[House Hearing, 109 Congress]
[From the U.S. Government Publishing 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
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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______
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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.