[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]




 
                THE NATIONAL HISTORIC PRESERVATION ACT

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

                           OVERSIGHT HEARING

                               before the

                     SUBCOMMITTEE ON NATIONAL PARKS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                        Thursday, April 21, 2005

                               __________

                            Serial No. 109-7

                               __________

           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
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Devin Nunes, California              Mark Udall, Colorado
Henry Brown, Jr., South Carolina     Dennis Cardoza, California
Thelma Drake, Virginia               Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado

                     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

                   DEVIN NUNES, CALIFORNIA, Chairman
     DONNA M. CHRISTENSEN, Virgin Islands, Ranking Democrat Member

Jim Saxton, New Jersey               Dale E. Kildee, Michigan
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Ron Kind, Wisconsin
George P. Radanovich, California     Tom Udall, New Mexico
Walter B. Jones, Jr., North          Madeleine Z. Bordallo, Guam
    Carolina                         Charlie Melancon, Louisiana
Henry Brown, Jr., South Carolina     Nick J. Rahall II, West Virginia, 
Luis G. Fortuno, Puerto Rico             ex officio
Marilyn N. Musgrave, Colorado
Richard W. Pombo, California, ex 
    officio


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Thursday, April 21, 2005.........................     1

Statement of Members:
    Christensen, Hon. Donna M., a Delegate in Congress from the 
      Virgin Islands.............................................     2
    Kildee, Hon. Dale, a Representative in Congress from the 
      State of Michigan..........................................     4
        Prepared statement of....................................     4
    Nunes, Hon. Devin, a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     1

Statement of Witnesses:
    Altschul, Michael, Sr., Vice President and General Counsel, 
      CTIA, The Wireless Association, Washington, D.C............    22
        Prepared statement of....................................    24
    Blackman, Peter F., Property Owner, Louisa, Virginia.........     5
        Prepared statement of....................................     7
    Martin, James, Executive Director, United South and Eastern 
      Tribes, Inc., Nashville, Tennessee.........................    16
        Prepared statement of....................................    17
    Matthews, Janet Snyder, Associate Director for Cultural 
      Resources, National Park Service, U.S. Department of the 
      Interior, Washington, D.C..................................    32
        Prepared statement of....................................    34
    Nau, John, Chairman, Advisory Council on Historic 
      Preservation, Washington, D.C..............................    38
        Prepared statement of....................................    39
    Wadhams, Emily, Vice President, National Trust for Historic 
      Preservation, Washington, D.C..............................    28
        Prepared statement of....................................    29

Additional materials supplied:
    Coalition of 9/11 Families, Letter submitted for the record 
      by Honorable Donna Christensen.............................     3
    The Property Rights Foundation of America, Letter submitted 
      for the record by Honorable Devin Nunes....................    13
    List of letters and statements submitted for the record which 
      have been retained in the Committee's official files.......    65


      OVERSIGHT HEARING ON THE NATIONAL HISTORIC PRESERVATION ACT

                              ----------                              


                        Thursday, April 21, 2005

                     U.S. House of Representatives

                     Subcommittee on National Parks

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:00 a.m, in 
Room 1324 Longworth House Office Building, Hon. Devin Nunes 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Nunes, Christensen, Kildee, 
Duncan, Radanovich, and Fortuno.

STATEMENT OF THE HON. DEVIN NUNES, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Nunes. The Subcommittee will come to order. Good 
morning. Today the Subcommittee on National Parks will conduct 
an important oversight hearing on the National Historic 
Preservation Act.
    As part of their testimony, I have asked the witnesses to 
share their thoughts with the members of the Subcommittee on a 
discussion draft prepared by the Subcommittee to amend the Act.
    As my colleagues are aware, the Subcommittee last conducted 
a hearing on the Act in 2003. Since that time, the Subcommittee 
has taken a much closer look into the development of the 
procedures associated with the Act, which has resulted in the 
discussion draft.
    I look forward to hearing the thoughts of my colleagues and 
the witnesses.
    I want to welcome all of you here today and thank you all 
for being here and your attendance. And now I recognize Mrs. 
Christensen for her opening statement.
    [The prepared statement of Mr. Nunes follows:]

           Statement of The Honorable Devin Nunes, Chairman, 
                     Subcommittee on National Parks

    The Subcommittee will come to order.
    Good morning. Today, the Subcommittee on National Parks will 
conduct an important oversight hearing on the National Historic 
Preservation Act. As part of their testimony, I have asked the 
witnesses to share their thoughts with the Members of the Subcommittee 
on a Discussion Draft prepared by the Subcommittee to amend the Act.
    As my colleagues are aware, the Subcommittee last conducted a 
hearing on the Act in 2003. Since that time, the Subcommittee has taken 
a much closer look into the development of the procedures associated 
with the Act, which has resulted in the Discussion Draft. I look 
forward to hearing the thoughts of my colleagues and the witnesses.
                                 ______
                                 

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

    Mrs. Christensen. Thank you, Mr. Chairman.
    Mr. Chairman, I join you this morning in welcoming our 
witnesses here today and thank them for assisting the 
Subcommittee in gathering information regarding the changes 
that you are proposing to the National Historic Preservation 
Act.
    As you know, Mr. Chairman, the National Historic 
Preservation Act is the bedrock upon which all Federal historic 
preservation programs are built.
    The Act created the Advisory Council, which Mr. Nau chairs, 
as well as the National Register of Historic Places and 
Historic Preservation Fund. The Act also ensures that the 
Federal Government avoids inadvertently damaging historic 
resources.
    The results speak for themselves, Mr. Chairman: 1.2 million 
structures, objects, districts, and sites identified, 
evaluated, and protected because they were significant in the 
life of this country and the lives of the American people.
    More than 60 of those listed properties are in Fresno and 
Tulare Counties in California, Mr. Chairman, while more than 80 
are in my district of the U.S. Virgin Islands.
    This 40-year legacy of effective historic preservation 
requires that the sweeping changes you are proposing to the Act 
be reviewed with great care. The very real concern that such 
changes may undermine the effectiveness of the Act, and thus 
threaten this legacy, requires the Subcommittee to set a very 
high bar regarding these proposals.
    Mr. Chairman, we are going to hear testimony today that 
your proposal to narrow the scope of Section 106 to include 
only those historic properties that are already documented 
could have devastating impact. For example, many sites that are 
culturally significant in Native Americans would not meet this 
test because we have been so slow to recognize the significance 
of these resources.
    Conversely, relatively new areas, which have yet to be 
listed or found eligible, such as the World Trade Center site, 
could fail this test as well. This is despite the fact that few 
could doubt the site's historic significance.
    In that regard, Mr. Chairman, I ask unanimous consent to 
enter into the record a letter from the Coalition of 9/11 
Families explaining their opposition to the discussion draft.
    Mr. Nunes. Without objection.
    [The letter from the Coalition of 9/11 Families follows:]

                             April 18, 2005

 VIA FACSIMILE (202) 225-3404 FAX

Hon. Devin Nunes
Chairman
Subcommittee on National Parks, Recreation and Public Lands
1017 Longworth HOB
Washington, DC 20515

Dear Congressman Nunes:

    The Coalition of 9/11 Families represents more than 4,000 
individuals who lost family members on September 11, 2001. I am writing 
to you on behalf of the Coalition to express our concerns about 
proposed amendments to the National Historic Preservation Act (NHPA), 
which will soon be considered by the House Subcommittee on National 
Parks, Recreation and Public Lands. For more than a year the Coalition 
has served as a Consulting Party in the NHPA Section 106 review of 
several federally funded undertakings at the World Trade Center site. I 
can assure you that had it not been for the requirement that 
``eligible'' properties be included in evaluating the effects of those 
projects on historic resources, the remains of the Twin Towers, most 
especially the physical remains that delineate the twin tower 
footprints at bedrock would have continued to be ignored and would have 
been completely destroyed.
    For more than a year, the Coalition, together with other Consulting 
Parties such as the National Trust for Historic Preservation and the 
Historic Districts Council has been fighting--with only partial 
success--to have the historic significance of the physical remains of 
the World Trade Center recognized. If the property owner, the Port 
Authority of New York and New Jersey, had the right to refuse to have 
the World Trade Center site declared eligible for the National 
Register--as the proposed amendments would allow--there would have been 
no consideration of how construction of their proposed new commercial/
transportation projects would effectively destroy the location where 
our loved ones were murdered. Nearly half of the victims have not been 
identified, nor will they be at this time due to technological 
limitations and the site continues to be the only place where families 
can go to pay respects to their loved ones.
    The existing Section 106 process is far from perfect, but it has 
afforded the Coalition an opportunity to be heard and have input into 
the design of Port Authority's proposed facility. The original World 
Trade Center was not listed on the National Register. None of the 
federal agencies involved, nor the Advisory Council on Historic 
Preservation, would accede to our request that a formal determination 
of eligibility be made by the Secretary of the Interior. Requests from 
Members of Congress went unheeded. It was only the requirement that 
``eligible'' properties be identified that caused the redevelopers of 
the World Trade Center site to consider our concerns. If only 
properties listed on the National Register had been considered during 
the Section 106 process, not only the Coalition, but every citizen who 
believes that September 11 was a transcendently significant event in 
our nation's history would have suffered irreparable harm.

                                Regards,

        Anthony Gardner, Brother of Harvey Joseph Gardner III, 
           Executive Board Member, Coalition of 9/11 Families

cc: Congressman Shays
   Congresswoman Maloney
   Congressman Pombo
   Subcommittee Members
                                 ______
                                 
    Mrs. Christensen. Mr. Chairman, we simply cannot risk these 
types of unintended consequences without evidence of 
widespread, well-documented, and ongoing problems which cannot 
be dealt with under the Act as written.
    Isolated, anecdotal assertions, nor industry complaints 
which can be addressed administratively justify such 
fundamental and potentially harmful alterations to this 
statute.
    We look forward to the thoughts of our witnesses on these 
matters, Mr. Chairman, and thank you.
    Mr. Nunes. Thank you, Mrs. Christensen. At this point, I 
would like to ask the witnesses to stand and please your right 
hand and repeat after me.
    [Witnesses sworn.]
    Mr. Nunes. Thank you. With that, I do want to say that we 
will be having votes this morning, and so what we would like to 
do is try to limit the testimony to 5 minutes so we can--
because we do have your testimony for the record. That way, we 
can get through the testimony and then get into questions.
    So with that--I don't know. Mr. Kildee, do you have an 
opening statement?
    Mr. Kildee. Can I make just about a 1-minute opening 
statement.
    Mr. Nunes. Sure. Yes. The Gentleman is recognized.
    Mr. Kildee. I appreciate that. Thank you very much.

   STATEMENT OF THE HON. DALE E. KILDEE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Kildee. Mr. Chairman, I have strong concerns about 
Section 4 of the discussion draft for proposed amendments to 
the National Historic Preservation Act. I received letters from 
several tribes, the National Congress of American Indians, the 
United South and Eastern Tribes, and other organizations 
raising concerns that Section 4 would eliminate a provision in 
current law that protects as sacred sites and cultural items of 
Indian tribes.
    Section 4 would also undermine the Federal regulations 
designed to implement the current law. The regulatory process 
requires, among other things, tribal consultation and 
establishes a process for determining whether a site is 
eligible for inclusion in the National Register.
    The Federal requirements in the National Historic 
Preservation Act and other laws and Executive Orders were 
established to fulfill promises we made to Native Americans 
that their cultural and historical sites, places of worship, 
and burial grounds would be protected and preserved.
    Last September, President Bush signed an Executive 
Memorandum in honor of the opening of the National Museum of 
the American Indian that reiterates the adherence to the 
principles set forth in a previous Executive Order relating to 
tribal consultation and coordination.
    Section 4 violates the spirit of the several Federal laws 
and mandates that provide for the protection of cultural and 
historical sites of our country's first Americans.
    I want to thank the Chairman for not introducing this draft 
prior to today's hearing so that we may have an opportunity to 
work cooperatively with all interested parties in developing 
alternative solutions. And I look forward to hearing from the 
witnesses today, and I thank you very much for your indulgence.
    [The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                       from the State of Michigan

    Mr. Chairman, I have strong concerns about Section 4 of the 
discussion draft of proposed amendments to the National Historic 
Preservation Act.
    I have received letters from several tribes, the National Congress 
of American Indians, the United South and Eastern Tribes and other 
organizations raising concerns that Section 4 would eliminate a 
provision in current law that protects the sacred sites and cultural 
items of Indian tribes.
    Section 4 would also undermine the Federal regulations designed to 
implement the current law.
    The regulatory process requires, among other things, tribal 
consultation and establishes a process for determining whether a site 
is eligible for inclusion in the National Register.
    The Federal requirements in the National Historic Preservation Act 
and other laws and Executive Orders were established to fulfill 
promises we made to Native Americans that their cultural and historical 
sites, places of worship, and burial grounds would be protected and 
preserved.
    Last September, President Bush signed an Executive Memorandum in 
honor of the opening of the National Museum of the American Indian that 
reiterates the adherence to the principles set forth in a previous 
Executive Order relating to tribal consultation and coordination.
    Section 4 violates the spirit of several Federal laws and mandates 
that provide for the protection of cultural and historical sites of our 
country's first Americans.
    I want to thank the Chairman for not introducing this draft prior 
to today's hearing so that we may have an opportunity to work 
cooperatively with all interested parties on developing alternative 
solutions.
    I look forward to hearing from the witnesses today.
    Thank you.
                                 ______
                                 
    Mr. Nunes. Thank you, Mr. Kildee.
    With that, we will recognize Mr. Peter Blackman for five 
minutes.

        STATEMENT OF PETER F. BLACKMAN, PROPERTY OWNER, 
                        LOUISA, VIRGINIA

    Mr. Blackman. Chairman Nunes, members of the Subcommittee, 
thank you for inviting me to speak before you.
    My name is Peter Blackman. I own a farm that is a 
contributing property to the National Register listed Green 
Springs Historic District in Central Virginia, 12 miles east of 
Charlottesville.
    I am currently engaged in litigation with the National Park 
Service over plans to renovate my house, a piece of which you 
see in that photograph.
    The nub of the lawsuit brought by the United States is the 
purported conservation easement it holds on the property as 
part and parcel to the National Register Program.
    The issue I wish to address today is Section 2(a) of the 
discussion draft concerning Section 101(a)(6) of the Historic 
Preservation Act. This section currently allows the Secretary 
to find a property eligible for the National Register over the 
objections of a property owner.
    The effect of this provision is to run roughshod over the 
property rights of that owner through a back door eligibility 
designation, which can have the same restrictions as a normal 
listing. The proposed amendment, by closing this loophole, is 
long overdue. I applaud this, a step in the right direction 
that returns an important property right protection to 
homeowners.
    I respectfully submit to the Subcommittee, however, that 
this amendment does not go far enough. A property owner needs 
more than a veto power over a potential National Register 
listing. He should be able to opt out or withdraw from the 
National Register at any time. The National Register is 
supposed to be elective, an honor. Supposedly, you can do 
anything you wish with your house without penalty--even 
demolish your house within the limits of state and local law.
    That is what the Park Service literature trumpets time and 
again, and what you are told when being wooed to list your 
property on the National Register.
    Alas, that is only part of the story. The National Park 
Service and others will use the National Register as a bludgeon 
against the property owner to trample his property rights, if 
they can. To them, your property, once listed, is just a 
resource. To them it is not a home.
    This danger may sound far off and academic. I am here today 
to tell you that it is happening now. It is happening to me, 
and I am not alone.
    The cause of this problem is what I call the ``add-ons'' to 
the National Register. These add-ons are most often local or 
state preservation regulation that kicks in when a property has 
National Register status of some kind. In my case, the add on 
was an alleged easement, which the Park Service assumed from a 
private non-profit organization in 1978, then placed with the 
Shenandoah National Park to manage. Every step of this process, 
by the way, was carried out without any apparent statutory 
authority to do so, in contravention of basic administrative 
law and due process.
    The Park Service has used the easement it claims to have on 
my property to apply as mandatory requirements what is known as 
the Secretary of Interior's standards for rehabilitation to 
their review of renovation plans of my house. It has applied 
these guidelines in a punitive manner. These standards were 
never intended to be used this way. Like the National Register 
itself, these standards were meant to be non-compulsory and to 
be treated flexibly, as at most a starting point in discussions 
with a property owner.
    But to give you an idea of what the Park Service has done, 
the have prevented me from remediating extensive toxic mold and 
fixing dire structural problems, invoking these standards on a 
house that can only be seen from the road, three quarters of a 
mile away.
    A Federal judge agreed that these standards are not 
supported by the easement document the government relied upon. 
They have done all this in the name of preservation. As to 
their objections to my larger plans, it can be summed up as 
his: my modifications or additions, which the government 
attorney herself described as, I quote ``gorgeous,'' are one of 
two things. Most often there are too much in the style of the 
original house. Other times, they are different from the 
original house, and thereby objectionable. Go figure.
    Now, I can tell you that I am not the only person, even in 
my community, who has encountered this morass of vague, 
shifting standards, but most property owners end up having no 
choice but to give in. The government has a huge advantage in 
terms of time and money when a dispute arises.
    The Park Service knows this. They know that they can mess 
with a property owner. It does not cost them personal time or 
money. Yet, their decisions can disrupt a property owner's life 
and home as they have mine. I would mention before my time is 
up a few other issues my situation raises. One is that the 
National Register was meant to protect a property owner from 
Federal action. That is the purpose of Section 106 of the 
Historic Preservation Act. That is the section that triggers an 
intricate review whenever a Federal action might negatively 
impact a National Register property. But the Park Service has 
inverted the notion of Federal undertaking, a term defined in 
the regulations under the Act, to use it as a weapon against me 
without any support under that definition. They have actually 
asserted that their aesthetic review of my house constitutes a 
Federal undertaking. It makes no sense.
    In my case also, there has been an improper delegation to a 
local non-profit organization. This has been done without the 
Park Service vetting the group. In fact, the Park Service 
itself has repeatedly expressed reservations about this group's 
I quote ``closely held agenda.''
    I could also speak about the Park Service's abuse of the 
whole FOIA, or Freedom of Information Act, process and their 
retaliatory behavior.
    And the last point, the documents I will offer the 
Committee should speak for themselves.
    Before I close, I would like to offer to the Subcommittee 
documents pertaining to my litigation. I have here the entire 
court record, including a transcript from an evidentiary 
hearing, appellate briefs on a narrower certified question 
about the easement's validity under the common law, a question 
argued just yesterday before the Virginia Supreme Court, in 
which the government attorney admitted that she had no cases to 
support her proposition, and also documents surrounding a 
failed attempt by the government to hold me in criminal 
contempt for an alleged violation of an injunction. The charge 
was thrown out because the government tried to bypass going to 
the Federal judge hearing the case in a blatant violation of 
the Federal Rules of Criminal Procedure.
    The court record also includes many illustrative documents 
as attachments, including, of course, the disputed easement. In 
addition, I offer a fuller written statement about the district 
I live in and my dealings with the National Park Service 
leading up to the litigation, and I also have copies of the 
correspondence relating to an investigation initiated by my 
Congressman, Eric Cantor, and two FOIA, Freedom of Information, 
requests I made in 2003.
    Finally, I also have letters from neighbors with similar 
concerns and letter from the Property Rights Foundation of 
America speaking of similar problems that have occurred in 
other geographic areas.
    Once again, I thank the Subcommittee for affording me the 
opportunity to address my concerns. Thank you.
    [The prepared statement of Mr. Blackman follows:]

            Statement of Peter F. Blackman, Property Owner, 
                            Louisa, Virginia

    My name is Peter Blackman. I own a farm that is a contributing 
property to National Register listed Green Springs Historic District in 
Central Virginia, twelve miles east of Charlottesville. I am currently 
engaged in litigation with the National Park Service over plans to 
renovate my house. The nub of the lawsuit, brought by the United 
States, is a purported conservation easement it holds on the property 
as part and parcel to the National Register program. On advice of 
counsel, I am limited in how I can comment on the litigation itself, 
but I offer to the Subcommittee the full court record to date, among 
other documents.
    The issue I wish to address today is Section 2(a) of the discussion 
draft regarding proposed amendments to the Historic Preservation Act. 
Specifically, I am concerned with Section 101(a)(6) of the Act. This 
Section currently allows the Secretary to find a property eligible for 
the National Register over the objections of a property owner. The 
effect of this provision is to basically run roughshod over the 
property rights of that owner through a back door eligibility 
designation, which can have the same restrictions as a normal listing. 
The proposed amendment, by closing this loophole, is long overdue. I 
applaud this, a step in the right direction that returns an important 
property right protection to homeowners.
    I respectfully submit to the subcommittee, though, that this 
amendment does not go far enough. A property owner needs more than a 
true veto power over a potential National Register listing. He should 
be able to opt out or withdraw from National Register at any time. The 
National Register is supposed to be elective, after all, and an honor. 
You can do anything you wish with your house without penalty, even 
demolish your house, within the limits of state and local law. That is 
what the Park Service literature trumpets time and again and what you 
are told when being wooed to list your property on the National 
Register.
    Alas, that is only part of the story. The National Park Service and 
others will use the National Register as a bludgeon against the 
property owner and trample his property rights, if they can. To them, 
your property, once listed, is just a ``resource;'' to them, it is not 
a home.
    This danger may sound far-off and academic. I am here today to tell 
you that it is happening today. It is happening to me, and I am not 
alone!
    The cause of this problem is what I would call the ``add-ons'' to 
the National Register. These add-ons are most often local or state 
preservation regulation that kicks in when a property has National 
Register status. Here in Washington, to use just one example, if a 
property is listed on the National Register, you cannot demolish any 
part of it without the approval of a mayor's agent, something that is 
seldom given. It does not matter that the property was not on the local 
list of landmarks. The National Register is enough to trigger this 
rule.
    In my case, the add-on was an alleged easement, which the Park 
Service assumed from a private nonprofit organization in 1978, then 
placed with the Shenandoah National Park to manage. Every step of this 
process, by the way, was carried out, I believe, without any apparent 
statutory authority to do so, in contravention of basic administrative 
law.
    The Park Service has used the easement it claims to have on my 
property to apply as mandatory requirements what is known as the 
Secretary of Interior's Standards for Rehabilitation to their review of 
renovation plans for my house. It has applied these guidelines in a 
punitive manner. These standards were never intended to be used this 
way. Like the National Register's itself, these standards were meant to 
be non-compulsory and to be treated flexibly, as at most a starting 
point in discussions with a property owner. But to give you an idea 
what the Park Service has done, they have prevented me from remediating 
extensive toxic mold and fixing dire structural problems, invoking 
these standards. A federal judge agreed that these standards are not 
supported by the easement document the government relied upon. They 
have done all this in the name of ``preservation.'' I have some 
pictures to show you what I mean. SHOW PHOTOS And they were on record 
even disallowing me to do more limited work, which would have no effect 
on the long-term cosmetic appearance of the house, all in the name of 
``preservation.'' I submit, with their form of preservation, their 
valuable ``resource,'' my home, may collapse!
    As to their objections to my larger plans, it can be summed up as 
this: my modifications or additions, which the government attorney 
herself described as ``gorgeous,'' are one of two things: most often, 
they are too much in the style of the original house! Other times, they 
are different from the original house, and thereby objectionable! Go 
figure!
    Now I can tell you that I am not the only person, even in my 
community, who has encountered this morass of vague, shifting 
standards, but most property owners end up having no choice but to give 
in. The government has a huge advantage in terms of time and money when 
a dispute arises. The Park Service knows this. They know that they can 
then mess with a property owner. It does not cost them personal time or 
money! Yet their decisions can disrupt a property owner's life and 
home, as they have, mine.
    I wish I could go into greater detail. I would like to mention, 
before my time is up, or if the subcommittee will permit me, that there 
are a few other issues that my situation raises that bear its looking 
into.
    One is that the National Register was meant to protect a property 
owner from federal action. That is the purpose of Section 106 of the 
Historic Preservation Act. That is a section that triggers an intricate 
review whenever a federal action, such as a highway, might negatively 
impact a National Register property. But the Park Service has inverted 
the notion of ``federal undertaking,'' a term defined in the 
regulations under the Act, to use it as weapon against me, without any 
support under that definition. They have actually asserted that their 
aesthetic review of my house constitutes a federal undertaking. It 
makes no sense. I have no doubt they have done this with others.
    In my case, also, there has been an improper delegation to a local 
nonprofit organization. This has been done without the Park Service 
vetting the group. In fact, the Park Service itself has repeatedly 
expressed reservations about this group's ``closely held agenda.''
    I could also speak about the Park Service abuse of the whole FOIA 
process, and but for the litigation, the possible retaliatory behavior 
of the Park Service. I think, though, the documents I provide may speak 
for themselves on this last point.
    Before I close, I will quickly summarize the documents I am leaving 
with you that help support what I have alluded to in this speech. The 
court record includes a transcript from an evidentiary hearing, 
appellate briefs on a narrower certified question about the easement's 
validity under the common law, a question argued just yesterday before 
the Virginia Supreme Court, and documents surrounding a failed attempt 
by the government to hold me in criminal contempt for an alleged 
violation of an injunction. The charge was thrown out because the 
government tried to bypass going to the federal judge hearing the case. 
The court record includes many illustrative documents as attachments, 
including, of course, the disputed easement. In addition, I offer a 
fuller written statement about the district I live in and my dealings 
with the National Park Service leading up to the litigation. I also 
have attached to that are correspondence relating to an investigation 
initiated by Congressman Eric Cantor and two Freedom of Information 
requests I made in 2003, and some documents uncovered in the FOIA 
investigations.
    Once again, I thank the subcommittee for affording this opportunity 
to address my concerns.
                                 ______
                                 

