Latest Article
Plains Commerce Bank v. Long Family Land and Cattle CompanyU.S. Supreme Court Clarifies the Scope of Tribal Civil Jurisdiction Over Nonmembers...
Federal Cultural Resources Management Prescriptions: The Short Version
October 08, 1998
Summary
Federal cultural resources management programs play an important role in the planning processes associated with public lands development and other projects requiring federal approvals. This brief article examines the role that certain federal cultural resources management statutes, specifically the National Historic Preservation Act and the Native American Graves Protection and Repatriation Act, play in the planning and implementation of resources development projects.
I. THE NATIONAL HISTORIC PRESERVATION ACT.
A. Operation and Scope of the NHPA.
"The purpose of the National Historic Preservation Act (NHPA) is the preservation of historic resources."(2) Enacted in 1966, and amended significantly in 1980, the NHPA was implemented "to encourage the preservation and protection of America's historic and cultural resources."(3) The NHPA was amended again in 1992 to provide, among other things, enhanced opportunities for Indian tribes to manage federal cultural resources programs on Indian lands, and to participate more actively during the planning process for other projects. The NHPA represents the cornerstone of federal historic and cultural preservation policy. "Congress, in enacting NHPA, took the key step of protecting not only `nationally significant' properties but also properties of `historical, architectural, or cultural significance at the community, State or regional level . . . against the force of the wrecking ball.'"(4)
From a resources development standpoint, Section 106 is the most significant part of the NHPA.(5) Section 106 and its implementing regulations, 36 C.F.R. Part 800 (1997), describe the step-by-step procedural obligations imposed on federal agencies prior to permitting any on-the-ground activity that may affect cultural or historic properties.
B. "Historic Properties" as Defined in the NHPA.
Properties subject to NHPA protection are sites or objects either included in, or eligible for listing on, the National Register of Historic Places.(6) Generally, sites of state, local regional, or national significance over 50 years old possessing "integrity of location, design, setting, materials, workmanship, feeling, and association," and which are distinctive or are associated with important events or people, may be eligible.(7)
While debates rage over whether sites with physical manifestations of various activities or cultures are worthy of protection, a related debate simmers over the protection to be afforded properties with cultural significance, but which may not reveal any physical evidence of human habitation.(8) Under applicable regulations, these "traditional cultural properties" (TCPs) may be eligible for inclusion in the National Register. Accordingly, TCPs are subject to consideration under the NHPA. Under National Register Bulletin No. 38, natural objects or landscapes "associated with the traditional beliefs of a Native American group about its origins, its cultural history, or the nature of the world" may be National Register-eligible, and subject to NHPA protection.(9) Thus, those facing NHPA compliance obligations must address not only those sites which have some physical evidence of human habitation or presence, but also sites with no such evidence.
C. Section 106 Imposes Procedural Obligations.
Courts and commentators uniformly view the NHPA as a procedural statute.(10) In Morris County Trust for Historic Preservation v. Pierce, for example, the U.S. Court of Appeals for the Third Circuit stated: "NHPA, like NEPA, is primarily a procedural statute, designed to ensure that Federal agencies take into account the effect of Federal or Federally-assisted programs on historic places as part of the planning process for those properties."(11) Similarly, the Ninth and District of Columbia Circuits have stated that the NHPA is a "stop, look, and listen" statute.(12) Thus, the NHPA is not a substantive action-forcing statute, but rather is a statutory mandate imposing procedural requirements on federal agencies to promote the preservation of "the historical and cultural foundations of the nations . . . ."(13) However, the NHPA and its implementing regulations provide agencies with ample opportunity to reach agreements with state officials and other interested parties to provide substantive protection for National Register and eligible properties.(14)
D. Section 106 Applies to "Undertakings" as Defined in the NHPA.
Section 106 obligations apply to any "proposed Federal or federally assisted undertaking," and must be completed "prior to the approval of the expenditure of any Federal funds . . . or prior to the issuance of any license. . . ."(15) An "undertaking" is defined under the 1992 NHPA Amendments as:
[a] project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including:
(A) those carried out by or on behalf of the agency;
(B) those carried out with Federal financial assistance;
(C) those requiring a Federal permit, license, or approval; and
(D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.(16)
"Undertakings" may include, without limitation: (a) approval of an application for permit to drill on a federal oil and gas lease;(17) (b) approval of a mine plan on federal lands;(18) (c) grants of rights-of-way across public lands;(19) (d) on-the-ground activities carried out pursuant to a federal permit, lease or license;(20) and (e) development of management plans.(21)
Generally, the level of federal involvement necessary to trigger NHPA compliance obligations is a minimal threshold. "[W]here the federal agency's role is so insignificant as to allow no more than a recommendation," the NHPA "is plainly inapplicable."(22) However, in most other circumstances, NHPA requirements apply.
