Under the Federal regulations governing compliance with Section 106 of the National Historic Preservation Act (36 CFR 800), Federal agencies and others negotiate, draft, finalize, execute, and implement "Memoranda of Agreement" (MOA) stipulating how the adverse effects of Federal actions on historic properties will be resolved.
Over years of practice, many kinds of stipulations for such MOAs have become more or less standardized. These standard "model stips" can be helpful in developing MOAs, though it is important not to use them slavishly; they should be adapted as needed.
As a service to practitioners, and with the permission of the author and AltaMira Press, most of the text below is excerpted from Chapter 15 from Federal Projects and Historic Places: the Section 106 Process (Thomas F. King, AltaMira Press, 2000, ISBN 0-7425-0259-7 [paper]/0-7425-0258-9 [cloth]), which presents standard model stipulations for Section 106 MOAs. Model formats for MOAs are also provided, which are not in Federal Projects and Historic Places, and additional language has been provided dealing with standard restrictions for historic property transfers, based on guidance from the Advisory Council on Historic Preservation. Users can follow the hyperlinks below to specific types of stipulations, cut and paste them into documents, and adapt them as needed. It is recommended that users browse through the models, however, since a model that exemplifies how one thing can be done is often applicable to doing something else, and many examples address multiple possibilities.
• Administrative Stipulations, General
• Bonds, surety
• Cost containment
• Information management
• Monitoring compliance
• Objections, resolving
• Public participation
• Qualifications, personnel
• Programmatic Stipulations
• Building rehabilitation program
• Categorical exemptions
• Title Restrictions
• Documentation, architectural
• Salvage, architectural
• Interim protection
• Limiting construction impacts
• Preservation plans
• Property type treatment
• Construction plans
• Landscaping plan
• Data recovery, archeological
• Monitoring impacts
• Rehabilitation plan
• Archeological collections: disposition
• Native American spiritual places, programmatic treatment
• Management of human remains, Native American cultural items
• Monitoring and correction over life of project
• Stipulations Providing for Impact Minimization
• Stipulations Providing for Impact Avoidance
• Stipulations Providing for Impact Compensation
• Stipulations Providing for Impact Rectification
• Stipulations Providing for Impact Reduction or Elimination Over Time
© AltaMira Press, A Division of Rowman & Littlefield Publishers, Inc. This material may be downloaded or otherwise reproduced for personal use only. For permission to reproduce for other purposes contact the publisher at 301.459.3366 x 5420. For book orders contact 800.462.6420, 717.794.3800, firstname.lastname@example.org; for inquiries, email@example.com. www.altamirapress.com
Over the years, the Advisory Council on Historic Preservation (ACHP) has produced three compendia of "standard stipulations" for use in Section 106 Memoranda of Agreement (MOAs) and other agreements. First there was "MOMM," for "Manual of Mitigation Measures," which thankfully got buried in the mid-1980s. Then there was "PAD," for "Preparing Agreement Documents" (there was a proposal to call it "Developing Agreement Documents," but it didn't fly), published in 1988 (ACHP 1988). In the mid-1990s an updated compendium was developed, blessed by the ACHP's legal staff, and put into classroom use though it was never published (ACHP 1995). It's been available for some years from the General Services Administration's (GSA) "NEPA Call-In" world wide web site.
The idea behind all these documents has been to allow people to avoid reinventing the wheel. Want to stipulate that a building will be rehabilitated? A zillion other people have stipulated something similar, and their experience has formed the basis for a standard rehab stip that you can copy from PAD or the NEPA Call-In compendium. Same with archeological data recovery, imposition of title restrictions, moving historic buildings, and so forth. You're not to use the standard stips slavishly; modify them as you need them. But they're there for your use.
For this book, I've organized most of the standard stips (and a few more I've learned of or made up) with reference to the definition of "mitigation" found in the Council on Environmental Quality's National Environmental Policy Act (NEPA) regulations. After all, what an MOA stipulates is how impacts will be mitigated. I've also made them complete – filled in the blanks where an agency name, a project name, or an action needs to be specified. I've generally tried to make the actions and properties sufficiently unique that no one will be tempted to drop one of these stips wholesale into a "real" MOA. Take them as models, not as language to be used outright.
Note that wherever "Stipulation XX" appears, it refers to an objection resolution stipulation that's presented toward the end of the chapter.
The word "mitigation" is defined at 40 CFR 1508.20 of the NEPA regulations. It begins with impact avoidance, that is:
Impact avoidance can be stipulated simply and directly, in the negative (actions that won't be taken) or in the positive (actions to be taken that in fact result in avoiding the impact).
The Forest will delete from the sale the East Rockymount Unit, as described in the above referenced Environmental Assessment.
