Federal Historic Preservation Case Law, 1966-1996

I. Introduction

A. Background

Thirty years after passage of the National Historic Preservation Act of 1966 (NHPA), Federal law clearly reflects the Nation's commitment to preserving and protecting its wealth of historic resources. This was not always the case. Although Federal statutes containing preservation policies have existed since the turn of the 20th century, these laws typically were limited in scope and lacked effective means of enforcement.

The earliest Federal preservation statute was the Antiquities Act of 1906, which authorized the President to set aside historic landmarks, structures, and objects located on lands controlled by the United States as national monuments.{1} It required permits for archeological activities on Federal lands, and established criminal and civil penalties for violation of the act. The Historic Sites Act of 1935 was the second major piece of Federal historic preservation legislation. {2} This act declared it national policy to preserve for public use historic sites, buildings, and objects of national significance and directed the Secretary of the Interior to conduct various programs with respect to historic preservation. {3} Although these statutes were significant, they did not create a national awareness of the need for preservation or provide a means to incorporate preservation concerns into Federal agency programs.

In 1964, the United States Conference of Mayors undertook a study of historic preservation in the United States. The resulting report, "With Heritage So Rich," revealed a growing public interest in preservation and the need for a unified approach to the protection of historic resources. {4} This report influenced Congress to enact a strong new statute establishing a nationwide preservation policy: the National Historic Preservation Act of 1966. {5}

The National Historic Preservation Act was a watershed in preservation law, for it created a means by which the Nation's preservation goals could be achieved. Recognizing that increased knowledge and better administration of historic resources would improve the planning and execution of Federal undertakings and benefit economic growth and development nationwide, {6} the act promoted the use of historic properties to meet the contemporary needs of society. It directed the Federal Government, in cooperation with State and local governments, Native Americans, and the public, to take a leadership role in preservation. Since 1966, Congress has strengthened national preservation policy further by recognizing the importance of preserving historic aspects of the Nation's heritage in several other statutes‹among them the National Enviornmental Policy Act{7} and several transportation acts{8}‹and by enacting statutes directed toward the protection and preservation of archeological resources. {9} These laws require Federal agencies to consider historic resources in their planning and decisionmaking and, although they are not co-extensive with NHPA, often overlap with the provisions of NHPA.

The Executive Branch has expressed its support for preservation through several key Executive Orders. In 1971, for example, President Nixon signed Executive Order No. 11593, which instituted procedures Federal agencies must follow in their property management activities. {10} In 1996, President Clinton signed another important Executive Order, this one setting forth the Administration's support for locating Federal offices and facilities in historic districts and properties in the Nation's inner cities: Executive Order No. 13006 directs Federal agencies to use and rehabilitate properties in such areas wherever feasible and reaffirms the commitment to Federal leadership in the preservation of historic properties set forth in NHPA thirty years before. {11} Another 1996 Executive Order, No. 13007, expresses support for the protection of Native American sacred sites. {12}

The National Historic Preservation Act and other preservation statutes, as well as the Executive Orders mentioned above, have clarified and refined the duties and responsibilities of Federal agencies with regard to the protection of America's cultural heritage. Federal compliance with these authorities, however, has not always been consistent, giving rise to a number of lawsuits brought primarily by citizens and preservation organizations. The resulting court opinions interpret and elucidate the historic preservation provisions of these laws.

B. Scope of Report

This report contains summaries of those opinions, as well as an overview of Federal historic preservation law from 1966 to 1996 to put them in context. It presents an objective review of the case law addressing NHPA and its implementing regulations in addition to preservation-related Executive Orders and other Federal statutes dealing with historic preservation. It also addresses various procedural questions involved in preservation litigation. This report covers all cases that involve the National Historic Preservation Act and summarizes claims brought under the act and any other preservation-related claims those cases may contain. {13}

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