Tuesday, May 03, 2011

The Nomination Noose

The following is another segment for my book-in-progress, “How to Destroy Historic Landmarks.” Matt Bandy has suggested that I title it something more innocuous, like “A Project Manager’s Guide to Historic Preservation,” but I don’t think that title would sell as well, and besides would involve taking my tongue out of my cheek – an anatomical impossibility.

The Nomination Noose

One device you can sometimes employ to trip up NIMBYs or Tribes (NOTs) in their efforts to get in the way of your project is to encourage them to nominate the place they’re concerned about to the National Register of Historic Places. This may seem counterintuitive, but I’ve seen it work on several occasions.

The Nomination Noose is a strategy that’s specific to the United States, where Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their actions (like approving your project) on places “included in or eligible for” the National Register. Until the mid-1970s, the law required only consideration of places “included in” the Register, which meant federal agencies could ignore impacts on historic places until somebody (like a NOT) got around to doing the studies and paperwork to nominate them to the Register. This really didn’t make for very sensible planning, so President Nixon issued an executive order (#11593) in 1971 directing agencies to treat “eligible” properties – that is, places that meet the criteria for inclusion in the Register – just as though they were listed. This provision was subsequently adopted by Congress as an amendment to the NHPA. So under current law, it’s up to the federal agency whose funding or permits you seek to figure out what’s eligible for the Register, and if it’s eligible, to consider how it will be affected and what to do about it, all in consultation with the State Historic Preservation Officer (SHPO) and other interested parties.

But not every NOT knows that, and a lot of federal agencies are pretty foggy on the concept themselves. And the National Park Service (NPS), which maintains the National Register and holds quite religiously to a belief that everybody should nominate whatever they possibly can, can be counted upon to encourage nomination and express a degree of scorn for places that are only found eligible for the Register.

So, sometimes you can con the NOTs into nominating the places they’re concerned about to the Register, instead of just insisting that they’re eligible.

How can this help you? Well, it may not; they may succeed, and then you’re in roughly the same place you’d be if your overseeing federal agency and SHPO just agreed to treat the place as eligible. But there’s a pretty good chance that they won’t succeed (regardless of their place's actual significance), and by initiating the nomination process they effectively take the pressure off you to worry about the matter, unless and until they succeed in getting it on the Register.

How is this? Recall that it’s the federal agency’s responsibility to consider impacts on eligible, as well as listed, properties. If a property’s not listed, the federal agency has to figure out whether it’s eligible, and the agency will most likely require you to give it the information it needs in order to do so – which usually means doing surveys, studies, and consultations of various kinds. And if you have a NOT out there jumping up and down insisting that its place is eligible, the path of least resistance for the agency and SHPO is usually to say “OK, it’s eligible,” and start looking at what damage your project will do to it. The burden of proof falls on you to show that it’s not eligible – though, as I’ve argued above, it’s usually wiser simply to accept eligibility and get on with it. But when the NOT (or anyone else) sets out to nominate a property, they take upon themselves the burden of proving it to be historically, archaeologically, architecturally, or culturally significant. They are now under the gun, not you.

And while an agency and SHPO can agree to treat a place as eligible for the Register based on whatever data they decide are sufficient, the nomination process is a highly structured, complicated paperwork exercise, that routinely costs thousands of dollars to complete. Nomination forms must be filled out just so, with appended maps and photographs and supporting documentation. Boundaries must be precisely delineated, sources cited in proper bibliographic fashion, and so on. Once complete, the forms must be reviewed, usually by the SHPO’s State Review Board, and then – if they pass muster – sent on to the Keeper of the National Register in NPS for a final blessing. The Review Board – made up of professional historians, architectural historians and archaeologists, for the most part, who may know and care nothing about the planning processes to which their decisions relate, but who tend to be pretty jealous of their own expert credentials, can be counted on to look on each nomination with a degree of skepticism, as can the SHPO staff members who organize the material for the Board's consideration.

So the NOT winds up spending a lot of time and treasure fighting its way through the nomination process, while you get on with planning your project. The time and treasure the NOT’s spending on nomination is, of course, time and treasure it’s not (sic) spending fighting your project. The NOT’s guns are directed at the SHPO and maybe NPS, not at you or the responsible federal agency; you can both essentially wash your hands of the matter until NPS awards the nomination its thumbs up or thumbs down.

Just to put frosting on the cake, while a place can be determined eligible for the Register regardless of how its owner feels about it (because the determination is simply a finding of fact, like noting that the ground is wet or the tree is a maple), under NHPA a property cannot be placed on the Register if its owner, or a majority of owners where the property has more than one, formally objects to its placement. So if you own the property, or if you can line up a majority of its owners and prevail on them to object (This doesn’t usually cost much), you can block the NOT’s nomination. The place can still be determined eligible, which puts you back into Section 106 review, but you will have caused the NOT to waste a lot of time and money getting back to where things were before the nomination process ever began.  Frustration is likely to set in – to say nothing of confusion – and the NOT may simply give up. Moreover, since the average member of the public has, to say the least, a rather thin understanding of Section 106 review, a failed nomination is widely taken to mean that the place is not significant, so it can turn public and official opinion against the NOT.

So to summarize: if you can get a NOT to stick its head in the nomination noose, the NOT may very well hang itself. Or if not that, it will at least tangle itself up and waste time and money that it might otherwise spend fighting your project. BUT the NOT’s flailing about in the nomination process does introduce an element of uncertainty into your own planning – it’s not impossible that at the eleventh hour the place will get included in the Register, and then you’re back to square one. On balance I don’t think it’s a good strategy, but it’s one you can use if you’re so inclined.

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