The Bureau shall ensure that construction of the Hartzog Building is carried out in accordance with the concept design entitled Concept Design for the Hartzog Building, dated January 12, 2000, and attached hereto as Appendix F.
Or, depending on the nature of the project, the property, and the effects, a somewhat more complicated approach may be appropriate:
The Bureau shall ensure that the new East Wing of the Bigbrick Building is compatible with the historic and architectural qualities of the Bigbrick Building and the surrounding Littleold Historic District in terms of scale, massing, color, and materials, and is responsive to the recommended approaches to new construction set forth in the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings (U.S. Department of the Interior, National Park Service, 1992), and that the design and specifications for the project are developed in consultation with the Littleold District Architectural Review Board (Board) and submitted to the Board for review and approval at the 35% and 75% design stages in accordance with the Board's operating procedures.
Sometimes an existing plan can be followed to avoid impact. Such a plan can be included by reference:
The agency shall implement the preservation plan entitled "Preserving the Peckinpagh Petroglyph Site" and dated December 7, 2003, attached as Appendix C-2, in order to ensure to the best of the agency's ability that the Peckinpagh Site is preserved in place.
The Bureau shall ensure that Penultimate Park is landscaped in accordance with the landscaping plan entitled "Penultimate Park Landscaping Plan," dated October 7, 2004, and attached hereto as Appendix 1.
Or the MOA can provide for subsequent development of a plan:
The agency shall ensure that a plan to preserve the Peckinpagh Site in place is developed in consultation with the Corrock Tribe and submitted to the Corrock Tribal Council and Tribal Historic Preservation Officer (THPO) for review. Unless the Tribal Council or THPO objects within 30 days after receipt of plan, the agency shall ensure that the plan is implemented. The plan shall take into account the Recommended Procedures for Rock Art Preservation issued by the Washafornia SHPO and dated February 2, 1999, and the procedures imployed in similar rock art preservation projects in Eastern Morocco, Spain, and South Australia.
The Bureau shall ensure that the grounds of the Murtagh Mansion are landscaped in accordance with a landscaping plan developed in consultation with the Greater Greengrove Gardening Group and in accordance with the Washafornia SHPO's "Guidelines for the Preservation of Historic Gardens and Grounds" dated February 8, 1995.
Three common pitfalls to avoid here. First, if it looks like an effect can be easily avoided, everybody sometimes just assumes that it will, and they go on to wrestle with the effects whose avoidance doesn't look so simple. Fair enough, but don't forget to stipulate that the easy avoidance measures really will be taken. If it's not stipulated, there's no guarantee it will happen.
Second, don't just stipulate that "Impact X will be avoided." Stipulate how it will be avoided.
And third, don't mix up avoiding the impact with avoiding the property. Sometimes they're the same, but not always, and not necessarily. Don't jump to the conclusion that "avoidance" is always the best option.
The next kind of action embraced by the CEQ definition of "mitigation" is:
Avoiding and minimizing impacts often flow rather seamlessly together, and of course it doesn't matter what you call it as long as it works.
Zotrans will ensure that segment 54-L of the Project is constructed along Alignment G as set forth in the construction drawings dated November 2, 2008, and that:
(a) a chain-link fence at least eight (8) feet high is erected between the construction alignment and the Harrison Chevy House;
(b) anti-vehicle mines are implanted every five (5) feet along the length of the fence, over a corridor ten (10) feet wide extending from the fence toward the House; and
(c) construction workers are clearly informed that all construction is to to be limited to the area east of the fence.
The Forest will ensure that neither logging itself nor any other project actions that create noise, dust, or the discharge of pollutants occur during the months of April and May, in order to minimize conflict with traditional Washama spring world cleaning activities.
FERC will require that single pole construction is employed, using non-reflective conductors, in order to minimize visual impacts on the Tatooine Rural Historic District.
Temporary measures are often stipulated, limiting impacts by keeping a property from falling down or getting mucked up before a permanent treatment (rehabilitation, documentation and demolition, etc.) is implemented:
The agency shall ensure that the Bigbrick House, Mudmidden Site, and Fallendown Historic District are immediately secured and protected against damage until the measures agreed upon in Stipulations II.B, II.C, and III.C are implemented. To achieve such security and protection, the agency shall:
(1) Secure and maintain the Bigbrick House in accordance with the procedures recommended in Preservation Brief #31, Mothballing Historic Buildings (Department of the Interior, National Park Service, 1993);
(2) Cover the Mudmidden Site with no less than two (2) feet and no more than three (3) feet of clean fill, easily distinguishable from the midden itself and deposited with rubber-tired front-end loaders, erect an 8-foot chain link fence around the site with warning signs forbidding trespass, and inspect the site at least daily for damage; and
(3) Implement the security plan attached as Appendix X and entitled Security Plan for the Fallendown Historic District, dated 10/20/03.