                  SUPPLEMENTAL STATEMENT TO TESTIMONY

    I currently own and reside in the Historic Green Springs District 
located in Louisa County, Virginia, approximately 12 miles to the east 
of Charlottesville. I have lived there since July 1, 2002. My property, 
275 acres known as Eastern View Farm, is considered a contributing 
property to a district-wide listing to the National Register, which is 
administered by the National Park Service. It is not separately listed. 
This is an important distinction. The simple farm house has, even in 
its decrepitude, considerable charm--that is why I bought it--but it is 
of a design and type common to Central Virginia and has no historical 
or architectural significance. On the application by the District to 
the National Register, under section 8 which is supposed to detail what 
is significant about the house, it is entirely silent about my house, 
whereas other houses in the district are described there in 
considerable detail. All that the National Register application 
contains about my house is a brief, somewhat inaccurate description 
under section 7. It is my understanding that the standard practice of 
the National Register, when it evaluates proposed renovations and 
changes to a house, is to rely solely on section 8. In my case, the 
Park Service treated every item of the description given in section 7 
as it were in section 8.
    None of this would matter to me except the Park Service also held a 
purported conservation easement on my property. The purported easement 
was used by the Park Service to apply otherwise non-compulsory 
standards provided in the Secretary of Interior's Standards for 
Rehabilitation as if binding, and to do so in a punitive manner, 
despite the fact that no tax credits or deductions were ever received 
by an owner of Eastern View, either at the time of the grant of the 
alleged easement, or thereafter. In applying the Standards in a 
compulsory manner to me, the Park Service has maintained, in effect, 
that they possess the sole authority for interpreting these standards. 
Further, the Park Service has made no provision for an appeal. They 
have consistently maintained throughout my dealings with them that they 
are willing to continue discussions and entertain revised plans, but 
there is nothing specific holding them to a timetable or to adhere to 
any set of procedures. It is because these standards were meant to be 
elective that they are written loosely. A property owner could simply 
opt out if he disagreed. 1 The easement document itself did 
not support the use of these Standards. It could not have, as the 
alleged easement was executed in 1973, a number of years before there 
were any Secretary's Standards in existence. The purported easement 
provided several vague standards of its own, which might be summarized 
as changes and additions to the house must be in the style of the 
existing structure. This standard is at loggerheads with the overriding 
approach of the Secretary's Standards, which prescribe that anything 
new be done in a manner that is distinguishable from the existing 
structure, so that a passerby might not be confused about the historic 
evolution of the house. Whereas the easement document explicitly allows 
additions, the Secretary's Standards discourage them.
---------------------------------------------------------------------------
    \1\ W. Brown Morton, currently a professor at Mary Washington 
College in Virginia and a drafter of the Secretary's Standards, has 
recently stated on numerous occasions that the Standards were meant to 
be a flexible tool and at most a starting point for negotiation with 
the property owner.
---------------------------------------------------------------------------
    The house, at the time I bought it, was in wreck condition. I 
bought the house with the idea of renovating it. I had successfully 
renovated a ``pre-war'' New York City apartment, circa 1928, also in 
wreck condition, a few years before, and I looked forward to tackling 
the same sort of project in a rural setting. I could not imagine that 
anyone would be against the kind of sensitive renovation I would do. I 
would add that the house itself sits centered on the property's 275 
acres and is a half-mile from the nearest road frontage, which is 
wooded. Only from short stretches of the road, approximately three 
quarters of a mile from the house, can it be glimpsed. Trees around the 
house obstruct much of that view during the summer months. There is 
nothing in the easement document itself, by the way, which precludes me 
from planting trees to block the view entirely.
    Several substantial changes were made to the house from the time of 
the listing on the National Register of the District. None of the 
changes were made with the approval of the Park Service, nor did the 
Park Service ever object to these changes, which my FOIA request showed 
they had knowledge of None of the changes to the house were ones that 
in any way enhanced the house's architectural historic integrity, such 
as it was. The house when I bought it was at best marginally habitable. 
While I did move in and rough it, many people would have regarded it as 
unlivable. Among the problems I encountered in 2002, and this is not an 
exhaustive list, were a front porch falling off the house, another 
porch whose roof was structurally unsound; rotting siding, long past 
its useful life; inadequate insulation; many damaged structural 
members, with such things as the base sill upon which the house rests 
being badly water and termite damaged; and water damage on the interior 
walls throughout the house from rain seeping through rotten, broken 
windows. One could see light from outside coming through the exterior 
walls, and vines growing through them. To give you an idea, in the 
first winter, my propane heat bill was well in excess of $1,000 per 
month for a house that was 3,500 square feet. The bill was at least 
four times what most would have considered a normal amount, and for 
that, there were rooms that on cold days were completely unusable. The 
house did not retain heat. Water pipes, even those housed in interior 
walls, would freeze. I might have well been living in a tent!
    In September 2003, the eye of Hurricane Isabel passed over my 
house. I and two others worked nonstop from 3 P.M. until 11 P.M. 
sopping up water penetrating the walls and ceiling. When the storm 
passed, it left behind additional water damage and serious toxic mold 
throughout the house. Patches of thick black mold were growing on the 
interior walls of four rooms.
    Before I go into the tortuous relationship I had with the Park 
Service starting shortly after I bought the property, a little 
background on the Green Springs Historic District is in order. In the 
early 1970s, a proposed state prison facility disturbed some of the 
local homeowners, and they struck upon the idea of using rural 
conservation as a means to defeat it. They created a nonprofit, 
Historic Green Springs, Inc. (``HGSI''), to hold a number of 
conservation or preservation easements, which a federal court actually 
found were dissimilar from one another, noting that they ``failed to 
prohibit in all cases subdivision and development of the land.'' 
2 Moreover, the easements were rife with ambiguities and 
poor draftsmanship. Each of these property owners was then a member of 
this organization. Shortly thereafter, there was a takeover of the 
organization by a few members who then expelled anyone who opposed 
their agenda.
---------------------------------------------------------------------------
    \2\ Historic Green Springs, Inc. v Bergland, 497 F.Supp. 839, 843 
(1980).
---------------------------------------------------------------------------
    HGSI soon after its creation applied to be listed on the National 
Register as a historic district. At the time the Park Service 
designated the district on the National Register, the Department of 
Interior (``DOI'') accepted an assignment of the easements from HGSI. 
DOI placed the administration of these easements with the Shenandoah 
National Park, which itself is about 80 miles from the district. The 
federal government owns no land in or by the District. The purported 
easement document itself states ``nothing herein shall be construed to 
convey a right to the public of access or use of the properties.''
    The way the Park Service conducted its inquiry into the District 
during the 1970s sparked litigation--the District has been an engine 
for litigation ever since. In 1980, there was a key decision, Historic 
Green Springs, Inc. v. Bergland, in which the designation of the 
District on the National Register was ruled invalid. Congress, by fiat, 
shortly afterwards restored the designation.
    The alleged easement covering my property has architectural and 
subdivision restrictions. It is the architectural restrictions that 
precipitated a dispute between the NPS and me. Currently, my easement 
is the subject of litigation in the federal district court and the 
Supreme Court of Virginia. The Supreme Court heard arguments on April 
20 as to whether the restrictions are cognizable and therefore even 
valid under the Virginia common law. I have attached a copy of the full 
court record to date, including the briefs prepared for the Supreme 
Court.
    Even if the easement is found to be cognizable under Virginia law, 
there are serious issues whether the Park Service has the statutory 
authority to hold it. The Historic Sites Act of 1935 is the basis for 
the Park Service to hold any easement, but that act, in section 1, 
declares its purpose as being to ``preserve for public use historic 
sites'' and ``building,'' and the alleged easement actually explicitly 
states there is no public access to the property. No where in Title 16 
is the Secretary of Interior, who accepted the assignment of the 
easements, given the authority to place such easements in the 
Shenandoah National Park. Further, none of the Shenandoah National Park 
sections of Title 16 allow it to hold such easements, which are 
manifestly not adjoining the park. Even if the park has the right, it 
committed a number of serious violations of administrative law. One of 
the most egregious was involving HGSI in the review process on my 
property. After HGSI assigned most of the alleged easements it held in 
1978, it continued to have a tight relationship which the Park Service. 
From 1980 through 1991, the Park Service and HGSI actually had a 
memorandum of understanding by which HGSI had a role in monitoring the 
supposed easements. The memorandum was not renewed thereafter because 
of complaints from many property owners and what the Park Service 
itself called HGSI's ``closely-held agenda.'' By the time I moved into 
the community, however, the Park Service was turning to HGSI for 
virtually every decision relating to the area. Yet as a Freedom of 
Information Act investigation of mine revealed, the Park Service never 
did anything to audit and review HGSI, its legitimacy, et. al. The Park 
Service actually admitted that they had no procedures to monitor such a 
``partnership.'' Never did the Park Service offer any justification for 
its ties with HGSI. HGSI is clearly not a community group, in the sense 
of an organization representing all the affected property owners. I was 
never invited into the organization, and as I indicated above, many 
property owners were expelled some years ago. A glance at its charter 
discloses that its membership need not even live in the area. 
Nonetheless, the Park Service has called HGSI its ``Partner'' on many 
occasions.
    Once I moved into my house, I started to plan how to renovate it. 
The Park Service came to visit my property unannounced several times, 
all in violation of the easement. The president of HGSI, Ms. Ely, told 
me what I could and could not do without my house, all before I had 
formulated plans, and I would add, her opinion was unsolicited. I 
became disturbed by the role of Ms. Ely, as I saw no justification for 
her participation, a lack of accountability by her or her organization, 
a lack of legitimate expertise in architecture or architectural 
history, among other reasons. Alas, my concerns were unavailing with 
the Park Service. I complained to my Congressman, Eric Cantor, who 
initiated the first of several investigations. The Park Service 
response in all the investigations was to evade or deny all the 
charges, despite my having provided considerable documentary evidence 
of my concerns. However, the Park Service made an implied promise after 
the first investigation that they would no longer involve HGSI and Ms. 
Ely in the review process of my home. In my first FOIA search of Park 
Service documents I discovered that in fact they not only went right on 
involving Ms. Ely, but they were even communicating every step of the 
response they were formulating to Congressman Cantor's inquiry, a 
document in which they had implied they would not be consulting her.
    After I hired an architect in Fall, 2002, he drew up plans which 
were submitted to the Park Service in February, 2003. Those plans, and 
several revisions afterwards, were rejected on the basis of the 
Secretary's Standards. Sometimes the reason was that the change or 
addition was too similar in style to the existing house. Sometimes the 
reason was the opposite: it was not enough alike. The Park Service 
could seem to be expressing approval for an element of the plan, but 
they never gave a go ahead on anything. Throughout their correspondence 
they spoke of a willingness to continue a dialogue, but they offered, 
and had, no official appeal process, as is a basic administrative law 
protection to a citizen in a governmental discretionary review. Their 
own literature directed at local architectural review boards says that 
providing for an appeal is an essential part of a legitimate program. 
Especially frustrating for me in this review was how they would base 
their pronouncements on erroneous or speculative beliefs about my 
house. An example was how they rejected plans for me to enlarge 
basement windows in the front of the house. The existing windows were 
small transom windows. The Park Service insisted that these were 
original to the house. Anyone versed in architectural history would 
have known that in fact the current basement was probably once a ground 
floor with more graceful windows. But even if you did not have this 
base of knowledge, a quick glance from the outside showed the outline 
of the former windows, which had been covered with concrete!
    The Park Service did make one adjustment after I complained about 
HGSI; they told my architect that they routinely involve the Virginia 
Department of Historic Resources. In my FOIA search, I found no 
evidence that the Park Service had ever done this before, except in 
regard to the processing of tax credits. The Park Service treated this 
involvement as a review under Section 106 of the Historic Preservation 
Act, notwithstanding that Section 106 clearly did not apply. The 
purpose of this section was to protect property owners from deleterious 
effects of federal action. The section applies when there is a federal 
undertaking. This requires either an expenditure of federal funds or 
the issuance of a license. Neither were pertinent to the aesthetic 
review of my house. A classic federal undertaking is the building of an 
interstate highway. If such a road were to affect a National Register 
property, then Section 106 would call for a review on how such an 
undertaking would impact the ``resource,'' or the historic buildings 
covered on the National Register. The idea was to deter heedless 
negative developments, whatever they might be, involving the federal 
government, without a full weighing of the potential consequences. That 
highway might still be built, as planned, but only after there was a 
full analysis of its impact on a historic property. Basically, the 
scheme was to ensure that one arm of the federal government wouldn't be 
working at cross-purposes with another, that historic preservation was 
a worthy objective and should not be forgotten. To regard the review of 
my plans as a Section 106 undertaking was to invert the law's purpose 
and instead of protecting the property owner against a federal 
intrusion, to treat the property owner as the intrusion.
    Even if the delegation to the Virginia Department had legitimacy, 
and their obstinate use of the Secretary's Standards justified, the 
Park Service tainted the objectivity of such review by basically 
telling the Virginia Department the conclusions it wished to have 
validated. (This is revealed in the correspondence between the Park 
Service and the Virginia Department.) It is my understanding that the 
Virginia Department receives funding from the Park Service, a 
relationship that might undermine its independence.
    By early fall, the Virginia Department was apparently on the verge 
of approving of my plans. Suddenly, the Park Service changed their 
tune, minimizing the role of the Virginia Department, consulting with 
other parts of the Park Service to get the negative opinion they were 
seeking, and invoking a new standard, NPS 28, which is intended for 
Park Service owned or managed properties, and so clearly irrelevant to 
my home, which was neither. This NPS 28, needless to say, had no basis 
in the alleged easement document, was different from the Secretary's 
Standards, and until then, had never been mentioned, in a notorious 
flouting of administrative law.
    I mention that I made a FOIA requests. In these requests the NPS 
improperly withheld information and possibly documents too. For 
example, they declined to provide documents on the basis of attorney 
client privilege, refusing to disclose even the names of the parties so 
involved. Even if the document were privileged, the Freedom of 
Information Act clearly requires that such names are not protected 
information.
    Finally, it is my belief that the Park Service has acted against me 
on numerous occasions with a retaliatory motive--retaliation for my 
letters to my Congressman, retaliation for questioning how they conduct 
their business. I believe a close reading of their correspondence and 
emails strongly suggest this. In addition, someone I know, without my 
permission, actually called a senior person at the Park Service about 
my case. This individual supposedly ranted on about how they were going 
to get Blackman.
                                 ______
                                 
    [The letter submitted for the record by The Property Rights 
Foundation of America follows:
            THE PROPERTY RIGHTS FOUNDATION OF AMERICA, INC.

        P.O. Box 75, Stony Creek, New York 12878 -- 518/696-5741

                      Website: www.prfamerica.org

                      E-mail: [email protected]

                             April 19, 2005

The Honorable Devin Nunes
Chairman, National Parks Subcommittee
United States House of Representatives
1333 Longworth House Office Building
Washington, DC 20515

Re:  National Historic Districts Subcommittee Hearing - April 21, 2005

Dear Chairman Nunes:

    National Historic Districts are an important concern to private 
property owners. The Property Rights Foundation of America receives 
many requests for help to deal with strictures on private property and 
requirements for expensive studies related to historic and 
archeological preservation. However, for fear of retribution from the 
government officials with whom they have to deal, these property owners 
are afraid to ``go public'' with their stories. As a result, and most 
regrettably, I cannot refer a single property owner complaining of 
these egregious examples of bureaucratic intrusion on private property 
rights to testify before your subcommittee.
    A large proportion of the historic and archeological preservation 
issues that come to our organization deal with New York State, where 
the state agency that handles designations of National Historic 
Districts is the New York State Office of Parks, Recreation and 
Historic Preservation, which I'll refer to as NYS Parks. One point that 
stands out is the dishonesty of NYS Parks by misleading the public 
about the enforcement potential as a result of a designation of a site 
or historic district, whether state of federal. Typical of the false 
disclaimers by NYS Parks is that on their web site (downloaded copy 
enclosed):
        ``There are no restrictions placed on private owners of 
        registered properties. Private property owners may sell, alter 
        or dispose of their property as they wish, although an owner 
        who demolishes a certified registered property may not deduct 
        the costs of demolition from his/her federal income tax.''
    During the designation process, NYS Parks has been successful in 
quieting public concerns about the impact of historic registration on 
private property owners. Afterwards, when a proposed specific project 
is up for government review, the enforcement takes place behind the 
scenes, when NYS Parks steps in, and where the local permitting 
process, the New York State Department of Environmental Conservation 
permitting process, and the like must comply with the State 
Environmental Quality Review Act (SEQRA). Typical of various states' 
``mini-NEPAs,'' SEQRA requires that any ``state action'' (lower case) 
consider the impact of the permit on significant historic and 
archeological sites, notably, those on the state or National Register. 
State ``action'' under this law is not restricted to the construction 
of state, federal, or local government projects such as highways, 
prisons, and the like, but includes state actions that are simply 
decision-making processes-most commonly, the permit process. 
Consideration of the impact of the project on a designated historic 
site can be very expensive, involving the hiring of experts for 
extensive professional studies of the proposal and contrived 
``alternatives.'' The permit may only be issued after this expense is 
augmented by ``mitigations,'' such as expensive changes to the project 
plan to make it have what the NYS Parks considers to be less ``impact'' 
on a registered site.
The Glimmerglass Heritage National Register Historic District
    The Glimmerglass Heritage National Register Historic District in 
Otsego County, New York, illustrates the deception on the part of 
advocates involved in the designation process and the forceful 
participation of NYS Parks in the local permit process once the 
registered district is in place.
    Because several property owners from the area of the proposed 
15,000-acre Glimmerglass district contacted the Property Rights 
Foundation of America when the designation was being debated during the 
spring of 1989, and because PRFA was contacted afterwards by a severely 
impacted property owner, I'm able to use the example of the 
Glimmerglass district to relate the problems inherent in the overall 
designation process and how it pans out. However, my remarks will not 
reveal the identity of the property owner who sought help from PRFA.
    Early that year, a lively debate was taking place around 
Cooperstown, New York, where the Glimmerglass district was being 
proposed for an area around Otsego Lake. On March 26, 1999, the 
Cooperstown newspaper, The Freeman's Journal (copy enclosed), reported, 
``Officials with the New York State Historic Preservation Office hope 
to schedule a meeting in May at the Otsego County Courthouse to address 
public concerns about the proposed Glimmerglass Heritage National 
Register District.''
    ``We want to use the courthouse because it seems we'll need a large 
space. We've had a lot of comments,'' said Kathleen LaFrank, the SHPO's 
historic preservation program analyst, according to the Journal.
    ``LaFrank said she is surprised by the number of people opposing 
the district,'' reported the Journal. The newspaper noted her remark 
that ``some people seem not to believe that being in a district on the 
National Register of Historic Places will not compromise their property 
rights.''
    At the request of several people in the Glimmerglass area, I sent a 
letter to the editor of The Freeman's Journal, which was published on 
May 7 (copy attached). I explained how inclusion in the National 
Historic Register results in regulation of private property because of 
SEQRA being applied during the local building permit process. 
``SEQRA,'' I pointed out, ``is one of the most powerful and often used 
environmental laws in this state.''
    In addition, I pointed out that the problems for the property owner 
do not necessarily stop with difficulties dealing with government 
authorities. ``The owner may also be denied a mortgage if a bank judges 
that the use of the property will be restricted as a result of the 
historic registration.''
    I asked, ``Why did the officials representing the State of New York 
deceive the public by not revealing SEQRA's enforcement link to 
designation to the National Register?''
    The Journal published a reply by Robert J. Poulson, Jr., Project 
Chairman, Cooperstown, a few days later (copy attached). He pronounced 
that my letter was entirely wrong and was ``alarmist.'' He alleged that 
the designation protects property rights. He said that designation 
would protect property owners from the actions of federal or state 
agencies, using a highway widening as an example, because they would 
have go through ``not only the SEQRA process, but a special historic 
preservation review that will at least require the agency to mitigate 
the negative impact on your property.''
    The Cooperstown Crier later reported on meetings that NYS Parks 
held about the proposed district. Their article quoted Bob Kuhn, 
Historic Preservation Program Director of the NYS Parks, focusing on 
the millions of dollars in grants and tax breaks that designation makes 
available.
    ``Designation does not place local requirements on you. It does not 
mean that because of designation that some higher level of review is 
required,'' said Kuhn, according to the Crier. ``You can paint your 
house lime green, you can add a modern addition, you can burn it to the 
ground. The state and federal government can't stop you.''
    The state review panel approved the Glimmerglass Heritage National 
Register Historic District on June 18, 1999, later to be followed by 
the NYS Parks commissioner's approval and referral to the National Park 
Service. On the occasion of the approval, The Daily Star on June 22 
reported that Robert Kuhn, the NYS Park's historic coordinator, had 
explained at a hearing in February that ``(H)is department only reviews 
publicly funded projects and will not be overseeing how homeowners and 
others take care of private property.'' (copy attached)
    After the Glimmerglass designation was in place, NYS Parks was 
never held accountable for its deception. At the same time, it used the 
heavy weight of its office to enforce the designation.
    On November 21, 2003, I received an e-mail from a private property 
owner within the Glimmerglass district.
    ``Well, it finally happened. The Glimmerglass designation is even 
MORE than SHPO said it would be!'' the property owner declared.
    He wrote that he had spent in excess of $100,000 on engineering and 
architectural development plans to construct his buildings on 
commercial property on the north end of Otsego Lake, replacing ones 
that were so dilapidated that the county codes officer said that they 
were condemnable.
    ``After 9 months of pushing and pulling the town through SEQRA, and 
getting them ready to issue a negative declaration, lo and behold, SHPO 
says my plans are not in keeping with the character of the district. 
They were ready to issue a letter of resolution indicating adverse 
impact before we even had a chance to present our side.''
    In later correspondence, he declared, ``they out right lied to 
us!''
    ``I remember getting the information and saying to my wife that 
this could be trouble,'' he continued. ``Then I read the articles and 
felt assured that this designation would only be the cause of positive 
results. No one, me included, understood that SHPO basically controls 
the permitting of state agencies. But then again, why would ordinary 
folks have cause to understand this. The issue was brought up by a few 
of the better informed, but those concerns were ``allayed'' by Ms. 
LaFrank and Mr. Kuhn. I have found in the newspaper archives several 
quotes that say just so! And now when we refer back to these quotes I 
am told that I am taking them out of context. Interestingly, the 
NYSPARKS website blatantly lies as well, saying once again that 
historical designation will not place any controls on the private 
property owner: ``you can alter, dispose (etc).'' Well...it seems that 
no we can't!''
    The story of deception during the Glimmerglass Heritage National 
Register Historic District illustrates the need for reform.
Spin-off Effects of Regulatory Impact of National Historic Sites
    This hearing represents a greatly needed public forum about the 
regulatory impact of listing in the National Historic Register. Another 
area of potential impact is on the availability of mortgage listing. 
The inflexibility inherent in designation has been known to dampen the 
interest of lenders.
    In September 1996, I stayed at the Rochell Haus, a gracious old 
farmhouse with a view of Seneca Lake, in Hector, New York, that had 
been converted to a bed and breakfast. Susan Rochell, who with her 
husband Henry owned the Rochell Haus, told me of their travail 
obtaining a mortgage to do alterations to the interior and rear of the 
house to convert it for their new business. The banks declined to give 
them a mortgage for their alterations to make the circa 1830s house 
into a bed and breakfast on the grounds that the building was on the 
National Historic Register. Finally, they approached their Congressman 
for help. The only solution, which was then in his hands, Mrs. Rochell 
told me, was to have the house deleted from the National Historic 
Register. The Congressman used his influence to have the historic 
registration for the house finally removed, and the bank gave the 
mortgage to the Rochells.
Recommendations:
    No property should be included within a National Historic District 
or Site or for listing for eligibility for registration within a 
District or as a Site without the written consent of the property 
owner.
    Every property owner within a proposed National Historic District 
or Site or listing for eligibility as such, or within a State Historic 
District being developed with the intent of inclusion in the National 
Register, should be clearly notified of the enforcement consequences 
under both state and federal law of the listing on the register or 
placement on the eligible list.
Pressure to Increase the Number of National Historic Sites
    A troubling new development related to the National Trust for 
Historic Preservation could spell pressure to increase the number of 
listings, whether justified or not, and have impact on private property 
rights. According to Eric Gibson, in an article entitled ``Trust Us: 
This is How Travel Gets ``Historic','' on April 15 in The Wall Street 
Journal (copy attached). The National Trust for Historic Preservation 
is reacting to potential Congressional cutback in their funding by 
replacing the congressional appropriation with full reliance on private 
funding. The organization intends to ``expand the number and diversity 
of historic places associated with the Trust.'' Hotels will be an 
important source of new historic sites, with sites such as Boston's 
Omni Parker House where JFK proposed to Jackie mentioned as an example.
    Gibson fears trivializing the historic designation, but, for 
property owners, a more practical concern could arise. Historic 
districts might proliferate, with many property owners caught inside 
who would opt out if allowed. Or historic sites might be chosen at the 
behest of localities or neighbors who could benefit from the listing, 
but the property owner would not be allowed to decline to be listed.
    The potential commercialization of National Historic Sites argues 
for increased protections for property owners. Honest information on 
regulatory impact and mandated property owner consent for National 
Historic Register listing and eligibility listing are crucial.
Additional Recommendation:
    The Congress should deliberate about the possible conflict with the 
Congressional Charter of the National Trust for Historic Preservation 
if listing on the National Historic Register is commercialized.
    Thank you for convening the National Parks Subcommittee hearing 
about issues related to listing on the National Historic Register.

