1. CULTURAL RESOURCES PRESERVATION

2. What is a historic or cultural resource
What is a historic or cultural resource? A place, structure or object that possesses character and integrity...

3. Is significant in terms of evoking the development of the National character...

4. Creates a resonance or recognition within the viewer as to what is symbolic, or that which it represents

5. Chapter Overview National Historic Preservation Act (NHPA)
ACHP Regulations Governing Section 106 Process;
36 C.F.R. Part 800
Archeological and Historic Preservation Act (AHPA)
Archeological Resources Protection Act (ARPA)
Native American Graves Protection and Repatriation Act (NAGPRA)
American Indian Religious Freedom Act (AIRFA) 5

6. National Historic Preservation Act (NHPA)
Cornerstone of Federal historic and cultural preservation policy
Sets forth Federal agency responsibilities to provide leadership in historic preservation
Established the National Register of Historic Places (NRHP), or “National Register,” and National Historic Landmarks (NHL)
Created the Advisory Council on Historic Preservation (ACHP)
Governors to appoint State Historic Preservation Officers (SHPOs); Federally Recognized Indian Tribes have Tribal Historic Preservation Officer (THPO)
The Cultural Resources Management Program is addressed in Chapter 27 of OPNAVINST C. 6

7. NHPA - Congressional Purpose
Concern that historic resources were being lost through federal actions
“The preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans” (NHPA, 16 U.S.C. 470)
”Stewardship is the faithful management of resources as assets which must be turned over to the next generation” (Legacy Resource Management Program LRMP, FY Appropriation Act) 7

8. National Maritime Heritage Tortugas Harbor, Fort Jefferson, Florida

9. NHPA Section 106- Consultation process
A detailed consultative process between Agency and other parties with an interest in the effects of an undertaking on historic properties
Reflects planning and procedural nature of statute; is not a substantive law.
Imposes an affirmative duty on Federal agency to:
Take into account the effect of an undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion on the National Register
Review Federal actions for effects on historic property 9

10. What does “Consultation” mean?
The process of seeking, discussing and considering the the views of other participants, and, where feasible, seeking agreement with them regarding matters that arise under the Section 106 process
Led by the “Agency Official” 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 C.F.R ) 10

11. ACHP and the Consulting Parties for Section 106 Consultation Process
Advisory Council on Historic Preservation (ACHP)
Consulting parties: State Historic Preservation Officer (SHPO); Tribal Historic Preservation Officer (THPO), or a representative where no THPO
Indian Tribes and Native Hawaiian organizations where they attach religious and cultural significance to historic properties that may be affected by the undertaking
Representatives of local governments and applicants for federal assistance, permits, licenses and other approvals
(36 C.F.R ) 11

12. Additional Consulting Parties, and the Public
Additional individuals and organizations may join as consulting parties due to legal or economic relation to the historic property or undertaking, or their concern with the undertaking’s effect on historic properties (36 C.F.R ( c) (6))
Public involvement is where the Agency seeks and considers the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects (36 C.F.R (d) (1)) 12

13. What is public involvement?
The views of the public are essential to informed Federal decision-making under Section 106 (36 C.F.R (d))
Unless confidentiality at issue, provide information regarding undertaking and effects
Seek public comment and input
The Agency may use NEPA procedures if they provide adequate opportunity for public involvement
In consultation with the SHPO/THPO, plan for notification and appropriate points of contact (36 C.F.R (e)) 13

14. National Register of Historic Places (NRHP)
Maintained by the National Park Service (NPS)
Property must meet established criteria for listing:
Integrity, retains the basic characteristics that give it significance, and has:
Association with historically significant events or people,
Distinctive characteristics, or
May contain information important to the study of history or prehistory 14

15. “Eligible for inclusion on the National Register”
What is eligible turns upon inherent historical and cultural significance of property
Eligibility for inclusion is determined by the Agency in consultation with the SHPO/THPO
Where disagreement, the Keeper of the National Register will decide (National Park Service)
Includes formally recognized properties and those that meet the criteria
“On the National Register List, or eligible for the List” 15

16. New Frontiers in Historic Resources
Cold War Missile Silos Minute man Missile National Historic Site, near the Badlands SD Delta-01 and Delta-09 were selected for preservation because they were the most typical and least altered from the original 1961 Minuteman missile configuration
First and so far only Cold War structures protected by
the National Park Service as a National Historic Site
South Dakota’s Minuteman Missile field covered 13,500 square miles. That area is larger then the state of Maryland.
To construct and deploy all 150 silos and 15 adjacent support structures for South Dakota’s Minuteman Missile field cost $56 million in the early 1960s ($9.2 billion in 2005 terms). 16

