Archive of Prominent Section 106 Cases:
Arizona: Construction of Holbrook Interchange (Woodruff Butte)
The Council has received correspondence from the Federal Highway Administration (FHWA) which states that the agency is “at a loss” to respond to the Council’s position that retroactive Federal funding of this completed highway project might constitute a foreclosure of the Council’s opportunity to comment. It remains to be seen whether FHWA will attempt to provide such funding.
In the wake of this project, the Arizona Department of Transportation (DOT) has developed a contract specification that would require review by the Arizona State Historic Preservation Officer (SHPO) of proposed “borrow” sites for construction materials. Although it cannot negate the damage to Woodruff Butte as a result of the Holbrook Interchange, use of this specification would help to avoid impacts to other cultural resources in future federal-aid projects in the state and could form the basis for a Programmatic Agreement. Unfortunately, FHWA has not indicated a willingness to promote use of such a contract specification in other states.
Woodruff Butte is a traditional cultural property of exceptional significance to the Navajo Nation, the Hopi Tribe, and the Pueblo of Zuni, and it has been determined eligible for inclusion on the National Register by the Arizona SHPO. It also was the Arizona DOT’s preferred primary source for construction materials for the Holbrook Interchange Project. Upon learning this, the Council notified FHWA that adverse effects to the butte were a reasonably foreseeable outcome of this project and should be taken into account pursuant to Section 106. The Council asked FHWA to investigate this matter and to not take any action that could adversely affect historic properties until Section 106 issues had been addressed.
Meanwhile, in response to a suit filed by the Hopi Tribe, a court disagreed with FHWA’s proposition that a Federal agency may limit its responsibilities under the National Historic Preservation Act by narrowly defining the area of potential effect. The court issued a temporary restraining order enjoining FHWA from disbursing any Federal funds on this project until it had complied with Section 106. FHWA initiated discussions with the Council, but construction of the interchange proceeded using State funds. Since Federal funding was not used, Section 106 was no longer applicable. However, the Council advised FHWA that should it seek to fund the project in the future, the Council would need to consider whether its opportunity to offer meaningful comment has been foreclosed.
The issue of FHWA’s responsibility for material borrow sources under Section 106 has long been a point of debate between FHWA and the Council. In late 1987, FHWA issued guidance governing the applicability of Section 106 to borrow and disposal sites. The policy stated that Section 106 requirements only applied when the borrow site was specified in project planning or when borrow material was economically available at a limited number of locations. The guidance essentially treated borrow material as a product, like steel girders, rather than a site-specific resource. However, in the view of the Council (and of the court, in this case) such arguments do not alter the fact that borrow activities carried out as a result of federally assisted highway construction can contribute to the loss of significant historic resources.
Staff contact: MaryAnn Naber
January 1999 report on this case
Return to top of page