Federal PL

Federal Preservation Laws

A collection of statutes and regulations have been adopted at the federal level which address government activities and policies regarding historic and archeological resources.

The most important of these laws is the National Historic Preservation Act (NHPA), which, among other things, provides for the expansion and maintenance of the National Register of Historic Places, a comprehensive list of significant historic resources, and establishes a process, referred to as the Section 106 Review Process, that requires federal agencies to consider the effect of their actions on historic properties.

Other significant statutes governing federal agency actions affecting historic properties include the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act. NEPA requires federal agencies to undergo an environmental review process when a major federal action significantly affects the quality of the human environment, which includes historic resources. Section 4(f) provides that the Department of Transportation cannot use historic sites (interpreted to apply to both direct and indirect effects on historic sites), unless (1) there is "no prudent and feasible alternative to the project," and (2) the project includes "all possible planning to minimize harm."

National Historic Preservation Act

The National Historic Preservation Act (NHPA), 54 U.S.C. §§ 300101 to 307108 is the primary federal law governing the preservation of cultural and historic resources in the United States. 

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Section 106 of the National Historic Preservation Act

Section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, in its most basic form, requires that federal agencies take into account the effects of their undertakings on properties listed or eligible for listing on the National Register of Historic Places, and to provide the Advisory Council on Historic Preservation with a reasonable opportunity to comment on such undertakings.

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National Environmental Policy Act

The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4375, provides a significant opportunity to affect U.S. Government decision making that could harm the environment – including both natural and physical resources such as sacred, cultural and historic sites.

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Section 4(f) of the Department of Transportation Act

Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303 and 23 U.S.C. § 138, provides an important opportunity for the protection of historic resources from potentially adverse impacts of federal transportation projects.

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Finally, there are additional statutes and regulations that offer some level of protection for specific types of resources, such as the Archeological Resources Protection Act, the Historic Shipwrecks Act, and laws governing publicly-owned federal buildings, as well as specific types of activities, such as the Surface Mining Control and Reclamation Act.

Abandoned Shipwreck Act of 1987

This law was enacted to end confusion over the ownership of abandoned, historic shipwrecks found in state territorial waters. The act essentially modifies admiralty law, which allows title to abandoned shipwrecks to be conferred to finder or salvor of the wreck under the "law of finds" or "law of salvage," by placing title in abandoned shipwrecks in the states. To fall within the act, the abandoned shipwreck must be embedded in the submerged lands of the state, embedded in coralline formations on the submerged lands of the state, or listed in or determined eligible for listing in the National Register of Historic Places. A key issue in this area of law is whether the wreck is abandoned.

Americans with Disabilities Act

The ADA, enacted in 1990, is a comprehensive civil rights law that prohibits discrimination on the basis of disability by state and local governments and private businesses. It establishes certain accessibility requirements for existing facilities, but recognizes that alternative standards that can be used when compliance with the accessibility requirements would threaten or destroy the historic significance of a qualified historic facility. These alternatives are contained in the Americans with Disabilities Act Accessibility Guidelines, issued by the Access Board and with regulations issued by the Department of Justice.

Antiquities Act of 1906

This law establishes the country's National Monument program, authorizing the President to declare historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest on land owned or controlled by the Federal government as national monuments. The Antiquities Act also protects archaeological resources by 1) requiring that investigations and/or the removal of archaeological resources be conducted by qualified and trained experts; and 2) by prohibiting individuals from excavating, disturbing or removing artifacts for personal use or commerce. Penalties may be imposed for violations.

Archaeological Resources Protection Act of 1979

ARPA serves as the primary federal statute governing the regulation of archaeological resources. It protects archaeological resources on lands owned in fee title by the United States, including the National Park System, the National Wildlife Refuge System, the National Forest System, and other lands. It also provides specific protection against looting, vandalism and other harmful acts on public and Indian lands and on private land, provided there is a violation of a state or local law or regulations and the resource is placed in interstate or international commerce. Significant penalties and imprisonment for up to two years may be imposed. ARPA also establishes a permitting process for the removal or excavation of archaeological resources by qualified individuals and institutions. In addition, it addresses the excavation or removal of archeological resources on tribal lands.

Historic Sites Act of 1935

This law expands the federal role in historic preservation by establishing national policy for the preservation of historic sites, buildings and objects of national significance. It authorizes the Secretary of the Interior to designate sites of historic significance and to acquire such sites without special authorization language from Congress. It also establishes the Historic American Buildings Survey and Historic American Engineering Record and the National Historic Landmarks program. Penalties may be imposed for violation of rules and regulations.

Native American Graves Protection and Repatriation Act

This statute sets forth comprehensive requirements for the treatment of Native American human remains and cultural items. Most importantly, it provides for the repatriation, disposition and protection of Native American human remains and other cultural items. NAGPRA not only officially recognizes the property rights of Native Americans in certain cultural items, it also requires that such items be repatriated. Specifically, federal agencies and museums receiving federal funds must inventory their collections and disseminate that information broadly among geographically and culturally affiliated tribes and Native Hawaiian organizations, and then follow a process of consultation and repatriation.

NAGPRA also prohibits the intentional excavation and removal of Native American human remains and defined cultural property from federal or tribal lands without a permit issued under ARPA and without consultation with or permission from Indian Tribes and Native Hawaiian organizations when required. In situations involving inadvertent discovery of Native American human remains or defined cultural items on federal or tribal lands, activity must be halted to protect items and provide notice to the appropriate federal authority.

Public Buildings Cooperative Use Act

The PBCUA governs the construction, acquisition and management of space by the General Services Administration for use by federal agencies. To encourage federal agency use of historic buildings, the law directs the Administrator for GSA to "acquire and utilize space in suitable buildings of historic, architectural or cultural significance, unless use of the space would not prove feasible and prudent compared with available alternatives." This requirement extends to, but is not limited by, buildings listed on the National Register of Historic Places.

Surplus Buildings

The National Park Service and the General Services Administration administer a Historic Surplus Property Program that gives state, county and local governments to obtain surplus federal properties at no cost if the property is listed in, or eligible for listing in, the National Register of Historic Places. The disposition of surplus property is also governed by The Federal Property and Administrative Services Act of 1949, which authorizes the conveyance of historic property to state and local governments for use as historic monuments.

Surface Mining Coal and Reclamation Act

This act governs the regulation of surface mining activities in the United States. Among other things, the act provides protection for historic resources that would be adversely affected by mining operations. Also note that the Office of Surface Mining and Enforcement is required to comply with the National Historic Preservation Act.