                             Respectfully,

                      Carol W. LaGrasse, President

    Mr. Nunes. Thank you, Mr. Blackman. As I stated in the 
beginning, I don't mean to be hardline about this, but we do 
have all of your statements for the record, and it is very 
important that we do limit the statements to 5 minutes, and at 
this point, I will drop the gavel at 5 minutes, because we have 
Members of Congress here who have questions, and we want to be 
able to ask questions and at any time we could be pulled to the 
Floor. So the quicker that we can get through the testimony, 
the more question and answer time that we can have. And so--and 
I am just doing this I think just so we can speed this along to 
make the hearing more effective.
    So, with that, Mr. Martin, I will recognize you for 5 
minutes.

STATEMENT OF JAMES MARTIN, EXECUTIVE DIRECTOR, UNITED SOUTH AND 
           EASTERN TRIBES, INC., NASHVILLE, TENNESSEE

    Mr. Martin. Thank you, Chairman Nunes.
    USET has provided written testimony. We would like that 
submitted for the record. I would make some brief oral 
comments.
    Mr. Nunes. Thank you.
    Mr. Martin. I would make some brief oral comments.
    Mr. Nunes. Thank you.
    Mr. Martin. Chairman Nunes and other distinguished members 
of the National Park Subcommittee, we thank you for giving 
United South and Eastern Tribes an opportunity to testify on 
the discussion draft of the proposed amendments to the National 
Historic Preservation Act.
    My name is James T. Martin. I am an enrolled member of the 
Poarch Band of Creek Indians. I am the executive director of 
the United South and Eastern tribes, an inter-tribal 
organization representing 24 federally recognized Indian tribes 
from Maine to Texas.
    My testimony today will focus on Section 4 of the 
discussion draft, which proposes a change in the scope of 
historic properties subject to the Section 106 review process 
of the Historic Preservation Act.
    In particular, Section 4 would eliminate the current 
language in Section 106 that includes as covered properties not 
only properties listed on the National Register, but also 
properties eligible for inclusion in the National Register, as 
virtually every tribal historic property falls into the latter 
category.
    The termination of this category would essentially 
eliminate tribal sacred sites from the Section 106 process. Not 
only would tribes no longer be consulted when a Federal 
undertaking puts one of their sacred sites at risk, but the 
Federal agencies would no longer even be obligated to watch out 
for the sites.
    Section 4 represents a draconian measure that will strike 
at the of tribal identity, severely undermining the progress 
made by the tribes in recent years to have their sacred sites 
respected and protected, and would represent the single worst 
piece of legislation for tribal culture since the infamous 
General Allotment Act of 1887, in which two-thirds of tribal 
reservation lands was submitted to non-Indian settlements.
    In the National Historic Preservation Act, Congress 
specifically found that historic properties significant to the 
Nation's heritage are being lost or substantially altered often 
inadvertently with increasing frequency.
    This inadvertent damage was done particularly where 
properties were not recognized historic essential, those 
properties were not listed on the National Register.
    To address the fact, the National Register is not a 
comprehensive listing of historic properties.
    Congress logically provided that the Act would also protect 
properties that are eligible for inclusion on the National 
Register.
    Morever, due to historic problems of widespread looting and 
sale of Indian grave goods and artifacts, many of the tribes do 
not want their sites listed on publicly available lists. Yet, 
these sites are still deserving of the protection under the 
Act.
    In 1992, Congress amended the Act to ensure the protection 
of tribal properties of cultural and religious significance.
    Congress established two requirements: First, the Act 
obligates a Federal agency to evaluate its undertaking for 
their impact on tribal historic properties. Second, the Act 
obligates the Federal agency to seek official tribal views 
through consultation on the effects of the consultation.
    Notably, the Act only provides tribes with the right to 
consult. After a Federal agency has engaged in tribal 
consultation, it is free to pursue whatever course it deems 
best, even if that course is opposed by an affected tribe.
    In that sense, the tribal rights in the Act are actually 
quite limited in scope. Nevertheless, the Act in genl and 
Section 106 in particular is relied upon by tribes throughout 
the United States to give them a place at the table when 
Federal action jeopardizes tribal sacred sites.
    The tribal constitution rights in the Act are derived from 
general principles of Federal Indian law, which recognizes 
tribal sovereignty, places the tribal U.S. relationship in a 
government-to-government framework, and establishes a trust 
responsibility to Indian tribes.
    The proposed amendment would be contrary to those 
principles.
    And notably, at least 95 percent of the history of America 
occurred prior to 1492. That history is recorded in the sites 
of our cultural and religious importance to our tribes.
    Although USET strongly opposes Section 4 of this discussion 
draft, USET is open to working with the Subcommittee and other 
interested parties, in finding ways to address the underlying 
needs of developers, including notably the telecommunication 
industry so long as the solution does not jeopardize sacred 
sites or the rights of tribes to be consulted when a Federal 
agency acts in a manner which could adversely affect a tribal 
sacred site.
    Again, Mr. Chairman, I thank you for this opportunity to 
talk to the Subcommittee, and USET looks forward to working 
with this committee as we study this matter and approach it in 
a manner that is sensitive to the rights and the laws that have 
been passed to protect our tribal sacred sites. Thank you, sir.
    [The prepared statement of Mr. Martin follows:

           Statement of James T. Martin, Executive Director, 
                 United South and Eastern Tribes, Inc.

    Introduction. Chairman Nunes and members of the National Parks 
Subcommittee, my name is James T. Martin. I am a member of the Poarch 
Band of Creek Indians and Executive Director of the United South and 
Eastern Tribes, Inc. (USET), an inter-tribal organization representing 
24 tribes from Maine to Texas. USET appreciates this opportunity to 
provide testimony on the discussion draft of proposed amendments to the 
National Historic Preservation Act (NHPA). We especially appreciate 
that you are providing this opportunity before any actual legislation 
has been introduced. Such early consultation between the Federal 
Government and tribes on Federal actions that will significantly affect 
tribes is in the best traditions of the government-to-government 
relationship and is consistent with the Federal trust responsibility.
    My testimony will focus on Section 4 of the discussion draft, which 
proposes a change in the scope of historic properties subject to the 
Federal consultation obligation found in Section 106 of the NHPA (``the 
Section 106 process''). In particular, Section 4 would eliminate the 
current language in Section 106 that includes as covered properties not 
only properties listed on the National Register, but also properties 
``eligible for inclusion in the National Register.'' As virtually every 
tribal historic property, defined in the NHPA as properties of 
``religious and cultural importance'' to a tribe or Native Hawaiian 
Organization, falls into this latter category, the termination of this 
category would essentially eliminate tribal sacred sites from the 
Section 106 process. As such, Section 4 represents a draconian measure 
that would strike at the heart of tribal identity, severely undermine 
the progress made by tribes in recent years to have our sacred places 
respected and protected, and would represent the single worst piece of 
legislation for tribal culture since the infamous General Allotment Act 
of 1887, which resulted in the loss of two-thirds of tribal reservation 
lands to non-Indian settlement.
    At least 95% of the history of the Americas occurred before 1492 
when Columbus happened upon this continent. That history is recorded in 
the sites of cultural and religious importance to tribes. That history 
should be accorded a weight equal to that given historic properties of 
far more recent vintage.
    Notwithstanding USET's objections to Section 4, USET is willing to 
work with the Subcommittee and other interested parties to find ways to 
address the Subcommittee's concerns. USET has worked on these issues 
intensely for several years in the context of the development by the 
Federal Communications Commission of a Nationwide Programmatic 
Agreement (NPA) implementing the Section 106 process. During that 
proceeding, USET put a number of proposals on the table for 
consideration by both the FCC and the telecommunications industry. The 
telecommunications industry was generally not willing to engage USET in 
a substantive way and sought to sharply limit tribal rights in the NPA. 
The FCC took on the difficult role of Solomon and adopted a balanced 
document that, while it did not give USET all it wanted, at least 
assured that the tribal voice would continue to be heard when a tribal 
site was at risk. In a corollary document known as the Best Practices, 
USET agreed to a voluntary process whereby the tribal right of 
consultation with the FCC could be waived when industry had worked with 
an affected tribe to resolve siting issues. Though never properly 
appreciated by industry, this waiver was a huge concession by USET made 
in the name of finding a workable solution to industry's concerns while 
still assuring that tribal sites and rights were maintained. USET also 
agreed to participate in and strongly supported the development by the 
FCC of the Tower Construction Notification System, a database that 
would electronically alert telecommunications companies of areas of 
cultural interest to tribes. Through this database, industry can 
quickly identify what tribes they need to contact in any given area 
based upon their site locations. Consequently, through this tribal 
self-identification the number of tribes needing to be contacted will 
be greatly reduced. Already, over 300 tribes have entered their areas 
of cultural interest into the database. This extraordinary response by 
tribes demonstrates our commitment to assisting industry with solutions 
to their concerns.
    Although USET did not find industry a willing partner in our 
efforts to craft solutions that benefit both parties, as a matter of 
principle we remain open to working with all parties and will continue 
to extend an invitation to industry to work with us, rather than 
against us, to assure the efficient development of a universal 
communications infrastructure without compromising the sacred heritage 
of America's first peoples.
    The National Historic Preservation Act provides critical protection 
for tribal sacred sites. The National Historic Preservation Act (NHPA) 
provides protection for ``districts, sites, buildings, structures and 
objects significant in American history, architecture, archeology, 
engineering, and culture.'' 16 U.S.C. Section 440(f). The NHPA does 
this by requiring federal agencies engaged in a ``federal undertaking'' 
to ``take into account the effect'' the undertaking may have on 
historic properties ``included'', or ``eligible for inclusion'' in the 
National Register of Historic Places. Id.
    The NHPA defines ``Undertaking'' as ``a project, activity, or 
program funded in whole or in part under the direct or indirect 
jurisdiction of a Federal agency, including--(A) those carried out by 
or on behalf of the agency; (B) those carried out with Federal 
financial assistance; (C) those requiring a Federal permit, license, or 
approval; and, (D) those subject to State or local regulation 
administered pursuant to a delegation or approval by a Federal 
agency.'' 16 U.S.C. 470w(7).
    The NHPA is implemented through a set of regulatory requirements 
commonly referred to as the Section 106 process, a consultation process 
through which federal agencies collect information concerning a 
particular site's eligibility for the National Register, potential 
adverse effects the undertaking may have on the site, and ways to 
mitigate any adverse effects. See 34 C.F.R. Part 800.
    The NHPA sets forth two distinct requirements with regard to 
Tribes. First, the NHPA obligates a Federal agency to evaluate its 
undertakings for their impact on tribal historic properties. 16 U.S.C. 
470a(d)(6)(A). In carrying out this obligation, a Federal agency would, 
in many cases, need to secure the cultural and religious expertise of 
any Tribe whose historic property could be affected. This is necessary 
in order to properly evaluate the impact of that undertaking on that 
Tribe's historic property.
    Second, a Federal agency is obligated to seek official tribal views 
through consultation on the effect of an undertaking, a distinctly 
different exercise from securing the Tribe's cultural and religious 
expertise for evaluating the impact of an undertaking. Specifically, 
the NHPA provides that federal agencies ``shall consult with any Indian 
tribe and Native Hawaiian organization that attaches religious or 
cultural significance'' to properties that might be affected by a 
federal undertaking. 16 U.S.C. Section 470a(d)(6)(B) (emphasis added).
    Notably, the NHPA only provides tribes with a right to be 
consulted. After a Federal agency has engaged in tribal consultation, 
it is free to pursue whatever course it deems best even if that course 
is one opposed by an affected tribe. In that sense, the tribal rights 
in the NHPA are actually quite limited in scope. Nonetheless, the 
Section 106 process is relied upon by tribes throughout the United 
States to give them a voice.
    The Section 106 process embodies quintessentially American values 
that should not be undermined. In the best traditions of American 
democracy the Section 106 process gives marginalized groups a role in 
the shaping of the American identity by assuring them a voice when 
their own interests are jeopardized. Without this process, tribes would 
be virtually powerless to act to protect their heritage. In some ways 
the NHPA itself is an historical marker of American identity and, as 
such, should not be weakened.
    Of course, Congress was specifically thinking about American values 
when it enacted the NHPA declaring in Section 1 that
         ``(1) the spirit and direction of the Nation are founded upon 
        and reflected in its historic heritage;
          (2) the historical and cultural foundations of the Nation 
        should be preserved as a living part of our community life and 
        development in order to give a sense of orientation to the 
        American people;
          (3) historic properties significant to the Nation's heritage 
        are being lost or substantially altered, often inadvertently, 
        with increasing frequency;
          (4) the preservation of this irreplaceable heritage is in the 
        public interest so that its vital legacy of cultural, 
        educational, aesthetic, inspirational, economic, and energy 
        benefits will be maintained and enriched for future generations 
        of Americans;''
These statements ring with the greatness of America, but it would be a 
hollow ring if they were not applied to the historic properties of all 
Americans. In the NHPA, Congress has truly recognized the value of the 
meaning of American history; that the history of all communities is 
worthy of respect; that the lessons of the past can inform the actions 
of the present and future; that historic properties of all types 
represent a priceless heritage whose loss cannot be mitigated.
    In the interests of justice, Section 106 should be strengthened, 
not weakened, by giving tribes more than just consultation rights. 
Section 106 only provides tribes a consultation right. This right is 
very limited in scope. A Federal agency after review and consultation 
with an affected tribe, can choose to ignore the tribal views and 
proceed with a particular action. Since 1492, Indian tribes within what 
is now the United States have, as a group, lost 98% of their aboriginal 
land base. This percentage is even higher for the member tribes of 
USET, whose aboriginal lands were the first to be subsumed in the 
process of European settlement. Today, as a result, the overwhelming 
majority of tribal properties of cultural and religious significance 
are located off Indian Reservations and Federal trust lands and 
therefore lie beyond tribal control. The National Historic Preservation 
Act (NHPA) recognizes the validity of continuing tribal concerns with 
the protection of both on- and off-Reservation properties of cultural 
and religious significance, and establishes, through Section 106, 
extensive Federal agency consultation requirements with tribes when 
there is a Federal ``undertaking'' with the potential to have any 
affect on such properties. Sometimes, however, a consultation right is 
just so much hot air. This Committee should consider giving tribes the 
ability in certain situations to halt a Federal action that threatens a 
significant tribal cultural or religious property.
    The telecommunications industry, which appears to be a strong 
advocate for Section 4 of the discussion draft, has consistently 
advocated for weakening tribal consultation rights under Section 106. 
Over the last three years, USET has been intensely involved in the 
development and promulgation of a Nationwide Programmatic Agreement 
(NPA) by the Federal Communications Commission. The NPA replaces the 
NHPA regulations, providing a customized process for Section 106 
consultation with regard to the siting of communications towers. USET 
was extremely interested in this document because, despite the NHPA, 
literally tens of thousands of cell towers have been constructed and 
received FCC broadcasting licenses with virtually no effort by the FCC 
to consult with tribes. One can see major sacred mountains in the 
Southwest that look like porcupines because of the antenna farms that 
have been placed upon them without any tribal consultation.
    In a belated attempt to make up for past errors, the FCC at one 
point stated that it had delegated its consultation obligations to the 
cell tower companies, who subsequently began sending letters to tribes 
demanding information, some of it very sensitive in nature, and 
asserting that if the information was not provided within a certain 
timeframe, usually 10 to 30 days, as one typical letter to the 
Chitimacha Tribe of Louisiana put it, ``[w]e will presume that a lack 
of response from the Chitimacha Tribe of Louisiana to this letter will 
indicate that the Chitimacha Tribe of Louisiana has concluded that the 
particular project is not likely to affect sacred tribal resources.'' 
Tribes have literally received thousands of these letters. To add 
insult to injury, the letters frequently refer to the tribes as 
``organizations'' or ``groups'' demonstrating a lack of respect for 
tribal sovereignty, ignorance of the status of tribes and their unique 
legal rights, and generally conveying an impression that these 
companies do not care about tribal views. The Tribal Historic 
Preservation Officer for the Mississippi Band of Choctaw Indians, 
Kenneth H. Carleton, has noted that the Mississippi Band had received 
``a minimum of over 1,000 requests'' from cell tower companies, many 
providing virtually no information on the location of the sites or 
maps, but all with at least a check off saying that there are no sites 
of religious or cultural importance to the tribe to make it easy to for 
tribes to ``rubber stamp their requests!''
    The major telecommunications companies were involved early in the 
NPA's development (far earlier than tribes). The telecommunications 
companies raised their issues including a desire to complete historic 
reviews quickly, at a minimum cost, and with certainty. In those 
efforts they sought to shove aside tribal concerns. While acknowledging 
on the one-hand the unique status of Indian tribes, the companies on 
the other hand would essentially argue that that unique status should 
not result in any actual difference in how tribal interests are 
treated.
    The industry position is understandable. They are for-profit 
entities. Conducting historic property reviews, although only a 
fraction of the cost of constructing a tower, does have a cost (of 
course, the destruction of a sacred site cannot be measured in monetary 
terms). However, when the FCC licenses a tower, it is essentially 
granting a license to these companies to make money. As one industry ad 
with a photo of a cell tower put it: ``This is not a cell tower. This 
is a money tree.'' As industry stands to benefit greatly from FCC 
licensing, it should also bear the cost of assuring the protection of 
historic properties. Congress has weighed the competing values of 
keeping costs low for developers and telecommunications companies, with 
the imperative of preserving our national heritage. The result of that 
deliberation provided tribes with consultation rights, a boon to 
tribes, but not with veto rights, a boon to federal agencies and 
developers.
    USET has sought to work closely with Industry, which has been a 
very reluctant partner in seeking solutions that protect tribal 
consultation rights regarding sacred sites. Almost four years ago, USET 
entered into detailed negotiations with a communications industry 
association to develop a process for addressing these issues that 
worked for both industry and tribes. USET recognizes that the 
construction of a universal wireless telecommunications infrastructure 
network is vital to the economic and social future of the United 
States. However, the tribal interests at issue are also vital, both to 
the tribes, and to the United States in terms of its historic 
preservation goals and its national identity as a nation of diverse and 
vibrant peoples and cultures. USET worked hard to find pragmatic 
solutions, while still assuring respect for tribal sovereignty and 
maintaining the FCC's ultimate consultation responsibility. Based on 
the negotiations, USET developed and sent to the industry group a set 
of protocols. We waited many months for a response, and then were told 
that the industry group had no further interest in these negotiations.
    This experience told us that it is vital that the Federal 
government, consistent with its trust responsibility, assure that the 
tribal voice is heard. USET knows, from other Section 106 negotiations, 
that tribal concerns can be addressed without undermining the mission 
of a federal agency. For example, USET tribes have successfully 
negotiated a Memorandum of Agreement with the Mississippi National 
Guard, which among other things protects a tribal sacred site in the 
middle of a tank training range. Both sides made compromises to ensure 
that the vital interests of both could be protected. Similarly, the 
Louisiana tribes have a memorandum of agreement with the Louisiana 
National Guard. When an issue arose regarding rerouting a dangerous 
road at Camp Beauregard through an archeological site, the Louisiana 
Indian tribes worked with the Louisiana National Guard to permit the 
rerouting after appropriate archeological excavation and mitigation was 
undertaken. Tribes are not irrational; they have the same interests and 
concerns as do other communities. They want to build a solid working 
relationship with industry to assure that everybody's interests are 
given due regard.
    The current definition of properties covered under Section 106 of 
the NHPA is the only sensible definition. The National Historic 
Preservation Act defines ``'historic property' or 'historic resource''' 
as ``any prehistoric or historic district, site, building, structure, 
or object included in, or eligible for inclusion on the National 
Register, including artifacts, records, and material remains related to 
such a property or resource.'' 16 U.S.C. Sec. 470w(5) (emphasis added). 
Congress found that ``historic properties significant to the Nation's 
heritage are being lost or substantially altered, often inadvertently, 
with increasing frequency.'' 16 U.S.C. Sec. 470(b)(3) (emphasis added). 
This inadvertent damage was done principally where properties were not 
recognized as historic; essentially those properties not listed in the 
National Register of Historic Places. To address the fact that the 
National Register is not a comprehensive listing of historic 
properties, Congress logically provided that the NHPA would also 
protect properties that are ``eligible for inclusion on the National 
Register''.''
    The NHPA authorizes the creation of one list of properties--the 
National Register (16 U.S.C. Sec. 470a), but as is evident from the 
definition of ``historic property,'' the NHPA specifically protects 
properties both on the National Register as well as properties not on 
the National Register if they meet National Register criteria. The 
Advisory Council on Historic Preservation, in its implementing 
regulations, recognized the NHPA's mandate, and therefore Congress' 
mandate, to protect all eligible properties and provided that the term 
``eligible for inclusion in the National Register includes both 
properties formally determined as such in accordance with regulations 
of the Secretary of the Interior and all other properties that meet the 
National Register criteria.'' 36 C.F.R. Part 800.16(l)(2). In this 
definition, the Advisory Council was recognizing that the Department of 
the Interior has created a second list of properties that have been 
formally determined to be eligible for, but are not on, the National 
Register. However, that second list is not comprehensive and is 
essentially merely an aid to implementing the NHPA. Therefore, 
consistent with the language of the statute, the Advisory Council did 
not limit its definition just to Interior's ``eligibility'' list, but 
also included all eligible properties. The Advisory Council understands 
that there are many sites that have not yet been evaluated but that 
will be found eligible for the National Register. Such sites would be 
in great peril if there were no requirement to essentially ``watch 
out'' for them and protect them where they are found.
    Due to the historic problem of widespread looting and sale of 
Indian grave goods and artifacts, many tribes do not want their sites 
identified on a publicly availabl e list. These tribes still expect and 
are entitled to the full protections of the NHPA from Federal 
undertakings that could damage these sites. However, these tribes are 
not interested in seeing their sacred sites placed on publicly 
available lists, including the National Register.
    General principles of Federal Indian law recognize tribal 
sovereignty, place Tribal-U.S. relations in a government-to-government 
framework, and establish a Federal trust responsibility to Indian 
tribes. These general principles are rooted in the U.S. Constitution 
(Art. I, Section 8), Federal case law, Federal statutes, Presidential 
Executive Orders, regulations, and case law, as well as in the policy 
statement of the Advisory Council on Historic Preservation entitled The 
Council's Relationship with Indian Tribes. As such they form the basis 
for the tribal consultation rights in the NHPA. To delete those rights 
would be to undermine the entire structure of Federal Indian law and 
tribal sovereignty.
    Congressional Indian policy with respect to Indian religious 
matters is set forth in the American Indian Religious Freedom Act 
(AIRFA):
    ``Protection and preservation of traditional religions of Native 
Americans
        Henceforth it shall be the policy of the United States to 
        protect and preserve for American Indians their inherent right 
        of freedom to believe, express, and exercise the traditional 
        religions of the American Indian, Eskimo, Aleut, and Native 
        Hawaiians, including but not limited to access to sites, use 
        and possession of sacred objects, and the freedom to worship 
        through ceremonials and traditional rites.''
42 U.S.C. Section 1996. AIRFA also requires federal agencies to consult 
with Native American traditional religious leaders in order to evaluate 
existing policies and procedures and make changes necessary to preserve 
Native American cultural practices. Act of Aug. 11, 1978, P.L. 95-341, 
Section 2. 92 Stat. 470.
    There are several other statutes where Congress has set forth a 
policy of protecting traditional Indian religion, such as the Native 
American Graves Protection and Repatriation Act (NAGPRA, 25 U.S.C. 
Sec. 3001 et.seq.), the Archaeological Resources Protection Act (ARPA, 
16 U.S.C. Sec. 470aa-70mm), and the National Museum of the American 
Indian Act (20 U.S.C. Sec. 80q et.seq.). The consultation requirements 
of, and legal rights established by, these statutes are not 
geographically confined to situations where cultural or religious 
objects are found (or activities occur) solely on tribal lands.
    There are several presidential orders that mandate Federal 
consultation with Indian tribes. Executive Order 13007 (May, 24 1996) 
(hereafter ``Executive Order on Sacred Sites'') directs federal 
agencies to provide access to American Indian sacred sites, to protect 
the physical integrity of such sites and, where appropriate, to 
maintain the confidentiality of these sites. This Executive Order on 
Sacred Sites also incorporates a prior Executive Memorandum issued on 
April 29, 1994, which directed federal agencies to establish policies 
and procedures for dealing with Native American Tribal Governments on a 
``government-to-government basis.''
    Executive Order 13175 (Consultation and Coordination with Indian 
Tribes, November 6, 2000) directs Federal officials to establish 
regular and meaningful consultation and collaboration with tribal 
officials in the development of Federal policies that have tribal 
implications.
    The Federal Courts have developed canons of construction that are 
used to interpret Indian treaties and statutes relating to Indians. The 
fundamental component of these canons of construction is that treaties 
and statutes are to be liberally interpreted to accomplish their 
protective purposes, with any ambiguities to be resolved in the favor 
of the Indian tribes or individual Indians. See Alaska Pacific 
Fisheries Co. V. United States, 248 U.S. 78, 89 (1918) (``the general 
rule [is] that statutes passed for the benefit of the dependent Indian 
tribes or communities are to be liberally construed, doubtful 
expressions being resolved in favor of the Indians''); Tulee v. 
Washington, 315 U.S. 681, 684-685 (1942); Carpenter v. Shaw, 280 U.S. 
363 (1930); McClanahan v. Arizona State Tax Com'n, 411 U.S. 164 (1973). 
In this context, the National Historic Preservation Act should be read 
broadly to support and protect tribal interests.
    Conclusion. Although USET strongly opposes Section 4 of the 
discussion draft, USET is open to working with the Subcommittee and 
other interested parties in finding ways to address the underlying 
needs of developers, including notably the telecommunications industry, 
so long as any solution does not jeopardize tribal sacred sites or the 
rights of tribes to be consulted when a Federal agency acts in a manner 
which could adversely affect a tribal sacred site. USET thanks the 
Subcommittee for this opportunity to testify and looks forward to 
working closely with you and your staff to find practical solutions 
that protect tribal sites and rights, while addressing the concerns of 
all the stakeholders in the Section 106 process.
                                 ______
                                 
    Mr. Nunes. Thank you, Mr. Martin. Mr. Altschul, you are 
recognized for 5 minutes.

