The National Register of Historic Places: Being Eligible for it; Being Determined Eligible for it; Being Nominated to it

Thanks to the determination by the Keeper of the National Register of Historic Places that Nantucket Sound is eligible for the Register, I’ve spent some time today on the phone with reporters, and in email correspondence with colleagues, who are confused about some very basic points. At the risk of re-plowing what ought to be well-turned earth, let me try to clarify the differences among three terms that keep getting mixed up.

Eligibility for inclusion in the National Register. This means that a place or thing meets the criteria of eligibility published at 36 CFR 60.4. It is a factual category into which a place falls, like being a species of animal or a wet place in the woods. Places are eligible if they meet the criteria, regardless of whether anybody has ever recognized that they do. Nantucket Sound is eligible for the Register; it has been eligible for the Register for as long as the Wampanoag Tribes have ascribed cultural significance to it, because this ascription of significance means it's associated with significant patterns of history, and thus eligible under National Register Criterion “A.” It did not become eligible when it was determined to be so, any more than a species is hale and hearty until the Fish and Wildlife Service determines it to be endangered, or any more than a swamp is dry until the Corps of Engineers delineates it as a wetland.

Determined eligible for inclusion in the National Register. This means, obviously, that someone has given a place some attention and said “yup, it meets the National Register criteria.” Some like to reserve the term for instances in which the Keeper of the Register has made a formal determination, as has just happened with Nantucket Sound; others use the term more loosely to embrace the less formal determinations made by federal agencies and State or Tribal Historic Preservation Officers in the course of Section 106 reviews. Whichever way it’s used, it means that someone has actually determined, decided, concluded, that the National Register criteria are met by a place or a bunch of places, usually based on some body of data and analysis, though there is no hard and fast rule for how much of either is needed.

Nomination to the National Register. This is what happens when someone fills out all the paperwork that the National Register requires before it will consider actually listing something on the Register, and submits it for review, usually through a State or Tribal Historic Preservation Officer to the National Park Service. There is no requirement in law that anybody nominate anything to the National Register. Nantucket Sound has not been nominated, and I for one hope it won’t be; it would be a waste of time and effort.

Section 106 of the National Historic Preservation Act requires that federal agencies take into account the effects of their proposed actions on places included in (i.e. listed in) or eligible for the National Register. Not “determined eligible” for the Register, and not “nominated to” the Register, but simply eligible for the Register. In other words, an agency is responsible for considering impacts not only on places that someone has nominated, or that someone has determined eligible, but also on places that simply meet the criteria. The regulatory requirement to make a “reasonable and good faith effort” to identify eligible properties that may be subject to effect is the logical result of the statutory requirement to consider effects on eligible properties. Agencies – not tribes, states, or citizens – are responsible for making this effort, so that they, the agencies, can do what Congress told them to do: take effects into account. In the Nantucket Sound case, the Minerals Management Service failed in this responsibility by failing to listen to what the Wampanoag Tribes had to say about the Sound’s significance and appreciate that this significance probably made the place eligible for the Register. Nantucket Sound did not become eligible when the Keeper determined it so; it was eligible all along, and the Minerals Management Service should have had sense enough to realize that. It didn't, and that's why the issue has to be confronted now.