Preservation Laws and Regulations in Montana: An Overview
Several federal laws, state laws, implementing regulations, executive orders, policies, and guidelines have been enacted to regulate and manage cultural resources. This document appends the Montana SHPO Consultation Guide and provides an overview of laws and regulations relevant to preservation of cultural and historic resources in Montana. For a deeper understanding, please refer to the list of resources at the end of this document.
National Historic Preservation Act (NHPA) of 1966
- Section 106 of the NHPA
- Four Steps of the Section 106 Review Process
- Section 110 of the National Historic Preservation Act
- National Register of Historic Places
Montana Antiquities Act (MTAA)
National Environmental Policy Act of 1964 (NEPA)
Coordination between NHPA and NEPA
Archaeological Resources Protection Act (ARPA) of 1979
American Indian Religious Freedom Act (AIRFA) of 1979
Native American Graves Protection and Repatriation Act (NAGPRA) of 1990
Montana Human Skeletal Remains and Burial Site Protection Act of 1999
National Historic Preservation Act (NHPA) of 1966
In 1966, Congress enacted the National Historic Preservation Act (NHPA), which declared that the preservation of our Nation's irreplaceable heritage was in the public’s interest. The NHPA called upon federal agencies to expand and accelerate preservation activities in a spirit of stewardship and partnership with American Indian tribes, the public, state and local governments, and other interested parties. The NHPA also established several institutions: the Advisory Council on Historic Preservation (ACHP), State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Offices (THPOs), the National Register of Historic Places (National Register), and the Section 106 review process.
When congress passed the NHPA they recognized that many federal actions were contributing to the loss of historic places. NHPA requires that Federal agencies consider the effects of their undertakings on historic properties and mandate early consultation to try and avoid or mitigate all adverse effects.
Section 106 of the NHPA
Crucial to the preservation of the historical and cultural foundations of the nation, Section 106 of the NHPA and its implementing regulations, 36 C.F.R. Part 800 (PDF) (revised August 5, 2004) require Federal agencies to consider the effects of projects they carry out, approve, or fund on historic properties.
A Federal project that requires review under Section 106 is defined as an "undertaking." An undertaking means a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval.
If the Federal agency determines the undertaking has the potential to adversely affect historic properties, the agency must make a reasonable and good faith effort to consult with interested Federal and state agencies, American Indian Tribes, the public, as well as the State Historic Preservation Office and/or the associated Tribal Historic Preservation Office to identify possible historic properties located in the Area of Potential Effects (APE). This identification effort often includes a new survey or inventory to locate and identify previously unrecorded prehistoric or historic properties. All properties identified in the survey or inventory effort are then evaluated by the agency to determine whether they are eligible for listing in the National Register of Historic Places (NRHP) (PDF) by using the National Register of Historic Places Criteria for Evaluation. All eligibility findings are determined in consultation with the State Historic Preservation Office/Tribal Historic Preservation Office and any American Indian Tribe or interested party that attaches cultural or religious significance to the impacted properties.
If the agency determines that the undertaking will have an unavoidable adverse effect on one or more NRHP-eligible historic properties, the agency consults further with the required and appropriate parties to establish necessary mitigation strategies. The agency may then enter into a Memorandum of Agreement (MOA) with consulting parties to formalize the agreed-upon mitigation measures.
Four Steps of the Section 106 Review Process
The four-step process originates in the implementing regulations (24 CFR 800) of the NHPA. Section 106 is the process federal agencies take when considering the effects to historic properties caused by their actions.