E. The Section 106 Process: An Outline for Compliance.
Section 106 of the NHPA, 16 U.S.C. § 470f, provides in pertinent part:
The head of any Federal agency having direct or indirect jurisdiction over a proposed . . . undertaking shall, . . . prior to the issuance of any license . . . 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.
The Advisory Council on Historic Preservation (ACHP) promulgated regulations implementing this provision.(23) "The process is designed to foster communication and consultation between agency officials, the SHPO, and other interested parties such as Indian tribes, local governments, and the general public."(24) At the outset, the ACHP regulations grant flexibility to the land management agency: "[t]he Council recognizes that . . . these regulations may be implemented . . . in a flexible manner relfecting [sic] differing program requirements, as long as the purposes of section 106 of the Act and these regulations are met."(25) The section 106 process must be completed prior to the initiation of any ground-disturbing activities.(26) However, any agency may authorize "non-destructive planning activities preparatory to an undertaking" before the section 106 process is complete.(27)
1. Literature search and initial consultation.
Once a project is identified as an NHPA "undertaking," the federal agency has specific regulatory obligations: First, the agency "shall": (a) review all existing information on cultural or "historic properties" that potentially may be affected by the undertaking;(28) (b) consult with the State Historic Preservation Officer (SHPO) to identify information, literature, and any further work that may be necessary to identify historic properties in the area; and (c) consult with local governments, tribes, or organizations "likely to have knowledge of or concerns with historic properties in the area."(29) The literature search should include a review of materials in the purview of the SHPO and/or affected tribe. Once this initial literature review and consultation process is complete, the agency also should determine whether further field surveys or other action is necessary to identify historic properties.
2. Inventory requirements and eligibility determinations.
In consultation with the SHPO, the agency must make a "reasonable and good faith effort to identify historic properties that may be affected by the undertaking.(30) The "effort" required will vary depending on the area involved, and the potential presence of historic properties. The "reasonable and good faith effort" standard requires the agency to gather enough information to evaluate any properties for National Register eligibility. Once the inventory process is complete, the ACHP regulations require the agency and the SHPO to apply the National Register criteria for eligibility "to properties that may be affected . . . ."(31) If the agency and SHPO agree on eligibility or ineligibility of the property, the section 106 process proceeds to the next step.(32) If the agency and SHPO disagree, or the ACHP or Secretary of the Interior (Secretary) request, the agency must submit the matter to the Secretary for an eligibility determination.(33)
If no "historic properties" are found through the inventory and consultation process described, the agency may conclude its investigation. Its only remaining duty in the section 106 process is to notify the SHPO and any interested parties of the situation.(34) If eligible properties are found....
3. Determinations of an undertaking's "effect" and "adverse effect" on properties.
The section 106 process now assesses the "effect" of the "undertaking" on these properties.(35) Again, hand in hand with the SHPO and in consultation with any "interested persons," the federal agency applies "effect" and "adverse effect" criteria to each property. An undertaking has an "effect" when it "may alter characteristics of the property that may qualify the property for inclusion in the National Register."(36) Alteration of the setting, location, or use of the property may be relevant to determining whether the "undertaking" has an "effect."(37)
An undertaking has an "adverse effect" when it "may diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association."(38) "Adverse effect" determinations include, but are not limited to: (a) physical destruction, damage, or alteration; (b) isolation of the property from its setting or alteration of the setting when the setting contributes to the property's character and qualification for National Register listing; and (c) "[i]ntroduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting."(39) Where the agency finds no "effect," federal officials must notify the SHPO and any interested persons, and make the supporting documentation available.(40) If no one objects within 15 days, the section 106 process is complete.
Where the federal official finds an "effect," or if the SHPO objects to an agency finding of "no effect," the section 106 process continues. When the agency discovers the undertaking will have an "effect," the "adverse effect" evaluation must be made.(41) If the agency finds no adverse effect, the federal official shall either: (a) obtain SHPO or tribal concurrence and forward the documentation to the ACHP; or (b) submit the finding to the ACHP for a 30-day review and notify the SHPO.(42) If the ACHP does not object, the section 106 process is complete. In the event the ACHP disagrees, the effect is considered "adverse" and the section 106 process continues.
