[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
 REAUTHORIZATION OF THE ADVISORY COUNCIL ON HISTORIC PRESERVATION AND 
 PRIVATE PROPERTY PROTECTION UNDER THE NATIONAL HISTORIC PRESERVATION 
                                  ACT

=======================================================================

                           OVERSIGHT HEARING

                               before the

      SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              June 3, 2003

                               __________

                           Serial No. 108-24

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               George Miller, California
Tom Osborne, Nebraska                Edward J. Markey, Massachusetts
Jeff Flake, Arizona                  Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana           Ciro D. Rodriguez, Texas
Rick Renzi, Arizona                  Joe Baca, California
Tom Cole, Oklahoma                   Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
VACANCY

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                
      SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS

               GEORGE P. RADANOVICH, California, Chairman
     DONNA M. CHRISTENSEN, Virgin Islands, Ranking Democrat Member

Elton Gallegly, California           Dale E. Kildee, Michigan
John J. Duncan, Jr., Tennessee       Ron Kind, Wisconsin
Wayne T. Gilchrest, Maryland         Tom Udall, New Mexico
Barbara Cubin, Wyoming               Mark Udall, Colorado
Walter B. Jones, Jr., North          Anibal Acevedo-Vila, Puerto Rico
    Carolina                         Raul M. Grijalva, Arizona
Chris Cannon, Utah                   Dennis A. Cardoza, California
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Nick J. Rahall II, West Virginia, 
Mark E. Souder, Indiana                  ex officio
Rob Bishop, Utah
Richard W. Pombo, California, ex 
    officio


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 3, 2003.....................................     1

Statement of Members:
    Christensen, Hon. Donna M., a Delegate to Congress from the 
      Virgin Islands.............................................     3
    Radanovich, Hon. George P., a Representative in Congress from 
      the State of California....................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Bisno, Robert, Owner, Lincoln Place Apartments, Venice, 
      California.................................................    20
        Prepared statement of....................................    22
    Nau, John L., III, Chairman, Advisory Council on Historic 
      Preservation, Washington, DC...............................     8
        Prepared statement of....................................     9
    Sanderson, Edward, President, National Conference of State 
      Historic Preservation Officers, Washington, DC.............    14
        Prepared statement of....................................    16
    Tiller, De Teel Patterson, Acting Associate Director for 
      Cultural Resources, National Park Service, U.S. Department 
      of the Interior, Washington, DC............................     4
        Prepared statement of....................................     6


  OVERSIGHT HEARING ON THE REAUTHORIZATION OF THE ADVISORY COUNCIL ON 
    HISTORIC PRESERVATION AND PRIVATE PROPERTY PROTECTION UNDER THE 
                   NATIONAL HISTORIC PRESERVATION ACT

                              ----------                              


                         Tuesday, June 3, 2003

                     U.S. House of Representatives

      Subcommittee on National Parks, Recreation, and Public Lands

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to call, at 2 p.m., in room 
1334, Longworth House Office Building, Hon. George Radanovich 
[Chairman of the Subcommittee] presiding.
    Mr. Radanovich. Good afternoon. The Subcommittee on 
National Parks, Recreation, and Public Lands will come to 
order.

 STATEMENT OF THE HON. GEORGE RADANOVICH, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    This afternoon the Subcommittee on National Parks, 
Recreation, and Public Lands will conduct an oversight hearing 
on private property protection under the National Historic 
Preservation Act and the reauthorization of the Advisory 
Council on Historic Preservation.
    As you are aware, the Subcommittee has jurisdiction over 
the preservation of historic ruins and objects of interest on 
the public domain and other historic preservation programs and 
activities, including national monuments, historic sites and 
programs for international cooperation in the field of historic 
preservation.
    I think it is important to take a moment here right now to 
clarify for those in the audience, as well as those listening 
via the Committee's audio system, what my reasoning is for 
calling this hearing today.
    Recently, a case was brought to my attention where an 
application for eligibility was submitted by a third party for 
an apartment complex in Los Angeles, California. What concerns 
me with this case is two-fold. First, the owner of the 
apartment complex furiously objected to the application, yet it 
appears his pleas were largely ignored by the State historic 
preservation office; and, second, what will be the effects from 
the case on the integrity of the National Historic Preservation 
Act.
    Especially important to note is, in this case, was that 
before the application was even considered and nominated by the 
SHPO for eligibility, it was rejected by the city planning 
department, the planning commission, the city's cultural 
heritage commission, the city council, for not meeting the 
criteria for local significance.
    Today, I am very concerned that this important Act, one 
that I support very much, will now become a tool used by 
preservationists and activists in State historic preservation 
offices to halt development or redevelopment of communities 
across our country.
    For the record, I have always seen the National Historic 
Preservation Act and the Advisory Council as success stories 
because of the cooperative nature promoted between the Federal 
and State governments, preservationists and owners of historic 
property.
    I believe John Nau, the chairman of the Advisory Council on 
Historic Preservation, who will testify today is a great 
example of someone who has taken personal responsibility to 
develop historic tourism as an economic development engine, 
thus giving historic preservation an economic basis.
    I believe that we are all stewards of our past, or we 
should be, and that preservation of our cultural and historic 
resources is our collective responsibility as a society. In 
fact, I have long promoted a designated historic district in my 
hometown of Mariposa, California.
    What I would like to understand today is, is the situation 
I briefly outlined--an anomaly or is there a dangerous trend 
developing across the country where third parties, such as 
apartment tenants, are taking advantage of the Act and its 
effect on local development to serve their own purposes? 
Consequently, should this Committee take action to prevent 
further abuse of the Act?
    I look forward to the testimony of all of our witnesses 
today, especially Mr. Robert Bisno, the property owner in Los 
Angeles, who I referred to in my statement, and my good friend, 
Mr. John Nau.
    At this time, I will yield to Mrs. Christensen, our Ranking 
Member for your opening statement. Donna.
    [The prepared statement of Mr. Radanovich follows:]

        Statement of The Honorable George Radanovich, Chairman, 
      Subcommittee on National Parks, Recreation and Public lands

    Good afternoon. The hearing will come to order.
    This afternoon the Subcommittee on National Parks, Recreation and 
Public Lands will conduct an oversight hearing on private property 
protection under the National Historic Preservation Act and the 
reauthorization of the Advisory Council on Historic Preservation. As 
you are aware, the Subcommittee has jurisdiction over the preservation 
of prehistoric ruins and objects of interest on the public domain and 
other historic preservation programs and activities, including national 
monuments, historic sites and programs for international cooperation in 
the field of historic preservation.
    I think it is important that I take a moment to clarify for those 
in the audience as well as those listening via the Committee's audio 
system what my reasoning is for calling this hearing today.
    Recently, a case was brought to my attention where an application 
for eligibility was submitted by a third party for an apartment complex 
in Los Angeles, California. What concerns me with this case is twofold: 
First, the owner of the apartment complex furiously objected to the 
application, yet it appears his pleas were largely ignored by the State 
Historic Preservation Office, and second, what will be the effects from 
this case on the integrity of the National Historic Preservation Act. 
Especially important to note in this case was that before the 
application was even considered and nominated by the SHPO for 
eligibility, it was rejected by the city planning department, the 
planning commission, the city's cultural heritage commission and the 
city council for not meeting the criteria for local significance.
    Today, I am very concerned that this important Act will now become 
a tool used by preservationists and activists in State Historic 
Preservation Offices to halt development or redevelopment of 
communities across our country.
    For the record, I have always seen the National Historic 
Preservation Act and the Advisory Council as success stories because of 
the cooperative nature promoted between the Federal and State 
governments, preservationists, and owners of historic property. I 
believe John Nau, Chairman of the Advisory Council for Historic 
Preservation, who will testify today, is a good example of someone who 
has taken personal responsibility to develop historic tourism as an 
economic development engine, thus giving historic preservation an 
economic basis. I believe that we are all stewards of our past, and 
that preservation of our cultural and historic resources is our 
collective responsibility as a society. In fact, I have long promoted a 
designated historic district in my hometown of Mariposa, California, 
which includes the John C. Fremont adobe.
    What I would like to understand today is, is the situation I 
briefly outlined an anomaly, or is there a dangerous trend developing 
across the country where third parties, such as apartment tenants, are 
taking advantage of the Act and its effects on local development to 
serve their own purposes. Consequently, should this Committee take 
action to prevent further abuse of the Act.
    I look forward to the testimony of all of our witnesses today, 
especially Mr. Robert Bisno, the property owner I referred to in my 
statement.
    At this time, I yield to Ms. Christensen, our Ranking Member, for 
her opening statement.
                                 ______
                                 

   STATEMENT OF THE HON. DONNA M. CHRISTENSEN, A DELEGATE TO 
       CONGRESS FROM THE TERRITORY OF THE VIRGIN ISLANDS

    Mrs. Christensen. Thank you, Mr. Chairman.
    For nearly 40 years, the Historic Preservation Act has 
provided the backbone of a national strategy for the 
preservation of valuable pieces of American history. Under the 
Act, the National Park Service, the National Council on 
Historic Preservation, State historic preservation officers, 
local preservation organizations and private individuals worked 
together in a cooperative process to identify, protect and 
preserve significant American treasures.
    Importantly, this is not a Federally directed system. 
Nominations come from individuals and from local organizations. 
These nominations are then evaluated by the State historic 
preservation officers appointed at the State level who are 
given broad latitude regarding whether such nominations merit 
consideration at the Federal level or not.
    Flexibility, grassroots involvement and careful 
professional consideration of nominations have been hallmarks 
of this process. Obviously, the National Council on Historic 
Preservation plays a critical role in ensuring that no Federal 
action will unnecessarily impact historic property.
    Authorization of funding of the Council expires at the end 
of the 2005 fiscal year. In our view, the Council has always 
done its job well, but we look forward to hearing from our 
witnesses regarding any improvements to existing law that might 
help the Council perform its valuable functions more 
effectively.
    However, we find the inclusion of private property rights 
on the Subcommittee agenda today somewhat puzzling. Nothing in 
the Historic Preservation Act prevents the owner of private 
property listed in the Register or property deemed eligible for 
such listing from doing as he or she wishes with that property.
    A privately owned building listed in the National Register 
may even be demolished by the owner at any time under Federal 
law. Furthermore, private property may not be included in the 
Register without the consent of the owner.
    Given these circumstances, it is unclear how the Act might 
affect private property rights, but we look forward to any 
insight that any of our witnesses may be able to provide in 
this regard.
    Finally, Mr. Chairman, we would like to thank our witnesses 
for their time and effort to be here today. We understand that 
each of them are here because they value historic preservation, 
and we look forward to their testimony.
    Mr. Radanovich. Thank you.
    Is there any other member wishing to make an opening 
statement? Thank you very much. Thank you, Donna.
    I want to welcome our panel here today. If the folks would 
please come forward and take their position. I want to welcome 
Mr. deTeel Patterson Tiller, Acting Associate Director For 
Cultural Resources at National Park Service in Washington, 
D.C.; Mr. John Nau, the Chairman of the Advisory Council on 
Historic Preservation here in Washington, D.C.; Mr. Edward 
Sanderson, President of the National Conference of State 
Historic Preservation Officers, Washington, D.C.; and Mr. 
Robert Bisno, the owner of Lincoln Place Apartments in Venice, 
California.
    Gentlemen, welcome to the Committee. I appreciate the fact 
that you are here today.
    The way we will do this is allow every one of you to 
deliver your testimony for 5 minutes. If that is a little 
longer than your opening statement or the written statement or 
the text statement that you have, please know that that will be 
submitted to the record and will be entered just as well as 
your voice comments.
    So if you could keep your comments as close to 5 minutes as 
possible, it would be much appreciated. It would help the 
hearing to move on a little bit quicker.
    The lights in front of you, they run just like traffic 
lights. Red means stop, yellow means slow down, and green means 
go.
    Mr. Radanovich. So welcome, Mr. Tiller. If you would like 
to begin, and then we will work right on down. Then we will 
open up.

STATEMENT OF DeTEEL PATTERSON TILLER, ACTING ASSOCIATE DIRECTOR 
FOR CULTURAL RESOURCES, NATIONAL PARK SERVICE, WASHINGTON, D.C.

    Mr. Tiller. Mr. Chairman, thank you for the opportunity to 
provide the Committee a brief report on America's national 
historic preservation program authorized under the National 
Historic Preservation Act and to provide support for the 
reauthorization of the Advisory Council on Historic 
Preservation under the same Act.
    In the interest of brevity, I will summarize my full report 
already submitted to the Committee.
    Thirty-seven years ago, a Special Committee on Historic 
Preservation of the U.S. Conference of Mayors recommended that 
our Nation adopt a public policy in support of the preservation 
and protection of our Nation's significant historic places for 
the benefit of future generations. Out of that recommendation 
Congress pass the National Historic Preservation Act of 1996. 
The Act set in motion a means for all our citizens, with the 
assistance of their Federal Government, to reduce the loss of 
this Nation's invaluable heritage.
    I am pleased to report that the nearly 4-decade-old Act 
remains healthy and vigorous. The National Historic 
Preservation Act created some of the Nation's most widely 
recognized, successful and iconic national institutions like 
the National Register of Historic Places.
    The Register now lists over 1.2 million properties and 
76,000 listings nominated by our citizens from Maine to Hawaii. 
There is hardly a city or town in this great Nation that is 
without a listed property. America's National Register is 
unique in the world as that process by which the properties are 
nominated is bottom up. The overwhelming number of nominations 
are submitted by citizens, local governments, town councils and 
State governments.
    Our National Register is unique also in its recognition of 
local significance. No other national system does that. Fully 
two-thirds of the property listed in America's national 
register are designated for their significance to local 
citizens and local history. This policy was borne of the 
congressional vision that local citizens and their local and 
State governments knew better those places important to 
preserve for the next generations and not the Federal 
Government.
    We are also singular among nations in that the listing of 
the National Register confers no restrictions by the Federal 
Government on a property owner's decision to dispose of that 
historic place in any manner he or she sees fits, except in 
those rare circumstances where the owner has accepted Federal 
funding for the preservation of the property or received 
Federal tax credits.
    In cases where a property has been listed or determined to 
be eligible for listing in the National Register, a private 
property owner is under no obligation to the Federal Government 
to protect or preserve the historic property.
    The National Historic Preservation Act also created a 
remarkable national partnership network, one in which States, 
tribal and local governments play decisive and, in most ways, 
coequal roles to the Federal Government. The Federal 
Government, acting through the National Park Service, sets 
professional standards, provides technical assistance and 
training and provides oversight and approval roles where a 
Federal hand is warranted and appropriate.
    But the on-the-ground work of the national preservation 
program directly involves citizen input and is delivered 
principally to them through State and local governments and, 
most recently, through tribal governments. It is this complex 
partnership network to which can be credited the national 
program's great success.
    I would now like to turn my comments to the reauthorization 
of the Advisory Council on Historic Preservation. The 1966 
National Historic Preservation Act also created the Advisory 
Council as part of this unique national partnership. The 
Department of the Interior and the Advisory Council have a long 
and close working relationship. Together with our partners in 
State, tribal and local governments, we have enhanced historic 
preservation efforts across the Nation for more than 30 years.
    The Department strongly supports reauthorization of the 
Council. The Council serves a critical national role in the 
national historic preservation program and remains a vital part 
of this success story in America.
    Mr. Chairman, this concludes my remarks. I will be more 
than pleased to answer any questions you or the Committee 
members have.
    Mr. Radanovich. Thank you very much, Mr. Tiller.
    [The prepared statement of Mr. Tiller follows:]