17. Historic property definition
Any prehistoric or historic district, site, building, structure, or object included, or eligible for inclusion on the National Register. Term includes artifacts, records and remains that are related to or located in the property
Includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet National Register criteria (36 C.F.R (l) 17

18. Undertaking definition
a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency
Includes new and continuing projects, programs or elements thereof, not previously considered(36 C.F.R (y)) 18

19. Area of Potential Effect
Area Of Potential Effect (APE)
“The geographic area or area within which an undertaking may directly or indirectly cause changes in the character or use of historic properties,
if any such properties exist”
“The APE is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” (36 C.F.R (d) 19

20. What is “an effect”?
Effect: Means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register (36 C.F.R (i))
Includes: all elements of the undertaking
all locations where ground may be disturbed
all locations where the undertaking may result in visible changes
all changes direct, indirect and cumulative to the property 20

21. Latrobe Gate, Washington Navy Yard

22. First, establish whether the action is a Federal undertaking
The Agency makes the undertaking determination, however, the Council may render advice on the existence of the undertaking
Is the action an undertaking as defined in (y): an action under Federal agency direct or indirect jurisdiction or control?
If so, is it the type of activity that has the potential to cause effects on historic properties?
(36 C.F.R ) 22

23. Agency’s undertaking determination can result in two outcomes
1. No, there is no undertaking under (y)
2. Yes, there is an undertaking, but there is no potential for it to have an effect on a historic property
If either of the above determinations, then the Agency has completed its Section 106 obligations
Keep a record of such findings of the “No undertaking/No potential to cause effects” determination 23

24. Undertaking determination outcomes (continued)
Yes, there is an undertaking that does have the potential to cause effects on historic properties, then:
Agency proceeds to identify properties that might be affected
Agency identifies consulting parties: SHPO, THPO, Indian Tribes, Native Hawaiian organizations, local governments, and others at Agency discretion (800.3 ( c) and (f))
Agency plans to involve the public (800.3 (e )) 24

25. Undertaking might effect historic properties, proceed with identifying historic properties
Determine scope of identification efforts by consultation with SHPO/THPO:
determining and documenting area of potential effects
reviewing existing information about historic properties
seeking information from parties likely to have knowledge of or concerns about the area
gathering information from Indian tribes and native Hawaiian organizations about properties to which they attach religious and cultural significance (800.4 (a)) 25

26. Undertaking might effect historic properties, proceed with identifying historic properties
Identify historic properties through consultation (800.4 (b) (1-2)) :
Standard is “reasonable and good faith effort” via research, consultation, oral history, sample field investigation and field surveys
Regs allow for phased identification
Regs allow for deferred identification where agreed to by SHPO and THPO or other circumstances warrant final determination 26

27. Iolani Palace, Oahu, HI

28. Agency to determine National Register eligibility of properties not previously evaluated for historic significance by:
Applying National Register Criteria to properties identified in the APE using special expertise
Determinations of eligibility are made in consultation with the SHPO/THPO
Where SHPO/THPO objection to determination of eligibility, pass to Council to consider referring to Keeper.
Where Native American objection to determination of eligibility, also may request Council to ask Agency to obtain determination of eligibility 28

29. No historic properties affected finding where:
No historic properties are found, or
No effects on historic properties are found, then
Agency prepares appropriate documentation
Agency provides documentation to SHPO/THPO and notifies consulting parties: 30 days to object
Place documentation in public file; provide to public where requested
Proceed with undertaking, unless SHPO/THPO objects within the 30 days; Consider Section 106 completed
(800.4(d)(1)) 29

30. Historic properties are affected
The Federal agency must proceed to the assessment of adverse effects when it finds that:
historic properties may be affected, or,
SHPO/THPO objects to a “no historic properties affected” finding
Agency must notify all consulting parties and invite their views
(800.4 (d) (2)) 30

31. Assess adverse effects
Adverse Effect is found when an undertaking may alter, directly or indirectly, the characteristics of the property that qualify it for inclusion or eligibility on National Register in a manner that:
would diminish the integrity of the property’s location, design, setting, workmanship, feeling or association. (36 CFR Sec )
Include the reasonably foreseeable effects occurring later in time, be farther removed in distance, or be cumulative. (36 C.F.R. Sec. 800.(5)(a)(1) 31

32. An adverse effect can be:
Physical damage or destruction to all or part
Neglect of the property which causes its deterioration (except where such contributes to Native American or Hawaiian organization cultural and religious significance)
Removal of the property from its historic location
Change in the character, use or physical features within the property’s setting
Introduction of visual, atmospheric or audible elements
Transfer, sale or lease of the property without adequate and legally enforceable restrictions to ensure long-term preservation (36 C.F.R (a)(2)) 32