4. The "adverse effect" consultation process.
When the federal official finds an "adverse effect," it "shall" notify the ACHP and "shall" consult the SHPO and others "to seek ways to avoid or reduce the effects on historic properties."(43) The agency is to provide participants in the consultation process with documentation regarding the properties at issue and the potential effects of the undertaking.(44) The agency must also afford the "public" the opportunity to comment.(45)
If, as a result of the consultation process, the agency and SHPO agree on "how the effects will be taken into account, they shall execute a Memorandum of Agreement."(46) The Memorandum of Agreement represents a powerful tool that agencies may use to provide substantive protection for historic properties affected by undertakings. Others may be parties to the agreement, but the project proponent is not required to be a party under the regulations.(47) Once the ACHP approves the Memorandum of Agreement, the agency's section 106 obligations are fulfilled.(48)
If no Memorandum of Agreement can be reached through consultation, the agency or SHPO "may state that further consultation will not be productive and thereby terminate the consultation process."(49) At that point, the agency must request ACHP input and notify interested parties of the request. Following agency submittal to the ACHP of documentation regarding the properties at issue, together with notice that no agreement has been reached, the ACHP must provide comments within 60 days of receipt of the information.(50) ACHP comments are to be delivered to the agency head, SHPO and other interested parties. The agency then is required to "consider" the ACHP comments "in reaching a final decision on the proposed undertaking."(51) Once the agency makes a decision, it must notify the ACHP, preferably prior to initiating the undertaking. At that point, the agency may make its decision, issue the lease, approve the mine plan, or take any course of action it chooses -- even if historic properties are to be destroyed. Under the 1992 NHPA Amendments, however, the head of the federal agency involved has a non-delegable duty to "document any decision" under section 106 "which adversely affects any property included in or eligible for inclusion in the National Register, and for which . . . [the] agency has not entered into an agreement with the [ACHP]."(52)
F. Judicial Review of Agency NHPA Compliance and Decision-Making.
Failure to comply with the procedural requirements of the NHPA and its implementing regulations subjects the offending agency, together with the permit applicant, to the threat of an injunction. In Attakai v. United States,(53) the U.S. District Court in Arizona enjoined a range management project in the area used jointly by the Hopi and Navajo Tribes for failure to follow the ACHP's section 106 procedures. In Attakai, the Bureau of Indian Affairs (BIA) followed its "standard practice" to identify historic properties potentially affected by a fence construction project: it completed a 100% field survey, consisting of "a walkover of the entire project line . . . to inspect the area for cultural and archaeological remains which lie in the project line, or sufficiently close that incidental impact might be expected."(54) The surveys were completed prior to clearance and final approval of the project. Each survey disclosed historic properties, and the survey teams, not always including an archaeologist or anthropologist, recommended realignment of the project to avoid potential impacts on the sites. The realignments were adopted and, following the determination by the BIA Area Archaeologist that the project would have no effect on historic properties, an archaeological clearance was issued.
Because the BIA failed to consult with the Arizona SHPO, the district court concluded the BIA violated a fundamental requirement of the NHPA, and issued an injunction mandating compliance with section 106.(55) The court rejected the BIA's arguments that its action met the spirit of section 106 and the regulations, and that the regulations themselves expressly permit flexible implementation. According to the court, the regulations "rely on consultation, particularly with the SHPO, as the principal means of protecting historical resources."(56) The court also stated that the BIA is required to consult with Indian tribes, and the failure to do so constituted an additional basis for injunctive relief.(57) In short, injunctive relief is available against federal agencies which attempt to shortcut the NHPA process. The courts may apply the same standards to NHPA injunction cases as have been applied in the NEPA context.(58) Accordingly, agencies and developers should ensure careful compliance with NHPA requirements.(59)
II. THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT.
The Native American Graves Protection and Repatriation Act (NAGPRA)(60) specifically protects Native American graves and certain cultural artifacts on federal and tribal lands from uncontrolled disturbance. NAGPRA is intended to ensure that "human remains must at all times be treated with dignity and respect" and to protect Native American rights of possession to objects needed to preserve or renew traditional culture and religion.(61) NAGPRA also accords to living descendants or culturally related tribes certain rights to ownership and control of burial remains and cultural items discovered on federal or Indian lands.(62) Unlike the NHPA, NAGPRA prescribes substantive protection for certain cultural artifacts.