 Statement of De Teel Patterson Tiller, Acting Associate Director for 
   Cultural Resources, National Park Service, U.S. Department of the 
                                Interior

    Mr. Chairman, thank you for the opportunity to provide the 
committee with a brief report on America's national historic 
preservation program authorized under the National Historic 
Preservation Act of 1966 and to provide support for the reauthorization 
of the Advisory Council on Historic Preservation under that same act.
    Thirty-seven years ago, a Special Committee on Historic 
Preservation of the U.S. Conference of Mayors recommended that the 
United States adopt a public policy in support of the preservation and 
protection of our country's significant historic places for future 
generations of Americans. In that report, the Special Committee also 
made broad recommendations on the pressing need for this nation to 
establish a strong Federal historic preservation program.
    In response to the Conference of Mayors Report, Congress passed the 
National Historic Preservation Act of 1966 establishing a national 
historic preservation program. The National Historic Preservation Act 
(NHPA) set in motion a process to reduce the loss of much of this 
nation's invaluable heritage and established the means for the Federal 
Government to protect and preserve our nation's historic places in a 
unique partnership that remains effective to this day.
    We are pleased to report that the nearly four-decade-old act and 
vision it created, remains healthy and rigorous. The 37-year history of 
this important national program has shown that the Conference of Mayors 
was correct--economic development can go hand-in-hand with preserving 
America's heritage.
    The NHPA created some of our most widely recognized national 
institutions like the National Register of Historic Places. The 
National Register now includes over 1.2 million properties in 76,000 
listings nominated by citizens from Maine to Hawaii, Alaska to Puerto 
Rico, and in American Samoa and the U.S. Virgin Islands. There is 
hardly a city or town without a property listed on the National 
Register of Historic Places. Last fiscal year alone, 40,141 properties 
were listed in 1,454 nominations representing every state in the 
country.
    The National Register is unique in its recognition of ``local 
historic significance.'' No other national system does this. Today, two 
thirds (66%) of the properties listed on our National Register are 
designated for their significance to local citizens and local history. 
That policy is based on a vision borne almost 40 years ago that local 
citizens and their local and state governments know best those places 
important to preserve a unique sense of history and community for 
future generations--and not the Federal Government.
    Listing in the National Register does not restrict a property owner 
from disposing of the historic place in any manner he or she sees fit 
except, in those rare circumstances, when the owner has accepted 
Federal funding for the property. In cases where a property has been 
listed or determined to be eligible for listing in the National 
Register, a private property owner is under no obligation to protect 
the historic property and it can be torn down by its owner without 
Federal Government intervention.
    The NHPA has created also a remarkable national partnership 
network, one in which state, tribal, and local governments play 
decisive and, in most ways, co-equal public roles to the Federal 
Government. The Federal Government, acting through the National Park 
Service, sets professional and performance standards, provides 
technical assistance, advice, and training, and provides oversight and 
approval roles. But the on-the-ground work of the national preservation 
program directly involves citizen input and is delivered principally to 
our citizens through state and local governments, and more recently, 
tribal governments. It is this complex partnership network to which can 
be credited the national program's great success.
    The NHPA created an effective national ``cost-sharing'' approach 
where the Federal Government provides a share of the financial 
resources needed to local, tribal, and state governments, who, in turn, 
provide a portion as well while the benefits are shared by citizens. A 
1976 amendment to the NHPA created the Historic Preservation Fund so 
that revenues from Outer Continental Shelf extraction could pay the 
Federal share in the protection of our nation's prehistoric and 
historic treasures. The Historic Preservation Fund is highly cost-
effective and remains an important cornerstone in this national 
program. The fund has always had strong bipartisan support and has been 
reauthorized three times since its creation.
    State governor-appointed State Historic Preservation Officers in 56 
States and Territories assist citizens, units of local government, and 
public and private organizations to carry out their part of the 
national preservation program. Activities include locating and 
documenting prehistoric and historic properties, assisting citizens to 
nominate properties to the National Register, assisting local 
governments and Federal agencies in meeting historic preservation 
statutes, and assessing the impact of Federal projects on historic 
places. Last year, states reviewed over 100,000 Federal projects to 
minimize their impacts on our nation's heritage and historic places. 
The work of state governments in this program is invaluable.
    The Historic Preservation Tax Incentives Program, jointly 
administered by the National Park Service and State Historic 
Preservation Officers, is the nation's largest program to stimulate the 
preservation and reuse of income-producing historic properties. Since 
its inception in 1976, it has generated over $28 billion in historic 
preservation activity; in Fiscal Year 2002 alone, a record-setting $3.2 
billion in private investment was leveraged using Federal historic 
preservation tax credits rehabilitating over 1,200 historic properties 
listed on the National Register and creating over 50,000 jobs and 
14,000 housing units.
    Local governments received a formal role in the national 
preservation program in the 1980 amendments to the NHPA. These 
important partners assist local citizens to preserve their 
neighborhoods and local historic district values, to work with local 
schools to ensure the next generation recognizes and values their local 
history, and to work hand-in-hand with state governments to ensure the 
national historic preservation program meets local needs in the best 
manner possible.
    The 1992 amendments to the law brought a more inclusive and formal 
role for tribal governments in the national program, and we are pleased 
to report that as of today, 37 tribal governments have formally joined 
the national program. Tribal participation in the national program has 
brought an energy and different way of thinking about heritage, 
history, preservation and sense of place.
    The nation's understanding of what is worthy of preservation has 
also changed since the 1960's. As an example, where once we focused on 
the grand houses of the Founding Fathers, battlefields, and homes of 
the rich and famous, we now include the record of everyday lives, 
farmsteads, vernacular architecture, and, the recent past. Now that the 
20th century itself is history, the field of historic places worthy of 
preservation now gives way to ``modern'' American stories like World 
War II, Rock and Roll, the Cold War, and the Civil Rights struggle. As 
the nation changes in diversity and complexity, we must ensure that the 
history of all Americans is identified, honored, and preserved. 
Fortunately, the law passed in 1966 was flexible enough to accommodate 
a nation's changing sense of what is historic and worthy of 
preservation.
    The 1966 NHPA also created the Advisory Council on Historic 
Preservation as part of this national partnership. An independent 
Federal agency dedicated to historic preservation, the Council is the 
major policy advisor to Federal agencies on historic preservation. The 
Council is comprised of 20 members, including Federal agencies, private 
citizens and experts in the field of historic preservation. Its mission 
is to advocate full consideration of historic values in Federal 
decision making; to oversee the Section 106 process which requires 
Federal agencies to consider the impact of their programs and projects 
on places of historic value; to review Federal programs and policies to 
further preservation efforts; to provide training, guidance, and 
information to the public and Federal entities; and to recommend 
administrative and legislative improvements for protecting the nation's 
heritage.
    For more than 30 years, the Department of the Interior and the 
Advisory Council have worked together to enhance historic preservation 
efforts across the nation. The Department looks forward to continuing 
this relationship with the Council as we implement one of the most far-
reaching and important Federal policies on historic preservation in the 
past 20 years. The Department supports reauthorization of the Advisory 
Council on Historic Preservation.
    On March 3, President Bush launched the Preserve America Initiative 
by the signing of Executive Order 13281. This Executive Order focuses 
on the sound public policy that historic preservation makes good 
economic sense. The Federal Government can play an important role in 
assisting local and state governments to realize this potential through 
such efforts as heritage tourism, which can bring economic benefits to 
communities throughout the nation.
    Mr. Chairman, this concludes my prepared remarks. I would be 
pleased to answer any questions you or members of the committee may 
have.
                                 ______
                                 
    Mr. Radanovich. Mr. John Nau, welcome to the Subcommittee. 
If you would like to begin your testimony, that would be great.

 STATEMENT OF JOHN NAU, CHAIRMAN, ADVISORY COUNCIL ON HISTORIC 
                 PRESERVATION, WASHINGTON, D.C.

    Mr. Nau. Thank you, Mr. Chairman.
    Chairman Radanovich and members of the Subcommittee, it is 
a pleasure to testify before you this afternoon. I thank you 
for this opportunity to discuss the vital importance of the 
Federal Historic Preservation Program to our Nation and the 
essential role of the Advisory Council on Historic Preservation 
in that effort.
    The National Historic Preservation Act, which created the 
ACHP, is a strong demonstration of the collective wisdom of the 
U.S. Congress in three vital regards: the importance of 
preserving America's heritage; the necessity of building upon 
the foundation of our past to create a better future for the 
Nation; and the strength of linking the Federal, State and 
local efforts in partnerships with the private sector in order 
to accomplish these goals.
    The ACHP is actively involved in pursuing these goals on 
behalf of the Congress, the President, and, most importantly, 
the American people. It has been actively involved in changing 
itself to better meet these needs through wise stewardship of 
the Federal Government's historic assets that can stimulate 
economic development through activities such as heritage 
tourism.
    To this end, the ACHP has focused its energies on 
reestablishing the leadership role that the framers of the 1966 
Act envisioned. As part of that effort, on March 2nd, 2003, 
President Bush signed Executive Order 13287, Preserve America.
    The same day, our First Lady, Laura Bush, announced the 
Administration's Preserve America Initiative, a governmentwide 
effort to recognize and celebrate our heritage. This step will 
guide our efforts into the foreseeable future. The 
underpinnings of the Preserve America Initiative are found in 
the policy statement of the Executive Order.
    This policy also articulates the approach of the ACHP's 
work over the coming years. I have taken steps to recast the 
ACHP to more efficiently accomplish its mission in accordance 
with this Executive Order.
    We are leveraging our resources and, most importantly, 
building partnerships to promote the benefits of preservation 
across our Nation. We know that the Federal Government works 
best when it works in partnership with States, counties, 
communities, tribes, in short, when it works in partnership 
with the constituents that you all represent.
    The Preserve America Initiative promotes such activity, and 
the Executive Order directs Federal agencies to actively engage 
in these partnerships. Our job is to encourage the integration 
of the historic resources that are managed at the Federal, 
State and local level with community development opportunities. 
We are building successful partnerships with a number of other 
Federal agencies, and it is our commitment that we will 
continue to build on those relationships to maximize our 
efficiency and effectiveness.
    Might I add that, as a businessman, I would not be here if 
I didn't believe on a clear return on this investment; and in 
my experience as Chairman of the Texas Historical Commission, I 
know that this approach will work. I have seen it work, and I 
have experience in making it work. I know with your support we 
can make it work on a national basis.
    We are before the Committee today because your assistance 
is essential to allow us to realize our expanded role. ACHP 
members have carefully examined our current legislative 
authorities, which include the administration of Section 106. 
Section 106 is a very important and significant responsibility. 
However, we believe our mission is broader and have adopted 
several proposed changes for which we seek your support.
    These changes are: amend the current time limit and 
authorization and replace it with permanent appropriations 
authorization; authorize the President to add the heads of 
three additional Federal agencies to our membership; provide us 
with the authority and direction to work cooperatively with 
Federal funding agencies to assist them in using their existing 
grants programs more effectively for advancing the purpose of 
the NHPA; and authorize several technical amendments that would 
allow us to function more rationally and efficiently.
    You have also asked us in our appearance today to discuss 
our views on the adequacy of protections for private property 
owners during the process of evaluating and listing properties 
on the National Register.
    The Register is the keystone of the National Historic 
Preservation Program. In my judgment, the overall process works 
well on the national level, especially in regard to the Section 
106 process that we oversee.
    I believe that as a function of Federal law and Federal 
administrative practice there are adequate protections for the 
rights of private property owners within this process. I do, 
however, share concerns with some unintended consequences that 
the National Register process may have at State and local 
levels.
    A determination of eligibility for nomination to the 
National Register should not, by itself, automatically trigger 
or link to a State or local review process without due process 
and additional protections for private property owner's rights.
    I look forward to the questions and having an opportunity 
to expand on my comments. Thank you, Mr. Chairman.
    Mr. Radanovich. Thank you, Mr. Nau.
    [The prepared statement of Mr. Nau follows:]

               Statement of John L. Nau, III, Chairman, 
               Advisory Council on Historic Preservation

SUMMARY STATEMENT

    An independent Federal agency, the Advisory Council on Historic 
Preservation (ACHP) promotes historic preservation nationally by 
providing a forum for influencing Federal activities, programs, and 
policies that impact historic properties. In furtherance of this 
objective, the ACHP seeks reauthorization of its appropriations in 
accordance with the provisions of the National Historic Preservation 
Act of 1966, as amended (16 U.S.C. 470 et seq.) (NHPA).
    The ACHP offers amendments to its authorities that we believe will 
strengthen our ability to meet our responsibilities under NHPA, and to 
provide leadership and coordination in the Federal historic 
preservation program. As part of that responsibility, and as requested 
by the Subcommittee, the ACHP also provides its views on the adequacy 
of protections for private property owners in the process of evaluating 
properties for inclusion in the National Register of Historic Places.

BACKGROUND

    The ACHP was established by Title II of the NHPA. NHPA charges the 
ACHP with advising the President and the Congress on historic 
preservation matters and entrusts the ACHP with the unique mission of 
advancing historic preservation within the Federal Government and the 
National Historic Preservation Program. In Fiscal Year 2002, the ACHP 
adopted the following mission statement:

        The Advisory Council on Historic Preservation promotes the 
        preservation, enhancement, and productive use of our Nation's 
        historic resources, and advises the President and Congress on 
        national historic preservation policy.

