X. Conclusion

In the 30 years since the passage of the National Historic Preservation Act, court decisions have focused on the application of NHPA to Federal agency projects, programs, and activities. Courts will examine the degree and nature of Federal involvement in a project in order to determine whether an undertaking exists as defined by NHPA. The Federal involvement must be such that the Federal agency has enough control over the project to influence its outcome. Courts increasingly focus on whether the Federal agency approval was a prerequisite to the project or merely a nonbinding recommendation, in establishing the applicability of NHPA. There is still a difference among the courts as to how to interpret the definition of an "undertaking" in NHPA and the exact nature of the license, approval, permit, or assistance to which it refers. Generally, though, the courts' inquiry focuses on the ability of the Federal agency to influence the project.

When courts find that Federal agencies have a duty to comply with NHPA, they have recognized the value of Section 106 of NHPA as a "stop, look, and listen" procedural provision. Courts often compare NHPA to NEPA and apply the same analysis when rendering opinions on compliance with both statutes, although many courts acknowledge that the threshold for triggering NEPA is higher than NHPA. Courts have required adherence to Section 106 and the Advisory Council on Historic Preservation's implementing regulations in varying degrees. Some courts require strict adherence to the procedures, while others look beyond the Federal agency's procedural flaws and examine the efforts made by the agency to mitigate the effects of the project on the historic property, ruling in favor of Federal agencies if they substantially comply with Section 106 and its implementing regulations. Unless agencies have been arbitrary or capricious, abused their discretion, or otherwise failed to act in accordance with the law, courts tend to uphold the agencies' procedural compliance.

As the Council moves to new regulations, the principles of Section 106 that have evolved over 30 years will continue to guide both the administrative process and judicial interpretion of NHPA. Courts will continue to define the "edges" of the application of Section 106, but it remains to be seen whether the tendency to draw the boundaries conservatively will continue in light of any new regulations.

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