It is federal agencies, rather than project proponents, that must comply with cultural resource laws and regulations, and that SHPO is but one consulting entity in the process. The Section 106 review process (often referred to as "compliance") can be understood as a set of four (4) sequential steps of identification, assessment, and evaluation carried out by agencies in consultation with the SHPO and others:
- Determine Undertaking
Includes: Identify all involved parties, initiate consultation process, define the undertaking and area of potential effect - Identify Historic Properties
Includes: Background research, search for cultural resources that may be impacted, evaluate cultural resources - Assess Adverse Effects
- Resolve Adverse Effects
Although 36 CFR Part 800 differentiates between the steps, steps may overlap in practical application. For example, some agencies combine the identification and effect assessment steps (Steps 2 & 3). This is often done by conducting cultural resource surveys (the physical search for and recording of cultural resources) and submitting an inventory report (a compilation of information resulting from field survey, records or archival research, oral interviews, and other information about cultural resources in the area of concern) to the SHPO along with the federal agency’s determinations about the significance of identified sites and possible impacts of the undertaking.
Each step must be completed for all historic properties before formally moving to the next step. (Programmatic Agreement may allow exceptions). For example, the SHPO is unable to concur with an effect finding (the overall or comprehensive effect of an action or decision) until the resolution of the Eligibility of all cultural resources and the impact on all eligible properties that are not avoided. Impacts to each historic property are considered in a comprehensive effect assessment, which takes into account the total effect of the undertaking on all historic properties in the subject area. As the regulations highlight at 36 CFR 800.3(g), these sequential steps are also intended to provide consulting parties and the public adequate time to review and comment at specified and known points in the Section 106 review process.
The National Historic Preservation Act section 106 requires federal agencies to follow the four steps in consideration of historic Properties. People therefore often call the process – “section 106.” Section 106 applies whenever there is federal agency involvement: It takes place on federal land, uses federal money (including grants), or requires federal permits.
Section 110 of the National Historic Preservation Act
Federal agencies are directed under Section 110 of the NHPA to identify, evaluate and utilize historic properties under their management and planning. Section 110 also requires that federal agencies consult with the SHPO, pursuant to their responsibilities under Section 106. Section 110 calls on all federal agencies to establish their own historic preservation programs to head this effort.
Added to the NHPA in 1992, Section 110 requires Federal agencies to emphasize the preservation and enhancement of cultural resources. Section 110 directs agencies to initiate measures necessary to direct their policies, plans, and programs in such a way that federally-owned sites, structures, and objects of historical architectural or archaeological significance are preserved, restored, and maintained for the inspiration and benefit of the public. The agencies are also encouraged to institute (in consultation with the ACHP) procedures to assure Federal plans and programs contribute to the preservation and enhancement of non-Federally owned sites, structures, and objects of historical, architectural, and archaeological significance.
National Register of Historic Places
The National Register of Historic Places (National Register) is the nation's official list of cultural resources deemed worthy of preservation. Authorized under the National Historic Preservation Act of 1966, the National Register includes districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, engineering, and culture. Although the National Register is a program of the National Park Service, it is administered at the state level by each respective state. In addition to the recognition that listing provides, registered properties are afforded a measure of protection from projects that are funded, licensed, or executed by the federal government. Criteria for eligibility to the National Register are listed in the evaluation section of Chapter 4. The National Register criteria are directly relevant to the Section 106 review process Properties listed on or eligible for the National Register are Historic Properties or Heritage Properties under NHPA and the MTAA. Some grants, tax credits, and funding opportunities will require a property be listed on the National Register to qualify.
Montana Antiquities Act (MTAA)
The Montana State Antiquities Act (Montana Code Annotated 22-3-421 through 22-3-442) requires state, federal, and other agencies to consider the effects of their actions on heritage properties and paleontological remains on state-owned lands. Each state agency is responsible for establishing rules and procedures regarding the preservation of historic resources under their jurisdiction. The SHPO assists agencies in preserving heritage properties and paleontological remains and encourages the avoidance, whenever feasible, of heritage properties or paleontological remains on state-owned lands. The Montana State Antiquities Act review process closely corresponds with the Section 106 review process, although there is no Advisory Council oversite.
The Montana SHPO has adapted the four-step process of the section 106 process to the Montana Antiquity Act. In Montana, the State Antiquities Act applies: “when a project occurs on state owned lands and may have the potential to effect state owned Heritage Properties.”