Or in a Programmatic Agreement:
The agency shall ensure that historic properties scheduled for treatment in accordance with Stipulations III and IV are secured and protected against damage until the applicable treatmentmeasures are implemented. To achieve such security and protection, the agency, in consultation with the SHPO, the Tribe, and the Lower Mountaintop Historical Society, shall select and apply to each such property one or more of the security measures listed in Appendix X, Optional Security and Protection Measures for Historic Properties Potentially Affected by the SkyHigh Program, dated 3/26/02, or a variant on any such measure, subject to Stipulation XX.
Accepting the fact that impacts will occur, but controlling them through monitoring and oversight, is an example of impact minimization. For example, even after an archeological site has been excavated, some portions of the site almost always remain to be destroyed by construction. Everyone may be prepared to accept this destruction, but some degree of control may be appropriate to guard against unexpected significant losses, or to ensure that Native American cultural items are dealt with respectfully in accordance with NAGPRA:
After completion of the fieldwork component of the data recovery program provided for in Stipulation II, the Bureau will ensure that site 55Chi276 is mechanically graded to ensure recordation and recovery of all housepits, storage pits, burials, and trash deposits.
The Bureau will ensure that the grading is monitored by personnel under the supervision of an archeologist or archeologists meeting the Secretary of the Interior's Professional Qualifications Standards for Archeology (48 FR 44738), together with representatives of the Yellowthunder Tribe designated as such by the Tribal Council.
The Bureau will ensure that following procedures are adhered to:
The site will be graded using a rubber-tired belly loader, removing no more than approximately 10 cm. at each pass.
Archeological monitors and at least one tribal representative will be on hand during all grading, and will be authorized to halt grading in a specific location, or to redirect grading to other locations, while recovering materials and data.
If and when cultural features are encountered, their locations will be recorded in three-dimensional space, and each feature will be recorded using photography, paper records, audio tape, videotape, and/or electronic data entry.
Each cultural feature will be rapidly cleared, recorded, and removed to the extent deemed appropriate by the supervising archeologist in consultation with the tribal representative, subject to the following limitations:
1. No more than one hour will be expended on the clearing and recordation of any given feature without the express permission of the project manager;
2. No more than a total of 100 features will be recorded without the express permission of the project manager; and
3. No more than a total of 1,000 objects other than known or suspected Native American cultural items will be collected for curation without the express permission of the project manager; there is no limitation on the number of Native American cultural items that can be collected for repatriation to the Yellowthunder Tribe.
The results of the monitoring program will be included in the report of the data recovery program specified at Stipulation III.
A third kind of mitigation is:
Often a project that could do damage to a historic property through ill-considered renovation can be transformed into a positive preservation project by ensuring that appropriate rehabilitation standards are adhered to. This can be stipulated in several ways.
The agency shall ensure that the rehabilitation of the Marvellous Mansion is carried out in accordance with the "Marvellous Mansion Concept Plan" dated March 15, 2001, and attached hereto as Attachment 5.
If a plan hasn't been developed, but adherence to existing standards (including but not limited to those of the Secretary of the Interior) will suffice to assure good rehabilitation:
The Bureau shall ensure that the design of the ZipZap Powerhouse Conversion Project (project) is compatible with the historic and architectural qualities of the ZipZap Powerhouse and the Sunkenfalls Historic District, and is consistent with the recommended approaches to new additions set forth in the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings (U.S. Department of the Interior, National Park Service, 1992.
In this kind of case, you always should provide for somebody knowledgeable to review the plans and specifications as they are developed:
The Bureau will ensure and that the design and specifications for the project are developed in consultation with the Gurgling Brook Chapter of the American Institute of Architects (AIA) and submitted to the SHPO at the 35%, 75%, and 95% design stages for review and comment, subject to Stipulation XX.
"Mitigation" can also mean:
The most obvious kind of "preservation and maintenance operation" that may be spelled out in a Section 106 MOA is just that: the physical preservation and maintenance of a historic property. Such preservation and maintenance is a Federal agency responsibility under Section 110(a)(1) of NHPA where Federally owned historic properties are involved. Since the ongoing management of real property by Federal agencies is an undertaking that requires review under Section 106, preservation and maintenance are often addressed in Section 106 agreements as well. And of course, other parties can also preserve and maintain things. Although sometimes difficult actually to do, preservation and maintenance are pretty easy to stipulate. For historic properties of the architectural persuasion, there is even a set of standards and guidelines to which one can refer:
The Department will preserve and maintain Buildings 234, 342, and 453 in accordance with the Secretary of the Interior's Standards for Preservation (36 CFR 68).