33. No historic properties are adversely effected
Agency may, in consultation with SHPO/THPO, may arrive at no adverse effect determination if criteria not met or by modifying a project or imposing conditions 800.5(b)
Submit finding to SHPO/THPO for 30 day review
Council will no longer routinely review, but will should it deem appropriate or is requested to
Council will review if consulting parties disagree with finding and will offer advisory opinion to Agency (15 day review) 33

34. No historic properties are adversely effected determination
Agency must carry forward undertaking in accordance with the findings shared with all consulting parties
Agency to retain records of findings of no adverse effect and make them available to public and share with public where requested
Failure to carry out specified undertaking and consultation agreements means lack of Section 106 compliance
(36 CFR 800.5(d)(1)) 34

35. Historic properties are adversely affected determination (800
Historic properties are adversely affected determination (800.5 (d) (2))
Continue full consultation among all consulting parties
Agency must provide an opportunity for public to express views by meaningful notice and comment
Agency must notify Council and invite participation
Council may participate where circumstances in (a) (1) (i) (A-C) exist:
Agency desires participation
Undertaking has an adverse effect on a National Historic Landmark
A Programmatic Agreement will be prepared 35

36. Resolve finding of adverse effects with MOA
Resolve adverse effects by developing a Memorandum of Agreement (MOA) with all consulting parties, and Council where they are participating (800.6 (b))
Signing MOA signifies formal conclusion of Section 106 process
MOA evidences Agency’s compliance with NHPA, and is therefore obligated to follow it’s terms
Failure to reach agreement results in Council rendering Advisory Comment to Head of Agency, specific procedures then follow (800.7 (a) (1)) 36

37. NHPA Section 106: Foreclosure
Beware of not completing the Section 106 process:
Foreclosure-If Agency takes action on undertaking prior to completing the Section 106 process, the Council may find that their opportunity to comment on the undertaking has been foreclosed
Foreclosure means that in the Council’s view, the Agency has violated section 106 by failing to afford the Council an opportunity to comment
Foreclosure finding leaves the Agency vulnerable to litigation (36 C.F.R (b)) 37

38. Section 106: Consultation Process Alternatives
Alternative Procedures Sec
Agency, Advisory Council and SHPO/THPO and as appropriate others, can negotiate alternative procedures instead of strict Section 106 process
Programmatic Agreement (PA) provides Section 106 coverage for an entire series of Properties or Undertakings
Navy:Nationwide World War II Buildings PA
Coast Guard: Nationwide protection of cultural resources during emergency response under National Oil and Hazardous Substances Pollution Contingency Plan PA
Note to Pam from Becky Hommon: Add HABS and HAER Discussion. 38

39. NHPA Section 110: Federal Agency Responsibilities
The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency by:
appointing Federal Preservation Officer (FPO)
locating, conducting inventories and nominating historic properties
making appropriate records of the historic values of the property prior to substantial alteration or demolition
using available historic properties before acquiring new ones (adaptive reuse) 39

40. NHPA Internal Agency Policy and Guidance
DoD: DoDINST (September 18, 2008), Cultural Resources Management
Navy: OPNAVINST C,
Chapter 27 Cultural Resources Management; Chapter 5 Procedures for implementing the National Environmental Policy Act
SECNAVINST A DoN Cultural Res. Program
SECNAVINT A, DoN policy for Consultation with Federally Recognized Indian Tribes
Marines: MCO P5090.2B Chapter 8 Historic and Archeological Resources Protection
Coast Guard: COMDTINST M D, (NEPA instruction but includes NHPA and Section 4(f) of the DOT Act)
USAF: AFI , Cultural Resources Management
Army: AR 200-4, Cultural Resources Management
OPNAVINST , Navy Responsibilities regarding Undocumented Human Burials 40

41. Successful Mission Management: Consult Early and Cooperatively

42. Archeological and Historic Preservation Act (AHPA)
“Whenever any Federal agency finds or is notified … that its activities in connection with any Federal construction project-federally funded or licensed may cause irreparable loss or destruction of significant scientific, pre-historical, historical, or archeological data, such agency shall notify the Department of the Interior (DOI) in writing, and shall provide (DOI) with appropriate information concerning the project” (AHPA 16 U.S.C. 469) 42

43. AHPA Federal Agency Requirements
Notify DOI when construction projects may damage archeological sites
Conduct or assist in the recovery of data from such sites
Wait for preservation action before resuming project
Authorizes up to 1% of project funding for preservation activities 43