STATEMENT OF MICHAEL ALTSCHUL, SR., VICE PRESIDENT AND GENERAL 
   COUNSEL, CTIA, THE WIRELESS ASSOCIATION, WASHINGTON, D.C.

    Mr. Altschul. Well, thank you, Mr. Chairman, and members of 
the Subcommittee for the opportunity to testify on behalf of 
the wireless industry concerning the National Historic 
Preservation Act and the Subcommittee's discussion draft 
proposal to amend the Act.
    My name is Michael Altschul and I am CTIA's general 
counsel. CTIA's president, Steve Largent, wanted to be here 
today, but he is getting over a minor health problem. Steve 
asked me to voice his support for the approach taken in Section 
4 of the discussion draft, and he also wants you to know that 
he looks forward to working with the Committee, tribes, and 
other interested parties on this issue.
    While other industries were the primary focus of the Act, 
cellular service didn't exist 40 years ago when created the 
Act, I am here to talk about the impact of this law on the 
wireless industry and how Congress can provide much needed 
certainty to the National Historic Preservation Act's Section 
106 review process.
    First, I want to emphasize that the wireless industry is 
committed to preserving our Nation's cultural heritage, 
including sites of religious and cultural importance to tribes 
and Native Hawaiian organizations. Wireless companies are proud 
of their success in balancing the dual aims of historic 
preservation and the siting of wireless towers. These goals are 
not mutually exclusive. We acknowledge that the lessons learned 
from the NPA and Best Practices Agreement, and we welcome the 
opportunity to consult with tribes to protect sites of 
religious and cultural significance.
    Second, it is critical to understand that without antennas, 
there are no wireless services. Wireless carriers must install 
new facilities to extend coverage to unserved or underserved 
areas. If a carrier is delayed building a tower, customers are 
deprived of the ability to make and receive wireless calls in 
that community, including emergency calls to 911.
    Similarly, if a carrier is unable to construct a new cell 
site or collocate its wireless facilities on an existing tower 
to accommodate new subscribers and increased demand, all of its 
customers will experience dropped or blocked calls due to 
congestion.
    Third, as a general rule, wireless carriers require local 
zoning consent to construct new towers. The local zoning 
process involves public participation and historic preservation 
experts can and do participate in the review of tower siting 
proposals.
    The wireless industry routinely accommodates local concerns 
by minimizing the visual impact of wireless antennas. Since a 
picture is worth a thousand words, we have brought two examples 
to show the Committee of the efforts the industry takes to 
accommodate the impact of these facilities.
    Even though the Federal Communications Commission does not 
review or approve the siting of wireless towers--and doesn't 
even track the location of most towers--the FCC has taken the 
position that the siting of any new tower by a wireless carrier 
is a Federal undertaking subject to Section 106 review.
    This means a separate Federal process exists even where the 
local government has heard from and considered the views of its 
citizens and historic preservation experts.
    In some cases, parties have pursued a National Historic 
Preservation Act review following approval by the local zoning 
board, denial of their appeal by the courts and even when the 
owner of the property did not favor designation on the National 
Register and supported construction of the tower.
    While there is no dispute that the National Historic 
Preservation Act requires review of Federal undertakings on 
properties included or eligible for inclusion in the National 
Register, the definition of what is ineligible property has 
strayed from what Congress intended, creating controversy and 
uncertainty for wireless carriers, tower owners, agencies, 
historic groups, and the public.
    While there are registries and other resources wireless 
carriers can and do consult to identify whether properties have 
been included or nominated for inclusion in the National 
Register, many stakeholders have taken the position that the 
industry must consider any property that could conceivably meet 
the National Register criteria--potentially, any property over 
50 years old, even if no steps had ever been taken to nominate 
the property for inclusion in the National Register.
    Under this approach, the meaning and scope of Section 106 
has been vastly expanded in a way that virtually ignores the 
National Register itself and renders the nomination process and 
listing on that exclusive role irrelevant for purposes of the 
Section 106 review process.
    In 2003, Chairman Pombo and then Subcommittee Chairman 
Radanovich recognized this problem in a letter to the ACHP, 
noting that the number of properties that meet the National 
Register criteria is unknowable, probably in the many tens of 
millions, and urging that the Section 106 process return to the 
carefully defined scope originally intended by Congress. CTIA 
agrees, and believes it would be more rational and more 
consistent with the intent of Congress to provide a concrete 
definition of eligibility that offers a clear path for wireless 
carriers to satisfy their National Historic Preservation Act 
obligations in a way that is sensitive to historic preservation 
concerns while providing certainty for wireless service 
development. That is why we endorse the approach taken in 
Section 4 of the discussion draft, and why we think this 
clarification is of critical importance.
    Mr. Chairman, thank you for the opportunity to testify this 
morning. I look forward to answering any questions you or the 
members may have.
    [The prepared statement of Mr. Altschul follows:]

      Statement of Michael F. Altschul, Senior Vice President and 
            General Counsel, CTIA--The Wireless Association

    Chairman Nunes, Ranking Member Kildee, and members of the 
Subcommittee, thank you for the invitation to testify on the National 
Historic Preservation Act (``NHPA''). Protecting historic and 
culturally sensitive landmarks benefits our Nation, and the wireless 
industry is committed to preserving our cultural heritage. CTIA member 
companies work closely with local communities to balance the dual aims 
of historic preservation and the siting of wireless towers to keep pace 
with public demand for wireless communications services. These goals 
are not mutually exclusive, and I appreciate the opportunity to appear 
today on behalf of the wireless industry.
    Let me preface my remarks by noting the public's ever-growing 
demand for wireless service. Wireless communications have become an 
integral part of the daily lives of Americans and the American economy. 
Today, more than 182 million Americans subscribe to wireless services--
in fact, there are more mobile devices in the United States than 
traditional telephone access lines. Not only are wireless devices now 
omnipresent, but Americans are increasingly relying on their wireless 
service--average minutes of use increased to 596 minutes per month in 
2004, a 14% increase over 2003. With respect to public demand, CTIA 
members hear their customers loud and clear: they want reliable 
service, with an ever expanding service area, and an array of new 
applications and offerings. And nowhere is this more relevant than in 
our Nation's rural areas as wireless service promises to be a key 
platform to bridge the digital divide.
    Wireless service, moreover, plays an important role in public 
safety as wireless callers make more than 200,000 911 calls every day, 
seeking emergency assistance from police, fire, and emergency medical 
personnel. In addition, local, state, and federal agencies increasingly 
rely on wireless services to carry out their emergency public safety 
and homeland security responsibilities.
    Antennas and the towers upon which antennas are hung--commonly 
referred to as ``base stations'' or ``cell sites''--are absolutely 
essential to meeting the public demand for commercial wireless services 
and the needs of our Nation's first responders. Indeed, if spectrum is 
considered the ``lifeblood'' of wireless service, then towers and 
antennas are the critical arteries and capillaries that deliver 
wireless services across this great land. While the media often 
highlight exciting new applications such as camera phones or mobile 
networks' ability to deliver video broadcasts, it is the bricks and 
mortar of basic construction projects (i.e., antenna siting) that 
deliver services to American consumers. For example, a wireless carrier 
must install new facilities each time it wants to extend its coverage 
to an unserved or underserved area. If a carrier is delayed in building 
a tower in the new area, customers are deprived of the ability to make 
and receive calls in that community. Similarly, if a carrier is unable 
to construct a new cell site or collocate its wireless facilities on an 
existing tower to relieve congestion, customers will experience dropped 
or blocked calls (including E911 call attempts).
    I am here today to talk about the impact of the National Historic 
Preservation Act on the wireless industry--and specifically, how 
Congress can provide much needed certainty to the NHPA review process, 
commonly referred to as the section 106 process. As you know, the 
section 106 process requires federal agencies to determine whether 
their undertakings could adversely affect a historic property included 
in, or eligible for inclusion in, the National Register of Historic 
Places. Tower siting is subject to NHPA because the Federal 
Communications Commission (``FCC'') takes the position that the siting 
of any new tower by a wireless carrier is a ``federal'' undertaking 
subject to section 106 review--even though the FCC does not review and 
approve the siting of wireless towers and in fact for most towers, the 
FCC does not even know where the tower is located. Subjecting wireless 
carriers to this cumbersome compliance process is particularly 
burdensome because of the number of towers needed to meet the public 
demand for wireless services. CTIA believes that Congress can act here 
to maintain the integrity of our Nation's historic preservation 
policies while limiting unnecessary delays and providing finality to 
the tower siting approval process.
    By way of background, although Congress recognized that mobile 
services are nationwide in nature, it explicitly determined that local 
governments--not the federal government--should oversee and authorize 
the placement, construction and modification of wireless towers. 
Indeed, Congress could not have been more specific in vesting the 
regulation of wireless tower siting with local and state government 
zoning authorities, subject only to the specific limitations included 
in the 1996 amendments to the Communications Act. Today, in nearly 
every instance a wireless carrier cannot construct a new radio tower 
without local zoning board consent, which involves a wide variety of 
factors including consideration of potential impacts on historic 
properties. The local zoning process involves public participation, and 
historic preservation experts can and do participate in review of tower 
siting proposals.
    As a result of section 106, a separate, federal process exists--
involving the Advisory Council on Historic Preservation (``ACHP''), 
State Historic Protection Officers (``SHPOs''), Tribal Historic 
Preservation Officers (``THPOs''), Tribes, historic groups, and the 
public--in a review of the historical and cultural impact of proposed 
towers. The parties have generally recognized that the scope of this 
review for wireless tower siting has become unwieldy in recent years. 
With the FCC's participation, a 2001 Collocation Agreement was enacted 
to limit NHPA review of the placement of antennas on existing towers 
and buildings or other non-tower structures in specific circumstances. 
And in 2004, a Nationwide Programmatic Agreement (``the 2004 NPA'') was 
adopted in an effort to clarify and streamline the section 106 review 
process. Several significant issues, however, still remain.
    As you may know, CTIA has asked the U.S. Court of Appeals for the 
D.C. Circuit to review whether wireless tower siting constitutes a 
``federal undertaking'' subject to section 106 review. Notably, two FCC 
Commissioners, including the new Chairman, dissented from the FCC Order 
adopting the 2004 NPA, concluding that wireless tower siting is not a 
federal undertaking. However, I am not here today to address the 
undertaking issue but instead to raise a fundamental aspect of the NHPA 
section 106 review--what makes a property ``eligible'' for inclusion in 
the National Register, i.e., which properties require section 106 
investigation and review by wireless carriers seeking to site an 
antenna.
    The NHPA requires review of federal undertakings on properties 
included or ``eligible for inclusion'' in the National Register. For 
years, the definition of eligible properties has strayed from what 
Congress intended, creating controversy and uncertainty for wireless 
carriers, tower owners, agencies, historic groups and the public. While 
there are registries and other resources wireless carriers can consult 
to identify whether properties have been included or nominated for 
inclusion in the National Register, the FCC, the ACHP, SHPOs, and 
historic groups have taken the position that the industry must consider 
any property that could conceivably meet the National Register 
criteria--potentially any property over 50 years old (a universe of 
properties that could run into the millions)--even if no steps had ever 
been taken to nominate the property for inclusion in the National 
Register. Under this approach, the meaning and scope of section 106 has 
been vastly expanded in a way that virtually ignores the National 
Register itself and renders the nomination process and listing on that 
exclusive roll irrelevant for purposes of the section 106 review 
process. In some cases, parties have pursued NHPA review following 
approval by the local zoning board and even when the owner of the 
property in question did not favor designation on the National Register 
and supported construction of the tower.
    As a result of this overly broad interpretation, wireless carriers 
routinely must investigate an uncertain universe of potentially 
eligible properties in a several mile radius from the proposed site. 
This causes significant delay, additional costs, and uncertainty in the 
tower siting process. And delay, added costs, uncertainty, and lack of 
finality are not merely hypothetical--in the end, certain areas are 
unserved or without adequate coverage for far too long, to the 
detriment of American consumers. A few examples follow:
      In rural Georgia, a carrier identified an initial site 
for a proposed tower but was directed by the SHPO to seek another 
location because a nearby property was old enough to be considered 
eligible for the National Register. The SHPO provided guidance with 
respect to the replacement site. Upon submission to the SHPO, the 
carrier was informed that the new site was too close to another 
potentially eligible property. These iterative attempts to avoid 
potentially ``eligible'' sites delayed the project by a nearly half a 
year at a cost of $30,000.00. A site acceptable to the SHPO has still 
not been located. As a result, the carrier is reassessing whether it 
will be able to provide service to the area. The delay and cost 
incurred in serial attempts to find an acceptable site can do more than 
delay new service, it can cause a carrier to consider abandoning its 
plans to provide service to the area.
      In upstate New York, the SHPO decided that construction 
of a new tower would have an adverse effect on an historic property 
located over a mile away, which resulted in a four year delay in the 
construction of the tower. To view the tower from the property, one had 
to look through trees, across a busy highway, through utility lines 
strung along the highway, and then look more than a mile further. When 
the FCC examined the case it found that the SHPO's position was 
unpersuasive and authorized the construction of the tower. However, 
during the four year dispute, the public was deprived of increased 
coverage and enhanced service quality. Any adverse finding, regardless 
of merit, triggers significant delay.
      New Jersey's Garden State Parkway has recently been 
identified as eligible for listing in the National Register. This 2-to-
6 lane restricted access toll highway has gaps in wireless service, and 
multiple towers are required for comprehensive wireless coverage, 
including the ability to make emergency 911 calls. Yet, proposed 
towers--which may be located on a nearby road and only momentarily 
visible when driving along the Parkway--will trigger a section 106 
review process that can add more than six months to complete, requiring 
negotiation of a Memorandum of Agreement between the carrier, the SHPO, 
the FCC and potentially the ACHP, preparation and filing of an FCC 
submission, and expenditure of thousands of dollars. Thus, this process 
automatically produces delay in siting, resulting in public demand that 
goes unmet.
      In rural Mississippi a carrier has been advised by the 
SHPO that it could not locate a proposed tower because it was too close 
to several potentially eligible properties. Not only did the property 
owner and residents of the area disagree, but a tower had been approved 
by the SHPO and was constructed only 1000 feet from the proposed site. 
This site would have provided service to a town of barely 1,000 people.
      A farmstead owner and the SHPO in New York believe that a 
tower constructed in 1987 adversely affects the farmstead by changing 
the historic setting, even though the farmstead owner has constructed 
modern silos and other modern farm buildings on the property. The 
battle over the tower, which has been ongoing since 2000, has cost the 
carrier hundreds of thousands of dollars. This is just one example of 
where post-construction claims are entertained and can linger for 
years, upending finality and certainty in the siting tower siting 
process.
      NHPA proceedings and delay are not just inconvenient and 
costly, they can create serious threats to public safety. In rural 
western Maryland, a NHPA challenge to a tower proposed for both public 
safety and commercial wireless services resulted in a three year delay 
in construction. During the protracted proceedings, emergency services 
communications in the area became so degraded that Medivac helicopter 
pilots transporting patients to nearby hospitals could no longer 
communicate with EMS crews on the ground or hospitals. Concerned that 
the ability of its emergency teams to save lives was endangered, the 
State of Maryland requested expedited consideration, the FCC issued an 
order finding the tower posed no adverse effect to historic properties, 
and the tower was constructed.
As noted above, the expansive definition of properties eligible for 
inclusion increases the universe of properties that carriers must 
investigate and that can trigger reviews, causing delay and 
uncertainty. In 2003, Chairman Pombo and then-Subcommittee Chairman 
Radanovich recognized this problem in a letter to the ACHP, noting that 
the number of properties that meet the National Register criteria is 
unknowable--probably in the many tens of millions--and urging that the 
section 106 process return to the carefully defined scope originally 
intended by Congress.
    The 2004 Nationwide Programmatic Agreement purported to provide 
more certainty to the eligible properties issue by directing the 
wireless industry to consult five specific sources of information to 
determine what properties nearby the site are ``eligible for 
inclusion.'' At first glance, this may appear to be an improvement over 
the existing application of section 106. This modification, however, is 
illusory as it does not change the sweeping definition of properties 
eligible for inclusion. As a result, consultation with the five sources 
provides no safe harbor and no certainty for wireless carriers.
    In addition, the 2004 NPA fails to provide finality once a wireless 
carrier completes its review of these sources. At any time, including 
while the tower is under construction or after it has been built, a 
party can interject a claim that an eligible property was overlooked--
even if it does not appear in any of the five sources carriers are 
required to consult by the 2004 NPA. Further, the 2004 NPA creates a 
new petition process at the FCC that permits a party to allege an 
eligible property has been overlooked and allows the FCC to order 
construction halted, fine the wireless carrier or tower owner, and if 
the tower has been constructed, the FCC can order that it be 
demolished.
    In essence, even following the 2004 Nationwide Programmatic 
Agreement, the NHPA section 106 review process remains completely open-
ended, causing delays in the siting process and providing challengers 
an unending ``second bite'' opportunity to oppose sites that already 
have been approved by local zoning authorities. The result is a process 
that forces the wireless industry to make siting determinations that 
are forever subject to review and reversal. CTIA believes it would be 
more rational--and more consistent with Congress intent--to provide a 
concrete definition of eligibility that offers a clear path for 
wireless carriers to satisfy their NHPA obligations in a way that is 
sensitive to historic preservation concerns while providing certainty 
for wireless service deployment. Restoring significance to inclusion in 
the National Register and the nomination process for inclusion would 
eliminate hundreds of thousands of unnecessary identification and 
evaluation reviews of potentially eligible properties. Further, it 
would ensure that historic properties are properly reviewed within the 
section 106 process while eliminating an avoidable drain on resources.
    Preserving historic sites and siting communications facilities to 
provide reliable wireless service are not mutually exclusive goals. 
CTIA urges Congress to restore clarity to the section 106 process and 
thereby remove the unnecessary delay, costs, and uncertainty from the 
tower siting process.
    Mr. Chairman, thank you for the opportunity to testify this 
morning. I look forward to answering any questions you or the members 
may have.
                                 ______
                                 
    Mr. Nunes. Thank you, Mr. Altschul. Ms. Wadhams, you are 
recognized for 5 minutes.

STATEMENT OF EMILY WADHAMS, VICE PRESIDENT, NATIONAL TRUST FOR 
            HISTORIC PRESERVATION, WASHINGTON, D.C.

    Ms. Wadhams. Thank you, Mr. Chairman, and members of the 
Subcommittee for the opportunity to testify on behalf of the 
National Trust for Historic Preservation concerning the 
discussion draft proposal to amend the National Historic 
Preservation Act.
    My name is Emily Wadhams, and I am the National Trust Vice 
President for Public Policy.
    The National Trust and its preservation partners--
organizations representing over 300,000 members--support the 
reauthorization of the Advisory Council on Historic 
Preservation as originally proposed by H.R. 3223 from the 108th 
Congress. We also support the reauthorization of the Historic 
Preservation Fund.
    We strongly oppose, however, Sections 2, 3, and 4 of the 
discussion draft as changes that would substantially weaken the 
Preservation Act's core protections for historic properties, 
specifically Section 106.
    The problems that apparently generated some of the proposed 
changes are fairly uncommon. There are numerous ways to deal 
with those concerns through administrative solutions. The 
Interstate Highway system exemption is a good example, and we 
see no need to take legislative approach to fix a program that 
generally works well.
    Virtually every Congress since 1966 has worked to 
strengthen the Preservation Act because of the bipartisan 
consensus that saving America's heritage is a national goal. 
These discussion draft amendments threaten to alter that 
consensus. We are supportive of private property rights, but 
private property rights have never been allowed to take 
precedence over what is deemed to serve a greater public good, 
including the preservation of our national heritage.
    Here are our principal concerns with the discussion draft.
    First, Section 4. This is the most troubling provision to 
the preservation community because of the vast majority of 
historic places already known to be significant, they would be 
excluded from consideration under Section 106. It would limit 
the scope of Section 106 to historic properties in districts 
actually listed on the National Register. There are currently 
about 79,000 of these and also those determined by the 
Secretary to be eligible to, which adds about another 9,700 
properties.
    However, over the last 35 years, more than 350,000 historic 
properties have been determined eligible through the 106 
reviews--about four times the number of those actually listed 
on the National Register, and they would be deprived of 
existing Federal safeguards.
    Section 4 would also have serious consequences for elements 
of our heritage yet to be discovered and would give Federal 
agencies a free hand to plan projects that could harm historic 
places without any consideration of their significance.
    And even more alarming, Section 4 would pose an immense 
thread to tribal historic resources and archaeological sites. 
Only a small fraction of traditional cultural properties have 
been listed or determined eligible.
    The change in the law would threaten the destruction of the 
only clues we have into much of this Nation's past, including 
the 10,000 or so years worth of artifacts chronicling the 
history of the first Americans.
    We have given numerous examples of this in our written 
testimony. What Americans consider to be significant is not 
static, and the beauty of the current eligibility language is 
that it allows for a dynamic public engagement process. A 
particular compelling case, as mentioned earlier, is the World 
Trade Center site. As a result of Section 106, the site was 
determined to be eligible for National Register, and only 
because of 106 was there a process for citizens, including the 
families of the victims to become engaged in the decisions 
regarding the redevelopment of that site.
    This is just one of many examples, albeit a dramatic one, 
of how the process works on a daily basis to protect the places 
that have special meaning to us as Americans.
    Section 2 of the discussion draft responds to the unusual 
situation of owner objection, and would prohibit eligibility 
determinations by the keeper if the owner objects to listing.
    Owner objections are rare--only 15 in the last two years. 
This potential change is troubling for several reasons. In 
historic districts, it would ban eligibility determinations if 
more than 50 percent of the owners object and as a result all 
property owners within the district would lose the right to 
protect their property from potentially harmful Federal 
projects.
    Furthermore, not recognizing the significance of a property 
by a determination of eligibility could negatively impact the 
Federal planning process for future 106 reviews.
    And finally, Section 3 of the discussion draft would create 
a new requirement for certified local governments. It would 
dictate how those municipalities regulate their land use, even 
for projects with no Federal involvement.
    No evidence is presented that this change is needed or will 
provide additional due process protections.
    As exemplified by the President's Preserve America 
Executive Order, it is a civic responsibility and Federal 
obligation to ensure that vital historic resources are 
preserved for generations to come. We appreciate the 
Subcommittee holding a hearing to examine proposals outlined in 
the discussion draft, but urge you not to move forward with 
amendments that would undermine the integrity of the 
Preservation Act. Thank you for your time and your 
consideration of this important issue.
    [The prepared statement of Ms. Wadhams follows:]

     Statement of Emily Wadhams, Vice President for Public Policy, 
              The National Trust for Historic Preservation