ZoTrans will preserve the Magnificent Midden as landscaped open space within the median of Interstate Highway 106, in accordance with the "Preservation Plan for the Magnificent Midden" (Zoomalong Transportation Consultants, Inc., May 15 2004), attached hereto as Appendix E.
Note that in these cases, and in the CEQ regulatory language, "preservation" is given its commonsense meaning of actually preserving something physically. The Secretary's Standards for Treatment of Historic Properties (36 CFR 68; NPS 1992) use the word in the same way. The National Historic Preservation Act, however, interprets the word much more broadly (c.f. 16 U.S.C. 470w; King 1998:182).
Sometimes a historic property that's no longer needed by a Federal agency can be preserved and maintained by someone else, if we transfer it into the possession of such a party. There are standard stipulations for marketing:
A. The Bureau, in consultation with City Architectural Conservator (Conservator), shall ensure that a plan is prepared for marketing the Theophilus Sharp House (House). The Bureau shall ensure that the marketing plan includes the following elements:
1. An information package about the House, including but not limited to:
a. Photographs of the House and its grounds;
b. A parcel map;
c. Information on the House's historic significance;
d. Information on the House's cost;
e. Information on tax benefits for rehabilitation of historic properties;
f. Notification that the purchaser shall be required to rehabilitate the House and its grounds in accordance with the recommended approaches in the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Properties (U.S. Department of the Interior, National Park Service, 1992), and preserve it in accordance with the Secretary of the Interior's Standards for Preservation (36 CFR 68); and
g. Notification that the deed restriction stipulated in Stipulation VI.6 will be included in the documents transferring the property to the purchaser.
2. A distribution list of potential purchasers or transferees.
3. An advertising plan and schedule.
4. A schedule for receiving and reviewing offers.
B. Upon the Conservator's agreement with the marketing plan or after resolution of any disagreement in accordance with Stipulation XX, the Bureay shall shall implement the marketing plan.
C. In consultation with the Conservator, and subject to subparagraph D below, the Bureau shall review each offer it receives in response to the marketing plan and select one that meets the following requirements:
1. The offer provides for rehabilitation and maintenance of the House as stipulated in the marketing package;
2. The offerer has the financial and technical ability to carry out the terms of the offer; and;
3. The offerer agrees to accept transfer of the House with the deed restriction stipulated in Stipulation VI.6.
D. If the Bureau receives no offer that it determines conforms to the requirements of subparagraph C above, the Bureau in consultation with the Conservator may modify the requirements and re-offer the House, or may demolish the property. Should the Conservator not agree with the Bureau's decision regarding the property, the parties shall seek to resolve the disagreement pursuant to Stipulation XX.
This set of stipulations establishes a system by which the property is first marketed with protective title restrictions. If it doesn't sell with the restrictions, the restrictions can be selectively removed or entirely removed, or the agency may give up and demolish the property, subject to dispute resolition.
Note that the model language above is designed for marketing a building or structure. If another kind of property (e.g., a site, a landscape) is to be marketed, adjustments will be necessary, for example, to paragraph 1.f. If the property is to be moved to another location, this will also have to be mentioned in the stipulation, and a stipulation like the following included as well.
Though it's not regarded as an optimal solution, where the best way to preserve the property is to move it elsewhere, this can be stipulated in an MOA:
A. The Department shall ensure that the Bigbrown Bank Building is moved in accordance with the approaches recommended in Moving Historic Buildings (John Obed Curtis, 1979, American Association for State and Local History), in consultation with Penny Lane Historic Preservation Review Board staff (Board), by a professional mover who has the capability to move historic structures properly.
B. The Department shall ensure the new site for the Building is appropriate to the character of Building, that the Building is visually and otherwise compatible with the surroundings of its new site, and either that relocation to the site does not adversely affect any archeological or other historic property occupying the proposed new site or that this agreement is amended to provide for data recovery or other appropriate mitigation of impact on such property. The Department shall ensure that the new site is selected in consultation with the Board, and shall take the Board's comments on the new site into account in reaching a final decision about use of such site.
C. Before the Building is moved, the Department shall ensure that it is documented in its existing setting and context in accordance with the documentation plan entitled "Documenting the Bigbrown Bank Building" (Richman & Babee, September 1999), attached hereto as Attachment XIV.
D. The Department shall ensure that the Building is properly secured and protected as specified in Stipulation V during the period it is unoccupied on its existing and new sites.
