Federal Historic Preservation Case Law, 1966-1996

V. Court Opinions on Compliance with Section 110

While Section 110 is designed to promote internal agency programs, it also contains directives for the management of federally owned historic properties. Under Section 110, each Federal agency must establish a program to locate, inventory, and nominate to the Secretary of the Interior all properties under its control that appear to qualify for the National Register; must also use available historic properties to the maximum extent feasible (rather than acquiring, constructing, or leasing other buildings); and must manage and maintain historic properties under its control with due consideration for preservation of their historic values. {237}

Section 110 also creates duties that are not limited to federally owned historic properties. When impairment or demolition of a historic property is necessary, the responsible agency must record the property in accordance with professional standards. {238} When National Historic Landmarks are involved, the agency has a substantive obligation to undertake such planning and actions as may be necessary to minimize direct and adverse effects on the landmark and must afford the Council a reasonable opportunity to comment on the undertaking. {239}

The 1992 amendments added several new aspects to Section 110. Section 110(l) specifies the responsibilities of Federal agencies that receive formal comment from the Council, stating that the final agency decision taking into account the effects of an undertaking on historic properties must be made by the head of the Federal agency and documented for the Council's review. {240} This section also clarifies the effect of an executed MOA, specifying that its terms are binding on the conduct of the undertaking in its entirety. {241}

While litigation under this section has been sparse, several courts have interpreted Section 110. In an early case, a panel of Council members considered a city's proposal to construct a hotel and retail facility near a National Historic Landmark and issued comments on the project. {242} The main issue in the case was whether a provision of the Housing and Community Development Act‹the Federal statute under which the city had obtained project funds and, acting as "Federal agency," assumed responsibility for environmental review‹applied to duties under Section 110(f) just as it did to those under Section 106. The court held that that was the case; by obtaining the Council's comments, the city had complied with Section 110(f). A later case, however, observed that compliance with Section 106 does not necessarily satisfy the mandate of Section 110(f), because 110(f) establishes a higher standard of care to be exercised by Federal agencies when a project may affect a National Historic Landmark. {243}

Several later court decisions also address the relationship between Sections 110 and 106. In one case, the Coast Guard argued that it had adhered to the requirements of Section 110(a) when it modified a lighthouse in order to convert it to solar power. The court recognized that the Coast Guard was complying with Section 110 in attempting to use the lighthouse to the maximum extent feasible; however, the court found that the agency was also required to adhere to the Section 106 procedures when it modified the lighthouse. {244} In another case interpreting the relationship between Sections 110 and 106, the court adopted a narrow view, finding that Section 110 clarified and codified agencies' responsibilities but did not intentionally expand them. {245} Similarly, a 1996 decision described Section 110(a) as an "elucidation" of Section 106 and declined to find that 110(a) created an independent substantive obligation different from Section 106. {246}

Another decision addressed the scope of Section 110(a)'s requirement that Federal agencies inventory historic sites under their ownership or control. The court declined to apply Section 110 to Indian lands held in trust by the Federal Government, reasoning that the tribes held real ownership in the land and the archeological resources it contained. {247} Finally, in interpreting the application of Section 110, one court found that Federal agencies are not required to rehabilitate surplus property; agencies must undertake preservation activities only when it is determined that the property will be of use to the agency's mission. {248}

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