NAGPRA likely will affect federal public lands activities in several ways that are distinct from NHPA protections. First, it separates out for specific protection certain Native American burial remains and cultural items, and it establishes a hierarchy of ownership interests in protected remains and artifacts discovered on public or Indian lands.(63) Second, it prescribes procedures applicable when cultural items are inadvertently discovered during implementation of a project, and provides for excavation or removal of cultural items from federal or tribal lands.(64) NAGPRA also defines interrelationships between its provisions and other applicable statutes that suggest avenues to minimize delay or interruption of a project through early planning.
A. The Reach of NAGPRA.
NAGPRA's land management prescriptions apply to inadvertent discovery and to intentional excavation and removal or of Native American human remains and "cultural items" on federal and Indian lands. "Federal lands" are defined to include "any land other than tribal lands which are controlled or owned by the United States, including lands selected by but not yet conveyed to Alaska Native Corporations. . . ." "Tribal land" includes "all lands within the exterior boundaries of any Indian reservation" and "all dependent Indian communities."(65) These definitions suggest that federal public lands, not administered for the benefit of tribes, may be deemed tribal lands under NAGPRA, if they lie within reservation boundaries or in areas that may be considered "dependent Indian communities." The burial remains and cultural artifacts of all Native American tribes, bands, or groups are covered, and there is no prerequisite that the remains or cultural items be associated with a tribe, band, or group that is now federally recognized.
B. Cultural Items Defined.
NAGPRA defines four classes of Native American cultural items: "human remains," "funerary objects," "sacred objects," and objects of "cultural patrimony." These are described in turn below.
NAGPRA does not define "human remains," however, the National Park Service has taken the position that "all Native American human remains are covered."(66) Any Native American human remains, whether found in a burial site or as isolated bones not associated with a burial site, are subject to NAGPRA protection.
"Funerary objects" are objects that, as a part of the death rite or ceremony, are reasonably believed to have been placed with individual human remains.(67) Funerary objects may be either "associated" or "unassociated." Associated funerary objects "still retain their association with human remains that can be located."(68) "Unassociated funerary objects," conversely, are items reasonably believed to have been part of a burial site but that "can no longer be associated with the human remains of a specific burial."(69) Consequently, all objects that were part of, or were intended to be part of, a burial site at or near the time of burial are either associated funerary objects or unassociated funerary objects.
"Sacred objects" refer to "specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religion by their present day adherents."(70) The operative test is not whether they are considered sacred in the eyes of an individual, but whether the objects "were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony."(71)
"Objects of cultural patrimony" are objects "having ongoing historical, traditional or cultural importance central to the Native American group or culture itself."(72) They must be objects that may not be alienated or appropriated by any individual group member. Cultural patrimony objects would include items central to the preservation of a group culture, such as the Zuni War Gods and the Confederacy Wampum Belts of the Iroquois.(73)
These definitions may be of little help to the operator of heavy equipment building a drill pad. This practical problem counsels in favor of conducting good cultural resources surveys, with well informed consultants, before breaking ground.(74) While those studies may not reveal all sites, they will minimize the risk that NAGPRA objects (or other historic properties) will be uncovered inadvertently during development activities. Despite such precautions, in the event of a discovery during operations, the prudent course would be to consider any human remains in an area that may contain Native American burial sites, or any Native American artifacts, as potentially subject to NAGPRA.
C. Native American Ownership or Control of Cultural Items.
NAGPRA proclaims that Native American cultural items discovered on federal or tribal land shall be owned and controlled by the Indians or Indian tribes having the closest relationship to the cultural items. NAGPRA's ownership scheme is important to public lands developers because it determines the tribe or tribes which are entitled to notice and consultation with respect to cultural items inadvertently discovered and that must be excavated or removed from a project area.
Ownership of and right to notice concerning newly discovered human remains and associated funerary objects is vested in the lineal descendants of the deceased Native American whose remains or burial items are found.(75) In cases where lineal descendants cannot be ascertained, and with respect to unassociated funerary objects, sacred objects, and objects of cultural patrimony, NAGPRA specifies that ownership and control is:
(A) in the Indian tribe . . . on whose tribal land such objects or remains were discovered;
(B) in the Indian tribe . . . which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or
(C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe--
1. the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or
2. if it can be shown . . . that a different tribe has a stronger cultural relationship with the remains or objects . . . , in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects.(76)
With respect to cultural items on federal lands, "cultural affiliation" likely will be the most common determinant of the tribe entitled to ownership. NAGPRA's legislative history suggests that evidence bearing on cultural affiliation may include "geographical, kinship, biological, archaeological, anthropological, linguistic, oral tradition, or historical evidence or other relevant information or expert opinion."(77) While NAGPRA incorporates a "requirement of continuity between present day Indian tribes and materials from historic or prehistoric Indian tribes . . . ," a claim "should not be precluded solely because of gaps in the record."(78) NAGPRA also provides a mechanism to resolve disputes between tribes over priority of right to ownership of NAGPRA cultural items and unclaimed cultural items.(79)