E. Before the Building is relocated, the Department shall execute a contract with the recipient of the Building, requiring that after the Building is relocated, the recipient will accept title to the Building subject to the covenant referenced in Stipulation VI.
F. Within 90 days after the Building is moved, the Department and SHPO will re-evaluate its eligibility for inclusion in the National Register in accordance with the applicable provisions of 36 CFR 60 and applicable National Park Service guidelines.
Note that if it turns out that the Building isn't eligible any more, this doesn't mean that the agreement has failed or that it has to be re-done. There's nothing sacred about National Register eligibility, and if everyone wants to agree on something that will render the property ineligible, that's OK.
So you're transferring a historic property out of Federal ownership, into a world in which it will no longer enjoy the dubious protections of Federal law. What do you do to make sure it doesn't instantly fall victim to the vicissitudes of modernity?
One thing that's sometimes done is to nominate the property for inclusion in the National Register, on the theory that this will give it a sort of cachet that will tend to discourage its destruction. In some cases local law gives particular protection to listed properties. Of course, you should make sure that the local statute doesn't give the property more protection than is really appropriate. Local governments have the "police power" to regulate the use of property pretty seriously, and some local ordinances, designed with locally designated "landmarks" in mind, are pretty draconian.
In some cases, the local laws are such that the property is likely to be perfectly well preserved without doing anything special in the MOA. In such a case, the MOA can simply stipulate transfer subject to the application of local law.
In most cases, though, the consulting parties agree to stipulate the imposition of title restrictions, using language along the following lines:
The Agency shall ensure that the title restriction entitled "Historic Preservation Covenant: T-Rex Butchering Site" and attached hereto as Appendix Three is included in the transfer instrument from the Agency to the selected recipient and recorded in the real estate records of Pterodactyl County, State of Jurasaia for the sale of the Site. The Pterodactyl County Archeological Society and its successors and assigns shall be identified as the covenantee.
This deceptively simple stipulation obligates the responsible agency to encumber title to a property it is transferring to another party with restrictions designed to protect its historic, architectural, engineering, or cultural significance. There's no magic to the word used to describe the encumbrance: it can be a covenant, a deed restriction, an easement – whatever's appropriate under the applicable state law, and whatever the consulting parties agree on.
Whatever they're called, protective title restrictions are notoriously difficult to enforce. It's really important to design them with the assistance of an attorney knowledgeable in the real estate laws of the jurisdiction within which the transfer is to take place. The provisions of such laws vary widely from place to place.
In the example, a local society is identified as the "covenantee," which in the case of a covenant means the entity that "holds" and enforces the covenant. Such an entity is called different things under different kinds of law. There's an impression in some states that the SHPO must be the covenantee – something most SHPOs are very reluctant to be. Or it may be assumed that the transferring agency must hold the covenant – something most agencies want to avoid like the plague. Actually, anybody can be the covenantee or its equivalent, provided they're willing to assume the function and able to enforce the restriction.
How long does the restriction remain in place? It depends. If you want to use a restriction as the basis for determining "no adverse effect," it ought to be in perpetuity, but perpetuity is a long, long time, and it's hard to guarantee enforcement. If you're not trying to play no adverse effect, but acknowledging an adverse effect and stipulating reasonable mitigation measures, you can provide for shorter term protection. And of course, you can provide for the restriction to be revisited from time to time to see how it's holding up.
What does a restriction look like? There are many flavors, and the only thing you can be sure of is that it's going to be long, complicated, and legalistic. Model restriction language provided at this site must be adjusted to be consistent with the real estate laws of the State in which the property will be transferred.
Where archeological excavations are stipulated, they produce collections of material and documents that must be preserved and maintained. This is called "curation," and standards for "curating" Federally owned collections are set forth at 36 CFR 78.
Curation stipulations can be complicated, and there's lots of potential for making mistakes. Where collections from Federal lands are involved, one kind of curation is appropriate, but the same kind is often not appropriate with regard to things from non-federal lands. NAGPRA applies to some collections but not to others, and it applies in different ways. As a result, there are several "standard" stipulations providing for different ways of disposing of archeological collections. Some of these "preserve and maintain" collections more surely than do others.
Here's a stipulation for application to a federally owned collection, or to a nonfederally owned collection whose owner doesn't want to keep the stuff. It's also good only if neither NAGPRA nor a state or tribal reburial/repatriation law applies
The Administration will ensure that all materials and records resulting from data recovery at archeological sites associated with the Redwood Red Light District are curated by the Washafornia State Museum in accordance with 36 CFR Part 79.
Note that you can specify curation by the State Museum only if the Museum concurs in the MOA or agrees elsewhere in writing to take care of the stuff. If the Museum doesn't sign something binding it to take the material, then say something like "a facility meeting the standards of 36 CFR Part 79" and make sure someone finds such a facility and gets it on board.
