The National Historic Preservation Act at fifty: Surveying the Forest Service experience.

• Author: Phelps, Jess R.
• Position: ARTICLE

Milestone anniversaries provide a unique opportunity for reflection. Enacted in 1966, the National Historic Preservation Act fundamentally transformed the field of historic preservation--particularly at the federal level. This Article explores the evolution of National Historic Preservation Act compliance from an agency perspective and provides a comprehensive survey of all appellate litigation involving the United States Forest Service. To this end, this Article profiles litigation trends and how cultural resource management practices have been shaped by the courts over the past five decades. Ultimately, an understanding of how cultural resource management has evolved as historic preservation has become more inclusive is critical to thinking about how to address future challenges.

1. INTRODUCTION 472 II. THE NATIONAL HISTORIC PRESERVATION ACT AND THE FOREST SERVICE 475 A. The Forest Service and Cultural Resource Management 475 B. The National Historic Preservation Act 477 1. Overview 478 a. The National Register of Historic Places 479 b. State Historic Preservation Officers and Tribal Historic Preservation Officers 481 c. Advisory Council on Historic Preservation 482 2. Section 106: The Process 483 a. The Parties 485 b. Defining the Undertaking 486 c. Identification 487 d. Assessment 489 e. Resolving Adverse Effects 489 III. SECTION 106 APPELLATE LITIGATION AND THE FOREST SERVICE 491 A. Introduction 491 B. The 1980s: Wilson v. Block 493 C. The 1990s 495 1. Yergerv. Robertson 495 2. Apache Survival Coalition v. United States 497 3. Pueblo of Sandia v. United States 500 4. Hoonah Indian Ass'n v. Morrison 502 5. Muckleshoot Indian Tribe v. United States Forest Service 504 D. The 2000s 506 1. Wyoming Sawmills Inc. v. United States Forest Service ...506 2. Pit River Tribe v. United States Forest Service 508 3. Navajo Nation v. United States Forest Service 510 IV. EVALUATING THE FOREST SERVICE'S APPELLATE LITIGATION EXPERIENCE.512 A. The Historic Properties 512 B. The Litigants 513 C. The Causes of Action 514 D. The National Historic Preservation Act Claims 514 1. Undertakings 514 2. Failure to Identify and Evaluate Historic Properties 515 3. Other Procedural and Substantive Challenges 515 E. The Evolution of Cultural Resource Management 517 V. CONCLUSION 517 "The coyote skulks among the scrub, the buzzard flaps heavily through the air, and the clumsy grizzly bear lumbers through the dark ravines, and picks up such sustenance as it can amongst the rocks. These are the sole dwellers in the wilderness. " (1)

1. INTRODUCTION

   2016 marked the fiftieth anniversary of the enactment of the National Historic Preservation Act (2) (NHPA). As the largest and most transformative

   federal preservation law, the NHPA laid the essential groundwork of the modern structure of historic preservation--including establishing the National Register of Historic Places, the Advisory Council on Historic Preservation, and broadening the field to move beyond consideration of only nationally significant properties to encompass those places important to local communities. (3) Most importantly for federal agencies, the NHPA also created the section 106 process which requires agencies to consider the impacts of their actions on historic properties. (4) This process, although imperfect, has led to thousands of consultations involving the consideration and frequent avoidance or mitigation of adverse effects to historic resources. (5) Equally important, this process has given historic preservation advocates a critical voice for influencing and shaping federal undertakings that did not previously exist. (6)

   As a federal land managing agency, section 106 of the NHPA applies to a wide variety of the United States Forest Service (the Forest Service) actions involving either National Forest System lands or other agency activities that potentially impact historic properties.' Given the number of decisions the Forest Service makes that could potentially impact historic resources, the agency, over the past fifty years, has periodically been involved in litigation over the nature of its responsibilities. In some instances, this litigation has helped to improve the agency's care and management of historic resources--independent of other legal obligations under the existing statutory and regulatory structures that guide the operation and management of the national forests and their significant cultural resources. (8) Notably, these cases have also had more far-reaching impact on section 106 practice as a whole--particularly in the area of tribal resources. (9)

