Review and Compliance

The Four Steps to Consulting with Montana SHPO

ACHP's Introduction to Section 106

1. Initiating Section 106
2. Identifying Historic Properties
3. Assessing Effects
4. Achieving a Resolution

RELATED RESOURCES

Several federal laws, state laws, implementing regulations, executive orders, policies, and guidelines have been enacted to regulate and manage cultural resources. This document provides an overview of laws and regulations relevant to preservation of cultural and historic resources in Montana. 

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.

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 Environmental Policy Act of 1964

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.

Compliance with 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.

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 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.

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.

Eligibility Criteria for Irrigation Ditches and Associated Water Features
(Appendix I: Consulting with Montana SHPO, 2024)

Cultural Resource Database Attributes: Definitions for Eligibility, Effect Determinations, and Review Actions Used by the Montana SHPO
(Appendix J: Consulting with Montana SHPO, 2024)

It is possible for a federal agency to customize or expedite the Section 106 review process by entering into a Programmatic Agreement (PA) with the ACHP and SHPO. Use of these agreements may alter the standard Section 106 review and consultation process outlined in 36 CFR Part 800.

There are several types of PAs including:

1. PAs for general federal agency programs.
2. Project-specific PAs for complex, long-term undertakings.
3. Property-specific PAs for cultural resources with which a federal agency consistently interacts.

PAs are most useful for considering the effects of routine and repetitive undertakings in a broad temporal or spatial approach, or where administrative decisions which may affect historic properties will be made before all historic properties in an APE can be identified and evaluated, or before possible effects can be assessed.
 

Examples of current PAs include those with:

• Local communities regarding CDBG grants and rehabilitation programs.
• National Forests regarding trails and logging properties.
• Montana Department of Transportation (MDT) regarding historic irrigation ditches,
  roads, and bridges.
• Bureau of Reclamation (BOR) regarding cabin leases.

There are also more general Programmatic Agreements with the USDA Forest Service Northern Region (USFS) and with the Bureau of Land Management (BLM) that modify the standard Section 106 review process to more appropriately address organization and management needs. The ACHP regulations providing for such alternative programs are found at 36 CFR Part 800.14, and guidance on preparing such agreements can be found in the ACHP's Preparing Agreement Documents.

Under Construction

Administrative Rules of Montana 10.121.9
https://rules.mt.gov/gateway/Subchapterhome.asp?scn=10.121.9

Advisory Council on Historic Preservation
https://www.achp.gov/

Montana Archaeological Society
https://mtarchaeologicalsociety.org/

Montana Code Annotated Title 22-3-4
https://leg.mt.gov/bills/mca/title_0220/chapter_0030/part_0040/sections_index.html

National Association of Tribal Historic Preservation Officer
https://www.nathpo.org/

National Conference of State Historic Preservation Officers
https://ncshpo.org/

National Park Service, publications of the National Register of Historic Places
https://www.nps.gov/subjects/nationalregister/publications.htm

National Trust for Historic Preservation
https://savingplaces.org/

Preserve Montana
https://preservemontana.org/