    Thank you Mr. Chairman and members of the Subcommittee for this 
opportunity to testify on behalf of the National Trust for Historic 
Preservation concerning the National Historic Preservation Act (NHPA) 
and the Subcommittee's ``discussion draft'' proposal to amend the Act. 
The National Trust's President, Richard Moe, is out of the country this 
week and it was impossible for him to be here in person, but he has 
asked me to speak on his behalf and to convey his serious concerns 
about the importance of the issues raised by this draft.
    For more than 50 years, the National Trust has been helping to 
protect the nation's heritage, as the Congressionally chartered leader 
of the private historic preservation movement in America. The National 
Trust, a nonprofit organization with more than a quarter million 
members throughout the country, is directly involved in saving the best 
of our past for future generations.
    The National Trust and our partners in the historic preservation 
community support the reauthorization of the Advisory Council on 
Historic Preservation (ACHP)--as originally proposed by H.R. 3223 from 
the 108th Congress--and the reauthorization of the Historic 
Preservation Fund (HPF). We strongly oppose, however, Sections 2, 3, 
and 4 of the discussion draft that would substantially weaken the 
Preservation Act's fundamental core. We urge you to move forward in 
reauthorizing the ACHP and HPF, without including any amendments to the 
NHPA that would undermine the current safeguards for our nation's 
historic and archeological patrimony. Let me emphasize that the 
historic preservation community is absolutely united in our opposition 
to the amendments proposed in the discussion draft. As you know, the 
Trust joined six other national organizations in a joint letter to the 
Subcommittee--collectively representing this opposition on behalf of 
over 300,000 members and a wide variety of preservation advocates 
ranging from state and tribal officials to architects and 
archaeologists.
    Historic preservation is the process of identifying places, sites 
and resources that have survived from our past; evaluating the meaning 
and value they have for us now; and keeping, using and caring for those 
significant places, sites and resources so they will survive into the 
future. The preamble to the NHPA, as passed by Congress in 1966, 
reminds us that ``The spirit and direction of the nation are founded 
upon and reflected in its historic heritage;'' and that ``the 
historical and cultural foundations of the nation should be preserved 
as a living part of our community life and development in order to give 
a sense of orientation to the American people.'' Congress further 
clarified in 1980 that ``the preservation of this irreplaceable 
heritage is in the public interest.''
    Virtually every Congress since 1966 has worked to strengthen the 
NHPA, because there has been a shared, bipartisan consensus that saving 
America's heritage should be, and has always been, a national goal. 
These discussion draft amendments, conversely, threaten to shatter that 
consensus. If enacted, they would represent by far the most serious 
threat to our heritage in the history of the Congress.
    The problems that apparently generated the changes to Section 106 
in the discussion draft are anecdotal and rare. Instead of developing 
strategic solutions to address those concerns, which could be 
accomplished entirely through the administrative process, this proposal 
vastly overreaches and would cause irreparable damage to historic 
properties nationwide by amending a federal law to satisfy a 
disgruntled minority. If the Subcommittee would like to develop 
responsible improvements to the Section 106 process, administrative 
mechanisms are available to accomplish this, such as the recent 
exemption of the Interstate Highway System and others.
    The National Trust is firmly supportive of private property rights 
and advocates an appropriate balance between those rights and the 
greater public policy goals that benefit all citizens. In that regard, 
private property rights have never been allowed to take precedence over 
our shared national values and the preservation of our country's 
heritage. The Trust's own Congressional charter reflects the important 
role of private property ownership in our mission and greatly 
encourages active public participation in every facet of the historic 
preservation process.
    The Preservation Act protects the rights and values of private 
property owners, local officials, and citizens across the United 
States, and gives them a place at the table when the actions of federal 
agencies threaten to affect their historic properties and their 
communities. Section 106 provides a process that requires those 
agencies to ``take into account'' the effects of their decisions and 
their projects on historic properties, and to work with states, tribes, 
and local communities to seek ways to lessen the effects of those 
projects. Section 106 requires a process, not an outcome. The goal is 
not to save every historic site but to make sure that they are 
considered and that their value is weighed against other public values. 
Section 106 helps to prevent governmental agencies from running 
roughshod over the rights of citizens, private property owners, local 
governments, and tribal governments when it comes to the protection of 
our American history.
      The Discussion Draft Would Completely Eliminate From 
Section 106 Consideration Over Three Quarters of Currently Known 
Historic Properties that Have Already Been Determined Eligible for the 
National Register.
    Section Four of the discussion draft is the most troubling to us, 
because the vast majority of historic places already known to be 
significant would be excluded from consideration under Section 106. If 
this change were enacted, it would limit the scope of Section 106 to 
the 79,000 historic properties and districts actually listed on the 
National Register and those ``determined by the Secretary to be 
eligible,'' which is about 9,700 additional properties. More than 
350,000 historic properties, however, have been determined eligible by 
the SHPOs and federal agencies in the last 35 years through the Section 
106 review process. While these determinations may be undisputed, they 
have not been reviewed by the Keeper of the National Register directly, 
and therefore, all of these known historic properties--more than four 
times the number of those listed on the National Register--would be 
deprived of existing federal safeguards.
      The Discussion Draft Would Completely Eliminate the 
Requirement to Evaluate Significant Places that May Qualify for the 
National Register.
    Section Four would also have serious consequences for the elements 
of our heritage yet unknown or undiscovered. It would give federal 
agencies a free hand to plan projects that could harm or destroy 
historic places and archeological sites without even investigating 
their significance. Whether it is a century-old bridge that is a 
beloved community landmark, or a nineteenth century neighborhood that 
is threatened by a proposed highway, many of the places we treasure 
most in our communities have never even been evaluated for the 
Register. They would be stripped of any consideration under the 
discussion draft proposal. In order to protect their property from a 
federal undertaking, this change would place the burden on property 
owners themselves to pay for preparing a Register nomination at their 
own expense. To pursue the process all the way to the Keeper before the 
commencement of project planning process would be immensely difficult.
    Section Four would pose an especially significant threat to tribal 
historic resources and archeological sites. Only a small fraction of 
the traditional cultural properties have been listed on the Register or 
determined eligible by the Keeper. The change in the law would threaten 
the destruction of the only clues we have into much of this nation's 
past--the 10,000 or so years' worth of artifacts chronicling pre-
Columbian human history--a story that can only be discovered through 
the archeological record. Archaeological sites identified through the 
Section 106 process represent the historic spectrum ranging from the 
winter camp of Spanish explorer Coronado, the birthplace of southern 
patriot Robert Young Hayne, the African Burial Ground in Manhattan, the 
first Spanish settlement in St. Augustine, the Indian village adjacent 
to the 1607 Jamestown settlement, and many more. These chapters of our 
heritage might have been lost and destroyed had it not been for Section 
106.
    What Americans consider to be historic or culturally significant is 
not static, but is dynamic and evolving. When the Register was started, 
we tended to identify architecture or sites that told the stories of 
only the wealthiest or most famous Americans. The current Section 106 
process now offers a process for protection of diverse historic 
resources. For example, the World Trade Center site in Lower Manhattan, 
where terrorists attacked the twin towers on September 11, 2001, has 
been recognized as eligible for the National Register, based on its 
extraordinary significance in our history. This site, where the lives 
of thousands of innocent Americans were lost, has become in a sense the 
Pearl Harbor of the 21st century, a place that affected the lives of 
every single one of us. As a result of Section 106, the World Trade 
Center site was evaluated for the Register and the public has had the 
opportunity to learn about significant elements at that location, some 
of which never would have been identified at all without the review 
process under current law. Because of Section 106, federally assisted 
projects such as the reconstruction of the commuter rail station at the 
World Trade Center have been significantly modified in response to 
consultation and will incorporate the preservation of elements within 
the site that will be visible to the public from the station. As an 
active participant in the Section 106 review process, the National 
Trust can assure the Subcommittee that, if the proposed amendments in 
the discussion draft had been in place, none of this ever would have 
happened. The World Trade Center is just one of many examples of how 
the current Section 106 process works on a daily basis to protect the 
places that have special meaning to us as Americans.
    Section 110 of the Historic Preservation Act, and Section 3 of the 
``Preserve America'' Executive Order signed by President Bush in 2003, 
direct federal agencies to inventory and evaluate their land holdings 
to determine what archeological or historical resources might be 
located on them. The discussion draft proposal would eliminate the 
incentive for federal agencies to evaluate their historic properties 
because a lack of information about their significance would be 
rewarded with an exemption from Section 106.
    Federal agencies are required to investigate a whole variety of 
other types of resources prior to making decisions about their actions 
including the affects on wetlands, endangered species, groundwater, and 
soil. The long-standing requirement to investigate historic properties 
is no different from these other types of studies. By eliminating this 
requirement from Section 106, the proposal would single out historic 
places and relegate them to the status of second-class resources.
      Section Two of the Discussion Draft Responds to an 
Uncommon Problem With a Needless and Draconian Remedy That Would 
Threaten Private Property Rights.
    Section Two of the discussion draft would prohibit eligibility 
determinations by the Keeper of the National Register if the owner 
objects to listing the property on the Register. Even historic 
properties and districts previously determined eligible by SHPOs or 
federal agencies could be prohibited from an eligibility determination 
by the Keeper under this provision.
    In historic districts, this provision would ban eligibility 
determinations if more than 50 percent of the owners object within the 
district--or arguably, if any owners object. As a result, all property 
owners within the historic district would lose the right to protect 
their property from federal projects that could harm or destroy their 
communities. They would also lose incentives for private investment in 
the district generated by state and federal tax credits.
    It is important for the Subcommittee to understand that owner 
objections to Register listing are very unusual; only 15 such 
objections have been raised nationwide in the last two years, even 
though the Subcommittee has been focusing attention on this issue. We 
strongly oppose amending the NHPA to address a circumstance that is so 
rare.
      Section Three of the Discussion Draft Responds to an 
Uncommon Problem by Using Federal Law to Dictate Local Land Use Rules 
to Local Governments.
    Section Three, like Section Two, would respond to a virtually non-
existent problem that is backed by nothing more than anecdotal 
evidence, and in this case, is a matter of state and local law, not 
federal law. The proposed amendment would create a new requirement for 
Certified Local Governments receiving funds through the Historic 
Preservation Fund, and would dictate to these local governments 
specific requirements about how they regulate their land use, even for 
projects with no federal assistance or involvement whatsoever. No 
evidence has been presented that this change is needed or will provide 
additional due process protections. In our view, it is highly 
inappropriate for Congress to engage in micromanaging local land use 
laws. We urge you not to pursue this proposed amendment.
    These days more and more Americans are turning to the very heart of 
our common experience, to the institutions, history, and traditions 
that define us as a nation. It is our mission to ensure that these 
vital elements of our American heritage are preserved for generations 
to come. We appreciate the Subcommittee holding a hearing to examine 
the proposals outlined in the discussion draft, but urge you not to 
move forward with the Section 106 provisions in the discussion draft. 
As exemplified by the President's ``Preserve America'' Executive Order, 
it is a civic responsibility and a federal obligation to ensure that 
vital historic resources can be preserved for generations to come. The 
discussion draft proposals would take an extreme approach that no other 
Congress has taken in defining our federal preservation laws. Think of 
how ironic it would be--in the aftermath of September 11th when so many 
Americans have been focused on the icons of our national identity--to 
undermine the process that has preserved the World Trade Center site 
for posterity. We hope that you will reauthorize the laws that underpin 
historic preservation without undermining their integrity.
                                 ______
                                 
    Mr. Nunes. Thank you, Ms. Wadhams. Ms. Matthews, you are 
recognized for 5 minutes.

  STATEMENT OF JANET SNYDER MATTHEWS, ASSOCIATE DIRECTOR FOR 
  CULTURAL RESOURCES, NATIONAL PARK SERVICE, WASHINGTON, D.C.

    Ms. Matthews. Thank you, Mr. Chairman. I am Jan Matthews, 
Associate Director, Cultural Resources, National Park Service, 
Department of Interior.
    Thank you for this opportunity to provide an update on 
accomplishments of America's National Historic Preservation 
Program, authorized under the National Historic Preservation 
Act of 1966.
    I formerly worked with Section 106 as State Historic 
Preservation Officer, appointed by then Florida Secretary of 
State Katherine Harris and Governor Jeb Bush.
    We understand today that a bill to amend the National Act 
may be introduced based on a discussion draft recently provided 
to the Department of Interior. We respectfully request the 
Committee provide us with an opportunity to share our views 
should it be introduced prior to moving forward with a bill.
    We also are interested in working with the Committee to 
resolve any unintended consequences resulting from 
implementation.
    Our testimony today discusses concerns with the discussion 
draft provides background on nearly 40 years under the National 
Historic Preservation Act. Congress passed the Act in response 
to the recommendations of a special committee of the U.S. 
Conference of Mayors who urged establishment of a strong 
Federal preservation program to recognize and protect 
significant historic places in communities across the nation.
    Communities were gravely concerned that the Federal 
Government routinely supported projects destroying their 
historic places without considering alternatives. The 
Conference of Mayors and the voting public who lobbied for the 
preservation passage of the Act knew then as we know better now 
that economic development and the health of communities depend 
on preserving the richness and variety of America's heritage.
    One of the primary reasons the Act has been so successful 
is because it provides means of assuring that historic places 
are considered in the Federal planning process, while providing 
protections for property owners, privately owned.
    Preserve America Executive Order 13287 signed by President 
Bush enjoins the Federal Government to provide leadership in 
protecting and celebrating historic assets for economic 
development and community revitalization. Heritage tourism 
depends on the preservation of historic places, one of the most 
important sources of revenue for many communities.
    The proposed changes would limit the requirement that a 
Federal agency conduct a Section 106 review only to properties 
listed or determined eligible by the Secretary of Interior. 
Federal agencies would no longer be required to consider the 
potential impact on historic places currently identified as 
eligible to informal consultations between the state and 
Federal governments. Many private property owners rely upon 
this because many important historic properties have yet to be 
listed.
    Federal agencies also use eligibility determinations to 
fulfill other mandates under other statutes, such as Federal 
Land Management Policy Act and NEPA, National Environmental 
Policy Act. Without a reliable source of information, without 
an efficient mechanism, other delays may result.
    Changes in the Act that would compromise or eliminate 
identifying and considering historic places would jeopardize 
numerous historic resources because they would not be 
considered in the Federal planning process and the leadership 
and affirmative responsibility of Federal agencies under 
Section 110 and Section 106 and new mandates such as President 
Bush's new Preserve America initiative.
    As the Nation evolves in diversity and complexity in every 
sector, we must ensure that the history of all Americans is 
identified, honored, and preserved. The law Congress passed in 
'66 is intentionally flexible to accommodate a changing 
nation's sense of what is historic and worthy of preservation. 
The Act created a remarkable national partnership network. 
Tribal and local governments played and decisive, in most ways 
co-equal public roles, in a system that has worked 
extraordinarily well for 40 years. The on-the-ground work of 
the program directly involves citizen input, delivered 
principally to our citizens through state, local, tribal 
governments--a demonstration of the success of our democracy 
because every partner, every citizen plays a role, has a voice 
in recognizing an preserving our heritages.
    The authorization for this Historic Preservation Fund and 
the Advisory Council expires at the end of this fiscal year 
because of the success of the Fund and the important role of 
the Council to preserve heritage across the country. We look 
forward to working with the Committee to assure their 
continuation in the coming years.
    Mr. Chairman, this concludes my prepared remarks. I would 
be pleased to answer any questions you or members may have.
    [The prepared statement of Ms. Matthews follows:]

  Statement of Janet Snyder Matthews, Associate Director for Cultural 
   Resources, National Park Service, U.S. Department of the Interior

    Mr. Chairman, thank you for the opportunity to provide an update on 
the accomplishments of America's national historic preservation 
program, authorized under the National Historic Preservation Act of 
1966.
    We understand that a bill to amend the National Historic 
Preservation Act (NHPA) may be introduced based on a discussion draft 
recently provided to the Department. We respectfully request that the 
Committee provide us an opportunity to share our views on the bill, 
should it be introduced, prior to moving forward with a bill. We also 
are interested in working with the Committee to resolve any unintended 
consequences resulting from the implementation of the NHPA. Our 
testimony today will discuss some of our concerns with the discussion 
draft and provide background on the nearly forty year history of the 
NHPA Program.
    The NHPA establishes a collaborative approach to protect historic 
properties that embodies Secretary of the Interior Gale Norton's ``Four 
Cs''--Communication, Consultation, and Cooperation, all in the service 
of Conservation. The NHPA creates partnerships among federal agencies, 
states, tribes, and local governments, which play a critical role in 
carrying out the key programs of the NHPA. These programs related to 
NHPA include the National Register of Historic Places, the section 106 
consultation process, the Historic Preservation Fund, the Historic 
Preservation Tax Incentives Program, and Preserve America.
    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. State historic preservation programs 
locate, document, and assist citizens in nominating historic properties 
to the National Register, aid local governments and federal agencies in 
meeting historic preservation statutes, and assess the impact of 
federal projects on historic places. The work of state governments is 
essential to the preservation of our historic places.
    Local governments also can play a formal role in the national 
preservation program by becoming Certified Local Governments. These 
important partners assist local citizens in inventorying historic 
buildings and neighborhoods, preserving and enhancing the historic 
values of these sites, working with local schools to ensure the next 
generation recognizes and values their local history, and coordinating 
with state governments to ensure the national historic preservation 
program meets local needs in the best manner possible.
    Fifty-two tribal governments now have formally joined the national 
preservation program with established Tribal Preservation Officers. 
Tribal participation has enriched the national program by providing the 
Tribes' perspective on heritage, history, preservation, and sense of 
place.
    Congress passed the NHPA of 1966 in response to the recommendations 
of a Special Committee on Historic Preservation of the U.S. Conference 
of Mayors. The conference urged that the United States establish a 
strong federal preservation program to support the recognition and 
protection of significant historic places in communities throughout the 
nation. Congress recognized in passing the NHPA that historical 
properties significant to the Nation's heritage were being lost or 
substantially altered at an increasing frequency.
    As directed by Congress, the NHPA set in motion a process to reduce 
the loss of much of the nation's invaluable heritage and established 
the means for the federal government to provide leadership in the 
preservation of historic places in a unique partnership that remains 
highly effective today. The Conference of Mayors and others who lobbied 
for the passage of the Act knew then, as we know better now, that 
economic development and the health of communities are both dependent 
on preserving the richness and variety of America's heritage.
National Register of Historic Places
    One of our most widely recognized national institutions is the 
National Register of Historic Places. In addition to recognizing 
national significance, the National Register recognizes ``local 
historic significance'' with two thirds (67%) of the properties listed 
in our National Register for their significance to local citizens and 
local history. The National Register now includes nearly 1.4 million 
properties in 79,000 listings nominated by citizens nationwide. There 
is hardly a city or town throughout the nation without a property 
listed in the National Register of Historic Places. Last fiscal year 
alone, 46,619 properties were listed in 1,537 nominations of historic 
places.
    A Federal Preservation Officer, State Historic Preservation 
Officer, or Tribal Preservation Officer can nominate a property for 
listing in the National Register. During review of a proposed 
nomination, prior to being submitted to the Secretary, property owners 
and local officials are notified of the intent to nominate and public 
comment is solicited.
    Owners of private property are given an opportunity to concur in or 
object to the nomination. If the owner of a private property, or the 
majority of private property owners for a property or district with 
multiple owners, objects to the nomination, the historic property 
cannot be listed in the National Register. In these instances, the 
property would be evaluated for a determination of eligibility. Less 
than 1 % of the nominations submitted to the Secretary are 
determinations of eligibility involving owner objections. Listing in 
the National Register or a determination of eligibility does not 
restrict a property owner from disposing of a historic property in any 
manner he or she sees fit. The private property owner is under no 
obligation to protect the historic property under federal law, and it 
can be torn down by its owner without federal government intervention.
The Section 106 Consultation Process
    One of the primary reasons the NHPA has been so successful is 
because the consultation process under section 106 creates a means of 
assuring that historic properties are identified and considered in the 
federal planning process, including processes involved in the award of 
a federal grant or license. The section 106 consultation process 
requires a federal agency to determine if a proposed federal 
undertaking could affect historic properties. Historic properties 
include those listed in the National Register or those that are 
eligible for listing. If eligibility has not yet been determined, the 
federal agency can quickly and efficiently identify eligible properties 
through an informal consultation with the relevant state historic 
preservation offices or Tribal preservation offices. If questions arise 
about the eligibility of a given property, the more time-consuming 
process of a formal determination of eligibility may be sought.
    The NHPA allows for flexibility for industries and agencies to 
comply with section 106 requirements while advancing and preserving the 
goal of protecting historic properties. The Advisory Council on 
Historic Preservation has the flexibility, under procedures which have 
undergone extensive public review, to develop administrative 
programmatic agreements tailored to the needs of specific federal 
programs. For example, this year the Federal Communications Commission 
implemented a nationwide programmatic agreement for the unique 
situation of constructing communication towers for wireless companies. 
It is this kind of flexibility allowed under the NHPA that has helped 
it adapt to new situations that have arisen over the past 39 years.
The Historic Preservation Fund
    The NHPA also creates a national ``cost-sharing'' approach through 
the Historic Preservation Fund where the federal government provides a 
share of the financial resources needed to state, local and tribal 
governments, which, in turn, provide matching funds and share the 
benefits with citizens. The Historic Preservation Fund is a highly 
cost-effective cornerstone of the national preservation program with 
strong bipartisan support. It has been a model for state-legislated 
programs that provide grant monies based on programs designed under the 
NHPA. Certified Local Governments often use the 10% of the Historic 
Preservation Fund grants awarded to them for heritage tourism projects, 
which generates revenue for communities.
The Historic Preservation Tax Incentives Program
    The Historic Preservation Tax Incentives Program, through the use 
of tax incentives, stimulates private-sector preservation and reuse of 
income-producing historic properties. Since its inception in 1976, the 
program has generated over $33 billion in historic preservation 
activity; in FY 2004 alone, a record-setting $3.88 billion in private 
investment was leveraged using federal historic preservation tax 
credits rehabilitating some 1,200 historic properties listed in the 
National Register and creating over 50,000 jobs and nearly 16,000 
housing units.
The Advisory Council on Historic Preservation
    The NHPA established the Advisory Council on Historic Preservation 
as the independent federal agency in the partnership dedicated to 
historic preservation and as the major policy advisor to federal 
agencies on historic preservation. The Council's members include 
representatives from every level of government and private citizens. It 
is the nation's advocate for full consideration of historic values in 
federal decision-making through its oversight of the section 106 
process. The Council plays an essential role in reviewing federal 
programs and policies to further preservation efforts; providing 
training, guidance, and information to the public and federal entities; 
and recommending administrative and legislative improvements for 
protecting the nation's heritage.
Preserve America
    The Department is working in partnership with the Council to 
further the goals of the new Preserve America Executive Order 13287 
signed by President Bush. This Executive Order directs federal agencies 
to inventory and promote greater use of historical sites in partnership 
with state, tribal, and local governments. This initiative will provide 
more opportunities for preservation while increasing tourism and 
economic development by promoting historic and cultural preservation 
and encouraging greater public appreciation of our nation's treasures.
    We would like to note some of our concerns with the discussion 
draft that was provided to the Department. The discussion draft 
proposes changes to NHPA that would limit the historical data collected 
through the National Register process. Under the proposed change, 
eligibility determinations would not continue to be made on properties 
where the owner objects to listing. In a related section, the 
discussion draft proposes to limit current section 106 review 
requirements to properties listed in the National Register or formally 
determined eligible by the Secretary of the Interior. It is unclear 
what this change could be interpreted to mean. This change could be 
interpreted to mean that federal agencies simply could not consider the 
potential impact of their projects on historic properties currently 
identified as eligible through informal consultations between the state 
and federal governments. This interpretation would narrow the 
consideration of historic properties in the planning of federal 
projects and could place historic resources at risk. The discussion 
draft also could be interpreted to continue to require eligibility 
determinations, but through the imposition of a formal process through 
the Secretary of the Interior. This interpretation could place a 
tremendous administrative burden on the Department of the Interior and 
would result in a delay of federal projects. Most historic properties, 
including the Golden Gate Bridge and the Mission San Juan Capistrano in 
California, were neither listed on the National Register nor formally 
determined eligible by the Secretary at the time of a proposed federal 
undertaking. They were evaluated as eligible on the basis of informal 
consultation during the planning stage. Many important historic 
properties have yet to be listed.
    The NHPA today acknowledges that finding and evaluating our 
historic places is ongoing. It is a process that requires federal 
agencies to develop enough information on federal projects to avoid 
needless destruction of those historic places. Many private property 
owners benefit from the current review process. Restricting the 
development of that information will inevitably lead to a cumbersome 
review process and destruction of important resources, including those 
that could enhance the value of private property, and that could easily 
have been avoided.
    Last year, state historic preservation programs were asked by 
federal agencies to review approximately 104,172 federal projects. They 
found that in the vast majority (88,212) of these projects, no historic 
properties were identified or the proposed project was determined to 
have no effect on historic properties. As part of the informal 
consultation, states and federal agencies concurred that some 22,700 
properties not previously recognized were, in their judgment, eligible 
for the National Register, and therefore should be considered in the 
federal planning process under section 106 of the NHPA. Under the 
discussion draft, those 22,700 properties would be eliminated from 
consideration during the federal planning process or would have had to 
undergo potentially lengthy formal eligibility determinations. Compared 
with the 22,700 properties determined eligible through informal 
consultations, only nineteen properties were formally determined 
eligible for the National Register by the Secretary as a part of the 
section 106 process.
    Federal agencies can satisfy section 106 quickly and efficiently by 
working directly with state historic preservation offices to identify 
eligible properties and consider them in the federal planning process. 
Federal agencies currently use informal eligibility determinations 
under section 106 to fulfill other mandates required under other 
statutes, such as the Federal Land Management Policy Act (FLPMA). 
Without a reliable source of information on historic properties, 
additional processes and evaluations may need to be developed in order 
to meet the statutory requirements. Delays can occur in a wide variety 
of determinations made by the Secretary under FLPMA, including those 
related to minerals development.
    State, local, and tribal governments have enacted laws that 
establish additional protections and, in some cases, financial 
incentives for listed or eligible properties beyond their consideration 
in the federal planning process under federal law. A number of states 
have passed statutes that require consideration of historic places in 
the planning of state projects similar to the requirement in section 
106 of the NHPA, and that provide grants and tax incentives. More than 
2,500 communities have local laws establishing historic preservation 
commissions, and nearly 1,500 of those communities have applied for and 
become Certified Local Governments under the NHPA.
    Because history does not stop, the nation's understanding of what 
is worthy of preservation changes with the passage of time and the 
growing appreciation of the breadth and depth of our nation's heritage. 
The law passed in 1966 provides the flexibility needed to accommodate a 
nation's changing sense of what is historic and worthy of preservation. 
The NHPA has created 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 in a system that 
has worked well for nearly 40 years. 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, local, and 
tribal governments.
    The authorization for the Historic Preservation Fund and the 
Advisory Council on Historic Preservation expires at the end of Fiscal 
Year 2005. Because of the success of the fund and the important role 
that the Advisory Council plays as a partner in our efforts to preserve 
historic places across the country, we look forward to working with the 
Committee to assure the continuation of this partnership in the coming 
years.
    Mr. Chairman, this concludes my prepared remarks. I would be 
pleased to answer any questions you or members of the committee may 
have.
                                 ______
                                 
    Mr. Nunes. Thank you, Ms. Matthews. Mr. Nau, you are 
recognized for 5 minutes.