In 2011, the 62nd Legislature of Montana passed Senate Bill 3, amending Sections 22-3-422, 22-3-423, 22-3-424 of the Montana State Antiquities Act. The revised sections require state agencies and the Montana university system to submit a biennial report to the Preservation Review Board on their stewardship, as well as the status and maintenance needs of the agencies’ heritage properties.
National Environmental Policy Act of 1964 (NEPA)
The National Environmental Policy Act requires agencies to consider project impacts on all types of resources: cultural, natural, and economic. The impacts associated with various project alternatives are discussed in an environmental assessment (EA) or an environmental impact statement (EIS). These NEPA documents typically summarize the Section 106 NHPA process.
Coordination between NHPA and NEPA
Compliance with the National Environmental Policy Act (NEPA) does not guarantee compliance under Section 106 of the NHPA. While certain federal agency responsibilities are related in purpose under both laws, there are differences in scope and procedure. For example, many actions that qualify as Categorical Exclusions (CEs) under NEPA require further review under Section 106. Moreover, an adverse effect under the NHPA may not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA.
The goal of the Section 106 review process is for federal agencies to identify historic properties potentially affected by a proposed undertaking, assess the effects of the undertaking, and seek ways to avoid, minimize, or mitigate any adverse effects. The initiation of the Section 106 review process should occur early in project planning and in advance of a federal agency making binding decisions regarding the location, design, and siting of a project. By statute, the Section 106 requirements must be met prior to a federal agency approving the expenditure of funds on an undertaking (other than funds for non-destructive planning) or prior to issuance of a license, permit, or approval needed by the undertaking. Further, an agency must complete the NEPA and Section 106 review before signing a decision document. The NEPA review may conclude with a CE, a FONSI, or a ROD. Under the Council on Environmental Quality’s (CEQ) regulations, CEs, EAs, FONSIs, and EISs are not decision documents. Agencies should avoid issuing NEPA documents that present a final agency decision before they have completed the Section 106 review process, because the Section 106 process may result in a finding that requires the NEPA document to be revised or supplemented (NEPA and NHPA: A Handbook for Integrating NEPA and Section 106).
If a federal agency is unable to complete eligibility and effect determinations for the entire APE prior to the release of a FONSI or ROD, the ACHP regulations recognize a phased application of the Section 106 review process as an alternative option (36 CFR Part 800.4(b)(2) and 800.5(a)(3)). A project-specific PA detailing the agreed-upon measures for phased identification, evaluation, and effect findings must be completed prior to the signing and release of a decision document.
While NEPA and Section 106 of the NHPA are separate laws, federal agencies are encouraged to coordinate the processes. The ACHP’s regulations concerning NHPA-NEPA coordination, integration, and substitution requirements are found at 36 CFR Part 800.8 and 800.14. If a federal agency wishes to substitute the NEPA process for the purposes of Section 106, the federal agency must notify the ACHP and SHPO in advance and follow the standards set out in 36 CFR 800.8(c). Coordination of Section 106 and NEPA may also raise concerns regarding public disclosure or release of sensitive information. Please see the confidentiality subsection for more information on this critical concern. Further information is available in the NHPA and NEPA: A Handbook for Integrating NEPA and Section 106 published by the CEQ and the ACHP.
Antiquities Act of 1906
The Antiquities Act is the United States’ oldest law protecting historic, prehistoric, and scientific features on public lands. It gives the president the authority to create new National Monuments. It also prohibited the excavation or removal of antiquities from some federal lands; however, this portion of the law is largely superseded by ARPA. The legacy of the Antiquities Act is that it asserted the government’s interest and control over archaeological resources on federal lands.
Historic Sites Act of 1935
While the Historic Sites Act of 1935 has generally been superseded by later laws, it is politically and administratively important because it established the National Park Service as the government’s primary historic preservation expert. The National Park service publishes bulletins that are the industry standard with guidelines on identifying and evaluating all types of historic properties.
Executive Order 11593 of 1972
President Nixon issued Executive Order 11593, it directs agencies to treat any historic property that has been determined eligible for the National Register as if it were listed on the National Register.
