1. What are a federal agency’s responsibilities under Section 106 of the NHPA?
Section 106 of the National Historic Preservation Act requires federal agencies to “take into account” the effects of their undertakings on historic properties and to provide the ACHP a “reasonable” opportunity to comment. Federal agencies meet these two requirements through the process set out in the ACHP’s regulations, “Protection of Historic Properties” (36 CFR part 800).
2. What is the role of the federal agency official in the Section 106 process?
The federal agency official is the individual who has “approval authority for the undertaking and can commit the federal agency to take appropriate action for a specific undertaking as a result of Section 106 compliance” [36 CFR § 800.2(a)], and who makes the decisions in each step of the Section 106 review process, following consultation with the parties specified in the ACHP’s regulations. The ACHP, State Historic Preservation Officer/Tribal Historic Preservation Officer (SHPO/THPO) and other consulting parties advise and assist the federal agency official in this effort. In reaching decisions, a federal agency should seek to reconcile historic preservation with other important public values, such as its mission, objectives, costs and public benefits. The impact on archaeological resources is one of many considerations for an agency as it weighs its decisions.
3. What is the ACHP’s policy on dealing with burial sites, human remains, and funerary objects?
On February 23, 2007, the ACHP adopted a new “Policy Statement Regarding Burial Sites, Human Remains, and Funerary Objects” that, among other things, calls for federal agencies to avoid impacts to burial sites, human remains, and funerary objects unless absolutely necessary. When the federal agency determines that avoidance of impact is not appropriate, the agency first should consider active steps it may take to preserve the burial site in place. When the federal agency decides human remains or funerary objects must be disturbed, they should be removed respectfully and dealt with according to the plan developed by the federal agency, in consultation with others as specified in the regulations. The ACHP’s policy does not prescribe an outcome or endorse any specific treatment. Rather, the level of documentation and analysis should be decided through consultation on a case-by-case basis. Implementation of this policy and its principles does not in any way change, modify, detract, or add to the Native American Graves Protection and Repatriation Act or other applicable laws.
4. Does issuance of an ARPA permit constitute an undertaking requiring Section 106 review?
Section 4(i) of the Archeological Resources Protection Act of 1979 [16 U.S.C. 470cc(i)] states: “Issuance of a permit in accordance with this section and applicable regulations shall not require compliance with section 106 of the National Historic Preservation Act, as amended [16 U.S.C. 470f].”
Thus, federal agency issuance of an ARPA permit for archaeological investigations on public or Indian lands does not, by itself, trigger review under Section 106 of the NHPA. However, the uniform regulations implementing ARPA [43 CFR § 7.12] state that “mere issuance of such a permit does not excuse the Federal land manager from compliance with section 106 where otherwise required.” This means that if an ARPA permit is issued for archaeological investigations done in conjunction with an undertaking subject to Section 106 review, the federal land manager will still need to comply with Section 106 for the undertaking.
An example would be a federal undertaking on public or tribal lands, such as the building of a road or permitting of an energy development project that has the potential to affect historic properties. In these examples, the issuance of an ARPA permit for archaeological investigations designed to identify, evaluate, and mitigate eligible archaeological sites does not trigger Section 106 review. However, the overall undertaking for which these investigations are being carried out (i.e., the building of the road or the energy development project) is subject to Section 106 review.
5. Who owns the artifacts recovered from private land?
Artifacts recovered from private lands during archaeological survey and excavation during the course of Section 106 review are usually the property of the landowner, unless state or local law mandates otherwise. (Human remains are generally covered under specific laws.)
The issue of concern to many archaeologists, SHPOs, Indian tribes, and Native Hawaiian organizations is not always that of strict ownership but that of what happens to the artifacts. There may be tax incentives to donate artifacts to qualified institutions. The relevant SHPO should be contacted for up-to-date information on ownership laws and preservation incentives within a particular state. Federal agencies should reach agreement with the private landowner on the disposition of any artifacts extracted from his/her land prior to commencing work on the land.
6. Can the NHPA be used to restrict access to information about an archaeological site?
Under the Freedom of Information Act [FOIA, 5 U.S.C. 552], members of the public have a right to access federal agency records, except to the extent that such records (or portions thereof) are protected from public disclosure by exceptions found under the Act. The third such exception under FOIA provides that an agency may withhold records “specifically exempted from disclosure by statute” [5 U.S.C. 552(b)(3)].
One of these statutes that specifically restrict disclosure is Section 304 of the National Historic Preservation Act [16 U.S.C. 470w-3]. Section 304 requires federal agencies, or other public officials receiving grant assistance under the NHPA, to “withhold from disclosure to the public, information about the location, character, or ownership of a historic resource…” if the agency and the Secretary of the Interior agree that its release may (1) cause a significant invasion of privacy, (2) risk harm to the historic resource, or (3) impede the use of a traditional religious site by practitioners. Once a determination to withhold from the public has been made, the Secretary of the Interior, in consultation with the relevant agency, will determine who (if anyone) may have access to the information for NHPA purposes. If the information was developed as part of a Section 106 undertaking or under Section 110(f) of NHPA, the Secretary of the Interior must consult with the ACHP in making the above determinations regarding withholding and access. For purposes of Section 304 of the NHPA, the Secretary of the Interior acts through the National Park Service.
It is important to keep in mind several issues about the authority of Section 304 to restrict information: First, not all archaeological records, field notes, or data analyses are subject to withholding under Section 304 of the NHPA—only information about a property’s “location, character, or ownership.”
The information excludable under the scope of Section 304 of the NHPA must be about a historic property. Information about an archaeological site that is neither listed, nor eligible for listing, on the National Register of Historic Places, would fall outside the protective scope of Section 304.
Finally, a determination has to be made that release of such information may cause a “significant” invasion of privacy, may risk harm to the historic resource, or may impede use of a traditional religious site by practitioners. Archaeological information (including as noted above records, notes, or analyses, or parts thereof) that does not meet these standards regarding historic property status, type of information, and risk of invasion, harm or impediment of use, is not protected under Section 304.
This could have implications, for example, for an Indian tribe or Native Hawaiian organization that shares sensitive written information about an archaeological site with a federal agency to ensure that it is considered in Section 106 review. Should the federal agency determine that the site is not listed or eligible for the National Register, the written information collected about this site, including its location and sensitivity, would not be protected under Section 304.
Another federal law also addresses the issue of restricting certain kinds of information. Section 9 of the Archeological Resources Protection Act [ARPA, 16 U.S.C. 470aa-mm] specifically prohibits the release of information concerning the nature and location of archaeological sites excavated or removed under an ARPA permit unless the federal land manager determines that releasing the information furthers the purposes of ARPA and will not create a risk of harm to the resources [16 U.S.C. 470hh]. The purposes of ARPA [at 16 U.S.C. 470aa] are:
“to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals ....”
Because ARPA only applies on public lands or Indian lands, information from archaeological sites on private lands or non-federal public lands is not protected under its terms.