   To provide a lens into how the NHPA has impacted agency practice over the past fifty years, this Article will explore the full history of Forest Service NHPA appellate litigation. This Article will use these decisions to draw conclusions regarding what this history has meant and to provide a basis for considering what challenges the agency may face going forward. To this end, Part II provides a short working overview of the Forest Service and section 106 of the NHPA. Part III examines the appellate decisions involving the Forest Service under this statute. Finally, Part IV provides some general observations about this litigation history and considers the future challenges that the agency will likely need to address. Ultimately, an examination of where the agency has been and where it is going in its treatment of historic properties is a fitting commemoration of this fiftieth anniversary of the NHPA.

2. THE NATIONAL HISTORIC PRESERVATION ACT AND THE FOREST SERVICE

   To provide context for evaluating resource compliance within the Forest Service and the various litigation matters that the agency has experienced requires some background on both the Forest Service and the NHPA more generally, which are addressed in turn.

   1. The Forest Service and Cultural Resource Management

      The Forest Service, a federal land management agency, can be regarded as being formed within the United States Department of Agriculture (USDA) in 1905. (10) The holdings of the Forest Service consist of over 193 million acres of land organized into 154 national forests and 20 national grasslands. (11) The organization of the Forest Service, beyond the Washington office, is broken into nine regions which are responsible for the supervision of various ranger districts and forests scattered across their defined jurisdictions. (12) The vast majority of the Forest Service's holdings are in the western United States, (13) although significant Forest Service holdings exist nationwide as a result of acquisition programs during the Great Depression and the New Deal. (14) Given the sheer land mass involved, projects carried out by the Forest Service often involve consideration of a wide variety of differing objectives/goals by virtue of their statutory multiple-use mission. (15) This has required the Forest Service, since the 1970s at least, to hire an array of resource specialists to help the agency meet its statutory duties, including compliance with cultural resource laws. (16)

      Within each region and generally each forest, the heritage program of the Forest Service coordinates and assists decision makers with overall compliance with the NHPA. (17) The heritage program has a small Washington office presence--currently the Federal Preservation Officer (FPO) and deputy and a few other program staff--with the vast majority of staff being in the regions and field to oversee fieldwork and consultation efforts on specific projects. (18) Heritage staff oversee a wide array of consultations and work with the state historic preservation officers (SHPOs), tribal historic preservation officers (THPOs), and other entities to ensure that the agency's obligations are being met through formal consultation or compliance with any applicable program alternatives designed to streamline these efforts. (19) In a given year, the agency is involved in thousands of undertakings, a considerable task given the small size of the heritage program overall. (20) Beyond the heritage program, other programs' staff--for example, USDA's Office of Tribal Relations (OTR)--also play important roles in ensuring that the agency's obligations in this area are being met. (21)

      The predominance of western land holdings and the nature of the agency's real estate holdings fundamentally shape and influence the agency's practice in this area. (22) By virtue of its land holdings, the majority of the undertakings the agency evaluates involve archaeological sites as the Forest Service has hundreds of thousands of resources scattered across the National Forest System. (23) A large number of these archaeological sites involve tribal resources, but the mix is considerably broader--encompassing old farms and ranches, mining resources, abandoned towns, and the ruins of historic lodges and camps. (24) Beyond archaeological resources, however, the Forest Service also protects a significant number of extant resources--often pre-dating Forest Service acquisition--that remain intact on the landscape. (25) Interestingly, a growing number of these historic resources are resources that the Forest Service actually built to house their own activities--including structures from 1930s-era Civilian Conservation Corps initiatives. (26) These resources present unique challenges to the agency as they often require a greater level of capital investment, and many of these resources may no longer serve a direct public need. (27) Overall then, the Forest Service's mission encompasses many historic properties with different maintenance and protection needs.

   2. The National Historic Preservation Act

      The law that shapes much of the Forest Service's work in the cultural resources arena is the NHPA, which is often coordinated with the environmental evaluation process of the National Environmental Policy Act (28) (NEPA), which fuels much of the agency's decision making from a compliance perspective. (29)

      1. Overview

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