King, Thomas F. :

Thomas F. King has worked in historic preservation since the mid-1960's,as an academic, a contractor and a government official. During 1977-79 he organized historic preservation programs in the islands of Micronesia, and from 1979-88 he oversaw Section 106 review for the Advisory Council on Historic Preservation. He holds a Ph.D. in anthropology (emphasis archaeology) from the University of California, Riverside.

Addendum: The Year 2000 Adjustments to the Section 106 Regulation

The Miners' Lament
On February 15, 2000, the National Mining Association -- a national organization that works on behalf of the mining industry -- filed suit against the ACHP, challenging the 1999 Section 106 regulation. The miners charged that the ACHP had exceeded its authority by issuing a regulation that was unduly expansive and complicated, that intruded upon the roles of other agencies, and that picturesquely suffered from "other substantive and procedural infirmities."

Lynne Sebastian (2000) has published a summary of the miners' case and its own infirmities. In the interests of space and time I won't belabor what she has so competently addressed. Suffice to say that while the miners have a point about the over-complexity of the regulation, the illustrations of this complexity that they bring forth, and the remedies they propose, suggest that, in Sebastian's words, they could have used some "adult supervision" in preparing their case.

In response to the miners the ACHP re-opened the regulation for comment, then proposed to suspend it, then decided not to suspend it, and finally re-issued it with revisions. All this ado turned out to be about not very much; the revisions are minor and non-substantive. They don't require revisions to this book, but they do make a few adjustments desirable. It's the purpose of the following pages to make them. Readers with the need or inclination to study a detailed analysis of the changes should read the ACHP's Federal Register notice issuing the revised regulation. It's available on the ACHP's web site, www.ACHP.gov.

Tribal and THPO Roles
Subsection 102(c)(2) of the regulation, discussed briefly on page 30 of this book, outlines the role of the Tribal Historic Preservation Officer in Section 106 review. In retrospect, I failed to appreciate or describe fully the complexity built into this subsection, which turned out to be quite confusing. The revisions try to clarify; what it boils down to is this: Where a THPO assumes the SHPO role under an agreement with NPS, an agency whose action occurs on or affects land entirely within the external boundaries of the tribe's reservation consults with the THPO and not with the SHPO (unless the owner of non-tribally owned lands within these boundaries brings the SHPO in as well; see Section 800.3(c)(1)). Where a THPO has not assumed the SHPO role, or where there's no THPO, the agency consults with both the SHPO and the tribe about effects within the external boundaries of the reservation. Beyond the reservation boundaries, the agency consults with both the SHPO and the THPO, or with both the SHPO and the non-THPO tribe, about effects on properties of religious or cultural significance to the tribe, wherever such properties may occur. In other words, consult with both the SHPO and the tribe(s) (whether or not they have THPOs) unless (a) the project affects only lands within the external boundaries of a reservation and (b) there's a THPO who's assumed SHPO Section 106 responsibilities under an agreement with NPS. Where both (a) and (b) apply, consult with the THPO and not with the SHPO.

Letting Applicants do the Legwork
Subsection 800.2(c)(4), glossed on page 31 above, allows agencies to delegate to applicants for assistance and/or permits the responsibility to initiate Section 106 review, and implicitly to carry out such "legwork" as identification of historic properties. However, the agency retains ultimate responsibility for completing the review process and also must notify the SHPO or THPO whenever it undertakes such delegation. The revision makes it clear that the agency doesn't have to provide such notification on a case-by-case basis; it can do it programmatically, sort of like this: Dear SHPOs and THPOs: The Bureau of Underground Housing (BUH) is authorizing all its grant applicants to initiate Section 106 review on its behalf. However, BUH will oversee the work of its applicants and retains legal responsibility for all Federal agency determinations of eligibility, effect, etc. The agency also remains responsible for government-to-government consultation with Federally recognized Indian tribes.

Narrowing the "Potential to Affect" Loophole (Maybe)
On pages 35 and 99 I discussed Subsection 800.3(a)(1), which limited Section 106 review to undertakings that an agency determines have "the potential to affect historic properties." I described this provision as "ripe for deliberate misuse or inadvertent misconstruction." The revisions have tried to make it less smelly by making it read: If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations�(emphasis added) I'm sure this was a good faith effort to contend with the problem, but I doubt that it will really help. Making it clear that only those types of activities that can't affect historic properties aren't subject to review may do some good, but inserting "assuming such historic properties were present" is likely to undo the improvement. Why should a Federal project manager make such an assumption?

Clarifying the Scoping Responsibility
Subsection 800.4(a) used to direct agencies to "consult with the SHPO/THPO to�" establish the scope of their identification efforts. This was troubling (though I didn't make anything of it when I discussed it on page 47) because it implied that the agency could just go to the SHPO and ask "Duh, what should my scope be?" The revisions have elegantly corrected this problem by changing the language to: In consultation with the SHPO/THPO, the agency official shall� It's the agency that's responsible for thinking through what the scope should be; it can't just "ask the SHPO."