Archaeological Resources Protection Act (ARPA) of 1979
The Archaeological Resources Protection Act prohibits unauthorized excavation, removal, or damage to archaeological resources on federal land that are at least 100 years old. This law has established penalties for damaging these resources including fines, confiscation or property, and prison terms. ARPA recognizes that archaeological resources are an irreplaceable part of the United States’ heritage and that damage to those resources is a crime.
American Indian Religious Freedom Act (AIRFA) of 1979
The American Indian Religious Freedom Act requires the federal government to consider impacts to the free exercise of traditional religion by American Indians. The religious practices, as well as the locations and objects used in those practices are covered by this legislation. While NHPA typically only applies to cultural resources that are less than 50 years old, AIRFA addresses impacts to modern and recent locations.
Native American Graves Protection and Repatriation Act (NAGPRA) of 1990
The Native American Graves and Repatriation Act protects Native American Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. NAGPRA requires federal agencies and museums to inventory human skeletal remains and offer to repatriate human remains and cultural items to culturally affiliated tribes.
Executive Order 13007 of 1996
President Clinton issued Executive Order 13007 to encourage agencies to avoid damage to sacred native American sites and to avoid limiting access to them by tribal practitioners. A sacred site need not be a historic property to merit consideration.
Montana Human Skeletal Remains and Burial Site Protection Act of 1999
This is a state law that protects graves on non-federal lands. When human remains are found on private or state-owned land the county coroner should be immediately notified, followed by the State Burial Board.
NEPA/NHPA Integration
The National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) are two separate Federal regulations. Montana’s State Historic Preservation Office (SHPO) serves a specific role in the NHPA process but does not have a corresponding role in NEPA. Our office does not routinely review NEPA documents. However, we will occasionally review or comment on NEPA documents when concerns are brought to our attention. Questions regarding a specific project or the integration of NEPA and NHPA can be directed individually to Montana SHPO staff.
TIMING - The work required under Section 106 of the NHPA must be completed before the NEPA document is signed and finalized. This remains true regardless of the type of NEPA document involved (CE, EA/FONSI, EIS/ROD).
CATEGORICAL EXCLUSIONS (CEs) - Activities that are Categorically Excluded under NEPA still need to be reviewed for compliance under NHPA. Categorically Excluded activities may have the potential to cause effects to Historic Properties (36 CFR 800.8 (b)).
PHASING - Federal Agencies have the option to phase projects. However, agencies can only defer the identification and assessment of historic properties if they have an agreement document, such as a Programmatic Agreement (PA), in place with our office. In circumstances where it is not feasible to complete the Section 106 work prior to the finalization of the NEPA document we urge agencies to consider phasing PAs.
In project-specific phasing PAs, our office expects the agency to outline how the Area of Potential Effect is defined, what identification methodology will be used, and the timeline for consultation and completion. Site evaluations and assessment of effects should occur before implementation when phasing projects. See 36 CFR 800.4 (b)(2) and 36 CFR 800.14(b).
SUBSTITUTION - Agencies may choose to use the NEPA substitution approach, which is when agencies use the process and documentation required for the preparation of an EA/FONSI or an EIS/ROD to comply with Section 106 of the NHPA. If using the substitution approach, you must formally reach out to our office and the ACHP prior to NEPA public scoping, and follow the specific steps outlined in 36CFR 800.8 (c).
MORE INFORMATION -
NEPA and NHPA: A Handbook for Integrating NEPA and Section 106. Published jointly by the Council on Environmental Quality and the Advisory Council on Historic Preservation in March 2012
https://www.achp.gov/digital-library-section-106-landing/nepa-and-nhpa-handbook-integrating-nepa-and-section-106
36 CFR 800
https://www.achp.gov/sites/default/files/regulations/2017-02/regs-rev04.pdf
Advisory Council on Historic Preservation guidance on Agreement Documents, like PAs
https://www.achp.gov/initiatives/guidance-agreement-documen
Tags: ARCHAEOLOGY and COMPLIANCE
