The Advisory Council on Historic Preservation (ACHP) oversees a key element of the federal preservation program created by the National Historic Preservation Act (NHPA) of 1966. Known as Section 106 review, it ensures federal agencies consider impacts to historic properties during the development of federal or federally-assisted projects.
In 2015, the National Defense Authorization Act (NDAA) mandated transfer of Oak Flat out of federal ownership. This was an Act passed by Congress and signed into law by President Obama. Given the constraints of the statutory language, consideration can only be given to minimization and mitigation of effects to historic properties caused by the project. Neither the USFS nor the ACHP is able to disapprove the transfer.
As the agency to transfer the property, the U.S. Forest Service (USFS) was required to undertake Section 106 review and consultation for the proposed Resolution Copper Project and Southeast Arizona Land Exchange.
The ACHP has been a participant in this Section 106 consultation since 2017. As noted, neither the NHPA nor the NDAA authorizes the ACHP to stop this undertaking. The ACHP’s role is to advise the USFS in complying with Section 106. The ACHP has continuously advised throughout this consultation that the USFS make all efforts to avoid, minimize, and mitigate harm to historic properties, specifically those of religious and cultural significance to Indian tribes, to the extent possible within the confines of the NDAA.
Section 106 requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve. Through consultation among project sponsors, Indian tribes, historic preservation entities, and impacted stakeholders, the review process encourages—but does not mandate—preservation outcomes.
The ACHP provided recommendations to USFS on how to move the consultation process under Section 106 forward. The ACHP is currently evaluating the USFS’ response to those recommendations as well as monitoring responses from other consulting parties to the USFS regarding the Section 106 process.
The USFS has subsequently released a final Programmatic Agreement and intends to move forward with its execution in the next few weeks. While the ACHP would be the final signatory to this Section 106 agreement, the ACHP’s signature does not constitute approval of the transfer; rather it acknowledges the USFS’ compliance with Section 106 of the NHPA.
On January 8, 2021, in order to inform our decision on whether to sign the proposed PA, the ACHP has requested the USFS provide additional clarification on several items.
The ACHP recognizes the impact of the project to historic properties of critical importance to Apache Tribes and others. Through its participation in this consultation, the ACHP has worked with the USFS and other consulting parties to review the effects of this project under Section 106 and has worked to include in the legally enforceable Programmatic Agreement steps to resolve adverse effects to historic properties to the extent possible. In the end, Congress has directed that the transfer occur.