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Friday, July 19, 2013

Unsolicited Litigation Advice

If you’re a landowner, an Indian tribe, a neighborhood group, or anyone else considering litigation against a federal agency for failure to comply with Section 106 of the National Historic Preservation Act (NHPA), I have some advice for you.  Most of it’s in my various books, but it seems like it might be helpful to toss it out in the form of a short, organized paper.  Yes, lawyers, here I am once again practicing law without a license; sorry about that.

Potential litigants deprive themselves of some of their best weapons by accepting too much of what “experts” and government authorities say about the law and its requirements.  Congress enacted Section 106 of NHPA to protect the American people and the historic places they hold dear from undue despoliation by federal government agencies and those they license or assist.  Over the decades, the government has allowed the law to be warped into affording such protection mostly just to things valued by narrow disciplinary specialists and agency bureaucrats.  But that’s custom, not law; the law itself, and the regulations (36 CFR Part 800) cast a broader net and give citizens more voice.  The trick is to avoid getting sucked in by the authoritative talk of the 106 bureaucrats and consultants; focus instead on what the law and regulations actually say.
So, here are some questions to ask and things to consider when an agency says it’s complying with Section 106 and you don’t think it’s properly considering impacts on something that’s important to you.

1.       Did the agency’s people contact and consult with you when developing the scope of work for identification of historic places?  The regulations (36 CFR 800.3(f) and 800.4(a)(3)) require that they identify consulting parties (like you) and then seek information from such parties in defining the scope.  Obviously, doing this is critical to finding, or even seeking, the places and effects that are important to you, but many if not most agencies skip it, and State Historic Preservation Officers (SHPOs) seldom remind them.

It’s a good idea to contact the responsible federal agency early on and tell them that you want to be a consulting party; this isn’t mandatory, but it makes it harder for them to ignore you.  Be sure to contact the relevant federal agency, not just whatever state or local agency or private developer may be involved.  It’s the federal agency that has responsibilities under Section 106.  Contact the SHPOtoo, but don’t expect them to do anything; they aren’t responsible for enforcing the law.

2.       Did they define the area of potential effects (APE) correctly?  The APE is supposed to include all the areas where the project could have effects on historic places – if any such places turn out to be there (In other words, the agency doesn’t need to know there’s a historic place involved; that’s something it has to find out).  “Effects” include direct and indirect effects, and whatever contributions the project may make to cumulative effects.  Effects of all three kinds can include physical, visual, auditory, olfactory, or any other kind of effects, providing they can somehow, in theory, alter the character or use of a historic place.  A change in an area’s olfactory regime, for example – making it smellier – might alter the use of historic houses (if any are there) by driving out their residents.  Agencies commonly define the APE only to include the construction footprint of the project, or mix up “direct effects” with “direct physical effects.”  You should be alert to this kind of thing, and raise questions or object.   If they blow you off, make sure that’s documented; it can be a good basis for showing that they’ve not complied with the law.

3.       What have they done (or what are they proposing to do) to identify potentially affected historic places?  Land managing agencies like the Bureau of Land Management (BLM) can be pretty reliably expected to confuse “identify historic places” with “send archaeologists out to find archaeological sites.”  Urban development agencies routinely conflate identification with sending architectural historians out to determine what styles the buildings represent, and whether any famous architects were involved in their design.  Agencies of all kinds routinely ignore or just don’t think about cultural landscapes, culturally important plants and animals (that may contribute to the significance of such landscapes), culturally valued neighborhoods, parks, streetscapes and rural areas, and culturally valued water-bodies and offshore areas.  If you value any such place – if it figures somehow in your history and/or cultural practices or beliefs, you ought to object strongly and loudly to an agency’s failure to do the kind of identification work that would find and consider it.   Again, if they blow you off, document it, and don’t stop objecting.  Don’t accept a statement that they have only to identify nice old buildings and archaeological sites, or historic places as appreciated by their professional consultants or the SHPO.  If the place is important to you, and/or your community, your tribe, your family, then the responsible agency ought at least to consider whether it’s eligible for the National Register of Historic Places (NRHP).

4.       How have they evaluated places to decide whether they’re eligible for the NRHP?  It’s very, very common for evaluation to be done in very black boxes, by narrowly-qualified professionals who don’t talk to a soul outside their own particular complex of cubicles.  Or if they do talk to anyone, it’s only to the SHPO.  They often apply very narrow-minded interpretations of the NRHP Criteria (36 CFR 60.4).  Such evaluations can and should be challenged, to the relevant agency and to the Advisory Council on Historic Preservation (ACHP) and Keeper of the NRHP in the National Park Service.  This may or may not get you anyplace, but raising questions about eligibility, early and often, is important in establishing a good documentary record on which you can draw in litigation.  Challenge both the procedures (e.g. failure to consult anybody concerned with the property) and the standards on which evaluation was based.  Even if they found that the place is eligible for the NRHP, look critically at their finding; they may have used tricky language that will enable them to say that whatever they’re doing won’t really affect what makes the place significant.  Which of course might be true, but most times isn’t.

5.       Have they done an honest and thorough job of determining what adverse effects the project may have on historic places?  A common ploy is to say that there won’t be any adverse effect (or any effect of any kind) because a place will ostensibly be “avoided” by construction.  This conflates “adverse effect” with “direct physical damage or destruction,” ignoring visual, auditory, and other such effects.  It also assumes that the place has been properly and accurately defined, so it’s possible to determine whether one has avoided it or not.  Very commonly in the west, agencies will ignore large cultural landscapes in favor of considering only individual archaeological sites within them, then define the archaeological sites more or less arbitrarily, and then say they’ll all be avoided so everything’s fine.  If you’re concerned with the landscape, or even just with the sites, you ought to call them on this and insist that they consider the project’s real effects on the places that are really important.

6.       What have they done (or what do they propose to do) to resolve the adverse effects?  This basically means somehow mitigating effects on them, and of course it requires that the places and the effects are reasonably well identified.  Even if these have been well identified, however, the agency may still slither out from under doing anything much about them.  A common ploy is to develop a Memorandum of Agreement (MOA) that is so ponderous, contorted, and laden with vague abstractions that it’s virtually impossible to decipher.  MOAs are supposed to be negotiated among the consulting parties, but they often aren’t; the agency just has an MOA drafted and slaps it down in front of everybody to sign.  If you don’t understand what you’re being asked to sign, you obviously shouldn’t sign it, and you should object.  Another common practice is to include “kick-the-can” provisions, saying that something that ought to be done before the MOA is even considered (like evaluating historic properties and effects) will be done after the project is approved and underway.  Occasionally there are good reasons for such provisions, but the burden of proof should be on those proposing them to demonstrate why they’re necessary and appropriate.  Often, too, MOAs will deal only with direct, physical effects on specific buildings or sites, ignoring broader, less direct impacts or impacts on landscapes and other relatively big, loosely defined places.
DON’T WAIT to raise these issues until you’re ready to go to court.  If you can’t show that you raised them during the agency’s administrative process (that is, its project review under NHPA and NEPA), and got ignored or given short shrift, the court is unlikely to accept them as issues meriting a legal remedy.  So get involved in the review as early as possible in the process, be vigorous in pushing for proper consideration of your concerns, and DOCUMENT EVERYTHING.  You may hope you don’t have to go to court, but you ought to be prepared to.

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