So, I’ve heard from another hip-shooting federal agency official that his agency need not do what the regulations of the Advisory Council on Historic Preservation (36 CFR Part 800) say, because the Advisory Council is only Advisory.
Sigh. Read my lips, fool: the Council is advisory, but its regulations are not.
Section 211 of the National Historic Preservation Act (NHPA) says:
The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety.
“Regulation,” say dictionaries of law like the one at http://dictionary.law.com/, when used as noun means:
…rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes… (emphasis added).
Got that? The 36 CFR 800 regulations – federal regulations adopted in accordance with the Administrative Procedures Act after due interagency and public review and comment, under the authority of NHPA Section 211 – have the force of law. When they say that the agency official shall do something, they mean do it. They do not mean “we respectfully advise you pretty please to do it if you feel like it.”
There are parts of the regulations that are advisory; there, words like “should” or “may” are used. But when the regulations say “shall,” they bloody well mean shall.
Sheesh, that I should even have to explain this…