Invited Signatories and Termination
On pages 76-77 I discussed some weird language in Subsection 800.6(c)(2) regarding signatories and invited signatories on a Memorandum of Agreement. In the revisions the ACHP has made it clear that an invited signatory, though her or his failure to sign doesn't stop the MOA from going into effect, can terminate it after he or she has signed it. I still don't understand why the ACHP thinks this is a good idea. The revisions do provide a useful clarification in specifying that a signatory may propose to terminate or amend the MOA not only because its terms "cannot be carried out" but also because they "are not being carried out." If it's not clear why this is a good change, see page 77.

Wielding the ROD
Despite requests, the ACHP declined to simplify the convoluted provisions of Section 800.8, dealing with NEPA coordination and substitution (See Chapter 10 above). It did make a tiny change in subsection 800.8(c)(4), specifying that if an EIS is used in lieu of an MOA, whatever mitigation measures are decided upon must be spelled out in the ROD (See Chapter 10 if these acronyms glaze your eyes).

Other Changes
Subsection 800.9(d)(2), dealing with ACHP actions to "improve" the operation of Section 106, was adjusted to provide for the ACHP to participate in case review along with the SHPO or THPO where it finds that an agency, SHPO, or THPO isn't carrying the process out correctly. In subsection 800.11(a), agency responsibility to provide adequate documentation in support of a finding or agreement was made subject to "the extent permitted by law and within available funds." This limitation, while reasonable, will doubtless be misused. In subsection 800.11(c)(2), agencies are made responsible for including SHPO or THPO views when consulting with the ACHP about confidentiality matters. In subsection 800.13(b)(3), about discoveries after an undertaking has been approved, agencies are made responsible for providing an "assessment of National Register eligibility of the (discovered) property." The best that can be said about this provision is that it will generate useless paperwork. Unfortunately, it will probably be worse than that -- a rationale for those who see assignment to eligibility categories as a cosmic issue and don't much care whether they delay projects or let properties be destroyed while resolving it. Subsection 800.14(b)(4) was added to the section on Programmatic Agreements, providing for the ACHP to produce or bless the production of "prototype PAs." Agencies and SHPOs can then use such prototypes without having to get the ACHP to sign them. My own experience with trying to build new PAs on old models makes me dubious about whether this is a good idea.

Subsection 800.14(c)(5), about ACHP review of exemptions, has been tweaked to require agencies, when seeking an exemption, to summarize the views of those consulted, and to require the ACHP to notify the agency and others of its decision once review is complete. Minor changes were also made in subsection 800.14(f) concerning consultation with Indian tribes and Native Hawaiian organizations about nationwide program alternatives of all kinds.

Conclusions
If the reader finds all these changes to be rather minor and esoteric, I'd say the reader has made a very fair observation. A few of the revisions are improvements, a few introduce new and unnecessary confusions and contortions. Most are mere lint in the navel of Section 106 review, lovingly contemplated by their authors and pleasing to a very, very few other Part 800 aficionados. Whether the revisions, and the process by which they were adopted, will be sufficient to effect dismissal of the miners' lawsuit remains to be seen.


Reference Cited
Sebastian, Lynne
2000 The National Mining Association vs. the Advisory Council on Historic Preservation. Insights: the Many Faces of CRM. Society for American Archaeology Bulletin 18:5:17-19

"...[Tom King] very nearly manages to bring what can be a complicated and arcane process into lay terms. Laced with humor, thought-provoking (and sometimes controversial) prose, and simplified examples, Federal Planning and Historic Places should assist anyone who wishes to learn about the 106 process."

--Bill Callahan, State Historic Preservation Office, NSHS Nebraska History

Rowman Littlefield Publishing Group Web Site, May, 2001

Section 106. A critical section of an obscure law, the National Preservation Act. It has saved thousands of historic sites, archeological sites, buildings, and neighborhoods across the country from destruction by Federal projects. And it has let even more be destroyed, or damaged, or somehow changed. It is the major legal basis for a multi-million dollar "cultural resource management" industry that provides employment to thousands of archeologists, historians, and architectural historians. It is interpreted in a wide variety of ways by judges, lawyers, Federal agency officials, State and Tribal Historic Preservation Officers, contractors, and academics. But what does it say, and how does the regulatory process it created actually work? In this book, Tom King de-mythologizes Section 106, explaining its origins, its rationale, and the procedures that must be followed in carrying out its terms. Available just months after the latest revision of section 106, this book builds on King's best-selling work, Cultural Resource Laws and Practice: an Introductory Guide (AltaMira Press 1998). It is indispensable for federal, state, tribal, legal, academic, and citizen practitioners in the United States. King's engaging and witty prose turns a tangle of complicated regulation into a readable and engaging guide.

One: Section 106: What is It and Where Did It Come From?
1. 106 of What?
2. Evolution of a Process

Two: Section 106 in the New Millennium
3. What's it All About? When Does it Happen? Who Plays?
4. The Game's Afoot! Initiating Review
5. Finding What May be Affected
6. Evaluation
7. The Results of Identification and Evaluation
8. Will There Be an Adverse Affect?
9. Resolving Adverse Affect
10. "Substituting" NEPA for Section 106
11. The Rest of the Regulation
12. Summary

Three: Some Tools of the Trade
13. Public Participation
14. Writing a Memorandum of Agreement
15. The Invented Wheels: Standard Stipulation

Epilogue: The Future of 106
Bibliography
Appendix A: A Walk Through the ACHP's Archaeological Guidance
Index