Legal

Nike Site Summit: Making Section 106 Consultation Work

Posted on: March 18th, 2015 by Special Contributor 1 Comment

 

By Amy Cole and Brian Turner

Today's working world is often all about “team building.” And there are ground rules for working as a team—to use more business lingo, let’s call them “best practices” and “worst practices.” In practice, Section 106 consultations should be a team exercise, with all parties working together to come up with an agreed-upon solution. Sometimes, however, consultations don’t work that way. As part of this series on Section 106, we will run posts on best practices and worst practices. In the final post of the series, Amy Cole and Brian Turner from the National Trust for Historic Preservation take a look at a recent successful example of Section 106 consultation and include a list of best consultation practices for agencies. In the coming months look for the next blog series on the National Historic Preservation Act, which will focus on Section 110.

NikeSummit_BT

View of Nike Site Summit in Alaska. | Credit: Brian Turner

Compared to other state and federal environmental and historic preservation laws, Section 106 is unique in that it gives parties with a “demonstrated interest” in a project affecting a historic place the ability to consult with the federal agency to “avoid, minimize, or mitigate” impacts. This power-to-the-people aspect of the law gives those who know their communities best a role in the decision-making process. Section 106 places faith in the power of discussion to resolve disputes.

But, as some of the most hardened advocates will admit, in practice, full consensus is a laudable goal that is rarely achieved. Ultimately all sides must be prepared to make some compromises in good faith.

Which begs the question, what is good faith? How much should advocates be expected to give up when things aren’t going their way? No consulting party has to concur with the Memorandum of Agreement (MOA) or the Programmatic Agreement (PA) that emerges from a consultation. Ultimately, the best exercise of good faith is advocates using everything at their disposal to make an outcome work.

A example of a recent successful consultation involved the Nike Site Summit in Alaska.... Read More →

NHPA Section 106 and Tribes: A Look Back and Paths Forward

Posted on: March 13th, 2015 by Special Contributor

 

Tribal members visit a petroglyph site on BLM land in Southeast Utah. | Credit: Amy Cole, National Trust for Historic Preservation

Tribal members visit a petroglyph site on BLM land in Southeast Utah. | Credit: Amy Cole, National Trust for Historic Preservation

Section 106 of the National Historic Preservation Act has been instrumental in protecting historic resources for almost five decades now. But when it was first enacted, there was no mention of the role of tribal governments in the process. In 1992 Congress amended the Act to mandate that federal agencies consult with Indian tribes and Native Hawaiian Organizations that attach religious and cultural significance to historic properties that may be affected by an undertaking. These amendments brought about a major set of changes in the national historic preservation program, including (1) the authorization for tribes to establish THPO programs and take over functions that would otherwise be performed by SHPOs on tribal lands; and (2) the statutory right of each tribe to be a consulting party when a proposed federal undertaking would affect a historic property that holds religious and cultural importance for the tribe. As of November 2014, there were 154 Tribal Historic Preservation Programs that had been approved by the National Park Service.

As part of the Forum series on Section 106, the editors at the Preservation Leadership Forum blog sent a short email survey asking three preservation practitioners who have worked extensively with projects affecting places of importance to the tribes to share their thoughts on the Section 106 consultation process.

Courtney Ann Coyle, a California preservation attorney; Tom King, a consultant in Maryland who is also the author of several books on Section 106 review; and Dean Suagee, an attorney with a firm that represents tribal governments, provided thoughtful written responses to the following questions:... Read More →

Worst Practices for Section 106 Consultation

Posted on: March 6th, 2015 by Elizabeth S. Merritt 1 Comment

 

An early Section 106 case involved proposed highway construction  through the French Quarter in New Orleans, which would have affected iconic landmarks such as the St. Louis Cathedral. | Courtesy Wikipedia Commons

An early Section 106 case involved proposed highway construction through the French Quarter in New Orleans, which would have affected iconic landmarks such as the St. Louis Cathedral. | Courtesy Wikipedia Commons

Today's working world is often all about “team building.” And there are ground rules for working as a team—to use more business lingo, let’s call them “best practices” and “worst practices.” In practice, Section 106 consultations should be a team exercise, with all parties working together to come up with an agreed-upon solution. Sometimes, however, consultations don’t work that way. As part of this series on Section 106, we will run posts on best practices and worst practices. Here Elizabeth Merritt, the National Trust’s Deputy General Counsel, begins with a list of worst practices, based on her 30 years of experience participating in Section 106 consultation. But don’t get too discouraged after reaching this—for every bad example we’ve seen, we can cite just as many good examples.

1. A Climate of Intimidation and Exclusion

Have you ever been greeted by a “bouncer” who refused to allow you to enter a Section 106 consultation meeting, or escorted you out the door? This was a practice used in New Orleans after Hurricane Katrina, when agencies such as FEMA, HUD, and the VA responded to the high level of public interest in protecting historic properties by enforcing rigid restrictions on who could attend consultation meetings and how many representatives from each group could attend. The resulting climate of intimidation created an enormous chilling effect on the consultation itself.... Read More →

About Elizabeth Merritt

Elizabeth S. Merritt is the deputy general counsel for the National Trust for Historic Preservation.