D. Procedures Governing Inadvertent Discovery of Cultural Items.
NAGPRA is most likely to affect natural resource development on public lands through its procedures governing inadvertent discovery of cultural items.(80) NAGPRA specifies ostensibly straightforward requirements when "any person . . . knows, or has reason to know, that such person has discovered Native American cultural items on Federal or tribal lands . . . ."(81) In the event of a discovery, the person making the discovery must notify, in writing, the Secretary of the Interior or other federal agency head having primary jurisdiction over the federal lands involved. With respect to tribal lands, if known or readily ascertainable, written notice also must be given to the appropriate Indian tribe.
If the discovery occurs in connection with an on-going activity, "including (but not limited to) construction, mining, logging, and agriculture," the discoverer also must: "cease activity in the area of the discovery, [and] make a reasonable effort to protect the items discovered before resuming such activity . . . ."(82) Thereafter, project activity may resume 30 days after notification has been received and "certified" by the appropriate federal or tribal official under NAGPRA.
The statutory 30-day moratorium on projects runs from the date of "certification by the Secretary [or other agency head] or the appropriate Indian tribe . . . ."(83) Consequently, to avoid unanticipated delays, the person discovering cultural items should immediately notify at least the appropriate federal agency head by a method that ensures certification of receipt. Even on federal lands, an inadvertent discoverer also should consider sending notice in the same manner to any tribe which may claim ownership of the artifacts.
Doubtless, there will be public lands development situations where the 30 day moratorium may be inadequate to identify the appropriate tribe, decide upon a plan for the excavation, and effect the removal and disposition of the items or remains. The appropriate tribe or tribes to be notified may not be readily ascertainable. And, more than one tribe may claim ownership, raising a question as to who can authorize the appropriate disposition of discovered cultural artifacts. Actual excavation will take additional time. Careful project planning and close coordination with the applicable agency and appropriate tribe will be necessary to minimize delays.
F. Excavation and Removal of Cultural Items.
NAGPRA specifies procedures governing the excavation and removal of cultural items from federal or tribal lands. These statutory steps should be set in motion either when the NHPA cultural resource inventory is prepared during initial stages of the project or when NAGPRA-protected cultural items are discovered during project activities. NAGPRA requires the following steps to be completed before cultural items may be excavated:
(a) A permit must be issued under the Archaeological Resources Protection Act (ARPA);(84)
(b) The items may not be excavated or removed until "after consultation with or, in the case of tribal lands consent of the appropriate (if any) Indian tribe . . ."; and
(c) Proof of tribal consultation or consent must be shown.(85)
In addition, although it is not clear whether this step needs to be complete prior to excavation, the ownership and control of disposition shall be as provided in 25 U.S.C. § 3002(a) and (b).(86)
G. Planning for Compliance.
The project applicant and federal agency can minimize project delay and disruption by effective planning during early stages. Cultural resources in a proposed project area should be evaluated carefully under NEPA and the NHPA. NAGPRA-protected cultural resources also should be evaluated in the reviews under these statutes, and the project proponent should seek to reach agreements concerning NAGPRA compliance as part of a coordinated consultation process.(87)
Cultural resources inventories prepared under NHPA at the project proposal stage should directly address NAGPRA-protected cultural items. Impacts on NAGPRA-protected sites or cultural items should be considered in environmental assessments or environmental impact statements under NEPA and may be pertinent to "adverse effect" determinations under NHPA. The notice and consultation processes under NAGPRA and NHPA also should be coordinated where possible.
NAGPRA compliance will be facilitated if, early in project planning, the project developer and agency seek to identify and consult with tribes or groups that may own or control cultural items under NAGPRA. Identification of potentially interested tribes at an early stage also will facilitate prompt decisions over disposition or removal of cultural items inadvertently discovered during the project. The consultation participants should aim for agreements between developer, agency, and affected tribes over ownership and control of cultural items, excavation or removal methods, and custody of cultural items immediately following removal. Such agreements will help effectuate NAGPRA's requirement that projects not be delayed more than thirty (30) days by an inadvertent discovery of cultural items.