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

    Mr. Nau. Mr. Chairman, it is with a great deal of pleasure 
that I come before you today to talk about the reauthorization 
of the Advisory Council on Historic Preservation.
    I am John Nau, Chairman of the Advisory Council. We look 
forward to working closely with this Committee to craft this 
important legislation, and I personally appreciate the speed 
with which the Committee has taken up this legislation.
    Last year, then Chairman Radanovich introduced H.R. 3223, 
which contained many of the provisions of the current 
discussion draft. In addition to the ACHP reauthorization, 
membership changes, and other technical changes that were 
included in H.R. 3223, the discussion draft includes 
reauthorization of Historic Preservation Fund, an important 
additional element supported by us.
    Last year, during the hearings lead up to H.R. 3223, an 
anomaly of the current National Historic Preservation Act 
became very evident. Certain local jurisdictions linked their 
historic preservation ordinances to the eligibility of property 
for listing on the National Register of Historic Places, 
imposing limitation on future use of the property through 
exercise of local rather than Federal law.
    In order to address this, we held discussions with the 
Committee staff concerning elimination of the requirement that 
the Secretary make a formal determination of eligibility when a 
nomination is submitted over property owner's objection.
    Changes to the law that preserve a property owner's rights 
when he or she perceives no benefit to eligibility just simply 
makes sense to me.
    Along that same line, we discussed including a halt to any 
further processing of a nomination in the face of a property 
owner's objection. While we think that there is an opportunity 
to codify our understanding of this concern, the language in 
the discussion draft appears to go further than simply National 
Register nominations and may impact the Section 106 process 
governing the planning of Federal projects. And that is very 
different case.
    We would like to see this additional language removed or 
modified in any final legislation.
    Section 106 of the National Historic Preservation Act 
requires Federal agencies make a reasonable and good faith 
effort to identify historic properties listed or eligible for 
listing on the National Register. Through the process when 
Federal activities are initiated, project managers determine 
what historic resources are present and may be impacted by that 
action. Were a static, final, or complete listing of 
potentially eligible properties feasible, this obligation could 
be met simply by consulting a list.
    However, as you have heard, history continues to be made 
and additional properties become eligible for National Register 
recognition daily.
    So even if the resources were available to make such a 
list, a static listing is simply not feasible.
    Again, a recent example that you have heard numerous times 
here is the World Trade Center Ground Zero. Were it not for the 
current formulation of the eligibility determination process in 
Section 106, absolutely no consideration would have been given 
to this nationally important site.
    You have also heard of two classes of historic resources 
that would have virtually no protection without the 106 
process. Archaeological sites and Native American and Native 
Hawaiian religious and cultural sites. Very few are listed or 
determined eligible at this time, and, therefore, they would 
not be taken into consideration where the language of the 
proposed section--as Section 4, as proposed in the discussion 
draft be adapted.
    The ACHP has many tools to modify the Section 106 process 
to ensure that its goals are reasonably met. As an example, we 
recently entered into a programmatic agreement with the FCC 
regarding cell tower construction. We exempted gas pipelines as 
well as exempting the interstate highway system. We streamlined 
the review process for over 30,000 units of cold war era 
military housing--administrative and regulatory solutions 
rather than a blanket legislative exclusion have served the 
Nation and this Congress well.
    Mr. Chairman, we look forward to working with the Committee 
toward developing final language that will make the necessary 
changes to the NHPAA, reauthorizing the ACHP, as well as the 
National Historic Fund, and codify important property rights 
language that protects the legitimate interests of property 
owners in the National Register nomination process.
    However, we believe that the ACHP is currently well 
equipped to address any concerns about the scope of the 106 
process, and do not believe hat changes to the statute are 
necessary.
    Again, thank you very much for the opportunity to present 
our position before the Committee.
    [The prepared statement of Mr. Nau follows:]

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

    My name is John L. Nau, III, and I am pleased to submit my 
testimony on behalf of the Advisory Council on Historic Preservation 
(ACHP). At the outset, let me note the ACHP's appreciation for the 
continued interest and support that the Committee has demonstrated for 
the ACHP and the Federal historic preservation program. We view our 
relationship with the Committee as an essential ingredient of 
developing and implementing an effective national historic preservation 
program. We look forward to working closely with you on the future 
development of this important legislation.
    I would also like to express my pleasure with the speed with which 
the Committee has addressed the important issue of reauthorization of 
the ACHP and the Historic Preservation Fund. We are gratified that the 
Committee is taking up these issues early in the session and we are 
eager to assist you in bringing this legislative initiative to 
fruition. There are elements of the legislation, embodied in the 
discussion draft bill, that are crucial to the effective functioning of 
the national historic preservation program and we join with the 
Administration and our preservation partners to urge their early 
enactment.
    By way of background, let me state for the record that the ACHP 
sought reauthorization legislation in the previous Congress, and the 
necessary provisions, along with a short list of operational 
improvements, was introduced by former Chairman Radanovich as H.R. 
3223. This Committee held a hearing June 3, 2003, and I had the 
pleasure of testifying. With the Committee's permission, I would like 
to submit my written statement from that hearing for the record, as it 
provides detailed information about the ACHP, its need for 
reauthorization, and the provisions of last session's bill, which are 
largely incorporated into the current discussion draft.
    We were disappointed that H.R. 3223 was not enacted in the 108th 
Congress, but we look at it as the benchmark for legislation now being 
considered. During development of H.R. 3223, the Committee brought to 
our attention several concerns with the operation of the historic 
preservation program and we endeavored to work cooperatively to address 
the Committee's concerns. We intend that this spirit shared by the ACHP 
and the Committee that produced H.R. 3223 will continue as we move 
forward.
    As the President's appointee to lead the principal Federal agency 
charged with advising the President and the Congress on historic 
preservation matters, I find much to support in the bill. However, the 
inclusion of certain provisions, as drafted, seems to challenge some of 
the fundamental principles embodied in the National Historic 
Preservation Act (NHPA). Since its enactment in 1966, the NHPA has 
served preservation and our Nation well.
    Let me start by summarizing those provisions that are needed and 
desirable improvements in the NHPA. First, the discussion draft would 
extend the authorization for $150 million annually from the proceeds of 
oil and gas leases on the Outer Continental Shelf to be made available 
for the Historic Preservation Fund. We believe this concept of using 
part of the proceeds from the depletion of the Nation's non-renewable 
resources to preserve and enhance another non-renewable resource, our 
cultural heritage, is sound and merits continuation. The Fund supports 
the valuable activities of the various State Historic Preservation 
Officers and Tribal Historic Preservation Officers, our principal 
partners in carrying out the NHPA's authorities. In addition, the Fund 
makes possible the President's proposed Preserve America grants 
program. Extending this authority through FY 2012 is essential and is 
welcomed by the ACHP.
    Second, we strongly support the provisions of H.R. 3223 that have 
been incorporated into the discussion draft. Amendments that expand the 
membership of the ACHP, provide the ACHP with flexibility in the 
provision of administrative services and its donations account, and 
offer it new opportunities to cooperate with Federal agencies to help 
them advance historic preservation goals through their assistance 
programs, along with some necessary technical amendments, are all 
positive features and are supported by the ACHP. We thank you for their 
inclusion.
    We welcome the Committee's attention to a key need of the ACHP, the 
extension of its appropriations authority. As requested by the 
Administration and embodied in H.R. 3223, the NHPA would be amended to 
provide the ACHP with a permanent appropriations authority. This would 
recognize the ACHP's important, permanent program responsibilities 
within the administrative structure created by the NHPA and place the 
ACHP on an even footing with its sister Federal agencies.
    The discussion draft before us today has reverted to a time limited 
and capped appropriation authorization. We believe that this approach 
to authorization is contrary to the central role that the ACHP plays in 
the national historic preservation program, which is a permanent 
assignment that does not diminish over time. The ACHP is rare among 
Federal agencies in having a statutory charge to advise and report to 
both the President and the Congress, thus providing the ACHP with a 
special ongoing interaction with the Congress and this Committee. We 
believe that this close working relationship diminishes the need for a 
periodic formal legislative reauthorization process.
    Furthermore, the amounts specified in the proposed annual 
authorization are below our FY 2005 appropriation and the President's 
FY 2006 request. The authorization ceilings in the discussion draft for 
FY 2007 through FY 2012 also are below what we anticipate will be the 
President's requests, simply based on the routine escalation of the 
costs of doing business at current levels. It was this exact problem 
that brought us to the 108th Congress seeking an appropriations 
authorization two years before our existing authorization expired.
    I would now like to turn to two new provisions in the discussion 
draft that were not included in H.R. 3223. These are found in Sections 
2, 3, and 4 of the discussion draft. Sections 2 and 3 address a concern 
that was raised in the 2003 hearings before this Committee with regard 
to the protection of the rights of property owners in the nomination 
process for the National Register of Historic Places. Without 
recounting the details of the case brought to the Committee's 
attention, the essence of the issue was that the NHPA currently 
provides the opportunity for a property owner to object to the listing 
of his or her property on the National Register of Historic Places.
    The National Register was created by the Congress in 1966 to 
provide a comprehensive listing of properties significant in the 
Nation's history, architecture, archeology, culture, and engineering, 
at the national, State, and local level. This listing was to be used as 
a guide to the historic properties that warranted Federal financial 
assistance and consideration in the Federal project planning process. 
However, the intended comprehensive list has not been completed, due to 
the limited resources available to State Historic Preservation Officers 
for this task.
    In 1980, responding to certain negative tax implications from 
National Register listing, Congress introduced a provision allowing an 
owner to object to formal listing, thereby avoiding the detrimental 
economic consequences imposed by the Internal Revenue Code should the 
property be redeveloped. The amended NHPA barred listing in the 
National Register over an owner's objection, but directed the Secretary 
of the Interior to make a formal determination of eligibility for the 
National Register in the case of any property nomination submitted to 
the Secretary over an owner's objection.
    Over the past quarter century, much has changed. The negative tax 
consequences of National Register listing have been abolished and 
accordingly listing no longer impacts a property owner's rights through 
the workings of Federal preservation law. Unfortunately, outside of the 
sphere of Federal law and policy, certain local laws, although rare, 
have used the Federal designation process as the basis for the 
application of stringent local preservation restrictions. This has 
presented the issue of ``linkage,'' i.e., a local regulatory 
consequence that flows from the Federal National Register nomination 
process regardless of a property owner's objection to the nomination. 
This was the situation that brought the case of a Los Angeles property 
owner to the Committee's attention at its 2003 hearing.
    While the ACHP sees this situation as rare, nevertheless we worked 
with the Committee staff, in the form of a drafting service and in 
fulfillment of our NHPA charge to advise both the executive and 
legislative branches on preservation matters, to prepare an appropriate 
legislative solution. Those discussions resulted in three potential 
amendments to the NHPA. First, the current requirement that the 
Secretary make a formal determination of a property's eligibility for 
the National Register when a nomination was submitted over an owner's 
objection would be stricken. This seemed reasonable, in that the owner 
had expressed disapproval of formal designation by raising the 
objection. Continued processing, even for the less formal eligibility 
determination, seemed on its face at odds with respecting the owner's 
stated objection. With regard to the unintended linkage to local law 
that seriously impeded the use of the Los Angeles property in ways that 
were not intended by the NHPA, the change appeared to address the 
problem in large part. This provision is found in the first part of 
Section 2(a) of the discussion draft.
    Closely related to this was the idea that, if an owner lodges an 
objection as provided for in the NHPA, the nomination process should 
not be allowed to move forward. In the Los Angeles case, the subsequent 
processing of the nomination, despite the property owner's objection, 
gave rise to a local decision to impose the local landmark 
restrictions. This outcome was clearly contrary to the intent of the 
Congress when it amended the NHPA in 1980. As a result, our discussions 
with Committee staff led to the development of a provision that the 
owner's objection would halt any further processing of the nomination 
process. The current version of that provision is found in the second 
part of Section 2(a) of the discussion draft.
    The provisions that the ACHP assisted in developing have been 
altered in the discussion draft. While the first component is 
essentially the same, the discussion draft introduces a new phrase that 
goes beyond our discussions and causes us concern. That is the addition 
of the language ``including making any determination regarding the 
eligibility of the property or district for such inclusion or 
designation.'' While the intent of this language is unclear, we are 
concerned that it may extend the owner objection provision beyond the 
confines of the formal National Register nomination procedure and 
impact the process used in the Federal project planning process 
mandated by Section 106 of the NHPA. We recommend to the Committee that 
this additional language be removed. The previously outlined provisions 
provide a significant and sufficient protection for property owners.
    Our principal concern with the discussion draft is found in Section 
4. That section proposes a significant change in the current scope of 
the fundamental Federal protection for historic properties that the 
Congress enacted in 1966 and expanded in 1976. As currently written, 
Section 106 of the NHPA requires Federal agencies to take into account 
the effect of their undertakings on properties listed or eligible for 
listing in the National Register of Historic Places. In its wisdom, the 
Congress recognized in 1976, ten years after the passage of the 
original NHPA and the creation of the National Register, that the 
National Register was a work in progress and would remain so for many 
years to come. As noted above, it was simply not possible to complete 
statewide surveys of historic properties with the amount of resources 
being made available. Likewise, the passage of time inevitably leads to 
additional properties meeting the criteria for listing in the National 
Register. Taking a page from President Nixon's Executive Order 11593 of 
1971, the Congress amended Section 106 to require Federal agencies to 
consider eligible as well as formally listed properties in the Federal 
historic preservation review process.
    Since 1976, this expanded Section 106 process has served both the 
Federal Government and the Nation's cultural patrimony well. 
Implemented by rules issued by the ACHP, the process requires Federal 
agencies to make a reasonable and good faith effort to identify 
historic properties that are listed or may meet the criteria for 
listing in the National Register when they may be impacted by a Federal 
action. The involved Federal agencies determine what historic resources 
are present and may be impacted by their actions. The process has 
become well integrated into Federal project planning and results in 
even-handed consideration of historic property impacts as an integral 
part of environmental assessment and decision-making.
    Section 4 of the discussion draft would fundamentally alter this 
established process. It would limit the Federal agency obligation to 
consider only those properties that had been previously formally listed 
in the National Register or formally determined eligible for the 
National Register by the Secretary of the Interior. I must emphasize 
for the Committee that most historic properties that are actually 
eligible for the National Register have not gone through the formal 
nomination and designation process. Likewise, few have been formally 
determined eligible for the National Register by the Secretary for the 
simple reason that essentially the only route to such a determination 
is through the previously described process of a nomination moving 
forward to the Secretary when an owner objects. These cases are few and 
far between.
    The routine eligibility determination for Section 106 purposes is 
made by consensus between the State Historic Preservation Officer and 
the Federal agency with a limited degree of formality and paperwork. By 
practice, these ``consensus'' determinations of eligibility efficiently 
provide the agency with the basic information it needs to factor 
historic preservation impacts into planning. Section 106 does not 
provide a listed or eligible property with absolute protection from 
harm; far from it, the process simply requires the Federal agency to 
consider the potential impacts and assess options to minimize that 
harm.
    The proposed amendment would eliminate the current obligation of 
Federal agencies to take affirmative steps to identify properties not 
yet formally recognized as historic but that might be impacted by a 
Federal project. Lest one infer that such properties are of minor or 
marginal significance, let me note but a few of the historic properties 
that have been brought into Section 106 review through the current 
eligibility system: the World Trade Center Site, and Saarinen's TWA 
Terminal, in New York City; the historic Del Monte Hotel in Monterey, 
California; the Chancellorsville Historic District adjacent to 
Chancellorsville National Battlefield Park, Virginia; Murphy Farm, a 
site significant in the history of the NAACP located next to Harpers 
Ferry National Historical Park, West Virginia; and the building where 
the first atomic bomb was assembled at Los Alamos, New Mexico. In each 
of these cases, important historic properties were saved through 
consideration in the Section 106 process, which could not have happened 
if the proposed amendment to Section 106 had been law.
    I particularly want to draw the Committee's attention to two 
classes of historic resources that would virtually fall off the Section 
106 review table if Section 4 were enacted. First, by their nature, 
archeological sites are rarely known until Federal project-driven 
surveys uncover them. The devastation to that heritage would be 
dramatic. Many such sites are associated with Native American heritage; 
other important sites include the colonial-era African Burial Ground in 
New York City and the Kanaka Village Site at the Hudson Bay Company's 
Fort Vancouver in Oregon. But for the current determination of 
eligibility process, these sites would have been destroyed without any 
consideration by Federal project planners.
    Second, in 1990, Congress made it clear that the National Register 
and the protections of Section 106 extend to historic properties of 
traditional religious and cultural significance to Native Americans and 
Native Hawaiians. Regrettably, through no fault of Indian tribes and 
Native Hawaiian organizations, the National Register currently contains 
but a small sampling of the sites that these parties hold as sacred 
elements of their cultural heritage. Enactment of Section 4 would strip 
Indian tribes and Native Hawaiian organizations of any effective use of 
Section 106 to protect their irreplaceable heritage. On that ground 
alone, I would strongly oppose the suggested amendment to Section 106.
    It is important to bring to the Committee's attention that the 
existing Section 106 regulations provide useful tools to flex and 
modify the Section 106 process to ensure that its goals are reasonably 
met. The ACHP can point proudly to its use of the these tools in just 
the past three years to adjust and streamline the process to adapt 
Section 106 to new challenges and contemporary needs.
      We have used the authority to exempt Federal activities 
affecting certain kinds of resources to deal with historic interstate 
pipelines, such as the famous ``Big Inch'' and ``Little Inch'' 
pipelines that contributed to the winning of World War II, and the 
management of the Interstate Highway System, which must be recognized 
as the most significant public works project of the 20th century and 
has shaped our lives today. Through these exemptions, the historic 
importance of these properties has been recognized without imposing the 
formal requirements of Section 106 reviews.
      We have issued simplified program comments to deal with 
nearly 30,000 units of Cold War-era military housing that warrant 
consideration as historically significant, thereby eliminating 
thousands of potential individual Section 106 reviews.
      We have recently adopted a programmatic agreement that 
streamlines and simplifies the process for considering the impact of 
federally licensed wireless communication towers in a way that 
introduces certainty and finality to the Federal Communications 
Commission's regulation of cell tower construction.
    These administrative solutions were developed in cooperation with 
Federal agencies and demonstrate the ACHP's commitment to use the tools 
found in existing law to provide practical answers to problems they 
encounter in the Section 106 process. In doing so, we improve program 
efficiency while honoring the fundamental principles of the NHPA. I 
strongly believe that these kinds of administrative and regulatory 
solutions, rather than legislative alteration of the important 
protections of Section 106, can resolve any concerns that the 
discussion draft seeks to address.
    In sum, the discussion draft contains important amendments to the 
NHPA that need enactment. We applaud and support those provision that 
will continue and strengthen the role of the ACHP and the Historic 
Preservation Fund, with the substitution of the language in H.R. 3223 
as it pertains to the ACHP authorization. However, the ACHP opposes 
legislative alteration of Section 106 as proposed in the discussion 
draft. Our established administrative processes, with a recent and 
demonstrated track record, can address changing needs, and we are 
committed to use them to solve emerging problems. We hope the Committee 
will endorse the current system, which has been carefully tuned and 
refined over the years, and refrain from embarking on a path of 
unnecessary alteration of the NHPA.
    We welcome the opportunity to work with the Committee to examine 
ways that we can refine and strengthen our capacity to address its 
concerns.
    [The statement submitted for the record by Mr. Nau follows:]
                                 ______
                                 

   Testimony for the record submitted by John L. Nau, III, Chairman, 
   Advisory Council on Historic Preservation to the Subcommittee on 
  National Parks, Recreation, and Public Lands, The Honorable George 
                          Radanovich, Chairman

    Oversight Hearing on Reauthorization of the Advisory Council on 
    Historic Preservation and the National Historic Preservation Act

