Forum Journal & Forum Focus

Historic Preservation Protection 

12-09-2015 17:35

Like a toothless, clawless tiger, like an organ grinder`s bear, like a knight without his armor, like Samson without his hair... "

Irving Berlin, Annie Get Your Gun, 1946

In these plaintive terms, Frank Butler sang of his helplessness to resist the charms of Annie Oakley in Irving Berlin`s classic musical. The same terms, in a different context, might be used by the pessimist to describe the current state of the protection afforded by federal preservation laws to the nation`s historic resources.

About a year after I joined the National Trust for Historic Preservation as General Counsel, Christopher Duerksen, editor of A Handbook on Preservation Law, and I were asked to cochair the Protection Study Group of the National Historic Preservation Forum. In this capacity I had the privilege of working with Chris Duerksen and about 20 of the most experienced and able preservation lawyers in the country. Over a period of almost a year, we took a hard look at the current state of legal protection for historic resources, primarily at the federal level. Although each of us brought different perspectives to bear in the study depending on our particular vantage points, there was a consensus that our legal tiger is urgently in need of additional teeth and claws.

My personal perspective on this comes from many years as a corporate real estate lawyer facing the formidable array of legal armament in the hands of government regulators in the environmental and consumer protection fields, and more recently as a state and federal prosecutor enforcing an even more potent array of criminal sanctions. By comparison with these, federal historic preservation enforcement is weak indeed.

Apart from Section 4(f) of the Department of Transportation Act (DOTA), which has been used successfully by preservation lawyers to challenge ill conceived highway projects Imost notably in Fort Worth and Atlanta in 1985 and in Mobile in 1988), federal law in essence requires only that federal agencies consult with the Advisory Council on Historic Preservation. And if the threat to historic resources comes from the private sector, as in the current development threats to Waterford and to Manassas Battlefield in northern Virginia, there is usually no federal protection that may be brought to bear.

Since the report of the steering committee of the National Historic Preservation Forum at the National Trust`s Annual Preservation Conference in October 1987, a legislative working group consisting of the steering committee organizations has met several times to plan legislative initiatives for introduction into the second session of the 100th Congress. In the area of proposed amendments to federal preservation laws, the working group has concentrated on two principal areas: protections to National Historic Landmarks (NHL) and improvements to the National Historic Preservation Act (NHPA).

With respect to National Historic Landmarks, the case of Waterford, Virginia is illustrative. The Village of Waterford is designated as a National Historic Landmark District. The landmark district includes approximately 300 acres of open agricultural lands surrounding Waterford and within the view shed of that historic village. Within the past two years a private home builder has purchased approximately 75 acres within the National Historic Landmark immediately to the east of the village of Waterford and has proposed the construction of a number of suburban-type houses within a few hundred yards of the village. There is nothing in the current array of federal protections for historic resources that gives the federal government any authority to prevent this intrusion into the landmark district short of condemning and purchasing the property in question. Such a purchase, of course, is not realistic in light of the current Administration`s policies with respect to the acquisition of historic resources. Although the National Park Service has expressed its disapproval of the proposed development in the strongest possible terms, including the possibility of the loss of the NHL designation for Waterford, current federal law is powerless to stop the proposed development. Accordingly, only the local land use regulations and zoning power can regulate the type of development which is to take place within Waterford. A fierce battle is being waged by the local preservationists with the Board of Supervisors of Loudoun County which has regulatory jurisdiction over the property in question. However, there are powerful interests in both the development and agricultural communities within Loudoun County who do not favor strong regulatory powers to protect Historic Waterford.

At this writing a specific legislative proposal is being drafted by the Forum`s legislative committee for the consideration of the Preservation Partners in late March. In his testimony before Congressman Bruce Vento (Subcommittee on National Parks and Public Lands, House Committee on Interior and Insular Affairs), National Trust President Jack Walter urged the Chairman to schedule hearings on meaningful federal amendments to the National Historic Preservation Act as soon as possible. Chairman Vento seemed responsive to this suggestion and every effort will be made to proceed with this legislative initiative during 1988.

The draft legislation would strengthen the NHPA to provide that the protection of NHLs will have a preeminent position in federal agency decision making. Specifically, federal agencies would be prohibited from approving the use of federal funds or issuing a license if the project will adversely affect an NHL unless the agency reaches an agreement with the Advisory Council on means of avoiding or mitigating harm. Provisions would also be added to give the Secretary of the Interior authority to order any person to cease any action that would adversely affect an NHL for a period of 180 days, during which alternatives to the action would be explored or, in extraordinary circumstances, to provide for federal protection of the NHL.

With respect to National Register properties, the NHPA would be amended to provide that the Section 106 consultation process with the SHPO and Advisory Council would include a requirement to reach a binding agreement on ways to avoid or mitigate the effects on historic resources. If the parties are not able to reach agreement, the agency would be able to proceed with the project only where there there is no prudent and feasible alternative and the agency has undertaken all possible planning to minimize the impact of the project (i.e., the DOTA 4(f) standard). Another provision would require that where National Register eligible properties are discovered during the course of the project, all work will be suspended until the agency has complied with Section 106. In addition, the amendments would provide that no project will receive federal approval or funds where the Advisory Council finds that any person has taken actions that adversely affect a National Register property, prior to seeking approval or funding, for the purpose of avoiding the protections of Section 106. Some may say that these proposals are too ambitious and not politically practical. That may be. But the same thing was said of the far reaching recommendations and challenges set out in With Heritage So Rich in 1966, many of which became law. The challenges before the preservation community are no less than they were in 1966. We must persuade Congress, as Winston Churchill did in 1941 to "give us the tools, and let us finish the job."

Publication Date: Spring 1988



Author(s):David A. Doheny