State Historic Preservation Acts
Some states have adopted what are commonly referred to as "state 106" laws. Patterned after Section 106 of the National Historic Preservation Act, these laws help to ensure that the impact of government decision making on historic properties is fully considered. While state historic preservation protection laws do not necessarily mandate preservation, they provide a useful mechanism for requiring state agencies, in consultation with a state historic preservation officer, to address actions that may be harmful to historic resources, whether publicly or privately owned. Such acts may be avoided or at least mitigated through negotiation with a SHPO and interested parties such as a funding recipient, individuals or organizations.
Obviously, states with strong stewardship programs in place will try to encourage effective preservation protection laws. Good agency planning measures help to ensure that historic properties have been or will be identified and that historic preservation issues will be identified early on in the preservation process. The earlier consultation takes place, the more likely that a good set of solutions will be developed if conflict arises.
As with Section 106 of the National Historic Preservation Act, key considerations include the types of agency actions subject to review, the scope of properties protected, the level of protection afforded, and how the law is to be enforced. A good state law will trigger agency review for any undertakings affecting historic properties, whether direct or indirect. It will cover properties both listed and eligible for listing in a historic register, and will provide "substantive protection" for historic resources rather than simply requiring that agencies under go a consultation process to ensure that preservation-based solutions are considered. In all cases, agencies should be required to minimize harm to the resource, if avoidance is not possible. Finally, it is important to take enforcement into account. Without public input, such laws provide no more than an internal mechanism for resolving conflicting policies regarding the protection or management of historic resources.
The New Mexico Prehistoric and Historic Sites Preservation Act (N. Mex. Stat. §§ 18-8-1—19-8-8) is illustrative. This law, among other things, prohibits the use of state funds for any program or project that requires the use of any portion of or any land from a prehistoric or historic site listed in the State Register of Cultural Properties or the National Register of Historic Places, unless there is no feasible and prudent alternative to such use, and unless the program or project includes all possible planning to preserve and protect and to minimize harm to the significant prehistoric or historic site resulting from such use. The law directs state agencies to undergo "all possible planning to preserve and protect" and to "minimize harm" to historic resources.
18-8-7: Preservation of Significant Prehistoric or Historic Sites
No public funds of the state or any of its agencies or political subdivisions shall be spent on any program or project that requires the use of any portion of or any land from a significant prehistoric or historic site unless there is no feasible and prudent alternative to such use, and unless the program or project includes all possible planning to preserve and protect and to minimize harm to the significant prehistoric or historic site resulting from such use. The provisions of this section may be enforced by an action for injunction or other appropriate relief in a court of competent jurisdiction [jurisdiction].
The Kansas Historic Preservation Act (Kan. Stat. Ann. § 75-2724) protects against state and local agency actions affecting properties included in historic registers or located in the environs of such property. Specifically, the law declares that "the historical, architectural, archeological and cultural heritage of Kansas is an important asset of the state and that its preservation and maintenance should be among the highest priorities of government." To that end, it provides, among other things, that "[t]he state or any political subdivision of the state, or any instrumentality thereof, shall not undertake any project which will encroach upon, damage or destroy any historic property included in the National Register of Historic Places or the State Register of Historic Places or the environs of such property until the [SHPO] has been given notice, as provided herein, and an opportunity to investigate and comment upon the proposed project." The term "project" includes 1) activities directly undertaken by a state or local government; 2) activities funded, in whole or in part, by public grants, subsidies, loans, and other forms of financial assistance; and 3) activities involving the issuance of a lease, permit, license, certificate, or other entitlement.
Moreover, if the SHPO determines that the project will indeed encroach upon or damage or destroy any historic property, then the project may not proceed until:
(1) The governing body of [the] political subdivision . . . has made a determination, based on a consideration of all relevant factors, that there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to such property resulting from such use, and; (2) Five days' notice of such determination has been given, by certified mail, to the [SHPO].
Keep in mind that, although state preservation acts are generally patterned after the federal preservation laws, the standards may be interpreted differently unless carefully defined. For example, although the Kansas Act incorporates the same substantive standards for review set forth under Section 4(f) of the Department of Transportation Act (49 U.S.C. § 303), namely that that there is "no feasible and prudent alternative" to the proposal and that the program includes "all possible planning to minimize harm" to such property resulting from such use, the Kansas Supreme Court declined to interpret that language in a manner consistent with the federal act.
In Reiter v. City of Beloit, for example, the Kansas court expressly rejected the U.S. Supreme Court's interpretation of the "feasibility and prudent" standard under Section 4(f), as set forth in Citizens to Preserve Overton Park v. Volpe, which requires the presence of "truly unusual factors" justifying the use of parkland or historic sites, and that alternatives may not be rejected unless they present "unique problems" or "cost or community disruption" of "extraordinary magnitudes." Instead, the court ruled that the words should "be given their natural and ordinary meaning" and "[t]he decision of the governing body must be made on a case-by-case basis taking into consideration all of the relevant factors."