This is the simplest kind of curation provision, but it may also become the rarest, because it can be used only where two sets of factors apply. First, the collection must be Federal (and therefore must be curated in accordance with 36 CFR 79), or if it's non-federal, the owner must have voluntarily surrendered the collection to be curated under Federal law. Second, the collection must not contain Native American cultural items subject to repatriation under NAGPRA. Many historical archeological collections can be provided for using this kind of language, however.
What about non-federal collections? Here, you want to be sure that at least the records of the collection are maintained in accordance with 36 CFR 79. If you can prevail upon the private owner to donate the artifacts too, more power to you, but there's nothing in Federal law that would force her to do so (There might be something in State or local law, and certainly in tribal law where it applies). Be aware, however, that once the collection is donated to an institution, if that institution has received Federal financial support, the collection will be subject to the repatriation of Native American cultural items under NAGPRA.
Here's a standard stipulation for curation of a collection whose owner requires that it be returned:
The Authority shall ensure that all records resulting from excavation of the Prettypenny Site are curated by an institution meeting the standards set forth in 36 CFR 79, in accordance with 36 CFR Part 79, and that all artifacts and other material resulting from the same excavation are maintained in accordance with 36 CFR 79 until the analysis specified in the data recovery plan referenced in stipulation V.B is complete, or 90 days after their recovery, whichever is sooner, whereupon they shall be returned to Penelope Prettypenny or her heirs or assigns.
A similar stipulation can be used where NAGPRA or a State repatriation or reburial law applies:
The Bureau shall ensure that all records resulting from excavation of the Chafolaya Cemetery are curated by an institution meeting the standards set forth in 36 CFR 79, in accordance with 36 CFR Part 79, and that all artifacts, human remains, and other material resulting from the excavation are curated in like manner by the same institution, provided that Native American cultural items shall be repatriated in accordance with the plan of action developed by the Bureau pursuant to 43 CFR 10.5(e).
Or where the collection from a commercial shipwreck salvage job is to be divided between the State and the salvor:
The Corps shall ensure that all records resulting from excavating the wreck of H.M.S. Gingerbread are curated by an institution meeting the standards set forth in 36 CFR 79, in accordance with 36 CFR Part 79, and that all material objects recovered from the excavation are curated in like manner by the same institution until they are divided between the state and the salvor in accordance with the contract executed between the State of Florexis and Deepdive Salvage, Ltd. dated December 7, 2004, whereupon the State's share of the collection shall continue to be so curated.
If a 36 CFR 79-qualified institution hasn't been selected at the time the MOA is executed, or if none has yet agreed to take the collection, you should provide for finding an institution, using language along the following lines:
The Bureau shall consult further with THPO regarding selection of a facility before making a final selection of such facility, subject to Stipulation XX.
The "Stipulation XX" referred to is discussed under administrative stipulations below; it's designed to resolve disputes over how the MOA is to be interpreted.
It may seem a far cry from preservation and maintenance, but to a descendant community getting back the remains and works of their ancestors may preserve them as living parts of their communities. To such a community, reburying ancestors who have been disinterred may maintain traditions of respect for the dead and their passage into spirit worlds. In any event, it's often necessary and appropriate to include provisions in Section 106 MOAs for the disposition of human remains and associated artifacts. Where Native American cultural items are involved, as defined under NAGPRA, whatever we say in a Section 106 agreement has to be consistent with what the responsible agency does under the NAGPRA regulations (43 CFR 10).
First, let's consider a situation where NAGPRA doesn't apply. Let's say we're providing for data recovery at an African-American cemetery. Let's also assume that there's no specific descendant community involved – no neighborhood group, or parish, or congregation. Here's how we might deal with the ancestral remains:
The agency shall ensure that any human remains and associated funerary objects excavated during the data recovery specified in Stipulation 9A are respectfully reburied within 90 days after completion of the analysis specified in the the data recovery plan prepared pursuant to Stipulation 9A, in a location where their subsequent disturbance is unlikely and in a manner as similar as possible to the manner in which they were originally interred.
Now let's assume there's a particular group involved. If an agreement has been reached with the group about what to do, then of course that agreement should be included by reference.
The Agency shall ensure that any human remains and associated funerary objects excavated during the data recovery specified in Stipulation 9A are treated in accordance with the "Agreement on Reburial" between the Agency and the Second African Baptist Church Congregation of New Troy, dated August 20, 2003, and appended hereto as Appendix I.
