SECTION 106 CONSULTATION ABOUT ARCHAEOLOGY

What is Section 106 consultation?

The ACHP’s regulations define consultation as “the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process” [36 CFR § 800.16(f)]. By definition, then, consultation is an active exchange of ideas and information between a federal agency and other Section 106 participants that seeks consensus about what eligible or listed archaeological sites may be affected by an undertaking; why those properties are significant and of value, and to whom; and how any adverse effect to them might be avoided, minimized, or mitigated (See “Protecting Historic Properties: A Citizen’s Guide to Section 106 Review” at www.achp.gov/citizensguide.html).

Federal agencies are encouraged to use, to the extent possible, existing agency procedures and mechanisms to fulfill the consultation requirements of the ACHP’s regulations [36 CFR § 800.2(a)(4)]. For example, an agency may use its National Environmental Policy Act (NEPA) procedures to identify additional consulting parties. Usually, however, reliance on NEPA efforts alone will not meet the regulatory standard for consultation essential to Section 106 review because consultation requires interaction between the agency and consulting parties.

 

Why should federal agencies consult with other parties about archaeology?

The National Historic Preservation Act [16 U.S.C. 470h-2(a)(2)(E)(ii)] and the Section 106 implementing regulations require federal agencies to consult with other parties in the course of the Section 106 process. The active exchange of views and information among the federal agency and other parties with an interest in the effects of the undertaking on historic properties should begin in the early stages of project planning [36 CFR § 800.1(a)] and continue through all of the findings and determinations made during the Section 106 process [36 CFR § 800.2(a)(4)]. However, it is critical to recognize that, while consultation is required in each step of Section 106 review, final decision-making rests solely with the federal agency (See “Protecting Historic Properties: A Citizen’s Guide to Section 106 Review” at www.achp.gov/citizensguide.html).

There are practical reasons why a federal agency should consult about archaeology. It is a way for the federal agency to gain information about the likely location and nature of historic properties that might be present in the area of potential effects prior to conducting any fieldwork. Through consultation, such as with those who might possess oral or traditional knowledge about an archaeological site, a federal agency may acquire information that helps in making a National Register evaluation or leads to a better understanding of a property’s value to the community. In addition, consultation informs federal agencies about appropriate and culturally sensitive methods to use during any testing and excavation (See “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html).

 

Who consults with whom, and how?

Consulting parties fall into two broad groups:

a) Parties with a right to participate in consultation [see 36 CFR §800.2(c)(1) -(4)] are:

  • The relevant SHPO and/or THPO, or the representative officially designated by the tribe for tribal lands;
  • Indian tribes and NHOs that attach traditional religious and cultural significance to historic properties that may be affected by an undertaking. Indian tribes and NHOs determine what historic properties may be of traditional religious and cultural significance to them. Any tribe or NHO that makes such a determination must be invited by the federal agency to participate in consultation. A federal agency may also need to identify and consult with tribes that reside outside of the state or locality where the undertaking is to be located, because many tribes are now far removed from their ancestral lands (see “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html).
  • Applicants for federal assistance, permits, licenses, or other approvals;
  • Representatives of local governments, and
  • The ACHP, which also may enter consultation when it determines that any one of the criteria established in Criteria for Council Involvement in Reviewing Individual Section 106 Cases [36 CFR part 800, Appendix A] has been met. Even when not actively involved in consultation for a specific undertaking, the ACHP may provide federal agencies and other consulting parties with advice, assistance, and guidance regarding the conduct of Section 106 review, including help in resolving disputes [36 CFR § 800.2(b)(2)].

Consultation between federal agencies and Indian tribes should be conducted in a “sensitive manner respectful of tribal sovereignty,” and must recognize the government-to-government relationship between the federal government and Indian tribes [36 CFR § 800.2(c)(2)(ii)]. This means the federal agency is responsible for initiating consultation with Indian tribes. This responsibility cannot be delegated unless the Indian tribe agrees in advance.

 

b) Other parties who may participate in consultation include the following [see 36 CFR § 800.2(c)(5)]:

  • Parties with legal or economic interest in the undertaking or affected historic properties;
  • Those concerned with the undertaking’s effects on historic properties, such as individual tribal members with special knowledge or expertise in identifying properties of traditional religious and cultural significance to that tribe.