                              June 3, 2003

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 FY 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 2001, 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, D.C., 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 FY 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 FY 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. Nunes. Thank you, Mr. Nau. Thank you for your 
testimony, and thank all of you for being here once again.
    The reason that we put out this draft is so that we can 
have discussion, because I know that there are people that 
testified today who think that the Act is perfectly fine. 
However, we have Mr. Blackman here, who believes that, you 
know, his private property rights are being intruded on, and I 
think it is appropriate that we have Mr. Blackman here and 
someone from the Park Service, Ms. Matthews, who said in your 
testimony that you think it is very successful. And I think it 
is important to expose the feelings on this so that the members 
of the Committee can understand the plight of Mr. Blackman 
versus existing law and the problems that it is causing in the 
private sector.
    And, Mr. Blackman, you know, I would like maybe to go in 
terms of this a little bit, and have some discussion in 
reference to--you made some pretty strong statements about 
National Park Service that they have retaliated against you, 
and I would like to know what indication do you have of this?
    Mr. Blackman. I have several indications. One--the--I had 
an architect who was working with the Virginia Department of 
Historic Resources. The head of that office is Kathleen 
Kilpatrick.
    And apparently, she was ready to sign off on a draft, and 
this was around the time that I first contacted my Congressman, 
Eric Cantor. She got wind of the fact that an investigation had 
begun and I guess through the Park Service, and she imploded. 
She said basically that your client, that is I, was opening a 
can of worms. The Park Service was incensed by this and she 
would no longer be able to sign off on the proposal. Mind you, 
she probably did not have the right to review the plans anyway. 
That is neither here nor there.
    Second, an acquaintance of mine, without my permission, 
actually called the Park Service. This woman has worked as a 
lobbyist in Washington. She talked to someone fairly senior in 
the Park Service who told her that the Park Service was going 
to get me. This was around the time that I was essentially 
cornered and contemplating litigation.
    Third----
    Mr. Nunes. You said someone from the Park Service said they 
were going to get you?
    Mr. Blackman. Yes.
    Mr. Nunes. On the telephone?
    Mr. Blackman. That is what they told this woman, who's name 
is Diane Crawley [ph]. Now, from my perspective it is hearsay.
    Mr. Nunes. Mm-hm. But obviously it is a concern to you.
    Mr. Blackman. Absolutely.
    Third, I think if you were to read through the documents 
that I am providing to the Subcommittee, I think you can see 
from the tenor of e-mails and correspondence, some of which I 
obtained from a Freedom of Information Act request, that there 
was a retaliatory spirit. Specifically there was a letter from 
Marie Rust [ph] that suggests a kind of a, this motive to get 
me.
    Mr. Nunes. OK, so Ms. Matthews, I don't know how familiar 
you are with Mr. Blackman's case. But, you know, this is part 
of the concern that happens when, I think, Government oversteps 
their bounds and now you have a private property owner who is 
very concerned about this. I don't know what you can say about 
this case or if you are familiar with it, but I would like to 
hear a response because he has made some very serious 
allegations and I think is being impacted.
    Ms. Matthews. Thank you, Mr. Chairman.
    It is my understanding that this case has gone on for some 
time and is in litigation, and we would not be able to comment 
on it.
    Mr. Nunes. OK. All right. Well, that makes it a little 
difficult to have an open and frank discussion on this matter. 
But--Well, my time is running out here. Mr. Blackman, could you 
quickly go through, in the FOIA request, what you were able to 
get out of there that you could expose to this Committee, what 
you think the top points are that came out in your request. You 
mentioned the e-mails. Could you talk briefly about some of the 
exchanges that concern you there?
    Mr. Blackman. Well, one of my concerns was that the Park 
Service was delegating and basically abrogating whatever 
authority they might have had to a local nonprofit group by the 
name of Historic Green Springs. There are a number of reasons I 
was concerned about this. I saw no architectural expertise in 
this organization, and the Park Service itself had in the 1990s 
expressed concerns about this organization's agenda. And so as 
part of the relief I was seeking, it was that the Park Service 
would not consult Historic Green Springs. The first response by 
the Park Service to the Cantor investigation was an implied 
promise that they would not talk to Historic Green Springs and 
its president. Then, in the FOIA request, I discovered e-mails 
in which not only did they continue consulting this woman, but 
they were consulting her about the response that they were 
drafting to me saying that they would not consult with her.
    Mr. Nunes. Thank you, Mr. Blackman. My time has expired.
    Ms. Christensen?
    Mrs. Christensen. Thank you, Mr. Chairman.
    I might not have had any questions for Mr. Blackman, but I 
really need to clarify something. In your testimony, Mr. 
Blackman, you--I am going to read it here. ``The effect of this 
provision is to basically run roughshod over property rights of 
that owner through a back-door eligibility designation.''
    When you purchased this property, weren't the easements 
already in place? Wasn't the easement already in place?
    Mr. Blackman. Yes. I was aware of the easement document.
    Mrs. Christensen. OK. So in actuality, the person who owned 
the property before had granted that easement?
    Mr. Blackman. No. Two owners before I purchased attempted 
to grant an easement. But let me mention that, while you can 
say I had notice of the easement document----
    Mrs. Christensen. You bought the property with the easement 
already there.
    Mr. Blackman. I don't acknowledge that the easement was 
effective. But I had notice of the document as well as all its 
frailties. I had notice of all the incoherence and ambiguities 
of this document. I also had notice that the prior owners had 
done radical things to the house without applying to the Park 
Service, and no objection from the Park Service. I also have to 
mention that there were neighbors that did things without any 
consequences. And I guess I did not have notice of this, that 
they were able to do this because they were aligned with that 
nonprofit organization, Historic Green Springs.
    Mrs. Christensen. Well----
    Mr. Blackman. But if you--I am sorry.
    Mrs. Christensen. Let me just, because the fact remains 
that it was in the deed under which you purchased the property.
    Mr. Blackman. No, it was not in the deed, Ms. Christensen. 
It was referred to in the deed, but it was not a part of the 
deed.
    Mrs. Christensen. But it was referred to, that it existed? 
But even beyond that, it is my understanding that the 
litigation in which you are involved as the defendant, that it 
involves the legality of the easement on this property but it 
doesn't have anything to do with the implementation of the 
National Historic Preservation Act. As a matter of fact, do any 
of the pleadings in your case even mention the National 
Historic Preservation Act?
    Mr. Blackman. I cannot at this moment respond to whether 
any of the pleadings refer to the 1966 Act, as I don't have the 
pleadings in front of me. But I can tell you that at an 
evidentiary hearing in August 2004, the Government and the Park 
Service referred extensively to the National Register. And 
frankly, one of the problems is that they seem to conflate the 
easement document with the National Register and the 
regulations created under the statute.
    Mrs. Christensen. Well, that is kind of a way around 
answering a question, but it is my understanding that even just 
looking at the case on the face of it, it really does not 
address the issue of the National Historic Preservation Act.
    Mr. Martin, are you able to estimate generally what 
percentage of resources that are historically or culturally 
significant to Native Americans are either listed on the 
National Register or have been formally found eligible? And I 
understand the reasons why sometimes you may not want to list 
them. Is it a low percentage, a high percentage of significant 
places?
    Mr. Martin. Ms. Christensen, there is really no way to 
quantify that because those statistics are not kept. I can tell 
you that our people were nomads. They were not a people of 
writing and putting things in books. It is more of an oral 
tradition. And those traditions were carried on in sacred 
places. And because they were nomads, they were very much 
moving. But we would suspect that there would be a very, very 
high percentage of sacred sites and traditional sites that our 
ancestors used in their practices of their religions that would 
be and can be affected by this change.
    Mrs. Christensen. Then they might not be listed, a good 
percentage might not be listed?
    Mr. Martin. I would say the highest percentage would not be 
listed, because history tells us that when they are listed or 
even inadvertently discovered, they have been looted.
    Mrs. Christensen. Thank you, Mr. Chairman. I will come back 
for another round.
    Mr. Nunes. Thank you, Ms. Christensen.
    Mr. Radanovich.
    Mr. Radanovich. Thank you, Mr. Chairman. And I would like 
to be one to congratulate you on your chairmanship of this fine 
Subcommittee. I enjoyed my chairmanship. And I also want to 
give my warm regards to my former Ranking Member, Donna 
Christensen. Donna, good to see you again.
    Mr. Nau, I would like to address my question to you. During 
my time on the chairmanship of this Subcommittee--and Mr. 
Blackman, I am not familiar with your particular story; I 
apologize. I came in late today. But during the time, during 
last year, during my chairmanship here, we did have an example 
of the abuse of the historic preservation law by a group in 
Southern California that were using the law, I believe, to 
promote either a no-development or a no-growth agenda. 
Essentially the property owners were using these rules and 
regulations to prevent a developer from tearing down some 
apartments and rebuilding some property. In fact, I think the 
gentleman testified at a hearing that we had here last year.
    My question to you, Mr. Nau, because I think the discussion 
draft, or at least the controversial parts of the discussion 
draft are developed to guard against the potential of abuse of 
something like that, especially when it comes to the area of 
listing potential sites. And I believe that is the motivation 
of the discussion draft, because I think that there is a 
legitimate concern. Can you address the question, because I 
know that you are opposed to some of the ideas in the 
discussion draft, being that way, can you explain to me how you 
think that the program can go on in a fashion that you would 
like to see it that would as well guard against the abuses of 
the program?
    Mr. Nau. Thank you. Let me break your question into two 
parts. First, the testimony of the case of the property owner 
in California when I was last here. There was no question that 
there was a problem with that case. I will make that on the 
record. How did we try to deal with that in H.R. 3223, and then 
how was it dealt with in this discussion draft?
    First, we removed the requirement that the Secretary of the 
Interior make a determination of eligibility for a property 
when a nomination is submitted over an owner's objection. As I 
said in my comments earlier, it makes no sense if a property 
owner objects. Second, it requires that the nomination process 
stop at the point that the owner objects and not continue. We 
also worked to address the issue that came from California, and 
that is the utilization by local jurisdictions tying their 
historic preservation ordinances, whatever type they might be, 
to this National Register process. You know, only listing on 
the National Register imposes no limitation on a property 
owner's right to modify or use Register property. It is only 
when that type of local ordinance is in effect that the local 
jurisdiction and ordinance actually kicks in. And that is what 
the issue was. So I think the discussion draft, picking up on 
H.R. 3223, deals with that issue.
    The second part of your question, dealing with Section 4. I 
really do not believe that the elimination of potentially 
eligible would have properly addressed the issue raised in the 
California case, because it was the linkage of the local 
ordinance to the National Register process that kicked that in. 
And in this discussion draft, again, we believe that there is 
language that deals with that. To eliminate the potentially 
eligible, and where our concerns are, would eliminate 
thousands, tens of thousands of sites that currently are not on 
any list because of either resources not available to the State 
historic preservation officer to create that list, or, as you 
have heard, a Native American, a Native Hawaiian, there is a 
dramatic reluctance to put them on any type of list.
    It is fundamental to the protection to the cultural and 
heritage sites of this country that we have a mechanism that is 
flexible enough to allow sites to be located at the time that 
an undertaking is begun. I am a businessman, and I am from 
Texas, where we protect property rights as strong as any State. 
And it seems to me that we absolutely have to craft a flexible 
program that allows sites to come on, i.e., potentially 
eligible, while protecting the property owners and those sites 
and give them the opportunity to say no. And when they say no, 
that is it.
    Thank you.
    Mr. Radanovich. Mr. Nau, the site at the World Trade 
Center, would that have fallen under the potentially eligible 
sites portion of this or a different section in the discussion 
draft?
    Mr. Nau. Based on Section 4 as it is written, since it is 
not either on the list or declared eligible, it would not have 
fallen under the protection of the Section 106. Neither would 
places like the Golden Gate Bridge, the Mission at San Juan 
Capistrano, the V-Site at Los Alamos, where the bomb was 
created. Those sites are not either declared or on. But those 
are critically important sites to the history of this country, 
and to have a system that just simply says you are either on 
the list or you are not important, we believe, just simply 
doesn't recognize the importance of thousands and thousands of 
sites around the United States.
    Mr. Radanovich. All right, thank you, sir.
    Mr. Nau. Thank you.
    Mr. Nunes. Thank you, Mr. Radanovich.
    Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman. And again, as I said 
in my opening remarks, I really appreciate the fact that you 
presented this as a discussion draft. I think that shows great 
sensitivity both to this Committee and to the public. I think 
it is a good procedure that others could follow.
    Mr. Nunes. Thank you, Mr. Kildee.
    Mr. Kildee. Let me ask Mr. Martin, you mention that when a 
tribal site becomes public, it is often looted. Is that 
something that commonly happens once that is made public.
    Mr. Martin. History teaches that that is a common sight. 
You have a segment of the population that simply every weekend 
in that area, that is simply what they do for their enjoyment, 
to go out and try to find sites.
    Mr. Kildee. What is their purpose? Is it vandalism or 
curiosity or a combination of both, or several motivations?
    Mr. Martin. You have a segment of the population that is 
mesmerized with the Native culture. So therefore, it lends 
itself to a very substantial financial black market for those 
artifacts to be sold into for the pleasure of people to hang on 
their wall or keep in their safes for their private 
collections.
    Mr. Kildee. It seems that consulting rates are the bare 
minimum that are afforded tribes. Should the National Historic 
Preservation Act be amended to give tribes more than just 
consulting rates?
    Mr. Martin. It is kind of ironic I am sitting here beside 
Mr. Blackman, because Mr. Blackman's point of view is that the 
Government is being too intrusive in telling him what he can 
do. That is not the case for American Indians. It is only 
consultation rights. At the end of the day, if the tribe 
objects, it is still the responsibility of the Federal agency. 
If they want to go forward, they can go forward. So we 
certainly, if we are going to amend the Act and if justice is 
to be served, let's put some teeth into it, that American 
Indians and Alaskan natives have the right to veto those 
actions in there. Certainly a minimum of consultation is the 
minimum. But certainly we would like to see it go forward that 
we would have more teeth in the law to be able to do some of 
the things to protect our sites.
    Mr. Kildee. This consultation takes place not only on your 
sovereign land, but consultation on sites that are not on your 
sovereign land?
    Mr. Martin. Yes, sir, Congressman Kildee. And Congress, 
when it passed the amendments to the Historic Preservation Act 
in 1992, saw fit that wherever they existed, it gave the right 
of the consultation responsibility to the Federal agency to 
mandate that they consult with tribes irregardless of where the 
sites are found. And it may be that that is the reason they 
said it was limited to consultation in there. But certainly, 
that is a minimum that we feel is prevalent. This strikes at 
the core of our ability to be able to protect our sacred sites.
    I would lean to the recent work that USET has done with the 
FCC in working with the Nationwide Programmatic Agreement and 
associated best practices that we accompanied to the 
programmatic agreement. We are very much in support of the 
FCC's efforts in that area, the creation of a National cell 
tower notification system wherein, if a cell tower company 
wants to put up a cell tower on a particular site, they can go 
into that data base and they will then kick out the number of 
tribes that that cell tower company needs to contact so that 
they have expressed their interest in that particular area. I 
can tell you, our tribes were getting in the past, when we were 
not--prior to the Nationwide Programmatic Agreement, getting 50 
and 60 letters from cell towers on a weekly basis and typically 
saying, We're planning to put a cell tower here in this 
location. By the way, you have 10 days to respond, and if you 
don't respond, we believe that that is a notification to go 
forward.
    We have worked with industry and the FCC to bring about a 
very time-sensitive and a responsive manner to the cell tower 
industry that we can consult and give them our expertise on 
those that they can go forward in a timely manner. To date, we 
believe there is over 300 Indian tribes who have submitted 
their areas for sensitive matter to the FCC. You know, being 
certainly an advocate in Indian country, if you can get 300 of 
the 500 tribes to submit and take on that responsibility, that 
is a success story.
    Mr. Kildee. Do you think we could change the language to at 
least strengthen the consulting rights of the tribes? Still 
keep it on a consultation level, maybe more than a veto level, 
but to strengthen the consultation rights of the tribes?
    Mr. Martin. Certainly USET is open to that. And we are so 
appreciative of the Chairman putting this out as a discussion 
draft. And we stand ready to work with the Committee, the 
industry to look at how can we bring about the same protections 
that we enjoy, yet at the time not be perceived as 
obstructionist, that we can go forward in the development but 
yet at the time develop our future, but also to protect our 
past.
    Mr. Kildee. Thank you, Mr. Martin. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Nunes. Thank you, Mr. Kildee.
    Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. This is a very 
important hearing, and I am sorry that other meetings kept me 
from getting here to hear most of the testimony.
    But I can tell you that for quite some time I have been 
very concerned about the fact that the Federal Government now 
owns over 30 percent of the land in this country and State and 
local Governments and quasi-governmental units own another 20 
percent, so you have half the land in some type of public 
ownership today. You can never satisfy Governments' appetite 
for money or land. They always want more. And we have been, 
especially in more recent years, very rapidly doing away with 
private property in this country. And if people don't realize 
how important private property is to our prosperity, then 
perhaps they should do some more reading in economics.
    I am concerned about this. I didn't get my undergraduate 
degree before I went to law school in history, but I took so 
many electives in history that I could have gotten a degree in 
that if I had been in another college. And I am still a history 
buff, and I love historic preservation. I love it. But it is 
the few rather than the many. I have gotten in a lot of money 
to restore and help renovate the Tennessee Theater in 
Knoxville. It is a beautiful old building. But when I read 
things like in this Federal court decision that said a literal 
construction of the phrase ``eligible for inclusion in the 
National Register'' would lead almost inescapably to the 
conclusion that every building over 50 years old in this 
country is eligible for inclusion on the Register, you know, 
you get to a point where you almost, you become ridiculous.
    For instance, it sounds so good when a politician says he 
wants to create a park. But we have now got so many parks in 
this country that we can't take care of them. And most of them 
are vastly under-used. And that takes property off the tax 
rolls, so then that increases the taxes on the property and on 
the people that remain on the tax rolls.
    It's amazing to me that we sit around and take things from 
Government that we would have never taken 50 or 100 years ago. 
And it's amazing to me that we don't have enough people in this 
country that realize how important private property has been to 
our prosperity and our freedom. And when I read things like I 
do from Mr. Blackman--I didn't hear his testimony, but he said 
here, it says, You can do anything you wish with your house 
without--or it says here that the Park Service literature 
trumpets time and time again, and what you are being told when 
you are wooed to list your property on the National Register is 
that you can do anything you wish with your house without 
penalty, even demolish your house, within limits of State and 
local law and so forth. Alas, that is only part of the story. 
The National Park Service and others will use the National 
Register as a bludgeon against the property owner and trample 
his property rights if they can. To them your property, once 
listed, is just a resource. To them it is not a home.
    And then he goes over here and says, Now, I can tell you 
that I am not the only person, even my community, who has 
encountered this morass of vague, shifting standards where most 
property owners end up having no choice but to give in. The 
Government has a huge advantage in terms of time and money when 
a dispute arises. The Park Service knows this. They know that 
they can then mess with the property owner; it does not cost 
them personal time or money.
    And, you know, we hear this over and over again in other 
committees and subcommittees in addition to this one. And it's 
amazing to me also that people will do, without any guilt 
feelings whatsoever, they will do to other people what they 
would scream to high heaven about if it was being done to them 
or their property. In fact, people aren't concerned about the 
total taking of other people's property as long as it doesn't 
touch them. They don't realize how hurtful it is personally. 
And I am not up here saying these things because me or anybody 
in my family has had this happen. But I sure have seen it 
happen to a lot of other people.
    And we have a real problem here when we hear Government 
agents come here and tell us that there are no restrictions or 
limitations, and then we hear from property owners all over the 
country and in our districts that these Government bureaucrats 
want to come in and, unless the people bow down to them and 
kiss their rear ends, then they trample all over them. And we 
hear things like ``out to get'' them. And, you know, this is 
supposed to be a Governance of, by, and for the people; it is 
not supposed to be a Government of, by, and for the 
bureaucrats. Or it is not supposed to be a Government where, if 
somebody thinks that your property has some historic value, 
they can come in and just say, well, you can't do what to do 
with your property. You can't even fix it up. It's ridiculous.
    Thank you, Mr. Chairman.
    Mr. Nunes. Thank you, Mr. Duncan.
    Mr. Altschul, you provide an example in your testimony how 
the Historic Preservation Act can create serious threats to 
public safety. In your opinion, how do we ensure that the 
Historic Preservation Act, particularly the Section 106 
process, does not hamper our Nation's first responders?
    Mr. Altschul. Well, obviously the public safety wireless 
users rely on the same laws of physics as the commercial users. 
So you can't have radio communications without towers and 
structures. What we all need is certainty and finality to the 
review process. As I mentioned in my testimony, in nearly every 
case, to erect such a structure we go through an extensive 
local zoning and review process. Then there is this separate 
Section 106 process. If Section 106 was restored to the 
original intent of Congress, where items are listed or listed 
as being eligible by the keeper, it would begin to provide that 
kind of certainty that we require.
    Mr. Nunes. So what suggestions do you have? I mean, you 
have seen the draft discussion on 106. So would your 
organization tend to support the changes that have been in 106, 
or do they have other alternatives that would be helpful?
    Mr. Altschul. No, we certainly do support the changes 
proposed in Section 4 of the discussion draft. We also 
acknowledge and respect the unique situation and challenge of 
protection, preserving sites of religious and cultural 
importance to tribes. We respect their sovereignty and their 
right to seek Government-to-Government consultation anytime 
during the process. I think that is something that we would 
need to pursue as part of the discussion draft.
    Mr. Nunes. Thank you.
    Could you discuss the Western Maryland case?
    Mr. Altschul. Yes. There is a very small town--calling it a 
``town'' may dignify it--called Lambs Knoll, Maryland, in 
Western Maryland. There was a 3-year delay while the Section 
106 process was pending and ultimately had to be brought to the 
attention of the Governor of Maryland, brought it to the FCC 
for resolution. It was a tower site that was going to be shared 
by both public safety and commercial wireless users. And public 
safety communications were being degraded to the point that the 
MedEvac helicopter crews were unable to the communicate on 
their rescue missions with the public safety first responders. 
Despite the urgency and the clear public need, the Section 106 
process dragged on and on. As I said, it required the 
intervention of the Governor of Maryland and the expedited 
review by the FCC that found that there was no 106 issue that 
merited delaying the approval of the site.
    Mr. Nunes. Thank you, Mr. Altschul. I just had one other 
question that I think is kind of interesting for discussion. If 
one of your towers was 50 years old, would it be your 
understanding that they would be potentially eligible under the 
current definition of the act?
    Mr. Altschul. Well, it is not a hypothetical question. We 
actually do have some towers that are 50 years old. Western 
Union Telegraph erected them. And just like the expression, one 
person's wildflower is another person's weeds, there is a 
person who wishes to preserve some of these towers--aren't 
being used and could be in disrepair and should be brought 
down--and in fact challenge plans to tear down one of these old 
towers. That also made its way to the FCC after a protracted 
review process, and the FCC did the right thing and approved 
the demolition of the tower.
    Mr. Nunes. That is very interesting. Thank you.
    Ms. Christensen is recognized.
    Mrs. Christensen. Thank you, Mr. Chair.
    A real quick question to Mr. Martin. Mr. Martin, you have 
said at least twice that you are willing to work with the 
Committee to address some of the issues raised in the 
discussion draft. But is it your position that there are things 
that need to be changed in the act? I mean, we had introduced 
reauthorization last year without any changes. Would you 
support that?
    Mr. Martin. Certainly. We would review those and we would 
comment on those to make sure if it is an improvement and to 
make certain in clarity. We would like to bring about clarity, 
bring about consistency that certain sets of facts that appear 
across the United States ought to render the same decisions.
    Mrs. Christensen. But you wouldn't weaken the authority of 
the Act to preserve any of the cultural and historical 
treasures of the country?
    Mr. Martin. No, ma'am. And what we have to realize is those 
four little words is the core, is the platform to which we 
utilize the ability to be able to be consulted--and only 
consulted if we are going to change the Act right now. It is 
not a Federal undertaking to put up a cell tower. It is a 
Federal undertaking if you are going to put an antenna on that 
cell wire, which needs the Federal licensing. Now, we can make 
a great improvement to that, that if the construction of a cell 
tower for the purpose of hanging an antenna on it becomes a 
Federal action, then we will go much further than what exists 
right now in there.
    But we are very much appreciative of the cell tower 
industries--like Sprint, who is working with tribes to 
expeditiously review the sites and working with their 
subcontractors--say don't build this tower if you are going to 
come back later and tell us you haven't followed the 106 
process. We are encouraged by CTIA, who is saying they respect 
tribal sovereignty in our ability to consult on a Government-
to-Government basis.
    So I believe there is room to study this matter to see what 
is needed, why it is needed, as we protect our sacred sites 
also.
    Mrs. Christensen. Thank you.
    Mr. Altschul, please give our regards to Mr. Largent. We 
are sorry to hear that he is not well.
    Mr. Altschul. Thank you.
    Mrs. Christensen. In your testimony, you provide examples 
of cases in which a State historic preservation officer found a 
site under consideration for a new cell tower was inappropriate 
because it might impact historic resources, but where the 
SHPO's concerns were later determined to be unfounded. I am 
sure that that is not a completely exhaustive list, that there 
are cases--you would have to admit that there are many cases 
where the findings were upheld.
    Mr. Altschul. Yes.
    Mrs. Christensen. So I am trying to just clarify your 
position. Is it your position that we should amend the Act to 
make it more difficult for the SHPOs to delay placement of cell 
towers in sensitive areas even though there are so many 
instances where the SHPO had that authority and saved historic 
resources from harm. Is it your position that we should make it 
more difficult?
    Mr. Altschul. Absolutely not. What we are here today to 
urge this Subcommittee to do is to restore some certainty and 
finality to the process. We recognize our obligation, not just 
under the law but as citizens of the communities that we serve 
and intend to serve for many, many years, to respect these 
historic and cultural resources. But what we object to is the 
inability during the construction and siting of towers to have 
any certainty as to what sites are going to be razed, sites 
that have not been brought to the keeper and have not been 
designated as being eligible for----
    Mrs. Christensen. But I am sure you can appreciate that not 
everything that has cultural and historical value in the 
country is on the list and that there is value in, for example, 
the Native American sites that may be 50,000 years old but are 
not listed being protected.
    Mr. Altschul. Well, CTIA does recognize particularly the 
tribal sites, and we have pledged today and we have pledged 
before today to work with Mr. Martin and the tribes on their 
unique needs. But with respect to the tens of millions of 
potentially eligible sites, anything over 50 years old, I think 
we all learn as children and then teach our children that if 
everything is deemed special, nothing is special. And the 
original intent of Congress in passing this Act, I believe, was 
to really designate those properties which deserve the 
recognition and protection of this Act.
    Mrs. Christensen. But I think that what it requires is that 
you look before you destroy. Not that everything is sacred, but 
that you look at and determine first whether there are some 
historical and cultural sites that ought to be preserved before 
you go ahead.
    I appreciate, you know, your willingness to work with the 
tribes, the association's willingness to work with the tribes, 
but it just seems--I mean, when you are gone and somebody else 
is there, or Mr. Largent is gone and someone else is there, it 
seems that the protection of the law, you know, ensures that 
that process continues.
    Mr. Altschul. Well, we are committed. I obviously speak for 
all of us here today. The other reality is that tribal lands 
are some of the least well-served in terms of 
telecommunications services in our country. And there is a 
mutual interest, I believe, to develop good relations that are 
respectful of the tribal lands and allow the industry to 
deliver these 21st century services, to provide the services 
that the tribes desire and want. I think that is a fact that, 
more important than any law, is going to ensure we make 
progress in this area.
    Mr. Martin. Ms. Christensen, I would like to comment on 
that. He is correct. The American Indian, Alaska native areas 
are some of the ill-served, certainly, by the cell tower 
industry at this time, and they have made a commitment.
    A point in example: My tribe is in South Alabama. Not too 
long ago, we had an uninvited guest come into that area in the 
form of Andrew. For the first 48 hours after Andrew came into 
there, there was only, in a sense, two cell phones that worked. 
And that was the communication link for my tribe of 2,200 
people.
    So Native America is certainly receptive to the need and 
the progress of cell tower, but we should do it as we keep in 
balance our past also with that development of the future.
    Mrs. Christensen. And we are very sensitive to that. I know 
I am running out of time, but one question I would have had for 
Mr. Nau or anyone is to cite for us if there is any area that 
evidences Section 106 is not functioning as it should function 
so that the services can be provided and the sites protected 
and everybody wins.
    Mr. Nunes. Thank you, Ms. Christensen.
    Mr. Kildee.
    Mr. Kildee. One final question for myself. Ms. Wadhams, how 
significant will the effect of Section 4 of the discussion 
draft have on Indian tribes?
    Ms. Wadhams. As I mentioned in my testimony and as you 
heard from Mr. Martin earlier, it would be extremely 
significant, in our opinion. The effect would be extremely 
significant because of the lack of listings of traditional 
cultural properties and archeological sites and the difficulty 
of even knowing in some cases where these sites are.
    Mr. Kildee. So for that reason, they would be more 
vulnerable to negative effects?
    Ms. Wadhams. They would be arguably more vulnerable, and we 
are very concerned and, for that reason alone, think this 
change to Section 4 would be very problematic. It would also 
impact buildings, however. I think there was an issue before 
of, you know, how can we improve this process. I think one way 
to improve this process would be to give more funds to State 
historic preservation offices and the THPOs, the tribes, to do 
the survey work that is necessary. Having been a former State 
historic preservation officer, I know that we work from a 
triage approach to our Federal responsibilities. We have a lot 
of responsibilities under the National Historic Preservation 
Act. Survey is one of them. Section 106, providing technical 
assistance, and reviewing projects for historic tax credits are 
some of the things we do. And if you have a Section 106 review 
here and you have doing survey work here, the Section 106 is 
always going to take precedence just because of the pressing 
need to do those in an expeditious manner.
    So the survey work often doesn't get done because--or it 
happens every day. It is happening in SHPO offices every day. 
But it is going to get triaged out. And the funding has not 
been adequate to the SHPOs and the THPOs to do this work. It 
has actually decreased over the years. So it is the first thing 
that doesn't happen. And a way to improve this to some degree--
it wouldn't get rid of all the concerns that you have heard 
about, but we also believe those concerns are fairly unusual. 
If there were more funding to do the survey work, it would help 
with these issues, and actually list properties on the National 
Register.
    So I think there are ways to approach this that could help 
without actually changing the National Historic Preservation 
Act.
    Mr. Kildee. Thank you very much.
    And again, Mr. Chairman, thank you for the very sensitive 
process you have used in developing this bill. Thank you.
    Mr. Nunes. Thank you, Mr. Kildee.
    Ms. Wadhams, from 1974 to 1976, ``eligible for inclusion'' 
was to find in the ACHP rules as any district site, et cetera, 
which the Secretary determines is likely to meet the National 
Register criteria. Then in 1979, without authorization from 
Congress, ACHP changed the definition to ``property eligible 
for inclusion'' to mean any property that meets the National 
Register criteria.
    Would you not agree that these and other ACHP rules 
eliminated the National Register from relevance and instead 
created a reliance on consensus determinations of eligibility?
    Ms. Wadhams. To some degree, yes. And remember, this is--
Section 106 mandates a process. It doesn't mandate an outcome. 
And it also requires people to work in good faith together to 
try to get to some outcomes. So the process is extremely 
critical and important in resolving this issue. I don't know if 
this answers your question. Maybe you would like to expand a 
little bit.
    Mr. Nunes. Well, I just--you know, we have a letter here 
that was, I think, submitted from the record from this 
coalition of 9/11 families. And someone brought up the example 
that, oh, this maybe would not be eligible under the Historic 
Preservation Act. But the changes that are in the discussion 
draft that would say essentially, that would just define it as 
being or determined by the Secretary to be eligible for 
inclusion. It think it is a little--you know, I don't like when 
people use these examples, because I don't believe that any 
Secretary would not deem the World Trade Center as not being 
eligible.
    Ms. Wadhams. I think the World Trade Center, as I said, is 
a dramatic and compelling example and is not typical. But it 
does point out the fact that if you just look at listed 
properties, properties listed on the National Register, there 
are properties from the World Trade Center to an archeological 
site, perhaps the oldest farming site in the State of Vermont, 
which was discovered through the 106 process. For example. We 
never knew when they started actually doing agriculture in the 
State, and through a highway project and the need to do 106, we 
found the site that proved that this is when agriculture 
started in the State.
    So there is a--with just the eligibility language, as is 
proposed in this, there is no process. The process would be 
excluded. And that is the point I was trying to make with the 
World Trade Center site, is the process was in place for the--
specifically the families of the victims, and the public, to be 
able to say, OK, is this a historic site? It is not listed. 
Nobody had even thought about it. But in fact it is a critical 
site to our Nation's history. So that process was there and in 
place and could be used to make that determination fairly 
quickly and involve the people who wanted to have a say in what 
might happen to the site.
    If you take out the ``or eligible for inclusion in the 
National Register,'' the process isn't there. It is not that it 
might not have happened in some way, shape, or form down the 
road, but it was there and we could use it to engage the 
public.
    Mr. Nunes. Well, I think that is part of the problem with 
private property owners, is that sometimes this is being used 
by cities and other agencies to hang up development, you know, 
to stop development or to stop putting up cell phone towers. 
And, you know, one problem I think we have here is that in 
1979, when this was changed, you know, it was changed without 
review from this Committee. And not that that was a major 
problem; those things do happen. But, you know, we have gone 
along for decades now, and now, unfortunately I think--Ms. 
Matthews, in your testimony you said that less than 1 percent 
of what is deemed eligible actually becomes eligible. I think--
``There are 617,000 Federal projects that went through Section 
106 in a 5-year period. Only 1.5 percent resulted in 
nominations to the Register.'' And so, you know, that just 
leads me to believe why would so many sites be put up for 
inclusion to this and so few being actually included?
    Ms. Matthews. Well, exactly the intent of the law itself, 
is in a Federal undertaking in the 1970s under President Nixon, 
there was an Executive Order that expanded the determinations 
of eligibility to go into Federal agencies taking into 
consideration their own Federal agency's undertaking as it 
impacted other Federal agencies. And just as Emily cited, in 
highway constructions in Florida, we have discovered things we 
didn't know before. And----
    Mr. Nunes. I understand that. But wouldn't the Secretary 
under this change in the law still have the ability to, if 
something was discovered when you are building a freeway or a 
road, wouldn't they have the ability to add it to the historic 
preservation list?
    Ms. Matthews. Yes, but exactly as Emily said, the process 
starts clicking away when the project begins. There is a great 
cooperation among the Federal entities and the State, as the 
State historical preservation office is a Federal entity, to 
look at prior-to documentation, which can take a long time, 
often is not done, on properties where it might never be done 
because there isn't a comprehensive survey in any State except 
Rhode Island completed. And so it is an ongoing process, where 
a country in which there are so many resources that we haven't 
surveyed for significance, determined to be eligible or not 
eligible, and taking these into consideration in Federal 
undertakings is a very critical process.
    And it was undertaken because there was such a loss to 
communities. We know today heritage tourism is a huge economic 
engine. We did a study in Florida on the economic impacts of 
heritage tourism that Mr. Nau and Secretary of the Interior 
Gale Norton have used in demonstrations that heritage tourism 
is economically beneficial. And we were able to demonstrate 
that $4.2 billion annually was returned to the State of Florida 
through economic impacts of heritage tourism. And much of that 
arises out of that process.
    Mr. Nunes. I don't disagree with that, and I am not 
discounting that. I am just--you know, my question is that 
there seems to be such a large number of these projects that 
are being nominated and then so very few are actually being put 
onto the list. Which, you know, kind of leads--and it would be 
interesting, I think--I don't have the numbers to go back, you 
know, 20 years ago, how many that were nominated actually were 
included. And I think the point that some of these private 
property owners are making or the telecom industry is making is 
that sometimes this is being used as a legal tactic to stop 
development or stop someone from fixing their house, whatever 
it may be.
    You know, how many more sites or historic sites are out 
there that have not been put on the list? I guess we don't 
know. There is probably an infinite number. But I mean, if you 
look throughout the United States, there is a lot of them now. 
And, you know, where is this going to stop and why are so many 
being nominated? I mean, there has got to be a problem here 
with this process. I think to just say we don't need any 
changes is, you know, a little bit kind of just protecting 
maybe your own turf and not being willing to work with the 
private property owners.
    Ms. Matthews. I have come from several decades of work as a 
historical consultant on projects that were either for private 
property owners or 106 projects for cultural resource 
management firms. And I have seen over the years in my career a 
huge benefit of just the heritage tourism aspect, the 
understanding of our land. We are uniquely a country that 
recognizes local significance through the National Historic 
Preservation Act, where at one time we only recognized national 
historic landmarks, things of national importance. We are now 
very concerned about we as a Nation--we as private and public--
very concerned about neighborhoods, your grandmother's house if 
it qualifies, and the diversity of our heritage assets. And 
that is an ongoing study. Just as history is never static, 
neither are the things that are included. Decades ago, tribal, 
Native American, Native Hawaiian, Native Alaskans were not 
taken into consideration under the law; currently they have an 
equal role on the Native American Grave Protection and 
Repatriation Act review committee, through that Act, which is 
1990s. We as a Nation, as a democracy evolve in how we look at 
ourselves.
    And I think we could get you some better statistics on your 
specific question, on the percentage. I would be happy to do 
so, Mr. Chairman.
    Mr. Nunes. Thank you. I do want to read something here, Ms. 
Matthews, that was submitted for the record. And forgive me, 
because I have not read this before, so I am going to have to 
look at it here.
    Here it says--this is an example. There was a woman on the 
Register in September 1996. The banks declined to give them a 
mortgage for their alterations to make the changes to the 1830s 
house into a bed & breakfast on the grounds that the building 
was on the National Historic Register. Finally, they approached 
their congressman for help. The only solution which was in his 
hands, Mr. Roach told me, was to have the house deleted from 
the National Historic Register. The congressman used his 
influence to have the historic registration for the house 
finally removed and the bank gave the mortgage to the family.
    So I assume that this is an ongoing problem with the Act 
that--can you comment on that?
    Ms. Matthews. I can. I will be happy to get back with you 
on information related specifically to that.
    Mr. Nunes. OK. Well, we will submit this in writing to you 
after this hearing.
    Ms. Matthews. Thank you, Mr. Chairman.
    Mr. Nunes. The largest criticism this Committee has had 
over this discussion draft has been the Section 106. Many have 
proposed that this will shatter the consensus determinations 
under the 106 process. This is what, you know, we are hearing 
from the preservation community.
    I guess, you know, what I am looking at is, you know, I 
fail to see the problem by the proposed language that clearly 
does not prohibit nor impede SHPO survey work to identify and 
nominate eligible properties to the Register or make 
recommendations of eligibility to the secretaries required 
under the Act--which I have commented on already. But I think 
there is a misunderstanding between, at least from my point of 
view and statements that have been made in regard to that this 
small change to Section 106 would cause all these disastrous 
things from happening. Ms. Matthews, can you comment more on 
this?
    Ms. Matthews. I think as part of our statement as well, 70 
percent of the properties that are taken into consideration in 
Federal activities were not specifically listed or determined 
eligible. It is a big percentage. And we also have, while we 
are commenting on that--let me go back to this common theme of 
the uniqueness of our National Historic Preservation Act, your 
National Historic Preservation Act--is that we have in the 
local significance--we have local, State, and Federal 
significance as levels of significance under the Act--and that 
we have almost 70 percent as well of the properties listed on 
the National Register, 1.4 million, within 79,000 listings 
total to date, and that is because, as you know, 79,000 
listings include many contributing resources within 
neighborhoods, which are very important in communities.
    And I think that speaks for itself. The potentially 
eligible often occurs and it is not the actual survey or the 
documentation. I mean, we have done in the private sector 
nominations, documentations on significance that, I think our 
estimate in Florida is it is $2,500 a year or so to do 
documentation on a National Register. A Federal highway project 
coming in needs to do something a lot quicker than that. And in 
Florida, we set a 30-day turnaround time, which is required by 
law, under all of our compliance for review of 106 
considerations. Governor Bush had us expedite that. Secretary 
of State Harris had us expedite that. And we moved those things 
very fast.
    Mr. Nunes. Thank you, Ms. Matthews.
    Mr. Altschul. Can I comment on your question as well?
    Mr. Nunes. Yes, Mr. Altschul, please.
    Mr. Altschul. Your question was about what happens to these 
sites of significance, should Section 106 be restored to what I 
read as the original congressional intent.
    First and foremost, the wireless industry, I can speak with 
great confidence, has an independent obligation to consult with 
the tribes separate from the 106 process.
    Second, we have heard today Section 106 does create a 
process and it creates that process whether the end result is a 
listing that is brought to the keeper of the Secretary of the 
Interior for determination as being eligible or being put on 
the list, or what this process has become, which has become an 
uncertain, never-ending morass for industries like the wireless 
industry.
    Finally, we heard about the Executive Order and the 
original intent of the Act in 1966. At that time, it was well 
understood that Congress and President Nixon were talking about 
Federal undertakings--road constructions, the Big Dig in Boston 
that has been going on for, you know, a lifetime----
    Mr. Nunes. Yes, we know about that here. I would like to 
have about 10 percent of that money for my district.
    Mr. Altschul. Right. It is going on here in Springfield. 
And so these are clear Federal undertakings, they have Federal 
funding, a beginning, a start, a review process. We have heard 
how wireless sites are different. There is this irony that you 
can build a tower for tourism or sightseeing and not be subject 
to this Act, but if you want to hang an antenna upon it, 
suddenly you are deemed subject to the Section 106 process.
    So that is the kind of mission creep which has really gone 
beyond the original intent of Congress, and something that this 
Committee should address.
    Mr. Nunes. Thank you, Mr. Altschul.
    Mr. Nau. Mr. Chairman?
    Mr. Nunes. Yes, Mr. Nau, I actually have a question for 
you.
    But go ahead and respond.
    Mr. Nau. You are the chair.
    Mr. Nunes. No, you are recognized to respond.
    Mr. Nau. I think it is important that I do respond to the 
last series of comments being made, because it leaves the 
impression that this 106 process is old, inflexible, and 
restrictive, particularly restrictive on new industries. I 
would like to point out to the chair that in 2001, the ACHP 
actually crafted new regulations that specifically recognized 
the need to begin to create a way for the 106 process and the 
National Historic Preservation Act to react to the changing 
times. You are correct. It isn't 50 years ago, it isn't 100 
years ago, and things are moving a lot faster.
    What tools were created? We have programmatic agreements, 
alternate procedures, program comments, and exemptions. Since 
my chairmanship, we have used alternate procedures to help the 
Army with their management of their historic properties. 
Program comments, particularly to deal with the--housing and 
the DOD. Exempting programs. The very first issue I faced was 
the historic gas pipelines. Didn't seem to me to be somewhat 
logical to say that something underground is going to have a 
dramatic impact on preservation and heritage tourism. The fact 
of the matter is that it did have a dramatic effect on winning 
the Second World War. The issue was the story, not the pipeline 
itself. And we used that exemption. And the interstate highway 
system, same thing. If you have ever been in West Texas, there 
is nothing really redeeming about I-10 across the Chihuahuan 
Desert.
    [Laughter.]
    Mr. Nau. But there are parts that are worth saving, and 
therefore the system has flexibility.
    The last one I would like to talk about is the agreement 
with the FCC on cell towers, because the problems that the 
gentleman has identified actually did exist. Now, if we had 
just sat down and didn't pay any attention to the issues, I 
would suggest that you have the obligation, not just the right, 
to start asking us questions. But what did we do to try to 
address the issue? We sat down with the FCC and the cell tower 
industry--I personally did it, because I carry a lot of cell 
phones, so I want to make sure I can talk to people. And we 
crafted, through these procedures and the programmatic 
agreements, and addressed the issue that the gentleman 
identified, and that is certainty. He was talking about 
certainty of numbers of assets. I would suggest it wasn't just 
number, it is location. And certainty of time, from a 
businessman's standpoint, is where the cost is.
    Through that agreement, we crafted the first-ever requiring 
SHPOs to answer the questions within 30 days. It isn't 
unlimited, as the implication might be; it is definitive to 30 
days because that makes sense. There the SHPO has to identify 
it and craft that for-certain list that I think ultimately will 
be the end result of any one of these types of projects. So to 
say that there isn't the management flexibility in the 106 
process right now, I think, is to not understand the tools that 
we do have.
    One final comment. I also am chairman of the office in 
Texas for the SHPO. And you raised a very good question: Why, 
if we have all of these undertakings, has the list not 
expanded? It is purely an issue of resources. It takes money 
and time and people to process the National Register 
application. And I will tell you, in Texas we simply don't have 
the resources to do it. This isn't a request for funding. I may 
be the only one up here that is not asking for money. But it is 
critical to recognize the potentially eligible allows people 
with vested interest, be it business, the SHPO, tribes, and 
local residents, to identify those resources, figure out how to 
deal with them in that undertaking. And whether or not they are 
submitted for eligibility, the process works.
    And I would reiterate what some of the other witnesses here 
have said. If you change the process, you do dramatic harm to 
all of those resources that are out there, Mr. Chairman, that 
we don't have on a list. And I agree with you, they are not on 
a list. But they are pretty easy to identify once you start the 
process.
    Thank you very much.
    Mr. Nunes. Well, Mr. Nau, thank you. I wanted to--you 
actually answered the question I was going to ask. I know that 
your advisory council has come up with some remedies to address 
these concerns, so I was going to ask you that question. And 
thank you for answering it.
    I do, however, want to go back a little bit to the change 
in 1979 which was supposed to go through this Committee and it 
wasn't. And I think it is important that everyone who is 
interested in historic preservation look at ways that we can 
alter 106 to get a clear authorization from the Congress on how 
this is going to--on how we are going to proceed from here. And 
that doesn't mean that this discussion draft is ultimately the 
bill that we are going to introduce, but I do think it is 
important that all of you work with the Committee staff to try 
to come up with some language that clarifies some of the 
changes that have been made without authorization of this 
Committee.
    Mr. Nau. Well, thank goodness that was some other chairman 
that did that in 1979. We look forward to working, as we have 
been, with the staff. There is nothing that is perfect, and we 
recognize that by saying that we do need to change some of the 
elements that have the impact on property rights. We recognize 
that. But the law of unintended consequences may be at the real 
heart of our concern with the Section 4.
    So thank you very much.
    Mr. Nunes. Thank you, Mr. Nau. And I want to thank--I do 
have to get to the Capitol, but I want to thank all of you for 
your testimony today. If you have additional testimony, please 
send it to the Committee in writing.
    This hearing is adjourned.
    [Whereupon, at 11:53 a.m., the Subcommittee was adjourned.]

