Being a series of ill-natured comments on commonplace but (a) inaccurate and (b) counterproductive interpretations of various federal laws and regulations.
Idiotic Interpretation #1:
Section 304 of the National Historic Preservation Act (NHPA), which directs that Federal agencies and certain other parties keep information on historic properties confidential if specified conditions are met, does not apply unless a property has been determined to be eligible for the National Register.
How it’s inaccurate:
Section 304 does not refer to properties that have been determined to be eligible for the National Register; it refers to properties that are eligible for it. Section 304 (a) says:
The head of a Federal agency or other public official receiving grant assistance pursuant to this Act, after consultation with the Secretary, shall withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if the Secretary and the agency determine that disclosure may —
(1) cause a significant invasion of privacy;
(2) risk harm to the historic resources; or
(3) impede the use of a traditional religious site by practitioners.
“Historic resource” is defined at Section 301(5) as:
any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register, including artifacts, records, and material remains related to such a property or resource.
Before somebody hits me in the face with a dead (or not dead) Schrödinger’s cat, I realize that in the quantum universe it’s said to be the case that a thing doesn’t assume a particular state until it’s observed to do so, but most of us go about our lives in a Newtonian world, and government operations tend to do the same. In this everyday universe, as I’ve argued more often than I care to remember, a thing is a thing if it exhibits the characteristics of a thing, regardless of whether anybody happens to have determined it to be a thing. Granite is granite even if it is fifty miles down in the ground and has never been observed. It’s granite if it meets granite’s criteria – being a very hard, granular, crystalline, intrusive igneous rock consisting mainly of quartz, mica, and feldspar. A geologist’s inspection of the rock doesn’t make it granite; it just tells us whether it does or does not meet those criteria. A wetland does not become wet upon being thus delineated following Corps of Engineers standards; it’s a wetland because it is wet, or exhibits other wetland qualities. Delineation is the process by which we decide whether it’s wet enough to be treated as such under the Corps’ regulatory regime. A rock is granite if it meets granite’s criteria – being a very hard, granular, crystalline, intrusive igneous rock consisting mainly of quartz, mica, and feldspar; a geologist’s inspection of the rock doesn’t make it granite; it just tells us whether it does or does not meet those criteria. In exactly the same way, a place is an historic resource if it meets the National Register criteria, whether anybody has detected that fact or not. Determining eligibility is how we decide (if we must) whether it meets those criteria.
Why it’s counterproductive:
In a general sense, if we define “eligible” as “determined eligible,” then the whole structure of Section 106 review collapses, because under Section 106 agencies are responsible for taking into account only effects on properties included in or eligible for the Register. If “eligible” means “determined eligible,” then agencies don’t have to consider effects on a place until somebody, somehow, has found, described, and found that place to be eligible; it’s certainly not the agency’s responsibility to do the finding, describing, and determining. Yet the Section 106 regulations – following Executive Order 11593 – say that determining eligibility is the agency’s responsibility, so the equation of “eligible” with “determined eligible” undercuts the rationale for much of the regulatory system.
Specific to Section 304, saying that an agency can’t keep information on a place confidential until it’s been determined eligible means that agencies have to collect information and share it with others before they can decide not to share it with others. That defeats the whole purpose of Section 304, which of course is to keep information on historic places out of the hands of those who would misuse it.
But, you protest, Section 304 says an agency has to make its decision about withholding information in consultation with the Secretary of the Interior, and can we imagine the Secretary not insisting that eligibility be formally determined in the process of deciding about confidentiality? Well, probably not, which is one reason I tried hard in drafting the 1992 revision of Section 304 to make it the Advisory Council that had to be consulted, rather than the Secretary. The logical context in which Section 304 questions would arise, I knew, would be mostly that of Section 106 review, and the Council might be a little more cognizant of the real world and a little less hung up on minutiae than the Secretary. But the Secretary – i.e. the National Park Service (NPS) – insisted that this was its turf, and even though it hadn’t and still hasn’t the least interest in implementing Section 304, or the brains to do so constructively, NPS prevailed. And since determining eligibility creates a form of job security for underqualified and otherwise unemployable NPS preservo-bureaucrats, it’s expectable that NPS would insist on the interpretation it has apparently imposed on the statute.
But it is not a necessary interpretation; it does not follow from the statutory language, and it’s inconsistent with the way “eligible” is interpreted everywhere else in the statute. While I have no expectation whatever that the Secretary, or the ever-pliable Advisory Council, will make any moves to rethink the interpretation that seems to have become embedded in what passes for their thinking, I suggest that the rest of us explore less idiotic ways to interpret the statutory language.