These parties may be identified by a federal agency and invited to participate in consultation, or such parties may submit a written request for consulting party status directly with the federal agency.  However, the federal agency, following consultation with the SHPO/THPO, makes the final decision about which of these other parties will participate (See “Protecting Historic Properties: A Citizen’s Guide to Section 106 Review” at www.achp.gov/citizensguide.html).

According to “The Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act” (http://fpi.historicpreservation.gov/TechnicalInfo/HistPres/FedAgencyGuidelines.aspx), in conducting consultation, a federal agency should:

  • make its interests and constraints clear at the outset;
  • make clear any rules, processes, or schedules applicable to consultation;
  • acknowledge the interests of others and seek to understand them;
  • develop and consider a full range of options; and
  • make an effort to identify solutions that will leave all parties satisfied.

 

​​​​​​​When does consultation begin?

Federal agencies are advised to begin the Section 106 process early in project planning “so that a broad range of alternatives may be considered during the planning process for the undertaking” [36 CFR § 800.1(c)]. Early initiation of consultation helps agencies avoid delays later in review and head off potential conflicts.

In order to streamline environmental review, many agencies strive to coordinate Section 106 and National Environmental Policy Act (NEPA) requirements. When coordinating Section 106 and NEPA, federal agencies should be prepared to begin consultation early in the NEPA process, “when the purpose of and the need for the proposed action, as well as the widest possible range of alternatives, are under consideration” [36 CFR § 800.8(a)(1)].

It is important to note that the ACHP’s regulations [36 CFR § 800.4(a)(3)] require federal agencies to seek information from certain parties, such as the SHPO/THPO, Indian tribes, or NHOs, before conducting an archaeological survey. It is imperative, therefore, that the agency initiate consultation prior to conducting any such archaeological fieldwork.

 

​​​​​​​Are federal agencies expected to pay consulting parties for Section 106 participation?

On April 26, 2002, the ACHP issued its official position on “Fees in the Section 106 Review Process,” a statement designed to assist federal agencies in determining when it is appropriate to compensate a party in the Section 106 process.  The entire text can be viewed at www.achp.gov/regs-fees.html.

  • In summary, the NHPA and ACHP’s regulations authorize federal agencies to contract with others to provide information for complying with Section 106. However, neither authority requires federal agencies to pay for any aspect of consulting party participation in the Section 106 process.
  • For example, when the federal agency is seeking the views of an Indian tribe to fulfill the agency’s legal obligation to consult under a specific provision of ACHP’s regulations, the agency is not required to pay the tribe for providing its views. If the agency has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the Section 106 process.
  • When an agency seeks to identify historic properties that may be significant to an Indian tribe, however, it may ask for specific information and documentation regarding the location, nature, and condition of individual sites, or actually request that a survey be conducted by the tribe. In that case, the agency essentially is asking the tribe to fulfill the role of a consultant or contractor. In such cases, the tribe would seem to be justified in requiring payment for its services, just as any other contractor. The agency may refuse to do so, but is still obligated to gather information necessary to support Section 106 decision making.
  • Whenever the line between the two is not clear, the agency is “encouraged to act in a manner that facilitates, rather than impedes, effective participation in the Section 106 process.

 

​​​​​​​​What is the role of applicants and consultants/contractors in archaeology conducted under Section 106?

The ACHP’s regulations [36 CFR § 800.2(c)(4)] allow a federal agency to authorize an applicant (not consultants or contractors) for federal assistance, permits, licenses, or approvals to initiate Section 106 consultation. Under such an authorization, however, the federal agency maintains legal responsibility for all Section 106 findings and determinations, even though the applicant usually produces the documents and studies (including archaeological survey and testing reports) on which these decisions are based. 

Federal agencies, as well as applicants, often rely on the services of consultants and contractors to prepare the information, analyses, recommendations, and studies needed during Section 106 review.  Whenever a non-federal party prepares a Section 106 document or a study for review, the agency is responsible “for ensuring that its content meets applicable standards and guidelines” [36 CFR § 800.2(a)(3)]. The ACHP advises federal agencies to monitor its applicants and its consultants closely to ensure that the requirements of Section 106 are being followed.

A federal agency may not delegate to an applicant or any other non-federal party its responsibility to consult with federally recognized Indian tribes on a government-to-government basis. The federal government’s responsibility to consult on a government-to-government basis with Indian tribes as sovereign nations is established through Executive Orders, Presidential memoranda, and other authorities, and is explicitly recognized by the ACHP’s regulation [36 CFR § 800.2(c)(2)(ii)(B) and (C); see also “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html].

