Saving Places that Matter

A Citizen's Guide to the National Historic Preservation Act

Thomas F King

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315420479
• Edition: 1
• Topic: Social Sciences
• Subtopic: Archaeology
• Index: Social Sciences

They're going to tear down the most cherished building in your town for another strip mall. How do you stop it? Tom King, renowned expert on the heritage preservation process, explains to preservationists and other community activists the ins and outs of Section 106 of the National Historic Preservation Act—the major federal law designed to protect historic places—and how it can be used to protect special places in your community. King will show you the scope of the law, how it is often misinterpreted or ignored by government agencies and developers, and how to use its provisions to force other to pay attention to your concerns. He explains the quirky role of the National Register and the importance of consultation in getting what you want. King provides you with numerous examples of how communities have used the Section 106 process to stop wanton development, and encourages you to do the same. King's guide will be the bible for any heritage preservation or community activist movement.

Chapter One
Saving Places

Introduction

Saving Your Place

You've probably opened this book because a place that's important to you is threatened. Maybe your home, your neighborhood, your farm, your village+ Maybe a treasured landscape or stretch of shore. Maybe a hill or mountain, a forest, a piece of desert+ Maybe a spring, or a trail, or the place where your ancestors are buried, or the place you collect mushrooms or maple sap or arrowheads+ You're trying to save it from some threatened change—urban sprawl, a highway, a power plant, a national park—or from some change in the policies of a government agency+

Consider Section 106

If you're in the United States, there are federal—that is, national-level—laws that may help you, by subjecting potentially damaging projects to environmental impact review. One of the most useful in saving a treasured place is Section 106 of the National Historic Preservation Act (NHPA). Section 106 says that a federal agency considering something that may change the environment must "take into account" the effects of that something on "historic properties."

"That's nice," you may say, "but the place I'm trying to save isn't a historic landmark, so that law can't help me."

Don't jump to that conclusion. NHPA isn't just about historic landmarks, whatever those may be. NHPA deals with historic places of all kinds, significant to all kinds of people, very explicitly including local communities. A place that's significant in the history of Almira, Washington—population 302—gets about the same consideration under NHPA as does a place important to the whole nation+ It simply has to be eligible for inclusion in the National Register of Historic Places—a list of significant places that's maintained (though the places are not) by the National Park Service.

Your treasured place may very well be eligible for the National Register, and if it is—whether it's actually been included in any historical register or not—it has to be considered by any federal agency involved in a project that may do something to it.

Your place doesn't have to be fancy or associated with great events to be protected (to the extent anything is protected) by Section 106.

That doesn't mean that your place has to be saved, preserved, left undisturbed. When all is said and done, a federal agency can decide to let it be destroyed. But a lot may have to be said and done before the agency can decide, and that's what gives someone like you some power. If you can use it.

"Well," you say, "the place I want to save isn't threatened by the federal government; it's the county/city/local developer who wants to destroy it for a road/sewer plant/housing development. So a federal law isn't going to help me."

Done jump to that conclusion, either. Section 106 of NHPA applies not only to things that the feds do themselves, but also to things they assist or permit, and you might be surprised at the length of the federal government's arm.

For the last 40 years or so, I've been advising people on how to work with the Section 106 process"—the process by which projects are reviewed under Section 106 to control their impacts on historic places. Sometimes I've advised government agencies, sometimes non-governmental project proponents, sometimes Indian tribes, sometimes local governments, sometimes organizations and individuals trying to stop projects. I've come to realize that while there's a lot of guidance—regulations, government guidelines, textbooks, learned and not-so-learned journal articles—about Section 106 for professionals who work with the law all the time, there's almost nothing to help the ordinary citizen who wants to use it for saving a place.

I'll try, in this book, to fill that gap. We'll look at:

• ▣ What does it mean for a place to be a "historic property" in the U.S.?
• ▣ How can you get your special place considered such a property?
• ▣ What does Section 106 require federal agencies to do?
• ▣ What does it require of other people?
• ▣ How can you use Section 106 to advance your interest in saving a place?
• ▣ What tricks do agencies and project proponents use to short-circuit or thwart the Section 106 process?
• ▣ What are some strategies for thwarting them?

I'll try to explain Section 106 in a human a way, rather than in lawyer-talk or bureaucrat-speak. I'll describe how agencies and project proponents deliberately or inadvertently circumvent the law, or interpret it in ways that—while they may not be entirely unreasonable—are probably contrary to your interests. I'll suggest things you can do about such circumventions and problematical interpretations.

Of course, maybe you're not trying to save something. Maybe, to put it crudely, you're trying to destroy something, or simply trying to do something that requires somebody—maybe you, maybe some agency from whom you need money or a permit—to comply with Section 106. That's fine; whatever destruction you're contemplating may be perfectly justifiable—the world or the nation or the region doubtless needs that new road or apartment building—and you're to be commended for trying to avoid conflict over it. I hope this book will help you work with people who treasure special places, rather than fighting it out in the courtroom or in the streets. Or maybe you have an academic interest in how Section 106 works, and that's fine too. The system can be esoteric, and in this book I'll try to demystify it.

Other Laws

Section 106 isn't the only law that can be used to save special places. In the United States there's also—very importantly—the National Environmental Policy Act (NEPA). NEPA requires attention to impacts on the whole human environment. There are also laws, executive orders, and regulations dealing with specific aspects of the environment—endangered species and their habitats, air and water quality, Indian tribal and Native Hawaiian sacred places, wetlands, floodplains, toxic waste sites—all of which can be used in their own ways to help protect the places that matter to you. When I started writing this book, I thought I'd deal with all these legal authorities but quickly found that task to be far, far too complicated. So I scaled back to dealing just with Section 106 and NEPA and wrote quite a bit before I realized that it was still too complicated. There were too many different possibilities, permutations, relationships between this regulatory requirement and that. So this book focuses on Section 106, with only occasional excursions into other federal requirements. But let's be clear about this—those other authorities can be very important. They're worth knowing about; I just can't discuss them all in a sensible way between these two covers.

Besides the federal laws, there are also state laws, tribal laws, county and city ordinances, and the regulations that spring from them. They're worth knowing too; they can, in fact, be more powerfully protective than Section 106. But they vary tremendously one from another; even if I knew them all I wouldn't be able to explain them all in a single book. So I'll touch on them as we go along and suggest ways to use them, but only in a general way.

Some Success Stories

What kinds of places can be saved using Section 106? Here are some examples:

• 

  The Forest Glen Seminary is a collection of strange and wonderful old buildings that make Forest Glen, Maryland, unlike anyplace else in the world. The U.S. Army acquired the seminary before World War II but then neglected it. The buildings were falling apart when local residents, organized as "Save Our Seminary' (SOS), stepped in. Using Section 106 and other legal tools, and with help from the National Trust for Historic Preservation, they prevailed on the Army to do some interim preservation, but more importantly to move out altogether and let the seminary pass to the National Park Service. In partnership with the community and private developers, the Park Service is now overseeing its preservation, rehabilitation, and mixed-use redevelopment.
  See: http://www.saveourseminary.org/News%2ofolder/what_is_the _nationgl_park_semina.htm for information.

One of the many buildings at the Forest Glen Seminary saved by SOS and the National Trust using Sections 106 and 110 of NHPA, now being rehabilitated by a private developer in partnership with the National Park Service. Photo by the author.

• 

  The Medicine Lake Highlands are the remains of a gigantic collapsed volcano in northern California, mostly controlled by the U.S. Forest Service. Indian tribes of the area, notably the Pit River tribe, regard the highlands as an intensely spiritual landscape and have strongly opposed plans for geothermal energy production there. Using Section 106, the tribe and its allies were able to stop one drilling operation, but another was allowed to go forward. The tribe then took the involved federal agencies (Forest Service and Bureau of Land Management) to court and showed that their compliance with Section 106 and other laws was flawed; this halted the remaining project.
  See: http://www.mountshastaecology.org.
• 

  The Stillwater Bridge is an important part of Stillwater, Minnesota, an old mill town whose people value and have preserved its historic commercial core. When a new highway was built around Stillwater, the bridge technically became surplus, and because it crossed a designated scenic river, U.S. government policy demanded its demolition. Using Section 106, the people of Stillwater were able to negotiate successfully with the National Park Service, Federal Highway Administration, and Minnesota Department of Transportation, prevailing on them to retain and rehabilitate the bridge.
  See: http://en.wikipedia.org/wiki/Stillwater_Bridge.

Medicine Lake Highlands. Photo courtesy Tom Semple.

• 

  Kahoolawe Island figures heavily in Native Hawaiian tradition and is loaded with ancestral Native Hawaiian residential, burial, and spiritual sites—but for many years it was used by the U.S. Navy for target practice. Using Section 106 and other laws, Native Hawaiians persuaded the Navy to move its bombardment exercises elsewhere and to clean up the unexploded ordnance on the island. The island is now controlled by the State of Hawaii and is visited regularly by Native Hawaiians to carry out ceremonial and cultural activities.
  See: http://www.kahoolawe.org/.
• 

  Hingham, Massachusetts is a well-preserved old town in Plymouth County, Massachusetts. The railr...