Federal Historic Preservation Case Law, 1966-1996

VIII. Related Authorities Involving Historic Preservation

Although the National Historic Preservation Act is the Nation's principal historic preservation statute, there are other Federal authorities that include the preservation of historic resources among their purposes and goals. These statutes include the National Environmental Policy Act of 1969, {280} the Department of Transportation Act, {281} the Historical and Archeological Data Preservation Act of 1974, {282} the Archeological Resources Protection Act of 1979, {283} the Native American Graves Protection and Repatriation Act, {284} and the American Indian Religious Freedom Act. {285} This report focuses on the courts' interpretations of the preservation requirements of the National Environmental Policy Act and the transportation authorities because they are closely related to the preservation review process embodied in Section 106. {286} A brief summary of the other statutes is also provided. {287}

A. The National Environmental Policy Act

The National Environmental Policy Act (NEPA) establishes a national policy of environmental protection. {288} To effectuate this policy, the act requires the Federal Government to carry out its plans and programs in such a way as to "preserve important historic, cultural, and natural aspects of our national heritage." {289} Generally, in order to ensure that environmental concerns are considered in agencies' decisionmaking, NEPA directs Federal agencies to prepare an environmental impact statement (EIS) for every "major Federal action significantly affecting the quality of the human environment." {290} The EIS must contain a detailed discussion of the environmental impact of the proposed action, any adverse environmental effects that cannot be avoided if the proposal is implemented, alternatives to the proposed action, and other information. When uncertain as to whether to prepare an EIS, agencies customarily conduct preliminary analyses and complete an Environmental Assessment (EA) to inform their decision. {291}

Both NEPA and NHPA require agencies to take environmental considerations, including historic properties, into account in their decisionmaking. Courts have described both statutes as procedural statutes containing "stop, look, and listen" provisions requiring the collection of information; they have also described the courts' role in reviewing agency decisions as that of ensuring that agencies follow the procedures implementing those statutes. {292} In many circumstances where historic properties are involved in large Federal undertakings, if one statute applies, the other will also. {293} This is not always the case, however, for the statutes have different threshold requirements. While Section 106 applies to any Federal undertaking affecting historic properties, NEPA requires an EIS only for "major" Federal actions "significantly" affecting the quality of the human environment. Consequently, there may be instances where NHPA applies but no EIS under NEPA is required. {294} Most courts agree that NEPA and NHPA are separate statutes imposing distinct requirements that must be met individually. Some courts have held that, even though an EIS discusses historic resources, it is not sufficient for compliance with NHPA{295} or, for that matter, Executive Order No. 11593. {296} Many courts, however, have interpreted NEPA and NHPA similarly and applied the same reasoning in addressing claims under each statute; {297} some have described major Federal actions and undertakings as essentially coterminous. {298}

Cases addressing historic preservation concerns under NEPA generally fall into two categories: 1) cases discussing whether the agency action is a major Federal action significantly affecting the human environment, thereby requiring an EIS; or 2) cases discussing whether the agency properly conducted an environmental review for the major Federal action. Courts generally defer to agency decisions with regard to the application of NEPA, overturning such decisions only upon finding that the agency acted arbitrarily or capriciously, abused its discretion, or acted otherwise not in accordance with the law. As a result, in cases that challenge agency decisions that NEPA does not apply, courts often agree with agency determinations, {299} as long as the record indicates that the Federal agency took the requisite "hard look" at the potential impacts. {300} Although courts are not in agreement as to the amount of Federal involvement necessary to trigger NEPA, {301} courts have declined to apply NEPA and its EIS requirement where Federal involvement was limited to approving and providing financial assistance for a local environmental study, {302} certifying a power facility where the facility could have relied on self-certification, {303} approving a contract even though approval was not necessary, {304} approving a land exchange, {305} reviewing plans to realign sewers, {306} and deciding not to exercise veto authority. {307} Courts have also approved agency decisions to treat certain actions as categorical exclusions under NEPA. {308} However, in one case, the court found the categorical exclusion decision unreasonable where the agency did not properly conduct identification of the project site; {309} the court in this case determined that an EIS was appropriate given that the project had the potential to affect a traditional cultural resource. In deciding whether a Federal action will have a significant impact, courts have held that mitigation measures may be considered, {310} although Council on Environmental Quality (CEQ) guidance warns agencies not to rely on the possibility of mitigation to avoid preparation of an EIS. {311} CEQ regulations establish certain criteria to assist agencies in determining the intensity of impacts. An impact may exceed the significance threshold depending on the degree to which it affects the "unique characteristics of the geographic area such as proximity to historic or cultural resources" or "districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places . . . ." {312} One court held that if a property is listed in the National Register or is of historic value, its proposed demolition is a "major Federal action" under NEPA, although it is not necessarily one "significantly affecting the quality of the human environment." {313} Other courts, however, have upheld agencies' determinations that projects involving demolition of or other impacts on historic properties are not major Federal actions. {314} Thus, an EIS was not required.