While consultation with Indian tribes is a federal responsibility, federal agencies and tribes may mutually agree to allow applicants to initiate and carry out such consultation during the course of Section 106 review. To avoid any later misunderstanding, the ACHP recommends federal agencies and Indian tribes to document such agreements in writing. Any deviation from the government-to-government relationship between the federal government and Indian tribes should be agreed to as early as possible in the Section 106 process, particularly in advance of any survey and testing actions to identify National Register-eligible archaeological sites.

In the absence of such an agreement, a lack of response from the tribe to such a solicitation should not be interpreted as a lack of interest in consultation or in providing information. Rather, the tribe may choose not to respond to a query from an applicant (or its consultant or contractor) because this contact does not meet the requirement of government-to-government consultation. In those cases where a tribe has not responded to an applicant or its representative, the federal agency must contact the tribe to initiate consultation and ascertain its interest.

Before any steps are taken in Section 106 review, the federal agency first must notify the SHPO/THPO that it is authorizing an applicant (or group of applicants) to initiate consultation [36 CFR § 800.2(c)(4)]. By the time this notification is sent, the federal agency should have resolved how its government-to-government responsibilities will be fulfilled.

Following this notification, applicants and their authorized representatives may consult with the SHPO/THPO to initiate Section 106 review, identify and evaluate historic properties, and assess effects. The federal agency, however, remains responsible for participating in the consultation process when:

  • initiating consultation with Indian tribes;
  • it is determined that the Criteria of Adverse Effect apply to an undertaking;
  • there is a disagreement between the applicant or their authorized representatives and the SHPO/THPO regarding identification and evaluation, and/or assessment of effects;
  • there is an objection from a consulting party or the public regarding Section 106 findings and determinations, the implementation of agreed upon provisions, or their involvement in a Section 106 review; or
  • there is the potential for a foreclosure situation or anticipatory demolition as specified in Section 110(k) of NHPA [36 CFR § 800.9(b) and (c)].

In determining the scope of work for archaeological fieldwork where listed or eligible archaeological sites of significance to Indian tribes may be involved, the applicant is advised that the federal agency has a responsibility to gather information from such tribes [36 CFR § 800.4(a)(3) and (4)]. Without this step, the identification effort might include measures an Indian tribe might consider inappropriate, insensitive, or insufficient. Therefore, the federal agency should ensure the applicant is aware of this requirement.

 

​​​​​​​How much consultation is enough?

While consultation establishes the context within which a federal agency takes into account the effect of its undertaking on historic properties, there is no hard and fast rule about how much consultation is enough. The ACHP’s regulations call for consultation to be carried out in a manner “appropriate to the scale of the undertaking and the scope of the federal involvement” [36 CFR § 800.2(a)(4)], taking into account the nature of the undertaking and its effects on historic properties [36 CFR § 800.3(c)(3); (See “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html)].

Where listed or eligible archaeological sites are likely to be involved, the federal agency should consider questions such as the following when planning for consultation:

  • What is the significance of the site likely to be affected?
  • What is the likely value of the site to living communities and cultural descendants?
  • Is the nature of the undertaking the kind that may diminish the integrity of the site? For example, is the scale of the undertaking such that extensive ground disturbance, with the potential to destroy the site, anticipated? Or, if an Indian tribe or NHO attaches traditional religious and cultural significance to the site, will that association be damaged or destroyed?

 

​​​​​​​When does consultation end?

Federal agency consultation responsibilities are met when the agency has completed the Section 106 process. If a Section 106 agreement has been executed, such completion includes implementation of those stipulations or provisions contained in the agreement. The federal agency should be able to demonstrate that it has:

  • identified the appropriate consulting parties as early as practicable;
  • provided them with adequate and timely documentation to participate effectively;
  • involved them in Section 106 findings and determinations in a manner that is appropriate to the scale of the undertaking and its effects;
  • allowed a reasonable opportunity for consulting parties to provide their views; and
  • determined how to resolve adverse effects taking into account the views of consulting parties and the public or, failing to reach an agreement to resolve the adverse effects, requested, considered and responded to the ACHP’s formal comments on the undertaking.

