Tuesday, November 18, 2014

No, Federal Agencies DON’T Have to Nominate All Historic Places to the National Register

The potential client – representing a U.S. government agency – had a simple request:

“We want to hire you to draft a nomination for the HappyDrone House (not its real name) to the National Register of Historic places.”

As a proper profit-seeking consultant, my response should have been: “Great!  Let’s talk about it!”  But as some readers know, I’m not very good at being a proper profit-seeking consultant.  So my actual response was:

“Why do you want to do a thing like that?”

The potential client – let’s call him PC – responded that the National Historic Preservation Act (NHPA) required his agency to nominate places under its jurisdiction and control.

“Ummm,” I said, still being difficult, “can you give me a citation for that requirement?”

“Sure,” he replied – more knowledgeably than most who call me about things like this.  “Section 110(a)(2) requires agencies to establish preservation programs, and those programs are to ensure – and I quote – ‘that historic properties under the jurisdiction or control of the agency are identified, evaluated, and nominated to the National Register.’”

Oh my, I thought.  Why do I bother to write all those books?  Section 110(a)(2) and its registration “requirement” are discussed in several of my tomes, most recently (I think) on pages 234-5 of the 4th edition of Cultural Resource Laws and Practice (Altamira Press 2013). 

But maybe I haven’t been straightforward enough, so let me try again.

As I explained to PC – finally, I think, talking him out of nominating the house, but maybe only persuading him to go to another consultant – you need to understand Section 110(a)(2) in its historical, political, context.  The subsection he quoted is derived from Executive Order 11593, issued by President Nixon in 1971[1].  In those days Section 106 of NHPA required attention only to places included in the National Register, which caused all kinds of wasteful nonsense.  The executive order told all executive branch agencies to do two things:

1.       Get busy and nominate everything under their jurisdiction and control to the Register – by July 1, 1973, no less; and

2.       Until everything was duly nominated and listed, address impacts on eligible places just as though such places were already listed.

Of course, the first requirement was absurd, and nobody (with the alleged, possibly apocryphal, exception of the Tea Tasting Commission[2]) carried it out.  Agencies focused on the order's second requirement -- to consider their impacts on eligible but unlisted places.   They did this with guidance from the National Park Service (NPS) and Advisory Council on Historic Preservation (ACHP); for better or worse this was the beginning of the modern “cultural resource management” (CRM) industry.

In 1976 Section 106 itself was amended to comport with reality; agencies were required to take effects into account both on listed places and on those that simply meet the National Register’s eligibility criteria (36 CFR 60.4).  This canonized and regularized by-then existing practice.  At the same time, though, Congress added the beginnings of Section 110 to the law, essentially picking up the executive order’s language and directing agencies – without a time limit – to nominate “all” eligible properties under their jurisdiction or control.

Getting rid of the deadline was an improvement, but the requirement was still a silly one.  It assumed that somehow or other agencies were going to spend the vast amounts of money necessary to (ostensibly) find everything under their jurisdictions that met objective standards of historical significance (whatever those might be) and prepare the ponderous documentation required to nominate them to the Register.  

And that parenthetical “ostensibly” is important.  History hasn’t stopped, so new things become “historic” every day.  Technology changes, too, so we’re able to find and interpret historic (and prehistoric) things today that we couldn’t find in the 1970s, or 90s.  And concepts of historic significance change as well; we do learn stuff, and change our minds about what’s important.  That’s not a bad thing, however inconvenient it may be for recordkeeping. 

Finally, historic places aren’t the only things that federal agencies need to keep track of, and the National Register is not the only, or necessarily the best, way to keep track of them.  In the 1980s, for example, agencies like the Forest Service and the Bureau of Land Management organized sophisticated geographic information systems (GIS), to map and plot and keep track of all kinds of environmental variables.  These systems didn’t (and still don’t) interface very well with the National Register, but they are far more efficient and effective management tools than the Register will ever think of being.

So nobody paid much attention to Section 110’s requirements – which was kind of too bad, because the requirements to identify things, and maybe to evaluate them, made a good deal of sense, even if the stuff about nominating them didn’t. 

So around 1990, when work began on what would become the 1992 amendments to NHPA, a few of us suggested that some amendments to Section 110 were in order.

I had recently quit my job at the ACHP – the proximate cause of my resignation was my objection to a settlement agreement in a court case involving National Register nominations in New Mexico – and was doing pro bono work on the proposed amendments.  I proposed to do away with the requirement to nominate all historic properties, leaving just the requirements to identify and evaluate, and then adding requirements about preferential use, management, consultation, agreements, and addressing the interests of tribes. 

NPS, of course, screamed bloody murder.  How could anyone propose that places shouldn’t be nominated to the all-holy National Register?  No right minded citizen, that was for sure – it was just that King guy, who – the Keeper of the Register still assures people of this – just hates the Register.

(For the record, I don’t hate the Register; I just think it’s a simpleminded institution whose time has come and gone, and that we’d have a better national historic preservation program if we shucked it.  But I digress)

As always in matters political (the current beliefs of some congresspeople notwithstanding), compromise was in order, and in the end the amendments wound up including language about consultation, agreements and such, but making only a small change to the bit about nomination: deleting the word “all.”

So yes, PC, agencies must have programs that provide for – among many other things (like consultation, agreements, etc.), identification, evaluation, and nomination of historic places to the Register, but they don’t have to nominate “all” such places. 

The result, if an agency wants to devote a little thought and creativity to the matter, is that an agency really has a lot of flexibility in how it keeps track of its historic places.  An agency’s program can, for example, provide for identifying historic properties (and/or the probability of such properties) as part of its overall GIS, evaluating them when there’s a need to – for instance, when some sort of conflict with their management is looming – and nominating them only when there’s some pragmatic reason for doing so. 

And there are – unfortunately, I think – some pragmatic reasons for nomination.  For example, if you’re transferring a building out of federal ownership and want to encourage a private party to rehabilitate it, nominating it can set the private recipient up for tax benefits if he or she rehabilitates it in accordance with preservation standards.  In such cases, sure, nomination may be worth the posterior discomfort inherent in its doing. 

But the bottom line is that the NHPA does not require agencies to nominate whatever they control, or really to nominate anything at all.  Agencies must have programs that provide for nomination – among many more useful activities.  My recommendation to PC was that he focus on those activities rather than wasting taxpayer dollars on nomination.

So I lost the contract.  Oh well.

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