When EAs and EISs are prepared, plaintiffs may challenge their content and scope. Issues raised by plaintiffs include an agency's failure to consider cumulative impacts, {315} improper consideration of alternatives, {316} and inadequate analysis of mitigation measures. {317} If an EIS is prepared, the courts have held that it must include a thorough discussion of the historic and archeological resources involved in the project, {318} the impact of the project on those resources, {319} and alternatives that would allow for their preservation and rehabilitation. {320} However, courts have held that an EIS was adequate even though its discussion of historic resources was incomplete because the agency had planned additional archeological surveys and could avoid harming the resources until new surveys were conducted. {321} Another court declined to require an agency to revise an existing EIS to include discussion of historic impacts because plaintiffs had waited too long to assert their claims. {322} Yet another court declined to require an EIS to discuss historic resources because the evidence on historic resources developed at trial was sufficient to inform the agency of the historic impacts. {323}

Courts are in disagreement as to whether a supplemental EIS must be prepared when new information regarding historic resources comes to light after completion of the initial EIS. One court held that a supplemental EIS is required when new historic resources are discovered{324} though others have held this may not be so sufficient a change as to require a supplemental EIS. {325} When a property is determined eligible for the National Register after the EIS is published, one court held that the necessity of a supplemental EIS must be newly determined. {326}

B. Transportation Authorities

Several statutes governing the actions of the Department of Transportation and its subagencies‹the Federal Highway Administration, the Coast Guard, the Federal Aviation Administration and the Federal Transit Administration, among them‹include strong historic preservation measures. {327} The language in these authorities was originally enacted as Section 4(f) of the Department of Transportation Act, signed into law the same day as NHPA: October 15, 1966. {328} Although Section 4(f) has been recodified as Section 303 of Title 49 of the United States Code, the preservation provision is still known as "Section 4(f)." As it pertains to historic properties, Section 4(f) only permits the Secretary of Transportation to approve a project that requires the use of land from a historic site if 1) there is no feasible and prudent alternative to the use of that land and 2) the program includes all possible planning to minimize harm to that historic site. The courts have held that it is premature for an agency to comply with Section 4(f) if project plans are not final; the expectation that future planning will minimize harm to historic property does not relieve the agency of its Section 4(f) compliance responsibilities. {329}

Section 4(f) applies only if the project at issue will "use" land from a parkland or a historic site. The meaning of the term "use" has been the subject of numerous lawsuits involving Section 4(f) and, as a result, is well defined. {330} A few courts have specifically addressed the meaning of "use" in the context of historic resources. Courts have held that demolition of a historic structure{331} or removal of part of a historic property constitutes a use of land from a historic site. {332} Other courts found that where there will be no physical use, plaintiffs may attempt to show "constructive use" of a property by presenting evidence of an impact that would substantially impair the value of the property in terms of its use and enjoyment. {333} Courts have recognized noise, pollution, and visual intrusion as constructive uses. {334} However, two courts have specifically declined to recognize constructive use in the case of airport noise impacts on historic neighborhoods, where the average noise levels were less than 65 weighted average day and night sound level measurements (Ldn). {335} One early court decision rejected arguments that secondary impacts such as noise, air pollution, land-use alteration, blasting damage, and property value diminution would amount to a constructive use of historic buildings. {336} Further, one court has upheld a Federal Highway Administration (FHWA) regulation exempting archeological sites from Section 4(f) by allowing impacts on them to be mitigated by excavation first pursuant to Section 106 and then determined to be no longer in existence and, therefore, not "used." {337}