If you don't have an explicit, written agreement you're going to have to guess about what ought to be done, based on what you think the group may want and, of course, what's legally, financially, and organizationally feasible for the agency to do, and provide for ongoing consultation with the group.
The Agency shall ensure that any human remains and associated funerary objects excavated during the data recovery specified in Stipulation 9A are respectfully reburied within 90 days after completion of the analysis specified in the the data recovery plan prepared pursuant to Stipulation 9A. The agency will consult with the Second African Baptist Congregation (Congregation) to establish an appropriate means of reburial that is sensitive to the Congregation's values and respectful of the deceased.
Now let's suppose the agency is not going to rebury the remains itself, but repatriate them to the descendant community for them to rebury or otherwise dispose of. Again let's assume that NAGPRA doesn't apply.
Within 90 days after completion of the analysis specified in the the data recovery plan prepared pursuant to Stipulation 9A, the Agency shall repatriate all human remains and associated funerary objects excavated during the data recovery specified in Stipulation 9A to the Second African Baptist Congregation (Congregation).
Provisions like those above can be used where the recovery of human remains and grave goods is expected only on land that is not under the jurisdiction or control of a Federal agency or Indian tribe, or where the remains expected are certain not to be of Native American origin. They've also got to be carefully reviewed for consistency with ARPA if the remains come from Federal land, since ARPA requires permanent curation of "archeological resources" from Federal land. Provisions like these are not appropriate for use where Native American remains (whether human remains or artifacts) are anticipated on lands under Federal or tribal jurisdiction or control, because they are not they're not consistent with the specific requirements of NAGPRA and its regulation, and don't address the full range of Native American cultural items as defined by NAGPRA.
So now let's turn to NAGPRA. How do we provide for NAGPRA compliance in a Section 106 agreement? And how do we ensure no conflict between NAGPRA implementation and the curation of collections under 36 CFR 78?
Very, very carefully. Remember that NAGPRA and Section 106 are totally separate statutes, and neither the ACHP nor SHPO have any role in NAGPRA implementation. You don't want your 106 consulting parties to call the shots in NAGPRA implementation. However, the provisions of NAGPRA and Section 106 overlap significantly, particularly with regard to archeological excavations and discovery situations (NAGPRA Sections 3(c) and 3(d)), so it's important compliance with both be coordinated. You don't want your Section 106 MOA to stipulate something that's at odds with what your NAGPRA Plan of Action (POA) says will be done.
The following language assumes that the consultative and documentation requirements of the NAGPRA regulation (at 43 CFR 10.5 and 10.3) have been carried out in coordination with the Section 106 process, resulting in a POA.
A. The Corps shall implement the plan of action entitled "Plan of Action for Repatriation of Native American Cultural Items, Big Twist Reservoir," dated January 3, 2001, and appended hereto as Appendix C, regarding the management and disposition of Native American cultural items.
B. After repatriation in accordance with Appendix C, the Corps will ensure that all records and all non-repatriated objects resulting from data recovery and shoreline monitoring as provided for in this agreement are curated by an institution meeting the standards set forth in 36 CFR 79, in accordance with 36 CFR Part 79.
An example of a NAGPRA Plan of Action (POA) is given in Appendix V to Laws and Practice (King 1998:App. V)
Sometimes impacts can be reduced, or avoided altogether, by monitoring a project (e.g., a construction project) to catch and correct impacts as they happen or impend. The regulation strongly encourages including monitoring stipulations in MOAs, even (in theory) requiring them where ". . . identification efforts . . . indicate that historic properties are likely to be discovered during implementation." (36 CFR 800.13(a)(2)).
Monitoring stipulations are most often used to deal with archeological sites, sites that can't be accessed before construction because they're deeply buried or covered with buildings, or as general "fail-safe" mechanisms to catch impacts that were missed during planning and consultation. They can be useful in MOAs dealing with other kinds of resources, too. For example:
The Division will ensure that the monitoring plan entitled "Monitoring the Impacts of Water Releases from Biggray Dam," dated March 13, 1999, and attached hereto as Appendix III, is implemented during and coordinated with the operation of the Project until such time as the parties to this agreement agree in writing that significant impacts are not occurring and such monitoring can be terminated.
Should monitoring in accordance with Appendix III reveal that significant impacts are occurring or are likely to occur soon, the Division will consider the matter in consultation with the parties to this agreement, and either take remedial action or cause remedial action to be taken, including but not limited to requiring that water releases be altered or halted.