1. I focus primarily on National Forest and public domain lands. Much of the paper, however, is applicable to other contexts and lands, including private and Indian lands where federal approvals are required. For a more detailed discussion (of these and related matters) than space permits here, see "Potsherds and Petroglyphs: Effects of Cultural Resources Management on Public Lands Development," Paper No. 16 (Rocky Mtn. Min. L. Fdn. 1996).
2. National Indian Youth Council v. Watt, 664 F.2d 220, 226 (10th Cir. 1981); see also Lee v. Thornburgh, 877 F.2d 1053, 1055 (D.C. Cir. 1989) (NHPA "encourages historic preservation").
3. Indiana Coal Council, Inc. v. Lujan, 774 F. Supp. 1385, 1387 (D.D.C. 1991).
4. WATCH v. Harris, 603 F.2d 310, 321 (2d Cir.), cert. denied, 444 U.S. 995 (1979) (quoting H.R. Reg. No. 1916, 89th Cong., 2d Sess., 1966 U.S. Code. Cong. & Admin. News, 3307, 3309).
5. 16 U.S.C. §§ 470f (1988 & Supp. IV 1992).
6. See 16 U.S.C. § 470w(5); see also 36 C.F.R. § 800.2(e), (l) (1997); 36 C.F.R. pt. 60 (1997).
7. See 36 C.F.R. § 60.4 (1997).
8. See 36 C.F.R. § 60.4 (1997); National Register Bulletin No. 38, "Guidelines for Evaluating and Documenting Traditional Cultural Properties."
9. National Register Bulletin No. 38, p. 1; but see The Blackfeet Tribe, 103 IBLA 228, 231-32, 235 (1988) (Sweet Grass Hills in Montana are not National Register-eligible). As is true with all "historic properties," National Register-eligibility determinations are fact specific.
10. See, e.g., Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir. 1995); Abenaki Nation of Mississquoi, 805 F. Supp. 234, 249 (D. Vt. 1992), aff'd, 990 F.2d 729 (2d Cir. 1993); G.C. Coggins, Public Natural Resources Law, 15.04[4] (1992). But see S.G. Holloway, "Archeological Review Requirements Expected to Grow," AMC Journal, 19 (Dec. 1994).
11. 714 F.2d 271, 278-79 (3d Cir. 1983).
12. Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir. 1994); Illinois Commerce Comm'n v. ICC, 848 F.2d 1246, 1261 (D.C. Cir. 1988), cert. denied, 488 U.S. 1004 (1989).
13. 16 U.S.C. 470(b)(2) (1988). See also United States v. 162.20 Acres of Land, 639 F.2d 299, 302, 304 (5th Cir.), cert. denied, 454 U.S. 828 (1981) (NHPA does not forbid destruction of historic sites; while assertion of NHPA non-compliance as a defense in a condemnation action may seem to "promote the purposes of the NHPA by creating a means of enforcement to give it `teeth,' it is manifestly apparent that only Congress can make such a judgment").
14. See 36 C.F.R. § 800.5 (1997).
16. 16 U.S.C. § 470w(7) (1988 & Supp. IV 1992).
17. Solicitor's Opinion, "Legal Responsibilities of BLM for Oil and Gas Leasing and Operations on Split Estate Lands," 4 (April 1988).
18. National Indian Youth Council, Inc. v. Andrus, 501 F. Supp. 649, 675-78 (D.N.M. 1980), aff'd 664 F.2d 220 (10th Cir. 1981).
19. Solicitor's Opinion, "The Extent to Which the National Historic Preservation Act Requires Cultural Resources to be Identified and Considered in the Grant of a Federal Right-of-Way," No. M-36917, 87 I.D. 27 (December 6, 1979). The Opinion concludes also that section 106 clearance requirements apply to non-federal lands traversed by the right-of-way. 87 I.D. at 28-34; see also Central Valley Electric Cooperative, Inc., 128 IBLA 126, 128 (1993).
20. 36 C.F.R. § 800.2(o) (1997); see also Colorado River Indian Tribes, 605 F. Supp. at 1434 n.6 (placement of rip-rap in the Colorado River was an NHPA "undertaking;" activity was subject to Army Corps of Engineers dredge and fill permit requirements); Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir. 1989).
21. See McMillan Park Comm. v. National Capital Planning Comm'n, 759 F. Supp. 908, 913-915 (D.D.C. 1991), rev'd on other grounds, 968 F.2d 1283 (D.C. Cir. 1992). However, modifications to management plans that lessen the adverse impacts on historic resources do not trigger NHPA compliance review. See Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586, 604 (N.D. Cal. 1983), aff'd in part, vacated in part, 764 F.2d 581 (9th Cir. 1985), rev'd on other grounds, 485 U.S. 439 (1988).