    The ACHP's authority and responsibilities are principally derived 
from NHPA. General duties of the ACHP are detailed in Section 202 (16 
U.S.C. 470j) and include:

     advising the President and Congress on matters relating 
to historic preservation;
     encouraging public interest and participation in historic 
preservation;
     recommending policy and tax studies as they affect 
historic preservation;
     advising State and local governments on historic 
preservation legislation;
     encouraging training and education in historic 
preservation;
     reviewing Federal policies and programs and recommending 
improvements; and
     informing and educating others about the ACHP's 
activities.

    Under Section 106 of NHPA (16 U.S.C. 470f), the ACHP reviews 
Federal actions affecting historic properties to ensure that historic 
preservation needs are considered and balanced with Federal project 
requirements. It achieves this balance through the ``Section 106 review 
process,'' which applies whenever a Federal action has the potential to 
impact historic properties. As administered by the ACHP, the process 
guarantees that State and local governments, Indian tribes, businesses 
and organizations, and private citizens will have an effective 
opportunity to participate in Federal project planning when historic 
properties they value may be affected.
    Under Section 211 of NHPA (16 U.S.C. 470s) the ACHP is granted 
rulemaking authority for Section 106. The ACHP also has consultative 
and other responsibilities under Sections 101, 110, 111, 203, and 214 
of NHPA, and in accordance with the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.) is considered an agency with ``special 
expertise'' to comment on environmental impacts involving historic 
properties and other cultural resources.
    The ACHP plays a pivotal role in the National Historic Preservation 
Program. Founded as a unique partnership among Federal, State, and 
local governments, Indian tribes, and the public to advance the 
preservation of America's heritage while recognizing contemporary 
needs, the partnership has matured and expanded over time. The 
Secretary of the Interior and the ACHP have distinct but complementary 
responsibilities for managing the National Historic Preservation 
Program. The Secretary, acting through the Director of the National 
Park Service, maintains the national inventory of historic properties, 
sets standards for historic preservation, administers financial 
assistance and programs for tribal, State, and local participation, and 
provides technical preservation assistance.
    The ACHP also plays a key role in shaping historic preservation 
policy and programs at the highest levels of the Administration. It 
coordinates the national program, assisting Federal agencies in meeting 
their preservation responsibilities. Through its administration of 
Section 106, the ACHP works with Federal agencies, States, tribes, 
local governments, applicants for Federal assistance, and other 
affected parties to ensure that their interests are considered in the 
process. It helps parties reach agreement on measures to avoid or 
resolve conflicts that may arise between development needs and 
preservation objectives, including mitigation of harmful impacts.
    The ACHP is uniquely suited to its task. As an independent agency, 
it brings together through its membership Federal agency heads, 
representatives of State and local governments, historic preservation 
leaders and experts, Native American representatives, and private 
citizens to shape national policies and programs dealing with historic 
preservation. The ACHP's diverse membership is reflected in its efforts 
to seek sensible, cost-effective ways to mesh preservation goals with 
other public needs. Unlike other Federal agencies or private 
preservation organizations, the ACHP incorporates a variety of 
interests and viewpoints in fulfilling its statutory duties, broadly 
reflecting the public interest. Recommended solutions are reached that 
reflect both the impacts on irreplaceable historic properties and the 
needs of today's society.
    New Directions. Since assuming the Chairmanship in November 2002, I 
have tried to ensure that the ACHP takes the leadership role envisioned 
for it in NHPA. NHPA established a national policy to ``foster 
conditions under which our modern society and our prehistoric and 
historic resources can exist in productive harmony and fulfill the 
social, economic and other requirements of present and future 
generations.'' Among other things, the statute directed Federal 
agencies to foster conditions that help attain the national goal of 
historic preservation; to act as faithful stewards of Federally owned, 
administered, or controlled historic resources for present and future 
generations; and to offer maximum encouragement and assistance to other 
public and private preservation efforts through a variety of means.
    In creating the ACHP, Congress recognized the value of having an 
independent entity to provide advice, coordination, and oversight of 
NHPA's implementation by Federal agencies. The ACHP remains the only 
Federal entity created solely to address historic preservation issues, 
and helps to bridge differences in this area among Federal agencies, 
and between the Federal Government and States, Indian tribes, local 
governments, and citizens. While the administration of the historic 
preservation review process established by Section 106 of NHPA is very 
important and a significant ACHP responsibility, we believe that the 
ACHP's mission is broader than simply managing that process.
    With the new direction, the ACHP members are committed to promoting 
the preservation and appreciation of historic properties across the 
Nation by undertaking new initiatives that include:

     developing an Executive order (Executive Order 13287, 
``Preserve America,'' signed by the President March 3, 2003) to promote 
the benefits of preservation, to improve Federal stewardship of 
historic properties, and to foster recognition of such properties as 
national assets to be used for economic, educational, and other 
purposes;
     creating an initiative for the White House (``Preserve 
America,'' announced by First Lady Laura Bush March 3, 2003) to 
stimulate creative partnerships among all levels of government and the 
private sector to preserve and actively use historic resources to 
stimulate a better appreciation of America's history and diversity;
     using Council meetings to learn from local government and 
citizens how the Federal Government can effectively participate in 
local heritage tourism initiatives and promote these strategies to 
Federal agencies and tourism professionals;
     effectively communicating its mission and activities to 
its stakeholders as well as the general public;
     pursuing partnerships with Federal agencies to streamline 
and increase the effectiveness of the Federal historic preservation 
review process; and
     improving the Native American program, which the ACHP has 
identified as a critical element in the implementation of an effective 
Federal historic preservation program and review process.

    The ACHP's 20 statutorily designated members address policy issues, 
direct program initiatives, and make recommendations regarding historic 
preservation to the President, Congress, and heads of other Federal 
agencies. The Council members meet four times per year to conduct 
business, holding two meetings in Washington, D.C., and two in other 
communities where relevant preservation issues can be explored.
    In 2002 we reorganized the ACHP membership and staff to expand the 
members' role and to enhance work efficiencies as well as member-staff 
interaction. To best use the talents and energy of the 20 Council 
members and ensure that they fully participate in advancing the ACHP's 
goals and programs, three member program committees were created: 
Federal Agency Programs; Preservation Initiatives; and Communications, 
Education, and Outreach.
    In addition, we created an Executive Committee comprised of myself 
and the vice chairman of the ACHP and the chairman of each of the other 
committees to assist in the governance of the ACHP. Several times a 
year, we appoint panels of members to formulate comments on Section 106 
cases. Member task forces and committees are also formed to pursue 
specific tasks, such as policy development or regulatory reform 
oversight. On average, three such subgroups are at work at any given 
time during the year. Each meets about five to six times in the course 
of its existence, is served by one to three staff members, and produces 
reports, comments, and policy recommendations.
    The staff carries out the day-to-day work of the ACHP and provides 
all support services for Council members. To reflect and support the 
work of the committees, the Executive Director reorganized the ACHP 
staff into three program offices to mirror the committee structure. 
Staff components are under the supervision of the Executive Director, 
who is based in the Washington, DC, office; there is also a small field 
office in Lakewood, Colorado.

PROPOSED AMENDMENTS TO THE NATIONAL HISTORIC PRESERVATION ACT

    Background to Reauthorization. The ACHP has traditionally had its 
appropriations authorized on a multi-year cycle in Title II of NHPA 
(Section 212, 16 U.S.C. 470t). The current cycle runs through Fiscal 
Year 2005 and authorizes $4 million annually. These funds are provided 
to support the programs and operations of the ACHP. Title II of NHPA 
also sets forth the general authorities and structure of the ACHP.
    For Fiscal Year 2004, the President's budget seeks $4.1 million for 
the ACHP. Because this is over the authorization limit, the Executive 
Office of the President directed the ACHP to propose any legislation 
required to modify its authorization to be consistent with the 
President's Budget. The ACHP is therefore seeking amendments to the 
authorizing legislation at this time. At its February and May 2003 
meetings, the ACHP endorsed an approach to the reauthorization issue. 
The approach addresses the immediate appropriations authority issue and 
also seeks amendments to the ACHP's composition and authorities to 
better enable the ACHP to achieve its mission goals. The changes 
proposed by the ACHP are explained in this overview; specific statutory 
language will be provided to the Subcommittee at a later date.
    Appropriations Authorization. This section would amend the current 
time-limited authorization and replace it with a permanent 
appropriations authorization. When the ACHP was created in 1966, its 
functions were exclusively advisory and limited and the agency was 
lodged administratively in the Department of the Interior. Since then, 
the Congress has amended the NHPA to establish the ACHP as an 
independent Federal agency and give it a range of program authorities 
crucial to the success of the National Historic Preservation Program.
    Not unlike the Commission of Fine Arts (CFA) and the National 
Capital Planning Commission (NCPC), the ACHP now functions as a small 
but important Federal agency, carrying out both advisory and 
substantive program duties. Specific language creating a permanent 
appropriations authorization would draw upon the similar statutory 
authorities of the CFA and NCPC. No ceiling to the annual 
appropriations authorization would be included in the authorizing 
legislation, but rather the appropriate funding limits would be 
established through the annual appropriations process.
    Expansion of Membership. This section would expand the membership 
of the ACHP by directing the President to designate the heads of three 
additional Federal agencies as members of the ACHP. The ACHP has been 
aggressively pursuing partnerships with Federal agencies in recent 
years and has found the results to be greatly beneficial to meeting 
both Federal agency historic preservation responsibilities and the 
ACHP's own mission goals. Experience has shown that these partnerships 
are fostered and enhanced by having the agency participate as a full-
fledged member of the ACHP, giving it both a voice and a stake in the 
ACHP's actions. The amendment would bring the total number of Federal 
ACHP members to nine and expand the ACHP membership to 23, an 
administratively manageable number that preserves the current majority 
of non-Federal members. A technical amendment to adjust quorum 
requirements would also be included.
    Authority and Direction to Improve Coordination with Federal 
Funding Agencies. This section would give the ACHP the authority and 
direction to work cooperatively with Federal funding agencies to assist 
them in determining appropriate uses of their existing grants programs 
for advancing the purposes of NHPA. For example, it is our experience 
that programs such as the Historic Preservation Fund (HPF) administered 
through the States by the Department of the Interior have the 
flexibility to provide matching seed money to a local non-profit 
organization to support a heritage tourism program.
    The ACHP would work with agencies and grant recipients to examine 
the effectiveness of existing grant programs, evaluate the adequacy of 
funding levels, and help the agencies determine whether changes in the 
programs would better meet preservation and other needs. Any 
recommendations would be developed in close cooperation with the 
Federal funding agencies themselves, many of whom sit as ACHP members, 
and with the States. The proposed amendment would also allow the ACHP 
to work cooperatively with Federal funding agencies in the 
administration of their grant programs.
    Technical Amendments. This section would provide four technical 
changes that would improve ACHP operations:
    1. Authorize the Governor, who is a presidentially appointed 
member of the ACHP, to designate a voting representative to participate 
in the ACHP activities in the Governor's absence. Currently this 
authority is extended to Federal agencies and other organizational 
members. The amendment would recognize that the personal participation 
of a Governor cannot always be assumed, much like that of a Cabinet 
secretary.
    2. Authorize the ACHP to engage administrative support services 
from sources other than the Department of the Interior. The current law 
requires the ACHP's administrative services to be provided by the 
Department of the Interior on a reimbursable basis. The amendment would 
authorize the ACHP to obtain any or all of those services from other 
Federal agencies or the private sector. The amendment would further the 
goals of the FAIR Act and improve ACHP efficiency by allowing the ACHP 
to obtain necessary services on the most beneficial terms.
    3. Clarify that the ACHP's donation authority (16 U.S.C. 470m(g)) 
includes the ability of the ACHP to actively solicit such donations.
    4. Adjust the quorum requirements to accommodate expanded ACHP 
membership.

VIEWS ON THE ADEQUACY OF PRIVATE PROPERTY PROTECTIONS IN THE NATIONAL 
        REGISTER PROCESS

    The Committee has requested our views on the adequacy of 
protections for private property owners during the process for 
evaluating and registering properties for inclusion in the National 
Register of Historic Places.
    The National Register is the keystone of the National Historic 
Preservation Program. Through the professional application of objective 
criteria, a comprehensive listing of what is truly important in 
American history has been systematically compiled. The ACHP has direct 
experience with the National Register review and evaluation process 
through its administration of Section 106 of NHPA. As part of planning, 
unless properties are already listed in the National Register of 
Historic Places, determinations of eligibility for inclusion in the 
National Register must be made when such properties may be impacted by 
Federal or Federally assisted actions.
    We are unaware of problems with the protection of the rights of 
private property owners in the Section 106 process, since the 
determination is made for planning purposes only and for consideration 
by Federal agencies in taking into account the effects of their 
actions.
    We do believe it is important to distinguish between actual listing 
in the National Register, which may result in tax and other benefits 
and legally must include opportunities for property owners to object to 
such listing, and determinations of eligibility which are used for 
Federal planning. It is our understanding that in rare instances, some 
States' legislation and some local ordinances include ``eligibility for 
inclusion in the National Register'' to trigger the State or local 
review process. It is our opinion that determinations of eligibility 
should not by themselves automatically trigger or link to a State or 
local review process without due process and additional protections of 
private property owners' rights. It is also our understanding that 
State Historic Preservation Offices, such as Texas, are generally 
discouraging eligibility from being included in State laws and local 
ordinances to ensure adequate private property protections.
    States have varying approaches to dealing with the overall issue of 
notification and objection. Public notices, hearings, and other 
mechanisms are used when large historic districts are being considered. 
In the case of smaller districts or individual properties, written 
notification is provided. In Texas, notifications are sent out to the 
property owner, the county judge, the chief elected official, and the 
local preservation board chair of pending listings in the National 
Register with an opportunity for making their views known. In New York, 
if an objection to a nomination is received from an owner, that 
nomination does not proceed. An official representative from the New 
York State Historic Preservation Office will speak with the property 
owner and explain the effects of listing in the National Register. In 
many instances, owners will withdraw their objections once they 
understand the implication of such listing.
    In summary, we think that as a function of Federal law and Federal 
administrative practice there are generally adequate protections for 
the rights of private property owners in the National Register process.