Often consultation about effects to eligible and listed archaeological sites is straightforward and non controversial, but this is not always the case. For example, consultation on the fate of an eligible or listed archaeological site that was once a small campsite may not warrant any face-to-face meetings. In contrast, consultation regarding a property of national significance, such as the African Burial Ground in New York City, which is valued by many different communities and groups, may require a much more intensive and lengthy effort (See the African Burial Ground in the ACHP’s Case Digest in Fall 2001 [link at  www.achp.gov/casearchive/casesfall01NY1.html], Summer 2003 [link at www.achp.gov/casearchive/casessum03NY1.html] and Fall 2003 [link at www.achp.gov/casearchive/casesfall03NY.html]).

 

​​​​​​​How can federal agencies foster more informed participation by stakeholders in consultation about archaeology?

To ensure consulting parties participate in an informed manner, federal agencies should present descriptions of archaeological investigations and recommendations using as little technical jargon as possible. Furthermore, it is in the interest of the federal agency to ensure that all recommendations and conclusions about the significance and treatment of listed and eligible archaeological sites are supported by clear and succinct statements showing the logical progression of decision-making. Experience has shown that sometimes what appears to be an objection raised by a consulting party about the treatment of an eligible or listed archaeological site may actually result from a misunderstanding caused by poorly presented technical information, or inadequately or incompletely described archaeological work (See “Protecting Historic Properties: A Citizen’s Guide to Section 106 Review “at www.achp.gov/citizensguide.html).

 

​​​​​​​What happens when a consulting party cannot, or will not, provide its views?

The ACHP’s regulations [36 CFR § 800.3(c)(4)] specify timeframes for consulting parties to respond to agency findings and determinations. When the regulations specify a timeframe for a response, the federal agency cannot proceed before that specified period has ended. Where no timeframe is given, agencies should expect a response within a reasonable time.

While consulting parties determine their level of participation in the Section 106 process, the refusal of a participant to consult or provide their views within a time frame specified in the regulations or a reasonable time frame does not stop the process. When a consulting party has been notified of a reasonable deadline for response but has exceeded that time limit, the federal agency may elect to extend the review period or may decide to proceed in the Section 106 process. In either case, the agency should ensure that it can document a reasonable and good faith effort to consult (See “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html).

However, federal agencies and their contractors should be aware that there may be cultural prohibitions preventing or limiting information sharing, such as with archaeological sites that are properties of traditional religious and cultural significance to Indian tribes or NHOs. Where such a restriction exists, the agency should work closely with that consulting party to ensure sufficient information can be shared to support informed decision-making.

Section 304 of the National Historic Preservation Act provides protection from public disclosure of information about a historic property that might result in harm to the property, a significant invasion of privacy, or impediments to traditional religious practice at a site. For example, a tribe might be concerned that sharing information about the location of an archaeological site that contains human remains could make that site more vulnerable to the destructive activities of looters. The federal agency should inquire into the reasons behind an Indian tribe or other consulting party’s non-response since a concern protected by Section 304 may be involved.

The ACHP’s regulations require federal agencies to make a “reasonable and good faith effort” to identify Indian tribes or NHOs that should be consulted and provide them a “reasonable opportunity” to share their views in all steps of the Section 106 process. In practice, this does not mean an agency must put the progress of the undertaking on hold indefinitely until all tribes or NHOs respond. When the designated tribal or NHO representative has been involved in consultation and received adequate information, the agency may proceed if no response is received within a reasonable time.

For tribal consultation, the ACHP strongly recommends the agency follow-up to ensure its request has reached the correct tribal representative and that the time provided for response took into account any tribal government procedures. For example, a federal agency may propose a response within 30 days. If the tribal council meets every 90 days, and must approve all tribal correspondence, the agency’s time frame for response may not be reasonable. Federal agencies should take all reasonable measures to ensure a consulting party’s views are considered as it moves forward through the Section 106 process.

 

​​​​​​​Can archaeologists participate in Section 106 review as consulting parties?

Yes. Archaeologists and professional archaeological organizations can be invited to participate in Section 106 consultation by a federal agency or may request consulting party status from the federal agency [36 CFR § 800.2(c)(5)].  However, unless they happen to be the applicants for the relevant undertaking, archaeologists and professional archaeological or preservation organizations are not parties with a right to consulting party status under the Section 106 regulations [36 CFR § 800.2(a)(4)]. Accordingly, the decision granting consulting party status for archaeologists and their professional organizations rests solely with the federal agency in consultation with the SHPO/THPO. Archaeologists and their organizations do have the right to express their views on an undertaking in the Section 106 process as members of the public.