Archive of Prominent Section 106 Cases:
Georgia: Fort Benning/City of Columbus
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Agency: U.S. Army
Criteria for Council Involvement:
- This undertaking will result in the transfer of lands out of Federal ownership and protection, placing at risk properties of traditional cultural importance to Indian tribes (Criterion 4).
- The undertaking also raises questions regarding the Army's compliance with both its own and Council policies regarding tribal consultation (Criterion 2).
Army representatives are undertaking consultation meetings with several of the Indian tribes whose ancestral lands are included in the proposed land exchange between Fort Benning and the City of Columbus. Consultation with the tribes has been initiated in order to compensate for previous deficiencies in this aspect of the Section 106 consultation process.
A proposal by the Army for an exchange of land between Fort Benning and the City of Columbus, Georgia, poses a number of Section 106 challenges which the Council has been assisting the Army in resolving. Authorized by Congress a decade ago, the transfer would provide Fort Benning with land suitable for training exercises and the city with land for development.
In 1997, a Memorandum of Agreement (MOA) that would have allowed the project to proceed as then proposed was executed among the Army, the City of Columbus, the Georgia State Historic Preservation Officer, and the Council. However, with the advent of regulatory reform initiatives by both the Army and the Council, Native American consultation issues that had remained in the background during the earlier Section 106 consultation process emerged as critical flaws in the earlier agreement.
The shortcoming came to the attention of the Army’s Environmental Center, which responded by advising Fort Benning that to be in compliance with Army regulations, they would need to reopen compliance with both the National Environmental Policy Act (NEPA) and Section 106. The goal was to address the effects of the proposal on the full range of historic properties, including traditional cultural places of concern to Indian tribes.
Over a dozen archeological sites with importance to tribes have been identified in the affected lands. Consultation with a host of federally recognized Indian tribes with ancestral ties to the area appeared essential.
In the course of revisiting issues under NEPA, the Army reconfigured the boundaries of the lands to be exchanged, in part to conform to the mandates of the Endangered Species Act, which was invoked for protection of the red-cockaded woodpecker.
However, the new proposal still did not reflect consultation with Indian tribes. The Army proposed instead to delegate the responsibility to consult with the tribes to the city as part of covenants to be included in the transfer of the property. The Council notified the Army that this would be an insufficient basis for a new MOA, and that outreach by the Army to the tribes would be a prerequisite to concluding such a document.
At issue is the Army’s preferred approach of delegating to the City of Columbus future resolution of many sensitive issues, including treatment of Indian burials. Under the terms of the proposed covenants, the Council would be expected to resolve disputes after the fact of the transfer, but Section 106 would no longer provide a framework for doing so.
Although customary in some land transfers, such as those associated with Base Realignment and Closure, the “mirroring” of Section 106 in covenants when no Federal agency retains responsibility for historic properties under the National Historic Preservation Act is less effective than resolving such issues at the outset, prior to transfer out of Federal ownership.
Staff contact: Martha Catlin
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