22. Indiana Coal Council, 774 F. Supp. at 1401, citing Techworld Dev. Corp. v. D.C. Preservation League, 648 F. Supp. 106, 117 (D.D.C. 1986). Moreover, de minimis federal involvement will not trigger the NHPA. For example, a contribution of federal funds for the planning and research of a highway bridge project is not a NHPA "undertaking." Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482, 1484 (10th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (where only federal funds utilized were part of a preliminary study, prior to any NEPA analysis, the project was not under the "direct or indirect jurisdiction" of a federal agency).
23. See 36 C.F.R. pt. 800 (1997).
24. Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir. 1995).
25. 36 C.F.R. § 800.3(b) (1997). In Attakai v. United States, 746 F. Supp. 1395, 1405 (D. Ariz. 1990), the district court stated the regulations are "designed to accommodate historic preservation concerns and the needs of federal undertakings . . . ." However, the court applied the regulations with little apparent flexibility. While the courts may be "flexible" with respect to certain elements of the section 106 process, they likely will insist upon effective consultation throughout.
26. 36 C.F.R. § 800.3(c) (1997); see McMillan Park Comm. v. National Capital Planning Comm'n, 759 F. Supp. 908, 910 (D.D.C. 1991), rev'd on other grounds, 968 F.2d 1283 (D.C. Cir. 1992).
27. 36 C.F.R. § 800.3(c) (1997).
28. "Area of potential effects" is defined to mean "the geographic area or areas within which an undertaking may cause changes in the character or use of historic properties, if any such properties exist." 36 C.F.R. § 800.2(c) (1997). Of course, this "area" will vary from project to project.
29. 36 C.F.R. § 800.4(a)(iii) (1997); see Attakai v. United States, 746 F. Supp. 1395, 1408-09 (D. Ariz. 1990) (members of Navajo Tribe entitled to participate as "interested persons" in identification of historic properties).
30. 36 C.F.R. § 800.4(b) (1997); see also Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir. 1995). This process likely will involve on-the-ground survey work. See, e.g., Wilson v. Block, 708 F.2d 735, 754 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983) (100% surveys may not be required; in certain circumstances, partial surveys are sufficient); Romero-Barcelo v. Brown, 643 F.2d 835, 860 (1st Cir. 1981), rev'd on other grounds, 456 U.S. 305 (1982). Given delays that might arise in project development if properties are discovered later, one should consider whether a 100% on-the-ground survey makes sense at the outset. The additional, incremental expense may save time and money in the long run.
31. 36 C.F.R. § 800.4(c)(1) (1997) (emphasis added).
32. 36 C.F.R. § 800.4(c)(2), (3) (1997).
33. 36 C.F.R. § 800.4(c)(4) (1997). As a practical matter, given the expense involved, this eligibility evaluation often is not pursued to conclusion. Rather, the site is assumed to be eligible and the process continues based on that assumption.
34. 36 C.F.R. § 800.4(d) (1997).
35. See 36 C.F.R. § 800.5, 800.9 (1997).
36. 36 C.F.R. § 800.9(a) (1997); Wilson v. Block, 708 F.2d 735, 755-56 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983) (court rejected contention that ski development would have "effect" to trigger further Section 106 procedures because the "effect" had no bearing on the characteristics of the property which made it eligible for National Register status.)
37. 36 C.F.R. § 800.9(a) (1997).
38. 36 C.F.R. § 800.9(b) (1997).
39. 36 C.F.R. § 800.9(b)(3) (1997).
40. 36 C.F.R. § 800.5(b) (1997).
41. 36 C.F.R. § 800.5(c) (1997).
42. 36 C.F.R. § 800.5(d) (1997).
43. 36 C.F.R. § 800.5(e) (1997). Local government and tribal representatives are to be invited to participate in the consultation process, along with the permit applicant. Id.
44. Id.; see also 36 C.F.R. § 800.8(b) (1997).
45. 36 C.F.R. § 800.5(e)(3) (1997).
46. 36 C.F.R. § 800.5(e)(4) (1997) According to one court, "[I]n most cases where adverse effects are found, the [ACHP] has been successful at bringing the agency, the developer . . . and other interested parties together in order to draft the Memorandum Agreement." McMillan Park Comm., 759 F. Supp. at 911. A good example of an NHPA Memorandum of Agreement is discussed in National Indian Youth Council, 501 F. Supp. at 676-78.