44. Archeological Resources Protection Act (ARPA)
Established archeological resources as part of the Nation’s heritage. 16 U.S.C. 470 aa-11
Protected archeological resources include any material remains of past human life or activities, at least 100 years old, of archeological interest
includes human skeletal remains, surface or subsurface structures, shipwrecks, pottery, bottles, tools, funerary objects and reliquary.
Prohibits certain acts 44

45. ARPA features Prohibited acts include:
the excavation, removal, damaging, alteration, or defacement of archeological resources on federal property without a permit
trafficking in artifacts illegally excavated or removed
Applies to Federally owned and managed land, public lands and all Indian tribal lands
Contains criminal and civil penalties 45

46. ARPA Federal Agency Responsibilities
Creates Federal Land Manager responsibilities:
develop plans to document and survey land for archeological resources
approve and provide permits for archeological work on land to qualified professionals
identify all Indian tribes having historical or aboriginal ties to land and sites of religious or cultural importance 46

47. ARPA prohibits digging without proper permits and trafficking in artifacts

48. LaSalle Shipwreck Project, Matagorda Bay, Texas

49. Native American Graves Protection and Repatriation Act (NAGPRA)
Federal Agency Responsibilities:
Establishes procedures for the disposition (return and repatriation) of human remains and cultural objects held in Federal collections, or found on DOD and tribal lands
Consult with Federally recognized Indian tribes upon discovery of graves, and, cultural and funerary objects already possessed by or under the control of the Agency 49

50. NAGPRA: Protections extend to graves and cultural items of early inhabitants of our lands
Norton Burial Mount, MI

51. NAGPRA Federal Agency Responsibilities
Act requires that Agencies:
Upon discovery, 30 day activity moratorium imposed while consultation with Federally recognized Indian Tribe, Native Hawaiian organization, and Eskimo/Aleut lineal descendents occurs
inventory cultural items in possession of Agency
repatriate remains and cultural items 51

52. NAGPRA: Cultural Items Definition
Cultural Items include:
human remains,
funerary objects associated with
remains and burial sites,
sacred objects, and
objects of “cultural patrimony”, i.e., material remains of “historical, traditional, or cultural importance to the Native American group or culture itself” 52

53. NAGPRA provides for respectful treatment of Native American remains and cultural items
Applies common law rule respecting gravesites to Native Americans:
human remains, once decently buried, should not be disturbed absent “weighty” and “compelling” reasons.
Extends consultation requirement beyond “Federally recognized Indian Tribes” to include most aboriginal peoples lineal descendents 53

54. Re-internment of Aleutian remains previously held in a museum, Larsen Bay, Alaska

55. American Indian Religious Freedom Act (AIRFA)
Extends First Amendment rights to all Native Americans: American Indians, Eskimos, Aleuts, and Native Hawaiians
First Amendment Rights: Freedom of religious beliefs and practices without government interference- “Free Exercise Clause”
Court interpretation of law requires federal agencies to consult with tribes about the effects of agency actions on the exercise of traditional religions-obtain and consider their views 55

56. AIRFA expresses a policy to allow the free exercise of religion for all Native Americans
Rights include:
freely practice native religion through ceremonial and traditional rights
have access to sacred sites to use for religious purposes
use their sacred objects for spiritual and cultural renewal
However, the Act creates no cause of action in Federal court or judicially enforceable rights. (Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)) 56

57. Native American Policy Directives
Executive Order on Access to American Indian Sacred Sites:
Federal Agencies shall accommodate access to and ceremonial use of sacred sites on Federal lands; and,
avoid adversely affecting the sacred site and where appropriate, keep the location confidential 57

58. Native American Sacred Site: Medicine Wheel, Big Horn Mountains, Wyoming. Tribes gather here to chart the stars and conduct ceremonies

59. Native American policy directives
Department of Defense American Indian and Alaska Native Policy, October 1998
Extends only to those Federally-recognized American Indian and Alaska Native governments
Addresses:
Trust Responsibilities
Government to Government Relations
Consultation
Natural and Cultural Resources protection
Affirms existing laws 59

60. Other Relevant policy directives
OPNAVINST , Navy responsibilities regarding Undocumented Human Burials
P.L Sunken Military Craft Act
32 C.F.R. 767 Application Guidelines for Archeological Research Permits on Ships and Aircraft Wrecks Under the Jurisdiction of the DoN
E.O Locating Federal Facilities on Historic Properties in our Nation’s Central Cities
36 C.F.R. 79 – Curation of Federally Owned and Administered Archeological Collections 60

61. In closing, lesson summary:
Follow NHPA effects consultation requirements under Sec. 106 where action may involve protected historic resources
Where Native American interests arise, apply appropriate law and policy
Consider stewardship in all planning activities