CONCLUSION

    The ACHP has reached a level of maturity as an independent Federal 
agency and as a key partner in the National Historic Preservation 
Program to warrant continued support from the Congress. We believe that 
reauthorization, coupled with periodic oversight by this Subcommittee 
and the annual review provided by the Appropriations Committees, is 
fully justified by our record of accomplishment. We hope that the 
Subcommittee will favorably consider this request, including our 
recommended technical amendments.
    We appreciate the Subcommittee's interest in these issues, and 
thank you for your consideration and the opportunity to present our 
views.
                                 ______
                                 
    Mr. Radanovich. Next is Mr. Edward Sanderson.
    Mr. Sanderson, welcome to the Committee; and you may begin 
your testimony.

 STATEMENT OF EDWARD SANDERSON, PRESIDENT, NATIONAL CONFERENCE 
   OF STATE HISTORIC PRESERVATION OFFICERS, WASHINGTON, D.C.

    Mr. Sanderson. Thank you, Mr. Chairman. I am pleased to 
represent the National Conference of State Historic 
Preservation Officers at this hearing.
    As you know, the SHPOs are the State officials appointed by 
their Governors who actually carry out the National Historic 
Preservation Act on behalf of the Secretary of the Department 
of the Interior and the Advisory Council on Historic 
Preservation.
    You have asked us to address the reauthorization of the 
Advisory Council and to report to you on our sense of the 
status of the National Historic Preservation Act.
    In regard to the Advisory Council, our report is brief. We 
are wholehearted supporters of the Advisory Council. We think 
they are doing an excellent job. We strongly support their 
reauthorization with the modest expansion of authority that 
they have requested.
    In regards to the National Historic Preservation Act, we 
are pleased with the leadership that President Bush and Mrs. 
Bush have exercised just this year in establishing the Preserve 
America Program, and we believe that carries forward the work 
of the National Historic Preservation Act begun in 1966.
    As has been described, the Act created a program that is 
carried out by States on behalf of the Federal Government. 
Through the National Register of Historic Places the program 
records the history of America as a nation and as individual 
communities, and more than a million properties are currently 
so designated.
    Through the program, historic preservation works with local 
communities. Today more than 1,400 communities are working as 
partners with SHPOs. I expect more will choose to join with the 
Presidents new initiative. And perhaps most important, the 
program is putting historic sites back to work. It is saving 
them and putting them to productive use.
    For example, working with the Advisory Council, more than 
100,000 projects a year are successfully resolved at the State 
level to make sure that Federal projects avoid unnecessary 
impacts to historic properties; and working with the private 
sector since 1976, more than 30,000 private property owners 
have rehabilitated their historic properties and have enjoyed 
the incentives of Federal tax credits. Private investment 
through this program has totaled $29 billion and has helped to 
create needed housing as well as ongoing creation of jobs and 
places of business.
    The National Historic Preservation Act has not succeeded in 
every area. I like to think of the preservation program as a 
high-performance car manufactured by the wise authorizing 
committees of Congress. But we can't win the race without 
higher octane fuel provided by the appropriators. In the last 
25 years, only one-third of the total authorized revenue in the 
Federal Historic Preservation Fund has ever been appropriated, 
and underfunding means that many areas still lack a reliable 
inventory of their historic resources. We can't preserve 
America's heritage if we don't know where it is. Underfunding 
means that local landmarks in town centers need preservation 
grants. Save America's Treasures Grants have successfully 
helped to restore some of our greatest national treasures, but 
properties that are important at the local level are going 
without.
    And underfunding means that Federal costs are transferred 
to the private sector, as uncompleted work and program review 
delays inevitably impact private development projects.
    Let me turn now for a moment to your request about how the 
National Register affects private property owners.
    Respect for private owners is a fundamental principle of 
the National Register and certainly of State Historic 
Preservation Offices. As has been noted, listing on the 
National Register does not place Federal restrictions on how 
private property owners use their property. Only Federal 
actions are restricted or reviewed by National Register 
listing; and over the last 10 years, less than 1 percent of the 
total number of nominations listed on the National Register 
have involved an owner objection at all. Ninety-nine out of one 
hundred owners are satisfied customers with the program as it 
is.
    The National Register process is defined in Federal 
regulations that all SHPOs are required to follow. The process 
includes checks and balances that protect property owners 
rights. SHPOs are required to follow this process, and a SHPO 
may not refuse to consider a properly documented nomination 
that is presented to him or her.
    The National Register information is checked three 
different times, by the professional review of the SHPO and its 
staff, it is checked by the independent expert State review 
board, and then it is checked a third time here in Washington 
by the Keeper of the National Register and her staff at the 
National Park Service.
    Private property rights are explicitly recognized in the 
regulations. Owners are notified of the process and given an 
opportunity to comment on nominations. They routinely provide 
information to the SHPO to consider in the process of reviewing 
nominations and provide information both to the Keeper and to 
the State review board.
    If an owner objects to the listing, the property may not be 
listed on the Register, although the Keeper may go through a 
determination of eligibility process. Throughout the system, 
there is a series of checks and balances to make sure that no 
one authority, particularly at the State level, can run 
roughshod over the rights of the property owner or the accuracy 
of the information presented.
    In preparing for this hearing, I spoke with my colleagues 
around the country. Most SHPOs report they almost never have 
owners object to National Register listing, primarily because 
property owners want to get on the Register, and SHPOs spend 
limited resources working on the nomination of properties that 
are supported rather than opposed.
    I believe the National Register is working well. I would be 
glad to work with the Committee, with property owners and other 
partners to investigate any potential improvements that might 
be needed.
    Mr. Radanovich. Thank you, Mr. Sanderson for your 
testimony.
    [The prepared statement of Mr. Sanderson follows:]

Statement of Edward Sanderson, President, National Conference of State 
 Historic Preservation Officers, and Executive Director, Rhode Island 
            Historical Preservation and Heritage Commission

I. Introduction
    The Subcommittee on National Parks, Recreation and Public Lands has 
asked the National Conference of State Historic Preservation Officers 
(NCSHPO) to testify on the following topics.
    1. Reauthorization of the Advisory Council on Historic 
Preservation
    2. Implementation of the National Historic Preservation Act
    The National Conference of State Historic Preservation Officers is 
the professional association of the gubernatorially appointed State 
officials who carry out the National Historic Preservation Act (Act, 16 
U.S.C. 470) for the Secretary of the Interior and the Advisory Council 
on Historic Preservation (ACHP). States pay for half of the cost of 
carrying out this Federal program. State Historic Preservation Offices 
(SHPOs) have a direct, hands-on, daily involvement with the Act and are 
well suited to inform the Committee. 1
---------------------------------------------------------------------------
    \1\ The Act authorizes Indian tribes to choose to assume the 
responsibilities of State Historic Preservation Officers on tribal 
lands. The National Conference supports tribal involvement in the 
national preservation program; SHPOs work closely with tribes in their 
States. The National Conference respects the government-to-government 
relationship of tribes to the Federal Government. Therefore, our 
remarks represent the opinions of SHPOs only. The NCSHPO encourages the 
Committee to seek tribal views on the Act.
---------------------------------------------------------------------------
II. Reauthorization of the Advisory Council on Historic Preservation
    In general, the National Conference supports the reauthorization of 
the Advisory Council on Historic Preservation. As a statutory member of 
the ACHP, the National Conference was a part of the February 2003 
meeting when the Council voted to propose legislative changes. We 
supported the amendments: chiefly, a permanent authorization with no 
appropriations ceiling and increasing the Federal agency membership on 
the Council. We believe these changes are needed so that the ACHP can 
continue its excellent work and carry out the mandates of the 
President's Preserve America program and Executive Order 13278. 
However, since the National Conference of State Historic Preservation 
Officers has not seen the bill language, we are unable to comment on it 
specifically.
    The National Conference has direct experience with the activities 
of the ACHP through the role of the SHPOs and the National Conference's 
seat on the Council. The ACHP regulations implementing Section 106 of 
the National Historic Preservation Act (36 CFR Part 800) set up a 
process for Federal agencies to identify areas that may be potentially 
impacted by Federal projects, find the historic properties in those 
areas, and, should adverse impacts to historic properties exist, 
consider eliminating or mitigating those impacts. Federal agencies, 
under the ACHP regulations, must consult with State Historic 
Preservation Officers in making those decisions. 2
---------------------------------------------------------------------------
    \2\ The SHPOs conduct 99% of the preservation consultation work 
required by the ACHP regulations. Every year SHPOs review 100,000 
Federal undertakings for their potential impact on historic properties. 
In working with Federal agencies, SHPOs agree that 90,000 of those 
undertakings have no effect on historic properties. Federal agencies 
and the SHPOs resolve the effects on historic properties in the 
remaining 10,000 projects. The Council staff, under the current 
regulations will be involved in a few hundred projects. The 
Presidentially appointed Council members consider approximately ten 
cases a year.
---------------------------------------------------------------------------
III. Implementation of the National Historic Preservation Act
    Secondly, the Committee has asked the National Conference of State 
Historic Preservation Officers to comment on the implementation of the 
National Historic Preservation Act. The following discusses the 
priority of historic preservation in the Administration, the successes 
of the program, the failures, and the relationship of private property 
rights and the National Register.

A. Historic Preservation: a Priority for the Bush Administration
    Historic preservation is a national priority of the Bush 
Administration. On March 3, 2003, the President and the First Lady 
launched Preserve America, a multi-component program to improve Federal 
stewardship of historic places (Executive Order 13287), to recognize 
achievement in historic preservation, to acknowledge and celebrate the 
historic preservation activities of communities across the country 
(Preserve America Communities ), and to facilitate economic development 
through heritage tourism.

                               * * * * *

                            preserve america
    The First Lady reiterated what every preservationist has long 
believed in her Preserve America speech on March 3, 2003, as is 
illustrated by the following quotes.
          ``Our land is the foundation upon which the American story is 
        written. Our history is rooted in our buildings, parks and 
        towns.
          ``The second goal of Preserve America is to support community 
        efforts to restore cultural resources for heritage tourism.
          ``Preserve America. . . will provide. . .greater support to 
        protect and restore our nation's culture. . . from monuments 
        and buildings to landscapes and main streets.
          ``Preserve America will promote historic and cultural 
        preservation and encourage greater public appreciation of our 
        national treasures.

                               * * * * *

B. The Role of the State Historic Preservation Officers
    The National Historic Preservation Act sets up the national 
historic preservation program. The Act charges the State Historic 
Preservation Officers with the following tasks.
    1. find historic places and maintain information about them for 
future research and analysis,
    2. working with private property owners, nominate significant 
places to the National Register,
    3. work with local governments who are interested in historic 
preservation and help them receive the Secretary's certification,
    4. help private owners seeking a Federal rehabilitation tax 
credit,
    5. consult with Federal agencies on Federal activities that may 
affect historic places, and
    6. conduct planning and educational activities on historic 
preservation for interested parties in the private and public sectors.

C. Historic Preservation a National Success Story

1. Historic preservation stimulates the economy
    The national historic preservation program, run by the SHPOs, 
stimulates the economy. The rehabilitation of National Register 
properties using the Federal investment tax credit recently is 
generating $3 billion in private investment annually. The owners of the 
1,202 rehab tax credit projects undertaken in 2002 believe in and have 
benefitted economically from historic preservation and the National 
Register.
    In 1993, the University of Rhode Island calculated that one dollar 
of Historic Preservation Fund expenditure generated $63 dollars of 
investment. 3 Ten years later, the University of Florida and 
Rutgers University demonstrated that in Florida historic preservation 
created more than 123,000 jobs during 2002, spending on historic 
preservation activities generated more than $657 million in state and 
local taxes in 2000, and, tourists who visited Florida's historic sites 
spent more than $3.7 billion. The total annual impact of historic 
preservation in Florida is $4.2 billion. 4
---------------------------------------------------------------------------
    \3\ University of Rhode Island Intergovernmental Analysis Program, 
Economic Effects of the Rhode Island Historical Preservation Commission 
Program Expenditures from 1971 to 1993.
    \4\ Center for Governmental Responsibility, University of Florida 
Levin College of Law, and Center for Urban Policy Research, Rutgers 
University, Executive Summary Economic Impacts of Historic Preservation 
in Florida. The foundation of the activities analyzed in the University 
of Florida report is the National Register process administered by the 
Florida State Historic Preservation Officer and the 1400 National 
Register listings (cumulative) and the over 135,000 historic structures 
and archeological sites in the Florida Master Site File inventory of 
historic sites.
---------------------------------------------------------------------------
    In Colorado, the dollar value of Federal investment tax credit 
rehabilitation projects certified in 1999 was $28,265,017 more than 
Georgia's $24,993,209 but not as much as Texas' $89,622,748. Historic 
building rehabilitation creates 32 new jobs per $1 million of direct 
impact, where as the figure for computer and data processing is 31, 
trucking is 30, manufacturing semiconductors is 20 and mining for 
petroleum and natural gas is 12. Heritage tourism in Colorado generated 
$1.4 billion in direct tourist expenditures, generated $1.0 billion in 
total household earnings and 55,300 jobs. After Denver's LoDo became a 
historic district the number of housing units increased by 1,260%, the 
average rental cost per square foot increased from $7 to $20/$30, and 
the parking meter revenues increased from $141,200 in 1989 to 
$1,497,070 in 2000. Interestingly, the Colorado study looked closely at 
two residential historic districts, Potter Highlands in Denver and Fort 
Collins Midtown District and found that while quality of life and 
property values were increasing, the economic mix of the residents did 
not change dramatically. 5
---------------------------------------------------------------------------
    \5\ Clarion Associates of Colorado, LLC, Economic Benefits of 
Historic Preservation in Colorado, Denver, January 2002.
---------------------------------------------------------------------------
2. Historic preservation celebrates our history
    In addition to being good for the economy, the historic 
preservation program also boasts successes in helping owners and 
residents seek recognition for the historic places where they live and 
work through the National Register nomination process. Nationally, in 
2002, the Keeper of the National Register (Department of the Interior, 
National Park Service) made 1456 listings which include a total of 
40,141 individual properties (one National Register historic district 
contains multiple individual, historic properties).

