand the processes themselves. These processes are discussed in the following sections.

a. The NHPA and the Section 106 Consultation Process.

In 1966, Congress passed the NHPA with a finding that "the preservation of the [Nation's] irreplaceable heritage is in the public interest . . . .¹¹ In furtherance of this finding, the NHPA and

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its implementing regulations created a process by which federal agencies are required to consult with interested parties to identify historic properties, assess the adverse effects of proposed federally funded or permitted undertakings on such properties, and attempt to mitigate such adverse effects on those properties.¹² This NHPA process is commonly known by its original Public Law designation as a "Section 106" consultation, and the process by which the consultation is conducted is the "Section 106 process."

Before discussing the Section 106 process, however, practitioners should be aware that, prior to December 2104, the NHPA had been codified at 16 U.S.C. §§ 470 et seq. for almost half a century. Most published opinions considering the NHPA therefore use these former (16 U.S.C. §§ 470 et seq.) citations. However, as a result of the December 19, 2014, National Park Service and Related Programs Act,¹³ the NHPA was re-codified into scattered sections of U.S.C. Title 54, "except with respect to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the date of enactment of this Act."¹⁴ Thus, for example, NHPA Section 106, which governs the Section 106 process and which was previously codified as 16 U.S.C. § 470f, is now codified at 54 U.S.C. § 306108.

NHPA Section 106 mandates that any federal agency having jurisdiction over any proposed federal or federally assisted "undertaking" shall, prior to the approval of the expenditure of any funds or issuance of any license or permit for the undertaking, "take into account the effect of the undertaking on any district, site building, structure, or object that is included in or eligible for inclusion in the National Register."¹⁵

Pursuant to the NHPA and its amendments, the ACHP has promulgated regulations creating a process by which Section 106 is implemented. The Section 106 process itself is governed by NHPA's regulations. These regulations are found at 36 C.F.R. part 800, and are not affected by the 2014 recodification of the NHPA.¹⁶

These regulations, in turn, describe a four-step Section 106 process, ¹⁷ as follows:

1. Section 106 Step One: Is the proposed action an "undertaking"?

Section 106 applies only to "undertakings," which are defined by regulation as "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval."¹⁸ A project is an "undertaking" triggering the Section 106 process, therefore, if any federal funds will be used,

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or if any federal permit, license, or other approval will be required. If there is no "undertaking," then the Section 106 process is over.

2. Section 106 Step Two: Consult to determine if the undertaking affects eligible historic properties.

If the proposed project is an undertaking, the relevant federal agency (for example, the agency charged with issuing a requested permit) must determine if the undertaking could affect properties listed or eligible to be listed on the National Register of Historic Places.¹⁹ A "historic property" under NHPA is "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic...