Section 106 of the National Historic Preservation Act

Even experienced project proponents can get caught off guard by common misunderstandings about cultural resources protection laws. One of the most misunderstood cultural resource protection laws is Section 106 of the National Historic Preservation Act, which is triggered when a project requires federal agency approval. This cheat sheet will help you steer clear of potential project pitfalls with Section 106 that cost time and money.

  1. Only one tribe will have an interest in a cultural resource.

Section 106 requires the federal agency to consult with any Indian tribes with a connection to an historic property that is potentially affected by a project (called an “undertaking” in Section 106). It’s common, however, for more than one tribe to have an interest in a historic property. To become a stakeholder in the Section 106 process, the tribe just has to attach religious and cultural significance to the historic property that may be affected by the project. Just because the agency has consulted with one tribe does not mean it has complied with Section 106.   

  1. One tribe’s views and concerns will be the same as other tribes’. 

You should not assume that one tribe’s recommended protection methods will satisfy other tribes. While it is common for tribes to reach consensus regarding the protection of historic properties, it’s possible that tribes may have very different approaches.   

  1. Tribes will be hostile toward a development project. 

Tribes are not necessarily resistant to development, and may even support your project. You should seek opportunities to engage with potentially interested tribes early and communicate the benefits of the undertaking.  

  1. Unlike endangered species under the ESA, historic properties are not protected absolutely under Section 106. 

Like NEPA, Section 106 is a “stop, look and listen” statute in which the federal agency must consider the effects of the undertaking on historic properties within a potentially affected range (called the Area of Potential Effect), but Section 106 does not prohibit the agency from approving undertakings that negatively impact historic properties. An agency’s failure to comply with Section 106, however, can derail a project.  

  1. To qualify as a historic property, a property must be ruins or some other human-made structure. 

“Historic property” means any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places. The term includes properties of traditional religious and cultural importance to an Indian tribe that meet the National Register criteria. In the right circumstances, an undeveloped site could qualify as a historic property.  

  1. Section 106 consultation is satisfied if you just send a notice letter to a tribe. 

“Consultation” means the process of seeking, discussing and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process. While there is no bright line to determine how much communication with a tribe satisfies the Section 106 consultation requirement, you should make sure that the federal agency engages in a meaningful dialogue with interested tribes.  

  1. If you comply with NEPA, then you’ve complied with Section 106. 

NEPA requires agencies to take a “hard look” at impacts to both natural and cultural resources, but that is not the same examination that Section 106 requires. The NEPA process contains similarities to Section 106, but they are separate processes. For example, Section 106 contains a consultation process that is entirely different from NEPA’s notice and comment period. Section 106 will require the agency to comply with steps that are not required by NEPA.  

  1. Section 106 gives tribes veto power over federal actions. 

Unlike most federal permitting statutes, Section 106 includes specific consultation requirements between federal agencies and federally recognized Indian tribes. Indian tribes are consulted to determine whether an undertaking has an effect on National Register listed or eligible properties. The consultation focuses on whether their culture attaches significance to a historic property. If a tribe does attach cultural significance, Section 106 provides a process for the development and implementation of a Memorandum of Agreement to guide the activities and responsibilities of the parties regarding the historic property. The Memorandum of Agreement does not give a tribe veto authority; the federal agency retains complete decision-making authority.  

  1. Tribal historic properties are only on “tribal land.” 

Historically, Indian tribes and their cultural practices were not confined to reservation boundaries; therefore it is highly likely that tribal historic properties will be located outside of reservations. The federal agency should recognize this and provide consultation opportunities to tribes that have both a present-day and historical connection to the site of the undertaking.  

  1. The Tribal Historic Preservation Officer only has a role in Section 106 if the project is on “tribal land.” 

The role of the Tribal Historic Preservation Officer (THPO) is nearly identical to that of the State Historic Preservation Officer (SHPO) with regard to cultural and historic properties significant to Indian tribes, whether on or off reservations. The THPO is a tribal government employee who, among other things, identifies and nominates eligible properties to the National Register, cooperates with the federal permitting agencies and the SHPO during consultations, and monitors plans that are developed to protect, manage and mitigate harm to historical properties. Developing a good working relationship with the THPO may be critical to an efficient Section 106 compliance process.  

  1. Because the National Register evaluation criteria are so broad, virtually any cultural or historical resource triggers Section 106 review. 

In general, properties that are 50 years old or older may be eligible for listing on the National Register so long as they (1) have historical significance and (2) retain their integrity (their ability to convey significance). The National Park Service has established four significance criteria by regulation that help to clarify what may seem like an overly broad or subjective analysis for qualifying for the National Register. As you perform your project due diligence, you should consider hiring a qualified cultural resources expert to assess whether properties within the Area of Potential Affect are eligible for the National Register.

Conclusion

We hope this provides the foundation for a better understanding of an often overlooked federal law that can be critical to the success of a development project. Stoel Rives attorneys are available to share insights and strategies for working more effectively with tribes and on the various policies related to environmental and cultural resource issues.