3. Historic preservation partners in local governments
    The national historic preservation program has also ``sold'' well 
with local governments who have sought the Secretary of the Interior's 
designation as Certified Local Governments, formal partners with the 
SHPOs. In 2002, 58 city and county governments decided to enact a 
historic preservation ordinance and establish a historic preservation 
commission. As a CLG, the local government is eligible to apply for 
passthrough funding (10% of the State's Historic Preservation Fund 
allocation) from the SHPOs. In total, 1,384 local governments have 
opted to become Certified Local Governments. Each State establishes its 
own criteria for certification which allows for variation to reflect 
State by state differences.

4. Historic preservation is a ``bargain'' for the Federal government
    Finally, the national historic preservation program is a great 
value for the Federal investment--States pay half the cost.

D. Historic Preservation Needs
    The authorizing committees of the Congress have established a well-
designed vehicle to deliver the national historic preservation program. 
Unfortunately, Administrations and Congresses have failed to provide 
the funding--the gas--necessary for the vehicle to operate. 
6 The under funding of the national preservation program has 
several implications.
---------------------------------------------------------------------------
    \6\ Susan West Montgomery, ``The Historic Preservation Fund and Why 
it Matters,'' Forum News, January/February 2003. This article outlines 
the history of the Historic Preservation Fund, how SHPOs match it and 
use it, and the effects of appropriations shortfalls.
---------------------------------------------------------------------------
1. Where are the Nation's historic places?
    The survey of historic sites across America is not finished. The 
nation lacks the base line data about where historic places are 
located. This lack of basic information makes it difficult to evaluate 
comprehensively the significance of an individual property. Further, 
without full information on historic places, Federal agencies planning 
projects have no alternative but to conduct ad hoc historic site 
surveys for the potential impact area. If the inventory were complete 
and the information readily available by computer, Federal agency 
planning would be substantially facilitated. Agencies would have the 
historic property information on hand at the earliest stages of project 
planning.

2. Lack of restoration grants
    Second, two decades of ``bare bones'' funding have eliminated SHPOs 
ability to offer restoration matching grants to help restore threatened 
National Register properties. In the 1970's the State Historic 
Preservation Officers used half of their annual allocation to help 
owners restore National Register properties. These matching grants 
helped owners restore significant places and insured that state-of-the-
art construction techniques were used. Further, the SHPOs' HPF grants 
were usually a small percentage of the total project cost. The Federal 
funds were a catalyst for a larger private investment as well as a 
commitment from the owner to insure future maintenance. SHPOs made many 
small grants stretching the Federal dollars further. Those financial 
incentives need to be reinstated by increased appropriations.

3. Federal costs transferred to the private sector
    Third, continued reductions of Historic Preservation Fund 
appropriations to State Historic Preservation Offices is adversely 
affecting the private sector, specifically applicants for Federal 
assistance. If the SHPO comment process is a funnel, ongoing reductions 
have constricted that funnel opening slowing project response times 
from a stream to a trickle. North Carolina has kept records of the 
effect of Federal budget cuts on response times. With fewer resources 
from the HPF available and an increasing work load, response times have 
doubled, not only in consultation in the Section 106 process but also 
in response to private sector requests related to National Register 
nominations and rehabilitation tax credits.

E. The National Register and Private Property Owners
    The fundamental principle of the National Register and its 
implementation by SHPOs is cooperation and respect for and with private 
property owners.
    The National Historic Preservation Act begins with the National 
Register. This is the Secretary of the Interior's list of America's 
historic properties. In the past 35 years more than 75,000 nominations 
have been listed on the National Register. Those listings represent 
over 1,000,000 private property owners: one nomination may cover a 
historic district with multiple owners. In Fiscal Year 2002, 1456 
nominations were listed. In the last ten years less than one per cent 
of the total nominations submitted were the subject of owner 
objections.
    National Register listing occurs only after notifying the private 
property owner and after a careful review of the background research on 
and the significance of the property. National Register listing conveys 
the honor of the Secretary's recognition, eligibility for Federal 
benefits matching restoration grants (when sufficient funds are 
available) and for the 20% rehabilitation tax credit for work on 
commercial property, and consideration if a Federal project might 
affect the property.
    Listing places no restrictions on private property owners. Private 
owners may make any changes they wish to their property and may even 
demolish or destroy National Register listed places. (Subject, of 
course, to any locally enacted laws and restrictions.) Listing places 
controls only on the actions of the Federal Government--the Federal 
Government must consider the impacts of its actions on National 
Register listed and eligible property and look for ways to minimize any 
adverse effects.
    SHPOs carry out the National Register nomination process following 
the Act and the Interior regulations (36 CFR Part 60). The regulations 
are clear on the role of private property owners in the nomination 
process. Property owners are notified about nominations. Property 
owners have the right to file an objection directly with the Keeper of 
the National Register who is a Federal employee of the National Park 
Service. In addition, the Federal regulations set forth a uniform 
nomination process that all SHPOs must follow. The process offers 
little administrative discretion and requires that every nomination be 
evaluated and approved by an independent expert review board in 
addition to approval by the SHPO. Owners may appeal a SHPO's decision 
to the Keeper. Finally, the process provides Federal oversight of the 
State's nomination process; nominations are subject to substantiative 
and procedural review by the Keeper.
    Most nominations come from property owners seeking the national 
recognition. Notice is provided to all owners prior to consideration of 
the nomination. Many States, for example, Georgia, Michigan, Ohio and 
Tennessee, have not seen any proposed nominations that lack the owner's 
knowledge and involvement.
    If the owner objects, the property may not be listed on the 
National Register.
    State Historic Preservation Officers often do more than the 
regulations require to involve private property owners in the 
nomination process. The New York State Historic Preservation Officer 
works with local communities in face-to-face meetings and discussions 
to insure that owners' questions are fully considered and addressed. In 
most States--Arizona, Idaho, Maryland, Mississippi and Montana, for 
example--potential nomination proposals are not pursued if the owner 
objects.
    The National Register program remains popular across the country. 
Register listing is sought for various reasons. Register listing is 
needed for developers to receive the 20% rehabilitation tax credit. 
Individuals and communities look to the National Register as official 
recognition of the historic significance of their home or neighborhood. 
Register listing is often an important catalyst for community pride 
leading to neighborhood revitalization. Convention and visitor bureaus 
see National Register sites as an attraction for visitors and new 
businesses. In North Carolina's Triad (Greensboro, High Point, Winston-
Salem) the Welcome section of the Guest Guide in hotel rooms 
prominently displays National Register sites--Mendenhall Plantation, 
the Greensboro Woolworth's, and the Alamance County Historical Museum--
to promote the area. 7
---------------------------------------------------------------------------
    \7\ Triad Guest Guide 2002-2003,Vol. XII, Raleigh: Lone Wolf 
Publishing, Inc., 2002, p. 8-9.
---------------------------------------------------------------------------
IV. Conclusion
    The National Historic Preservation Act and the National Register 
have been operational for more than 30 years. Private property rights 
are respected and protected within its provisions. The National 
Conference of State Historic Preservation Officers offers to work with 
the Chairman and the Committee, private property owners, Federal 
preservation partners, and private sector partners on improving the 
Nation's historic preservation program in a way that respects the needs 
of this generation and bequeaths a proud legacy of America's heritage 
to the future.
                                 ______
                                 
    Mr. Radanovich. Next is Mr. Robert Bisno, owner of Lincoln 
Place Apartments in Venice, California.
    Mr. Bisno, welcome to the Committee. We will appreciate 
your insights here and your testimony. You may begin.

  STATEMENT OF ROBERT BISNO, OWNER, LINCOLN PLACE APARTMENTS, 
                       VENICE, CALIFORNIA

    Mr. Bisno. Thank you, and good afternoon, Mr. Chairman, 
Committee members.
    My experience is different than one which you may have 
heard from listening to those who spoke before me. I am here 
today as the owner or major owner of the Lincoln Place 
Apartments, a large apartment community in Venice, California.
    I am here because I believe it is crucial that we protect 
the importance and the integrity of the National Register 
process from those who are seeking to exploit it to present or 
promote their own self-serving agenda.
    In my case, that agenda belongs to the tenants of my 
property who were seeking to block redevelopment so they 
wouldn't have to move. This agenda had nothing to do with 
historic preservation. In fact, I actually proposed a plan 2 or 
3 years ago that all existing buildings be preserved. The 
tenants fought that as well, because under the rent 
stabilization ordinance of Los Angeles I would have been 
allowed to raise the rents.
    I see the abuse of the National Register process as the No. 
1 tool today to stop economic development unless you take steps 
to stop it.
    The Lincoln Place Apartments, our project, was built in 
1950, using off-the-shelf plans. For the past 9 years, we have 
gone through the arduous permitting process to allow us to 
build 144 low- and moderate-income apartments for rent, 50 low- 
and moderate-income townhomes for sale, and 650 at-market 
townhomes for sale.
    Before SHPO got involved, the Los Angeles Planning 
Department, the Los Angeles Planning Commission, the Los 
Angeles Cultural Heritage Commission, the Planning Land Use 
Management Subcommittee of, and the Los Angeles City Council 
reviewed our project.
    Our project was also reviewed by Mr. Robert Chattel, a 
nationally recognized expert qualified under the Secretary of 
Interior's professional qualifications.
    At each and every stage and in the City Council, that was 
two times, the national--pardon me, the determination was that 
our project was not locally significant. Having lost at the 
local levels, the applicants then identified the National 
Register as a soft spot that they might exploit, and they filed 
an application. Bear in mind, we had done nothing.
    On February 7th of this year, California SHPO voted to 
recommend to the Keeper that Lincoln Place be considered as a 
locally significant resource. They came to their conclusion 
without verifying claims made in the application. They also 
failed to even contact the city of Los Angeles for their input, 
as required by the regulation. And you will recall, as I 
testified earlier, every single agency within the city of Los 
Angeles had determined that this was not a locally significant 
resource. I am being told that the National Register does not 
have an impact on our property rights. I am living proof that 
it does. Our rights are being trampled by this process.
    Even before SHPO cast its vote, lawyers for the applicant 
challenged the city's permits, permits they had granted to us 
in court. The city lined up with us. But our ability to move 
forward came to a stretching halt. Well, this is a halt of a 
project which would generate more than $150 million in local 
goods and services, provide low- and moderate-income living for 
almost 200 families and market-rate living for 650 families.
    To make matters worse, we asked SHPO to write a letter. 
SHPO did. SHPO wrote a letter stating that our property has 
been or would shortly be listed on the National Register. Even 
the Keeper herself could not clear up the confusion created by 
SHPO, and the City Attorney of Los Angeles still refused to 
issue our permits.
    On April 24th, the Keeper returned the application to SHPO 
declaring that the application was significantly inadequate. 
Even though the National Register application has been 
effectively terminated, our problems continued. Since the 
application has been terminated, the applicants, the Lincoln 
Place Tenants Association and those aligned with them, have 
filed two lawsuits based solely on submission to the National 
Register.
    Those who oppose property rights have carefully designed 
the system to strangle development activities by the mere 
filing of an application. Even today, as we speak, the Lincoln 
Place Tenants Association are asserting in a city procedure 
that our property is a local resource because of the actions by 
SHPO and we should be denied demolition permits, which are a 
condition precedent to our redevelopment.
    Mr. Chairman and members, I believe the answer to this is 
easy. Federal law should not allow being listed on the National 
Register without a property owner's consent. I am of the belief 
that 167 of 170 property owners have objected to and have had 
the properties rubber stamped. I believe it is time to change 
the law, because private property rights are being impacted, 
and to the bad.
    Mr. Radanovich. Thank you.
    [The prepared statement of Mr. Bisno follows:]

      Statement of Robert Bisno, Owner, Lincoln Place Apartments, 
                           Venice, California