The meaning of the term "historic site" was discussed in a case involving a FHWA proposal to aid the construction of a highway through the Moanaloa Valley in Hawaii. {338} FHWA decided that the valley was not a historic site. It based its decision on a State board's finding that the valley was of marginal significance, disregarding both the Secretary of the Interior's determination that the valley might be eligible for the National Register and the Council's conclusion that the valley possessed historic significance. The court held that a property did not have to be listed in the National Register to be a historic site under Section 4(f), that a property likely to meet the National Register criteria is sufficient. {339} Indeed, 4(f) applies to historic sites of national, State, or local significance. {340} Furthermore, the Federal determination of eligibility took precedence over the State board's finding and thus triggered Section 4(f).

Agencies must determine whether historic sites are involved prior to approval of the project{341} and early enough in the process that alternatives to the project are still possible. {342} In one case, plaintiffs alleged that a Section 4(f) statement was made too early in the process, but the court found the timing of the statement adequate because the agency had begun consideration of the alternative in question by the time the statement was prepared. {343} Moreover, the statement called for continual review of the alternative. No formal determination of eligibility from the Secretary of the Interior is required. {344} In one case, the court of appeals upheld Federal regulations that exempted FHWA from Section 4(f) compliance where the historic resources‹archeological sites‹were important for the data they contained, not for their location. {345} Section 4(f) did not apply, even though the property had been listed in the National Register.

C. Other Statutes

1. Historical and Archeological Data Preservation Act of 1974 (HADPA) {346} and Archeological Resources Protection Act of 1979 (ARPA)

HADPA provides for the preservation of historical and archeological data that might otherwise be lost as the result of alterations to the terrain caused by a Federal or federally licensed activity or program. {347} To carry out the purposes of the act, HADPA allows for the transfer of up to one percent of the appropriations for the project to the Secretary of the Interior. Unlike Section 106, which mandates consideration of historic properties during Federal agency planning, HADPA guides the implementation of mitigation measures once an agency decision is reached.

ARPA is designed to protect archeological resources on Federal and Indian lands and to encourage the exchange of information pertaining to such properties between the Federal Government and the archeological community. {348} ARPA strengthens its predecessor HADPA by providing specific permit procedures that all persons, including private applicants as well as State and Federal agencies, must follow prior to excavating or removing any archeological resource on Federal or Indian lands. {349} Unlike NHPA, ARPA provides both civil and criminal penalties for failure to comply with the act. {350} ARPA does contain a confidentiality provision similar to NHPA. {351}

2. Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)

NAGPRA requires Federal agencies and museums to inventory their holdings of Native American cultural items and return such items to Indian tribes and other Native American groups. {352} The definition of "Indian tribe" in NAGPRA has been interpreted to include an Indian group or community of Indians that the Secretary does not acknowledge as an Indian tribe. {353} However, this decision was reached prior to promulgation of NAGPRA regulations which generally define "Indian tribe" as those recognized by the Secretary of Interior. {354} The act also provides that any intentional excavation and removal of Native American human remains and other cultural items from Federal or tribal lands{355} be conducted only with a permit issued pursuant to the Archeological Resources Protection Act and after consulting with the appropriate tribe. {356} If an inadvertent discovery is made of Native American remains or objects in connection with an activity on Federal or tribal lands, the activity must cease in the area of the discovery, a reasonable effort must be made to protect the items discovered before resuming activity, and the appropriate Federal agency or tribal authority must be notified. Activities may resume 30 days after receiving certification of notification from the appropriate Federal agency or tribal authority. {357} NAGPRA requirements may overlay Section 106 when undertakings occur on Federal or tribal lands.

3. American Indian Religious Freedom Act of 1978 (AIRFA)

AIRFA protects the rights of Native Americans to exercise their traditional religions by ensuring access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. {358} The intent of AIRFA has been interpreted as ensuring that Native Americans obtain First Amendment protection, but not to grant them rights in excess of the First Amendment. {359} Because such sites may be eligible for inclusion in the National Register, any effects that may occur, as a result of providing access to them, may trigger Section 106 review under NHPA. {360}

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