    NOTE: The following information submitted for the record 
has been retained in the Committee's official files.
      Andrews-Maltais, Cheryl, Tribal Historic 
Preservation Officer, Wampanoag Tribe of Gayhead Aquinnah, 
Statement submitted for the record
      Arthur, George, Chairman, Resources Committee of 
The Navajo Nation Council, Statement submitted for the record
      Barbry, Earl, Tribal Historic Preservation 
Officer, Tunica-Biloxi Tribe of Louisiana, Statement submitted 
for the record
      Bense, Judith, President, Society for Historical 
Archaeology, Group Letter, Individual Letter, and Statement 
submitted for the record
      Boyd, Douglas, Vice President, Prewitt and 
Associates, Inc., Cultural Resources Services, Group Letter and 
Statement submitted for the record
      Brien, Cora, James Madison University, Statement 
submitted for the record
      Burns, Laura, Citizen, Statement submitted for 
the record
      Burrow, Ian, President, American Cultural 
Resources Association, Group Letter, Individual Letter, and 
Statement submitted for the record
      Campbell, Bradley, Commissioner, State of New 
Jersey Department of Environmental Protection, Statement 
submitted for the record
      Cast, Robert, Tribal Historic Preservation 
Officer, Caddo Nation of Oklahoma, Statement submitted for the 
record
      Concho, Raymond, Governor, Pueblo of Acoma, 
Written Statement for the record
      Daingkau, George, Chairman, United Tribes of 
Colorado, Statement submitted for the record
      Faucheux, Ron, Vice President for Government 
Affairs, American Institute of Architects, Group Letter and 
Statement submitted for the record
      Fesler, Garrett, Senior Archaeologist, James 
River Institute for Archaeology, Inc., Group Letter and 
Statement submitted for the record
      Fields, Ross, President, Prewitt and Associates, 
Inc., Cultural Resources Services, Group Letter and Statement 
submitted for the record
      Francis, Melvin, Chief/Sakom, Pleasant Point 
Reservation, Statement submitted for the record
      Gardner, Karen, Vice President, Prewitt and 
Associates, Inc., Cultural Resources Services, Group Letter and 
Statement submitted for the record
      Garrett, Cathy, Principal, PGA Design Landscape 
Architects, Statement submitted for the record
      Gilreath, Amy, President, Society for California 
Archaeologists, Statement submitted for the record
      Goldstein, Nick, Staff Attorney, American Road 
and Transportation Builders Association, Statement submitted 
for the record
      Goodwin, Christopher, President and CEO, R. 
Christopher Goodwin and Associates, Inc., Group Letter and 
Statement submitted for the record
      Halsey, John, State Archaeologist, Michigan 
Historical Center, Statement submitted for the record
      Hamrick, James, Assistant Director of Heritage 
Conservation, Deputy State Historic Preservation Office, State 
of Oregon, Statement submitted for the record
      Johnson, Anthony, Chairman, Nez Perce Tribal 
Executive Committee, Statement submitted for the record
      Johnson, Barbara, President, San Antonio 
Conservation Society, Statement submitted for the record
      Johnson, Jacqueline, Executive Director, National 
Congress of American Indians, Statement submitted for the 
record
      Kraus, Bambi, President, National Association of 
Tribal Historic Preservation Officers, Group Letter, Individual 
Letter, and Statement submitted for the record
      Kulongosky, Theodore, Governor, State of Oregon, 
Statement submitted for the record
      Laird, Matthew, Senior Researcher, James River 
Institute for Archaeology, Inc., Group Letter and Statement 
submitted for the record
      LeBlanc, Alton, Chairman, Chitimacha Tribe of 
Louisiana, Statement submitted for the record
      Lewis, George, President, Ho-Chunk Nation, State 
of Oregon, Statement submitted for the record
      Linderner, Christopher, President, New York 
Archaeological Council, Group Letter and Statement submitted 
for the record
      Lintz, Christopher, Senior Principal 
Investigator, Cultural Resources Division, Geo-Marine, Inc., 
Statement submitted for the record
      Luccketti, Nicholas, Principal Archaeologist, 
James River Institute for Archaeology, Inc., Group Letter and 
Statement submitted for the record
      Luckerman, Douglas, Attorney at Law, Law Office 
of Douglas J. Luckerman, Statement submitted for the record
      MacIntosh, Heather, President, Preservation 
Action, Group Letter, Individual Letter, and Statement 
submitted for the record
      McNerney, Michael, President and Staff, American 
Resources Group, Statement submitted for the record
      Miller, Kevin, President, Council of Texas 
Archeologists, Statement submitted for the record
      Moe, Richard, President, National Trust for 
Historic Preservation, Group Letter and Statement submitted for 
the record
      Motsinger, Tom. Vice President, SWCA 
Environmental Consultants, Group Letter and Statement submitted 
for the record
      Nenema, Glen, Chairman, Kalispel Tribe of 
Indians, Statement submitted for the record
      Niquette, Charles, President, Cultural Resource 
Analysts, Inc., Statement submitted for the record
      Pakoota, Joseph, Chair, Colville Business 
Council, Statement submitted for the record
      Patterson, Brian, Bear Clan Representative, 
Oneida Indian Nation, Statement submitted for the record
      Polk, Ann, Senior Archaeologist/Owner, Sagebrush 
Consultants, LLC, Statement submitted for the record
      Polk, Michael, Principal/Owner, Sagebrush 
Consultants, LLC., Statement submitted for the record
      Quin, Richard, Citizen, Statement submitted for 
the record
      Rotenstein, David, Citizen, Statement submitted 
for the record
      Ryan, Edward, Director, Wireless Communications, 
State of Maryland, Department of Budget and Management, Office 
of Information Technology, Statement submitted for the record
      Sansom, Robert, Private Property Owner in Louisa 
and Greene Counties, Letter submitted for the record
      Schroeder, Eric, Citizen, Statement submitted for 
the record
      Shamu, Nancy, Executive Director, National 
Conference of State Historic Preservation Officers, Group 
Letter and Statement submitted for the record
      Shije, Amadeo, Chairman, All Indian Pueblo 
Council Office of the Chairman, Statement submitted for the 
record
      Tyrer, Carol. Operations Manager Curator, James 
River Institute for Archaeology, Inc., Group Letter and 
Statement submitted for the record
      Van West, Carla, Senior Principal Investigator 
and Research Director, Statistical Research, Inc., Statement 
submitted for the record
      Vaughn, Charles, Tribal Chairman, Haulapai Nation 
Office of the Chairman, Statement submitted for the record
      Versaggi, Nina, Chair, Standards Committee, New 
York Archaeological Council, Group Letter and Statement 
submitted for the record
      Vogt, Jay, President, South Dakota State Historic 
Preservation Officer, National Conference of State Historic 
Preservation Officers, Statement submitted for the record
      Wade, Bill, Chair, The Coalition of National Park 
Service Retirees Executive Council, Statement submitted for the 
record
      Wade, Faye, President, Archeological Society of 
Virginia, Statement submitted for the record
      Waldbaum, Jane, President, Archaeological 
Institute of America, Statement submitted for the record
      Widdiss, Donald, Chairman, Wampanoag Tribe of 
Gayhead Aquinnah, Statement submitted for the record
      Wilson, Dr. Sherrill, Director, Office of Public 
Education & Interpretation, New York African Burial Ground 
Project, Statement submitted for the record.