    Good Morning Mr. Chairman and members.
    My name is Bob Bisno, and I'm a principal in the Lincoln Place 
Apartment Redevelopment Project located in Venice, California.
    I'm here today because it's important, that we protect the 
importance and integrity of the National Register process from those 
who are seeking to exploit it to promote their own self-serving agenda.
    In my case, that agenda belonged to the tenants of my property who 
were seeking to block the redevelopment of my property so that they 
would not be obliged to relocate. Their true agenda has nothing to do 
with historic preservation. Indeed, several years ago I actually 
proposed a plan to renovate all of the existing buildings that would 
have preserved them, but the tenants fought and blocked that effort 
because they were opposed to the increased rents that would have been 
necessary to make such a program feasible.
    Abuse of the National Register process and other ``preservation'' 
mechanisms will become the number one tool to stop economic development 
in the coming decade unless you take immediate steps to stop it.
    We purchased Lincoln Place Apartments in 1986, and for the past 
nine years, we've been through the arduous permitting process to allow 
us to carry out our redevelopment plan. Our plan includes the 
construction of 144 low-income apartments without any governmental 
subsidy, even though the City of Los Angeles does not require 
affordable housing in new projects.
    Our redevelopment process started in 1994 with an Environmental 
Impact Report that considered the historic preservation arguments made 
later by the applicants for the National Register.
    The Lincoln Place Apartments were built in 1950, basically using 
off-the-shelf plans made available by the FHA, which had been issuing 
mortgage insurance for thousands of project nation-wide since 1937.
    After a full public hearing, the Planning Department of the City of 
Los Angeles voted to certify the EIR that found that Lincoln Place was 
NOT a significant local resource. See Exhibit A (excerpts from City 
EIR).
    The following year, the full City Planning Commission, after a full 
public hearing and consideration of the same EIR, found that Lincoln 
Place was NOT a significant local resource.
    Dissatisfied with the decision of the City's Planning Department, 
the applicants then filed an application to the City's Cultural 
Heritage Commission; a board concerned only with historic preservation, 
to have Lincoln Place declared a City monument.
    The Cultural Heritage Commission independently reviewed the 
evidence cited by the proponents of the National Register application. 
They also reviewed the analysis of Robert Chattel, a nationally 
recognized expert qualified under the Secretary of the Interior's 
Professional qualifications.
    After an extensive review of the facts, the commission determined 
that Lincoln Place should NOT be designated a Cultural Historic 
Landmark as it did not represent significant architecture and was a 
later example of the many projects involving FHA mortgage insurance 
found in the region.
    And just last year, after considering the National Register 
application filed by the applicants, the Los Angeles City Council 
reviewed that application and UNANIMOUSLY voted that Lincoln Place was 
NOT a locally significant resource. See Exhibit B (Findings of City of 
Los Angeles).
    Having lost locally, the applicants then identified the National 
Register process as a tool they might exploit, and filed an application 
to have these commonplace structure listed on the National Register of 
Historic Places. Under current law, anyone can file a National Register 
application, even if the owner objects.
    The preliminary steps in the National Register process are 
administered by State officials with final decision-making reserved to 
the Keeper of the Register.
    On February 7th of this year, by a vote of 7 to 1, the California 
State Historical Resources Commission voted to recommend to the Keeper 
of the National Register that Lincoln Place be considered a ``locally 
significant'' resource notwithstanding the City's repeated findings 
that Lincoln Place was NOT a significant local resource. Ironically, 
according to supporters of the application in a published article, 
attempting to have Lincoln Place designated as a historic site was a 
last-ditch desperate effort since the applicants had lost everywhere 
else they had tried. See, e.g., ``Sad Story Unfolding in Venice'' Santa 
Monica Mirror, July 11-17, 2001. Mr. Chairman, I ask unanimous consent 
to submit a copy of this article for the record.
    Although those administering the National Register process told us 
that the application would not have an impact on our property rights, 
even before the State Commission cast its vote, the City's permits were 
challenged in court, and after the Commission's vote, the City refused 
to issue any more permits. Our ability to move forward was instantly 
stopped.
    Moreover, the State Historic Preservation Officer, who had 
essentially ``rubber-stamped'' the application without any independent 
review went out of his way to assist those trying to block our 
activities by writing letters to suggest that the property had been, or 
would be shortly, listed on the National Register.
    The Keeper herself had to intervene to clear up the confusion. On 
March 28, 2003, the Keeper wrote that neither the February 7, 2003 
action of the State Historic Preservation Commission nor the March 3, 
2003 transmittal of State Historic Preservation Officer regarding the 
Petitioners' application constituted a formal ``determination of 
eligibility'' for the Lincoln Place Apartments, and that only she could 
make such an official determination.
    However, despite her letter and her intention to clarify the 
problem created by the State SHPO, the City Attorney still refused to 
release our permits.
    Later, on April 24, 2003, the Keeper of the National Register 
returned the application to the State Historic Preservation Officer 
with her findings that the application was significantly inadequate. 
Basically, the actions of the State Historic Preservation Commission 
and Officer's recommendations were overturned. See Exhibit C (April 24, 
2003 Keeper action).
    On May 12, 2003, the State Historic Preservation Officer returned 
the application in a letter stating that if the applicants wished to 
persist in their efforts, a wholly new application would be required.
    However, even though the National Register application has been 
effectively terminated, our problems resulting from the National 
Register application have continued unabated.
    As of today, the applicants have filed not one, but two, lawsuits 
before different courts to block our redevelopment based only on their 
National Register application.
    In terms of personal costs, I have spent over $ 500,000.00 in the 
past seven months alone just to respond to this application, to respond 
to the related lawsuits, and to allow my objections to be heard.
    Since this soap opera started, I keep hearing some people say that 
an application for the National Register does not affect a property 
owner's rights. Moreover, some tell me that I should feel it is an 
honor to have my property considered for the National Register.
    Those are naive and misguided views. The truth is that those who 
oppose property rights have carefully designed the National Register 
system so that it can be used to effectively strangle an owner's 
activities without any express prohibition on the owner's activities 
being invoked.
    I'm living proof that the rights of property owners are trampled in 
the National Register process, as it currently exists.
    That is what has happened, and is continuing to happen to me.
    The National Register process needs to be reformed to prevent this 
type of abuse. The regulations are vague and not understood even by 
cities like Los Angeles, the second largest city in this country. The 
evaluation criteria are so subjective as to be non-existent. There is a 
lack of rigor on the part of professional staff in screening 
applications. In our case, the SHPO conducted no independent review of 
the application, and didn't even request that the applicants submit 
their bibliography so that the SHPO could check that any of the claims 
made were accurate.
    But most of all, properties should not be declared eligible for the 
National Register if the owner does not request it. If I want my 
property honored by the National Register, I will myself make the 
application. On the other hand, if I believe being listed on the 
National Register is not in my interest as a property owner, I should 
be left alone.
    There are other laws on the books that give the Federal Government 
the right to preserve property that is a significant historic resource 
where necessary.
    If the Federal Government believes that a property must be 
preserved, it can buy the property or condemn it. If the Federal 
Government is unwilling to acquire the property for preservation 
purposes, it should leave matters to local government and property 
owners.
    Mr. Chairman and members, the solution to this problem is rather an 
easy one. Federal law having to do with preservation must be changed to 
require approval of property owners before any application is accepted 
by any state SHPO. Only then can the Federal Government take pride in 
knowing that it's protecting private property rights rather than have 
those right trampled as mine have been.
    I thank you Mr. Chairman and this committee for giving me a chance 
to bring this travesty to your attention and the attention of this 
Congress.
                                 ______
                                 
