Federal Historic Preservation Case Law, 1966-1996

VI. Executive Orders

A. Executive Order No. 11593

In 1971, five years after Congress enacted NHPA, President Nixon signed Executive Order No. 11593. {249} The Executive Order required Federal agencies to administer cultural properties under their control and direct their policies, plans, and programs in such a way that federally owned sites, structures, and objects of historical, architectural, or archeological significance were preserved, restored, and maintained. {250} To achieve this goal, Federal agencies were required to locate, inventory, and nominate to the National Register of Historic Places all properties under their jurisdiction or control that appear to qualify for listing in the National Register. {251} The courts have held that Executive Order No. 11593 obligates agencies to conduct adequate surveys to locate "any" and "all" sites of historic value, {252} although this requirement applies only to federally owned or federally controlled properties. {253} Moreover, the Executive Order directed agencies to reconsider any plans to transfer, sell, demolish, or substantially alter any property determined to be eligible for the National Register and to afford the Council an opportunity to comment on any such proposal. {254} Again, the requirement applied only to properties within Federal control or ownership. {255} Finally, the Executive Order required agencies to record any listed property that may be substantially altered or demolished as a result of Federal action or assistance and to take necessary measures to provide for maintenance of and future planning for historic properties. {256}

Two courts have found that citizens have a right of action under Executive Order No. 11593, {257} but other courts disagree, finding that the Executive Order is only a "managerial tool" for the Executive Branch. {258} Other courts have not addressed this issue but simply allowed the action. {259} Opinions differ as to whether compliance with other preservation laws satisfies the requirements of Executive Order No. 11593. {260} Just as for Section 106, noncompliance with Executive Order No. 11593 is not a defense to a condemnation action. {261}

B. Executive Order No. 13006

In 1996, President Clinton issued Executive Order No. 13006, "Locating Federal Facilities on Historic Properties in our Nation's Central Cities." This Executive Order reaffirms the Federal Government's commitment to historic preservation leadership as articulated in NHPA, calling upon Federal agencies to give, whenever economically prudent and operationally appropriate, first consideration to historic properties in historic districts when locating Federal facilities. {262} If no such property is suitable, agencies must next consider other sites in historic districts, and then historic properties outside of historic districts. {263} Any construction or rehabilitation undertaken by Federal agencies must be architecturally compatible with the surrounding historic properties. {264} The Executive Order also directs Federal agencies to reform regulations and procedures that impede location of Federal facilities in historic properties or districts and to seek the Council's assistance in this effort. {265} Finally, Executive Order No. 13006 calls upon Federal agencies to seek partnerships with States, local governments, Indian tribes and private organizations with the goal of enhancing the Nation's preservation program. {266}

C. Executive Order No. 13007

In 1996, President Clinton also issued Executive Order No. 13007, intended to protect Native American religious practices. This Executive Order directs Federal land-managing agencies to accommodate Native Americans' use of sacred sites for religious purposes and to avoid adversely affecting the physical integrity of sacred sites. {267} Some sacred sites may be considered traditional cultural properties and, if older than 50 years, may be eligible for the National Register of Historic Places. Thus, compliance with the Executive Order may overlap with Section 106 and Section 110 of NHPA. Under the Executive Order, Federal agencies managing lands must implement procedures to carry out the directive's intent. Procedures must provide for reasonable notice where an agency's action may restrict ceremonial use of a sacred site or adversely affect its physical integrity. {268} Federal agencies with land-managing responsibilities must provide the President with a report on implementation of Executive Order No. 13007 one year from its issuance.

Executive Order No. 13007 builds upon a 1994 Presidential Memorandum concerning government-to-government relations with Native American tribal governments. The Memorandum outlined principles Federal agencies must follow in interacting with federally recognized Native American tribes in deference to Native Americans' rights to self-governance. {269} Specifically, Federal agencies are directed to consult with tribal governments prior to taking actions that affect federally recognized tribes and to ensure that Native American concerns receive consideration during the development of Federal projects and programs. The 1994 Memorandum amplified provisions in the 1992 amendments to NHPA enhancing the rights of Native Americans with regard to historic properties.

Go to Table of Contents Go to Top