47. Id. If the ACHP is not a party, the ACHP has an opportunity to comment, approve, or disapprove. See 36 C.F.R. § 800.6(a) (1997).
48. 36 C.F.R. § 800.6(c) (1997). Of course, the Memorandum of Agreement is binding on the parties to it. See McMillan Park Comm., 759 F. Supp. at 911.
49. 36 C.F.R. § 800.5(e)(6) (1997).
50. 36 C.F.R. § 800.6(b) (1997).
51. 36 C.F.R. § 800.6(c)(2) (1997).
52. 16 U.S.C. § 470h-2(l) (Supp. IV 1992).
53. 746 F. Supp. 1395 (D. Ariz. 1990).
55. Id. at 1408, 1413. The court reached this conclusion despite the testimony of the Arizona SHPO that the BIA action probably constituted "proper avoidance of historic propert[ies]." Id. at 1407.
56. Id. at 1408, citing 36 C.F.R. § 800.1(b); see also Pueblo of Sandia v. United States, 50 F.3d 856, 862 (10th Cir. 1995).
57. 746 F. Supp. at 1408-09, citing 36 C.F.R. § 800.1(c)(2)(iii) (for undertakings on non-Indian lands that may affect properties of historic value to a neighboring tribe, the tribe is an interested party; if an undertaking is on Indian land, the tribe is a consulting party).
58. See, e.g., Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir. 1994).
59. However, not surprisingly, even careful compliance work may not immunize a project from challenge. See, e.g., Apache Survival Coalition v. United States, 21 F.3d 895, 906 (9th Cir. 1994). In Apache Survival, largely because of careful compliance with NHPA consultation requirements, the Ninth Circuit found that a technical NHPA challenge should be dismissed for inexcusable delay in presenting a claim. Id. at 907-912.
60. 25 U.S.C. § 3001-3013 (Supp. III 1991 & Supp. IV 1992); see also 43 C.F.R. Part 10 (1997) (implementing regulations).
61. S. Rep. No. 473, 101st Cong., 2d Sess. at 7, 9.
62. "Indian tribes" for purposes of NAGPRA are a broader group than "tribes" as defined under the NHPA. See Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. at 249-251; compare 25 U.S.C. § 3001(7) with 36 C.F.R. § 800.2(g).
64. 25 U.S.C. § 3002(c) , (d).
66. Memorandum, Departmental Consulting Archaeologist, National Park Service, October 30, 1991 ("Departmental Consulting Archaeologist Memorandum") at 10. Together with NAGPRA's implementing regulations, this Memorandum is a helpful interpretive source.
67. 25 U.S.C. § 3001(3)(A) and (B).
68. Departmental Consulting Archaeologist Memorandum, at 11. See 25 U.S.C. § 3001(3)(A).
69. Departmental Consulting Archaeologist Memorandum, at 11. See 25 U.S.C. § 3001(3)(A).
71. Departmental Consulting Archaeologist Memorandum, at 5.
73. S. Rep. No. 473, 101st Cong., 2d Sess. at 8 (1990).
74. Project developers are advised to consult with federal officials, the SHPO, tribal officials, and local universities or archaeological societies to identify good quality and experienced consultants. Experienced and ethical archaeologists who have the trust of local interest groups, tribes and government officials are likely to be the best choice for field consultants.
75. 25 U.S.C. § 3002(a)(1); "lineal descendant" is not defined, the Departmental Consulting Archaeologist Memorandum interprets this to mean "a direct genetic or familial tie reasonably established between generations of an extended family, clan, or lineage." Departmental Consulting Archaeologist Memorandum, at 5.
76. 25 U.S.C. § 3002(2)(A), (B), and (C).
77. S. Rep. No. 473, 101st Cong., 2d Sess. at 9; see also Departmental Consulting Archaeologist Memorandum at 5-6.
78. S. Rep. No. 473, 101st Cong., 2d Sess. at 9.
80. Presumably, the NAGPRA provisions governing inadvertent discovery in connection with an ongoing activity would include discoveries made during an NHPA section 106 survey.
83. 25 U.S.C. § 3002(d). The 30 day notification period is intended to provide Indian tribes "an opportunity to intervene in development activity on Federal lands in order to safeguard and to provide for appropriate disposition of culturally affiliated items found on Federal lands." Senate Debates, Remarks of Sen. McCain, 136 Cong. Rec. at S17176 (daily ed. Oct. 26, 1990).
84. See Archaeological Resources Protection Act, 1979, 16 U.S.C. § 470aa-ll (1988); 16 U.S.C. § 470cc (1988).