    [NOTE: Attachments to Mr. Bisno's statement have been retained in 
the Committee's official files.]
    Mr. Radanovich. I will go ahead and begin. Then we will ask 
other members if they would like to ask questions.
    I want to start out by saying that I am a big fan of the 
Historic Preservation Act and the work that is done by the 
societies at the State levels all across the country.
    As I mentioned in my opening statement, I think the goal is 
to find out whether the process that Mr. Bisno has been subject 
to is indeed an anomaly or is this something that might not 
happen again or, if it does happen again, is it a threat to the 
integrity of the process of identifying historic places all 
across the country. So that is going to be what I would like to 
find out I think from this hearing.
    In my review of Lincoln Place and the application, it seems 
to me that this was an application that never should have been 
approved at the State SHPO level. This was clearly--and I may 
ask someone on the panel, if you are familiar with the 
application packet, how could they expect something like that 
that was so poorly done and had so many holes in it could have 
been possibly approved by a State SHPO director?
    Mr. Tiller, are you familiar with the content of that 
application?
    Mr. Tiller. Mr. Chairman, only to the extent that, after it 
arrived in our office and we reviewed it, as Mr. Bisno related, 
it was returned by the Keeper of the National Register for a 
number of substantive purposes, both on procedural error as 
well as substantive and research errors.
    So I concur with Mr. Bisno and with your inquiry. It got to 
us in a state that it had not be appropriate to go ahead and 
submit it to the Keeper at that time.
    At the moment, it is back in the court of the folks in 
Sacramento, and Mr. Bisno. We await it. But, right now, we have 
no issue with this whatsoever.
    Mr. Radanovich. Again, I may ask the Keeper to come up and 
comment on this, what was left out of the package. But, given 
the inadequacy of the package, why was it sent back and why was 
it not rejected by the Keeper?
    Mr. Tiller. It was sent back, and in a form it was 
rejected. We gave them a long list of the work that had to be 
done on it. We closed the case on it. So it is, I guess in a 
term, rejected. If they choose to resubmit it, they can. But 
they now know all of the work that has to be done on it, both 
historic research and contextual research, information up-to-
date on its current condition; and it is a fairly tall order 
that we have sent back to them.
    So, as I said, the case is closed as far as the Park 
Service is concerned. It is up to the State of California 
whether they want to resubmit it again.
    Mr. Radanovich. There is a difference between sent back and 
rejected, I would State in Mr. Bisno's defense. Because one 
would allow--if indeed the application was sent back with a 
statement of what was missing in the application and what 
needed to be done in order for the Keeper to hear the case 
again, that didn't relieve Mr. Bisno of any problems he had 
with the development of his property.
    Where, had it been rejected, the folks at Lincoln Place 
would have had to start the thing all over again; and there 
wouldn't have been a cloud over the development process that 
Mr. Bisno did have. So there is a distinct difference between 
being sent back and being rejected.
    Mr. Tiller. There is, Mr. Chairman. The Keeper of the 
Register is asked to make a binary choice: It is eligible for 
the National Register or it is not eligible for the National 
Register. In sending it back, the Keeper determined and stated, 
we have insufficient information to make that call one way or 
another. So it is not rejected. It is only rejected at the time 
we have enough information to make the call, and then she will 
make the call on whether it is eligible or not. At this time, 
we have issued no opinion one way or the other.
    Mr. Radanovich. I would like to ask if Carol Shull, the 
Keeper, would come up and comment on the content of that 
particular application, with the idea of how did the State 
approve something like it.
    Ms. Shull. Thank you, Mr. Chairman.
    Mr. Radanovich. Thanks, Carol, for being here.
    I would just start out by saying, I know you are familiar 
with the case, and thanks for being here today.
    Carol, would you state your name and title before you 
comment on the content of the application.
    Ms. Shull. Thank you. I am Carol Shull. I am the Keeper of 
the National Register of Historic Places for the National Park 
Service.
    Would you prefer to ask me a question or should I comment 
on our review?
    Mr. Radanovich. That would be perfect. If you would give us 
an idea of what was left out and how--I don't want to put words 
in your mouth, but whether a SHPO should have approved it and 
send forward a document that was in the condition that it was.
    Ms. Shull. Well, as you know, owners are given an 
opportunity to comment and local officials and anyone else 
during the nomination process. We received quite a stack of 
comments on the nomination, many of them from Mr. Bisno.
    We carefully reviewed the nomination, and there were 
substantial questions raised as to whether or not the 
nomination had followed all of the appropriate procedures as 
required by the law and regulations. So there were so many 
concerns raised in the procedural aspects of the nomination 
that what we always do in a case like that, in respect to a 
State, is ask them, when we return something, to review any 
allegations that there have been irregularities in the process. 
So we asked the State to look at the comments that had been 
received during the comment period and whether or not the 
procedures had been followed.
    There were also many comments raised about the substance of 
the nomination, and we ourselves had comments as we reviewed 
the nomination.
    Our standard procedure is that when we have questions about 
documentation or questions are raised by commenters or in our 
own review is that we return the nomination to the State, 
raising the questions that need to be raised if we do not think 
the documentation is adequate.
    We generally--in fact, don't out and out reject nominations 
on the first submittal if there are questions that we think 
that the State, as the nominating authority, should have the 
opportunity to review because--as a matter of respect to the 
State and also because the information in the nomination may be 
what is inadequate, rather than the property itself.
    We always return the nomination unless it is very, very 
clear from the documentation that the property does not meet 
the criteria. But we had very substantial questions on the 
adequacy of this nomination; and I think that was clear in the 
return comments, as well as the procedures that were followed.
    Mr. Radanovich. Thank you, Mrs. Shull.
    With respect to the rest of the Committee, I think if I may 
just ask one more question, then I will go ahead and pass time 
to somebody else.
    I wanted to get Mr. Bisno to react to Mr. Tiller's comment 
about the idea of sending back applications to the State and 
the difference between that and not just rejecting them and how 
that keeps you in limbo still, with the type of--in progressing 
with your development.
    Can you comment on that for me, Mr. Bisno?
    Mr. Bisno. First of all, we would like to thank Mrs. Shull, 
the Keeper. We think that she has done her job just like she 
should do the job. We think the procedure is broken, the 
procedure which allowed the State SHPO, over the objection of 
the owner, by a 7-to-1 vote to forward to the Federal 
Government a property that at every step of the way on the 
local level had not be determined eligible. We think in and of 
itself that is a reason for the Keeper to reject such an 
application.
    Mr. Radanovich. Thank you, Mr. Bisno.
    I recognize Mrs. Christensen. Donna.
    Mrs. Christensen. Thank you, Mr. Chairman.
    I guess I would ask my question to Mr. Nau, or I guess the 
first three panelists, this one question: Could you give the 
Committee some idea of how common it is for a State or locality 
to pass laws limiting a private property owner's ability to 
alter the character of that property during consideration for 
listing? Is that a common --
    Mr. Sanderson. Let me try that one from the perspective of 
the State Historic Preservation Officers. I think it is very 
unusual. There certainly are some local and State jurisdictions 
around the country that in one way or another tie a State or 
local program or law to National Register listing. But for that 
to be held up during the consideration of the National Register 
nomination is not something that, frankly, I am aware of 
occurring anywhere, other than the case that has just been 
described.
    Most States and most local jurisdictions that have 
developed these kinds of programs maintain their own list of 
historic properties, and even the reliance on National Register 
listing is a very small fraction of what most States do. I 
think what we are hearing is quite an unusual situation.
    Mrs. Christensen. Mr. Bisno, since the application is 
essentially closed, and I realize you have been--seems like you 
have been in and out of court a lot. As you said, there is 
something being filed now. Is that, what is being filed now, 
related to the application? Because the application is closed. 
It would seem to me that, that being the case, that that should 
not be an issue anymore unless they reapplied?
    Mr. Bisno. Your question, in my view, points out why this 
Act is flawed. Everyone in this room would think that, with the 
application being returned, that that would be the end of it. 
But it is not. While the city of Los Angeles agrees with us at 
every little juncture, the Lincoln Place Tenants Association, 
since the Keeper returned the application--that is since--has 
filed two lawsuits standing for the proposition that the State 
SHPO in forwarding the application recognized the local 
significance. Two times we will have to appear in court to 
defeat that allegation.
    Additionally, today the Lincoln Place Tenants Association 
and those aligned with them are contesting that the State 
SHPO's action was an official action and therefore the 
demolition permits which have previously been granted to us 
should be withdrawn.
    So the problem that we face isn't one that those in this 
room would see, but we have a matrix which allows those who 
wish to create mischief to create just that, the type of 
mischief that stops $150 million from going into the community, 
that stops low-income housing and that stops market-rate 
housing.
    The solution that we suggest, requiring the property owner 
to consent to property put on the National Register, shouldn't 
burden anyone whose motives are pure.
    Mrs. Christensen. But as far as the Federal legislation is 
concerned, it is my understanding that as far as the Federal--
the Act that we are having this hearing on, if the private 
property owner objects to the nomination the property cannot be 
listed on the National Register. So what we have is a State 
issue or a county or city issue. How would anyone propose that 
we would fix that in this legislation?
    Mr. Bisno. I don't think your assessment is correct. We all 
agree that the Federal issue shouldn't apply here. However, 
back in State court in California, using the matrix of this 
law, the Lincoln Place Tenants Association, again, using this 
matrix, is contending that the State SHPO has, under Federal 
law, determined this property to be locally significant. And we 
don't believe there is a place for that.
    With respect to owners consenting, 170 owners in the last 
10 years have objected to inclusion on the Federal Register; 
167 of those properties, over the owner's objections, have been 
listed.
    That does not speak to thorough consideration of the 
merits, but, rather, a process that simply puts through the 
process applications of SHPO.
    Finally, we have asked our State SHPO for a letter 
confirming that no official State action took place, and we 
still have not received that. We have asked for it better than 
a month ago.
    Mrs. Christensen. Well, my time is up. But I am concerned 
about your last statement, about the 170 objections and 167 
being on. But I will withhold my comment until maybe another 
round. It probably will be answered.
    Mr. Radanovich. OK. Thank you, Donna.
    Too, I think I want to correct something. I think it might 
have been mentioned that 167 applications were listed. But I 
think that those were applications that qualified for listing 
or were made eligible. I think it is a distinction that needs 
to be made.
    Mr. Gibbons, did you have any questions?
    Mr. Gibbons. I do, Mr. Chairman. Thank you very much. And I 
would address my first question to Mr. Tiller.
    Listening to these individuals and the obvious knowledge 
that the Service must have of the secondary impact of the 
eligibility process that you have heard about today, has the 
Service undertaken any effort to remedy or address these 
problems that--to either Mr. Bisno or others in this process 
listing them? 167 out of 170 applicants. Has the Service 
undertaken any activity to address that problem?
    Mr. Tiller. Congressman, the short answer is no. The 160-
some cases to which we are referring--let me correct the record 
first, please. None of those has been listed. It was just a 
finding of eligibility, but none has been listed on the 
National Register of Historic Places.
    Secondly, the larger context of these 160-some findings of 
eligibility have been made over the last 10 years. Let's 
understand that in the overall reality that we are talking 
about 1.2 million properties that are now listed on the 
National Register of Historic Places. So what we are talking 
about statistically is a fraction of a fraction of 1 percent of 
the properties that are now listed on the National Register of 
Historic Places.
    Mr. Gibbons. I apologize for interrupting you, but my time 
is very short. I want to get to two major points that I want to 
make.
    If the fact the Service agrees that a property merits 
eligibility and recognition as a historical place and there is 
an owner's objection to that listing and there is a secondary 
effect to that listing and yet the Service believes that it 
should go forward with the listing regardless of the owner's 
objection, isn't due process, as you heard earlier, a 
fundamental right of the property owner and shouldn't the 
Service then utilize its condemnation authority or some type of 
condemnation authority and compensation of an owner for the 
loss of the property right or the validation due to listing if 
it is objected to by the owner?
    Mr. Tiller. Complex question. Again, with respect, 
Congressman, none of these properties has been listed on the 
National Register.
    Mr. Gibbons. No. But I am just saying if there were.
    Mr. Tiller. I understand, sir.
    Secondly, and I think importantly, conferring or listing a 
property on the National Register of Historic Places in the 
United States as we have stated confers no control on behalf of 
the Federal Government and little or none anywhere else.
    I have been in this business 25 years, and the Keeper has I 
suspect that or maybe a little bit more, also. This is the 
first time that we have come up with a situation like this 
throughout 1.2 million properties listed on the Register.
    In answer to your question, sir, the fact that a property 
is listed on the National Register of Historic Places or 
determined eligible for it conveys--the creation of the 
National Register was, first and foremost, honorific these 30-
some years that it has been in existence.
    Secondly, it is viewed as a planning tool to indicate to 
State and local planners and people in the city there in which 
it exists that we have an important property here that you 
should consider as you think about the preservation and long-
term effects of the business that you do.
    Thirdly, it conveys also and creates an opportunity for it 
to receive grant or tax projects, as you have heard from Ted 
Sanderson. There was an never an intent of putting a property 
on the Register or listing it as significant, that this leads 
to absolute preservation for all time forward.
    There are many ways to preserve. You can document before 
you demolish it. There is not necessarily an iterative line 
between on the National Register, and it must be preserved.
    The National Park Service, we have 388 units in the 
National System. The 1.2 million number of properties on the 
National Register, under no circumstances would we, the Park 
Service, consider these for condemning and making units of the 
National Park System. They are strictly there for honorific and 
planning purposes.
    Mr. Gibbons. Let me ask one final question before my time 
runs out. And I want to flip the coin.
    Because, at Lake Tahoe there is a place called the Dreyfus 
Estate, Thunderbird Lodge, built in the turn of the century, 
20th century, beautiful, magnificent artwork, in the rock 
construction, listed as a historic place, owned and--sits on 
property owned by the Forest Service which was transferred to 
the Forest Service subsequent to the construction of the 
property.
    The estate is still there run by a non-profit for tours. 
However, the Forest Service indicated that because of the 
liability it would like to get the property back, and its 
intent in getting the property back would be to tear down the 
Dreyfus Estate or the Thunderbird Lodge.
    There is nothing in the law which prevents the Federal 
Government from going in and tearing down a place, even though 
it is registered as a historic place. So it should not impose a 
private citizen's right to go in and tear something down simply 
because it is a historically registered place. Would you agree 
with that presumption or not?
    Mr. Tiller. I agree with that, and nothing in the finding 
of eligibility in Federal law prevents Mr. Bisno from tearing 
down the Lincoln Place Apartments. Where he has been snagged is 
municipal law, not the Federal law.
    Mr. Gibbons. Thank you, Mr. Chairman.
    Mr. Radanovich. Thank you Mr. Gibbons.
    Mr. Udall, Mr. Tom Udall, did you have any questions?
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    I wanted to ask Mr. Nau about the activities of his 
Advisory Council with regard to--there is a recent ruling in 
the Circuit Court of the District of Columbia called National 
Mining Association versus John Fowler. Are you familiar with 
that case?
    Mr. Nau. I came in as chairman right in the middle of that, 
Congressman. I have a little bit of knowledge, which makes me 
dangerous. Mr. Fowler is here, so he is a little bit more on 
point.
    Mr. Udall of New Mexico. Why don't you share with me a 
little bit of your knowledge as it relates to your Council on 
that decision?
    Mr. Nau. I am serious. I came in right at the absolute end 
of it. May I refer to Mr. Fowler?
    Mr. Udall of New Mexico. I don't know if the Chairman wants 
another witness or not.
    Mr. Nau. I think he would be the right person to answer the 
question, Mr. Chairman.
    Mr. Radanovich. That would be fine.
    Mr. Fowler, if you would state your name and title before 
you answer the question, that would be fine.
    Mr. Fowler. My name is John Fowler. I am the Executive 
Director of the Advisory Council on Historic Preservation and 
the defendant in the case of National Mining Association versus 
Fowler, which I would note was previously National Mining 
Association versus Nau, but they gave me the dubious 
distinction of naming the appellate case for me.
    The case goes back to a challenge that was made by the 
National Mining Association 2 years ago, 3 years ago, to new 
regulations that were issued by the Advisory Council on 
Historic Preservation to implement Section 106 of the National 
Historic Preservation Act.
    To state it very simply, the district court dismissed the 
challenge to the Council regulations on most counts. There were 
two minor points where they ruled in favor of the Mining 
Association. The Mining Association appealed on the issue of 
whether the definition of undertaking, under Section 106 of the 
National Historic Preservation Act, included permits that are 
issued by State or local authorities under color of Federal 
law, such as a permit under the Surface Mining Control and 
Reclamation Act that is issued by a State under Federal 
delegation.
    The Mining Association, which obviously is very concerned 
about the application of Section 106 to State-issued mining 
permits, took that as their one issue on appeal. The appellate 
court, in a decision that was handed down on April 15th, ruled 
in favor of the Mining Association, citing a previous case that 
the full D.C. Court of Appeals had ruled on several years ago. 
They said they were bound by the precedent of that case and, 
under that precedent, if there was no direct Federal 
involvement in an undertaking, Section 106 of the National 
Historic Preservation Act would not apply.
    So that ruling was handed down by a panel of the D.C. 
Circuit. The period for determining whether a rehearing en banc 
will be filed has been extended to June 30th. The Council is 
currently in discussions with the Justice Department regarding 
the government's position on a petition for rehearing.
    Mr. Udall of New Mexico. Is it fair to say, Mr. Fowler, 
that the ruling would impact historic preservation pretty 
severely?
    Mr. Fowler. The ruling would directly impact the 
application of Federal protections to such things as permits 
for surface mining issued under the Service Mining--under SMCRA 
and several other statutes.
    Mr. Udall of New Mexico. Mr. Fowler, you and Mr. Nau serve 
together on the Advisory Council?
    Mr. Fowler. I am the head of the staff. Mr. Nau is the head 
of the agency appointed by the president.
    Mr. Udall of New Mexico. Is the Council itself urging the 
Justice Department to ask for an en banc review by the D.C. 
Circuit Court or willing to ask for a further Supreme Court 
review of this?
    Mr. Fowler. I will defer to my Chairman.
    Mr. Nau. The answer is yes.
    Mr. Udall of New Mexico. OK. And the time period is still 
for June 30th? It has been extended?
    Mr. Nau. Yes.
    Mr. Udall of New Mexico. So your Council is weighing in on 
this?
    Looking at your responsibilities that are laid out in the 
statute, it seems to me that that is a prudent thing to do; and 
I would urge you to do that. I hope that you may be successful 
on this, because it directly impacts my State of New Mexico. It 
may well impact a lot of the other States of members on this 
Committee, and obviously ones that aren't on the Committee.
    Thank you. I see my time is up.
    Mr. Radanovich. Mr. Duncan, did you have any questions?
    Mr. Duncan. Well, I have got a few. I apologize. I was at 
another hearing, so I didn't get to hear all of the testimony, 
so I won't have many questions.
    But let me ask, can any of the witnesses tell me roughly 
how many properties are on the National Register at this point?
    Mr. Tiller. At the moment, there are a little in excess of 
1.2 million properties and 76-some thousand listings.
    Mr. Duncan. I don't understand the difference between a 
property and a listing.
    Mr. Tiller. In Charleston, South Carolina, the Charleston 
Historic District is one listing, but it may contain 500 
properties. So some of the listings in the National Register 
are one house, Mt. Vernon, and that is the one. Charleston 
Historic District may have 500 properties.
    Mr. Duncan. 1.2 million you say?
    Mr. Tiller. Yes, sir. RPTS BRYANDCMN HERZFELD[3 p.m.]
    Mr. Duncan. And how many requests roughly do you get each 
year for new listings or new properties?
    Mr. Tiller. As I mentioned--Carol, do you off the top of 
your head remember what last year's listing was?
    Mr. Radanovich. You are going to need to repeat that for 
the record.
    Mr. Tiller. Mr. Chairman, 1,454 nominations, including 
40,141 properties.
    Mr. Duncan. And what was the first year the list was set 
up?
    Mr. Tiller. The late 1960's. It was authorized in the 1966 
act, and I think--well, automatically a lot of the national 
park properties got added to it, so that came almost 
automatically in 1966.
    Mr. Duncan. So the late 1960's, is that what you said?
    Mr. Tiller. Yes, sir.
    Mr. Duncan. What I am getting at, about how many listings 
did you have each year back in, say, the late 1960's and early 
1970's? In other words, what I am wondering about, is this 
something that is increasing every year, or are we listing or 
having a lot more properties listed? In other words, if I asked 
you for the statistics, say, 20 years ago, what would that 1.2 
million figure have been 10 years ago or 20 years ago?
    Mr. Tiller. Sir, I don't have those trends. I know in 
recent history it has been fairly constant each year. We 
certainly can get you that information over the life of the 
program.
    Mr. Duncan. I would be interested in seeing that. And I 
understand, and I didn't get to hear his testimony, but I 
understand that, Mr. Bisno, that your property--that the Los 
Angeles City Council or the city of Los Angeles found that your 
property was not historic, but then later on the State came in 
and found that it was? Or what was the situation there?
    Mr. Bisno. The planning staff, the planning commission, 
Cultural Heritage, Planning, Land Use Management Subcommittee 
of, and the City Council of Los Angeles found that we were not 
locally significant. Acting pursuant to the Federal law, SHPO 
forwarded our application to the Keeper, and that started a 
world of problems for us. It has stopped commercial 
development, has trampled our rights. And Mr. Tiller would 
suggest that the Federal law didn't snag us, and I just can't 
agree with that, sir. The city of Los Angeles is on the same 
side as we are. The Federal law is supposed to be neutral, and 
the Federal law is not neutral if, over the owner's objection, 
we are going to be eligible for listing, because that triggers, 
even if the city is on our side, litigation in the hands of 
third parties, which suggests the result that we have 
encountered. And I would suggest that if the Federal 
legislation is intended not to interfere with property owners' 
rights, then we can alleviate, ameliorate our problem by simply 
changing the legislation to have it not be in effect when a 
property owner objects.
    Mr. Duncan. Well, it seems to me that if we already have 
1.2 million properties on the list now, and if a person is 
truly willing to more than just pay lip service to a belief in 
private property, that this process shouldn't be able to be 
done over the objection of a private property owner. One of the 
foundation stones of our freedom and our prosperity is private 
property, and I am sure that everybody here today would say 
they believe in private property, but you really don't if you 
believe that this type of thing should be done over the 
objections of the property owner.
    Thank you very much, Mr. Chairman.
    Mr. Radanovich. Thank you, Mr. Duncan.
    Mr. Mark Udall.
    Mr. Udall of Colorado. Thank you, Mr. Chairman. I want to 
recognize the panel. Thank you for taking time out of your day 
for joining us. It has been very helpful to me to hear this 
debate and discussion.
    As a preface, I would just say that I think we would all 
agree that the historic preservation program has been very 
successful across a broad range of cities and towns in America, 
and that the discussion by Mr. Bisno, about a particular 
difficult situation. I hope I will have enough time to hear a 
little bit more from Mr. Bisno.
    But I want to just do what I can with Mr. Tiller, to 
understand that it is the difference between eligibility and 
listing.
    Now, Mr. Tiller, under the Federal law, can a private 
property be listed on a Federal register if the owner objects?
    Mr. Tiller. No, sir, it cannot.
    Mr. Mark Udall. It cannot. And as a matter of Federal law, 
what is the significance of a listing, and how does that differ 
from a finding of eligibility for listing?
    Mr. Tiller. Congressman, there is actually--there are three 
things sort of cutting back and forth here. What we call a 
formal listing on the National Register of Historic Places is 
when the property owner or a nomination is submitted to the 
national register, and the form is filled out, and it is 
located on the map, and there are photographs provided and 
submitted to and through the State--Governor-appointed State 
historic preservation office, and then if the review board of 
the State passes on it, it comes to the Keeper of the National 
Register of Historic Places, and her staff reviews it for 
technical sufficiency and also the scholarship. If it passes 
all of those hurdles, it is entered into the National Register 
of Historic Places. It becomes officially part of the list.
    The second area is within the 106 arena with our colleagues 
and friends on the advisory council who co-administer this part 
of the process. In the 106 process, when a Federal agency is 
undertaking a project anywhere in the United States, the 
question is asked, are there historic properties in the impact 
area? And the first question is, are there any on the national 
register, and that is answered. But then the other question is 
asked, are there other properties we may not know anything 
about? And the State and the Federal agencies work to identify 
those. Those are called opinions on eligibility or sometimes 
consensus determinations. They do not--they are not listed on 
the national register, but they are at least determined if 
there is something that appears to meet national register 
criteria in the area, and neither the advisory council nor the 
National Park Service gets involved in this. This is just a 
finding of fact between the Federal agencies.
    The third category is what brings us here today, which is 
called the determination of eligibility, or the owner object 
determination of eligibility. In those rare instances, and, as 
I said, it is less than 1 percent every year of these sorts of 
activities, there is a citizen that submits a nomination to the 
Keeper of the national register through that same process I 
described, but the owner objects to it. And the Keeper 
nonetheless makes a determination whether he or she believes it 
is eligible for the register, but it is not listed, and it 
brings no Federal restrictions on what happens to that. It is, 
in fact, never listed.
    So there are really three types of categories we are 
talking about here.
    Mr. Udall of Colorado. Mr. Bisno, you had some 
recommendations, and I want to make sure you have a fair 
hearing here and that we have a chance to review what you 
suggest. My understanding right now is that, in effect, you 
have become caught in a web that is more the making of local 
and State law than it is the Federal law, and that what you are 
requesting us to do would perhaps be better done at the local 
or the State level. Do you--would you like to comment on that 
and edify me further or give me a little more insight into the 
situation in which you find yourself?
    Mr. Bisno. Well, the city of Los Angeles and the Lincoln 
Place Apartment owners don't have any disagreement, so we are 
not caught in city law. The city of Los Angeles has 
consistently taken the position that this property has no 
historical significance worth protecting. And so I can't really 
agree that we are caught in city law, because we and the city 
of L.A. are lined up on the same side.
    On the other side is the Lincoln Place Tenants Association, 
and their position is, they are able to assert this in court, 
that the starting of this procedure, through SHPO, which is 
part of the Federal process, and I am not suggesting that this 
is the right position, but this is the position they are 
contending--
    Mr. Udall of Colorado. Sure.
    Mr. Bisno. It has brought our project to a halt, and it has 
been a detriment to the community down there, but their 
position is the starting of this procedure, SHPO forwarding the 
application to the Keeper, is sufficient official action that 
we should not be given demolition permits or the right to 
redevelop our property.
    Now, if we are only talking about 167 properties over the 
course of thousands or tens of thousands, it would seem to be a 
relatively easy loophole for Congress to fix, modifying the 
current matrix to provide that, over an owner's objection, you 
just don't get on this list. You don't start the process. That 
is my suggestion.
    Mr. Udall of Colorado. I see my time has expired, but I 
would say that I understand what you are pointing out. We have 
had some 99 percent of the application process work out fine 
for everybody involved. We have the 1 percent that maybe you 
are in, or an even much smaller percentage of the 1 percent, 
but that doesn't reduce the headache and the heartache that you 
have experienced. But we have to be careful, I think, in 
looking at changing the law that we would have unintended 
consequences on the 99 percent of the processes that seem to 
unfold successfully.
    So I thank the panel, and I thank the Chairman for his 
indulgence.
    Mr. Radanovich. Thank you, Mr. Udall.
    Mr. Bishop, did you have any questions?
    Mr. Bishop. No.
    Mr. Radanovich. None now? Thank you.
    I do have a couple of questions that I want to make sure 
that get asked and into the record here, not the national 
record, but just a reminder, this is a hearing on the 
reauthorization of the advisory council.
    Mr. Nau, I wanted to ask you to comment on this. You 
mentioned as one of your recommendations to expand membership 
by directing the President to designate the heads of three 
additional Federal agencies to the Commission. Can you tell me 
which agencies you think should be added and why?
    Mr. Nau. Mr. Chairman, let me take the why first and then 
come back to the three.
    The original intent was to have various agencies sit on the 
council that have programs that impact historic properties 
throughout the country. There are four that are Presidentially 
designated. As we went through working with the Administration 
and creating the Preserve America Program, it became clear to 
those of us on the council that there are other departments, 
other agencies that clearly have an impact on aspects of 
historic preservation as historic preservation exists today and 
into the future. There are clearly economic development 
benefits through heritage tourism and other programs. The only 
agency that traditionally deals in that arena is obviously the 
Commerce Department, and particularly the Economic Development 
Administration.
    Secondly, one of the long-term benefits of heritage tourism 
and preservation is the education of the youth of America and, 
quite honestly, foreign visitors to the American values. The 
only place that you can touch American values is in these 
locations. So obviously, it is the Department of Education and 
that should be added.
    The third is an agency whose programs impact thousands of 
historic properties all over the country every year--the 
Department of Housing and Urban Development.
    So I don't want to presuppose, this is up to the President 
to nominate these agencies, but the three that we would 
recommend to him would be Commerce, Education, and HUD.
    Mr. Radanovich. Very good. Thank you.
    Mr. Nau, I want to get your comment on the issue at hand 
here with Mr. Bisno. And to lead into that, I understand that 
the State of New York and, I think, the State of Texas 
typically do not make eligible, and correct me if I am wrong, 
any particular property unless if the private property owner 
objects to it. It seems to me it is decided differently State 
by State on how these things are handled. Do you think, given 
what you have heard here, that it would just be a flat-out 
requirement that every State could not do this, and if so, can 
you tell me why?
    Mr. Nau. Well, you have heard Mr. Tiller identify the three 
different classifications. I would like to zero in on one, 
because there is a clear difference between listing and 
eligibility.
    Mr. Radanovich. Correct.
    Mr. Nau. And the question to me, when I heard of this-- and 
I agree, Mr. Bisno, he has obviously been a victim, or the 
process has been abused, there is no question, from my 
perspective--but why would we have a system that would allow an 
eligibility level without the owner's consent?
    Go back to 1966 and why Act this was created in the first 
place. Take the building of the Interstate Highway System. 
There were hundreds, if not thousands, of historic properties 
where these interstates were cutting through. The question 
became how can the preservation community engage or be engaged 
in the process when the U.S. Transportation Department does 
something, or HUD does something? So the system of eligibility 
simply allows that property, if it is going to be impacted by a 
Federal undertaking, to come under the Section 106 process 
review, as Mr. Tiller said. It does not require owner consent, 
and as we have all identified in 99 percent of these projects, 
there is no adverse impact from the eligibility status of the 
property; it simply allows it to engage a Federal process 
through the 106. I would say that that is a good outcome.
    I also would suggest that there is a gatekeeper issue here 
from my perspective, and I think from the Council's; the Keeper 
is a gatekeeper and the SHPO is the gatekeeper, and if there is 
a disconnect, it is somewhere not at the Federal side of this, 
it is a disconnect at the--in this particular case it would 
appear at the State level.
    But I would again point out that there is a logical reason 
for having an eligibility level in here that does not require 
an owner's consent. If we were to go to that, because there is 
no adverse effect at the Federal level, I am absolutely 
convinced of that--if we were to go to that and require owner 
consent, or at least owner awareness, it would, from an 
efficiency standpoint, slow down an awful lot of the Section 
106 reviews, because in most cases, the owner doesn't need to 
know that there is a review going on on a 106 basis. In most 
cases they are ultimately involved anyway, but there is no 
adverse effect.
    So I would point out that there was a reason for it. The 
reason still exists. We have to figure out how to fix the 
gatekeeper, and I would say that the Council would love to be 
part of the process of addressing this particular issue, 
because Mr. Bisno has clearly shown that there is a break. I 
don't think it is completely broken, but there is a break in 
the process in this case. Thank you.
    Mr. Radanovich. Thank you, Mr. Nau.
    A couple of wrap-up questions, I think.
    Mr. Tiller, I would like you to comment on this. You 
mentioned in your testimony that under the National Historic 
Preservation Act, a property owner is under no obligation to 
protect the historic property following a determination of 
eligibility. Thus, a determination of eligibility by the Keeper 
is not intended to adversely impact a property owner's right. 
That is correct, isn't it?
    Mr. Tiller. Yes, Mr. Chairman.
    Mr. Radanovich. If the Federal Government is not intending 
to affect a private property owner's rights by determination of 
eligibility, what is the point of the Federal Government making 
such a determination against an owner's wishes?
    Mr. Tiller. When this piece of policy was created, when 
this was written into the law, which was before my time in this 
business, but my understanding was that the Congress had 
intended largely three things: one, to create some record of 
what was there for future generations if the property is 
demolished or so denatured; second, to create information for 
local and regional and statewide planning purposes, to put a 
dot on the map and say, there is something here that we need to 
pay attention to now and in future generations; and I think 
third, although of less weight, is if there is a new property 
owner, that he or she can go ahead and get the property listed 
and get tax and grant benefits that are offered under the aegis 
of these SWITA programs. But I know the policy intent at the 
time was to impose no punitive and no restrictive rights on 
the--controls on the private property owner.
    Mr. Radanovich. Thank you, sir.
    Mr. Sanderson, I do have a question of you. A determination 
of eligibility is an official determination that can be made 
only by the Keeper of the national register; that is correct, 
is it not? It cannot be made by the SHPO; is that true?
    Mr. Sanderson. That is correct. Actually a determination of 
eligibility, as I understand it, can be made by the Keeper, by 
the Secretary of the Interior, or by the Congress itself.
    Mr. Radanovich. But not by the SHPO.
    Mr. Sanderson. Not by the SHPO.
    Mr. Radanovich. Do you know why the California SHPO is 
unwilling to send a letter to Mr. Bisno confirming that the 
California SHPO had not made a determination for Mr. Bisno's 
property?
    Mr. Sanderson. I am not aware of that particular situation 
at all. I am not aware that a request has been made or what 
action the SHPO may have taken on that. I would note that the 
SHPO and the State review board are both part of a multi-tier 
process. We have talked about the national register process 
this afternoon, and they do have an involvement in that 
process.
    So I think in Rhode Island where I run the preservation 
program, if I received a request like that, I think I probably 
would write a letter. I would probably begin that letter by 
explaining the role of the Keeper and the fact that only the 
Keeper can make an official Federal determination of 
eligibility, and then I would probably report on whatever 
action the State review board had taken, if it had looked at 
the property simply as a matter of fact, whether they had 
looked at the property and what conclusions they had reached, 
and I would probably report on whether I and my professional 
staff had looked at the property and whether we had developed 
any professional opinion about its significance or in relation 
to criteria.
    Mr. Radanovich. Thank you, Mr. Sanderson. I appreciate that 
comment.
    Mr. Bisno, did you want to react to that?
    Mr. Bisno. Mr. Chairman, I would like to comment first to 
what Mr. Sanderson just said and then to what Mr. Tiller said, 
and to put on the record that we have asked SHPO in California 
two or three times as recently as last week to write a letter 
to us telling us that no official action had been taken. We 
would find that letter valuable in our litigation against the 
Lincoln Place Tenants Association. The first request was 3, 4 
weeks ago. We have received no letter for whatever reason. The 
keeper has refused--pardon me, SHPO has refused to write such a 
letter. It is surprising to us.
    Second, the matrix here is not to impact private property 
rights. That is the overall theory. Federal law allows the 
government to buy or condemn a property if the Federal 
Government believes it should be preserved. If the government 
does not believe the property is sufficiently important to 
acquire it, it should leave the matter to local government. But 
in this case SHPO is acting as an agent of the Federal 
Government. It is not performing an independent State 
government function, and therein we find the problem that we 
have arrived at today.
    Mr. Radanovich. Thank you very much.
    Mr. Bisno, if the national register process is not intended 
to affect your rights, why do you think that the application--
that the applicants have fought so hard to make sure that your 
property is determined eligible?
    Mr. Bisno. The actions of the Lincoln Place Tenants 
Association speak volume as to their view that the national 
process does affect our rights.
    Mr. Radanovich. Right. Thank you.
    Any other questions, Mr. Duncan or Mr. Bishop?
    Ms. Christensen. If I could just follow up on that. But it 
is the States or the city of Los Angeles really that has 
determined that their--part of their criteria is the 
eligibility. It is not what we are doing through the Federal 
law, it is through what Los Angeles does and what they decide. 
They decided that part of their criteria would be the 
eligibility, and that is what is creating the problem for you, 
isn't it?
    Mr. Bisno. The current litigation with the Lincoln Place 
Tenants Association has the city of Los Angeles and our company 
on the same side, so, no, I do not see this as a dispute with 
the city of Los Angeles.
    Ms. Christensen. OK. Who issued the demolition permit?
    Mr. Bisno. The city of Los Angeles.
    Ms. Christensen. But they are refusing to do it based on 
the eligibility?
    Mr. Bisno. No. The Lincoln Place Tenants Association has 
now filed a proceeding within the city of Los Angeles which has 
temporarily stopped the demolition permit. The city of Los 
Angeles in this case will be the arbiter of the third party.
    Mr. Radanovich. Thank you.
    Mr. Nau, in your capacity as chairman of the advisory 
council, is it within the purview of the advisory council to 
take up issues like this and make recommendations? The reason I 
ask that was that there seemed to be some openness to want to 
work, or at least to review the Bisno situation to see if there 
were changes that could be made.
    Mr. Nau. We would--Mr. Sanderson sits as a member of the 
council, and we could play, I think, a catalytic role, but we 
would have no formal role. That is why I wanted to understand 
the question. But if this came to our attention, we would then 
be able to carry that back through the particular SHPO office 
to Mr. Sanderson and his organization, yes.
    Mr. Radanovich. Is there a way that the Committee could 
hear back the results of something like that?
    Mr. Nau. Certainly. Absolutely.
    Mr. Radanovich. OK. All right. Well, thank you.
    Gentlemen, thank you so much for again taking time out of 
your day to be here and to discuss this topic. I appreciate 
your being here and the information you provided.
    With that, this hearing is adjourned.
    [Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]

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