The Bureau will ensure that particular care is taken during construction of the Bypass between mileposts 112.5 and 112.9 to avoid damage to the Trembling Building. The Bureau will ensure that all work within the area identified as the "area to be monitored" on the map entitled "Historic Preservation Monitoring Plan, Highspeed Bypass," dated April 1, 2002, and attached hereto as Appendix Z, is monitored by a civil engineer approved by the Littletown Historic Preservation Committee (Engineer), and that the following procedures are adhered to:
1. Prior to construction, the Engineer shall inspect the Trembling Building to determine, measure, and record any pre-existing cracks, bulges,sags, and other actual or incipient structural faults. The Engineer shall photograph, measure, and record each such fault.
2. Prior to construction, the Engineer shall supervise the installation of tell-tails at each existing fault and at other strategic locations on and within the Trembling Building.
3. The Engineer or trained personnel reporting directly to the Engineer shall monitor the tell-tails throughout the period of blasting and earthmoving between mileposts 112.5 and 112.9.
4. If, in the opinion of the Engineer, potentially damaging levels of stresss begin to be detectable in the Trembling Building, the Engineer shall immediately notify the Site Manager, who shall halt all blasting and earthmoving and consult with the Engineer to identify alternative construction methods that will avoid damage to the Trembling Building.
5. The Bureau shall not permit blasting or earthmoving to recommence until the Engineer has agreed on measures to avoid damage to the Trembling Building, or until Stipulation XX has been complied with.
Monitoring can often be used as a supplement to controlled archeological data recovery or recordation, to catch data that may have been missed:
After completion of the fieldwork component of the research specified in Stipulation 14, the Agency will ensure that grading within the boundaries of the McDermott Site is monitored by at least two archeologists meeting the Secretary of the Interior's Professional Qualifications Standards for Archeology (48 FR 44738) and at least two representatives of the Wasusha Tribe selected by the Tribe, and that the following procedures are adhered to:
1. Grading through the Site will be done in approximately 6-inch levels;
2. The monitors will inspect the cut surface after each pass of the graders;
3. All features and objects identified by the monitors as requiring recordation or recovery will be plotted by transit;
4. The monitors will be authorized to halt work for up to one working day or such longer time as may be agreed upon between the monitors and the site manager, to record and recover features and objects;
5. Recovered material and data will be treated in accordance with the research design specified in Stipulation 14; and
6. Monitoring will be terminated when the monitors agree that all cultural deposits have been removed, or when grading has reached the design depth specified in the project plan, whichever is earlier.
Note that the above language doesn't provide for the handling of discoveries to which Section 3(d) of NAGPRA applies. Where Section 3(d) does apply (on land under the jurisdiction or control of a Federal agency or Indian tribe), a NAGPRA POA should be developed. This POA could include language similar to what's given above, but would have to meet the specific standards of 43 CFR 10.5. See King 1998:App. V for an example of a POA.
Finally, there is "compensatory mitigation;" that is:
Preservationists have been known to insist that "compensatory mitigation" is impossible where historic properties are concerned. Unlike wetlands, the argument goes, historic properties are unique and irreplaceable. You can't achieve "no net loss" by creating a new historic property in place of an old one. While this is doubtless true, in fact we very routinely agree to compensatory measures. When we agree to rehabilitate one building while demolishing another, we are in effect agreeing that the rehabilitation compensates to some extent for the demolition. When we agree to archeological data recovery, we are agreeing that by translating the information in a site into documents and museum collections, we are compensating for loss of the site itself.
Much less often, we stipulate compensation more explicitly. When the Oregon Department of Transportation proposed demolition of the historic Alsea Bay Bridge, a very handsome structure that had become a serious hazard because of deteriorating concrete and structural steel, the MOA finally executed provided for its replacement by an equally distinguished but entirely non-replicative new bridge.
Pursuant to Section 110(b) of the National Historic Preservation Act, Bureau shall ensure that the data recovery plan entitled "Research Design for Data Recovery at the Littlebittie Site" and dated June 10, 2003, is implemented prior to and in coordination with those actions that could disturb the Littlebittie Site.
Pursuant to Section 110(b) of the National Historic Preservation Act, the Bureau shall ensure that the Ramirez Courthouse is recorded in accordance with the documentation plan entitled "Plan for Recording the Ramirez Courthouse," dated January 22, 2001, and attached hereto as Appendix C.
Note: The reference to Section 110(b) in these stipulations and elsewhere is to indicate that the consulting parties have given thought to this requirement for documentation, which is independent of Section 106.
Alternatively, the MOA itself may outline the standards for data recovery or documentation:
Pursuant to Section 110(b) of the National Historic Preservation Act, Bureau shall ensure that a data recovery plan is developed in consultation with the Utazona Chinese-American Historical Society (UCAHS) and East Utazona Bottle Hunters, Inc. for the recovery of archeological data from the Wan Li Ranch Site. The Bureau shll ensure that the data recovery plan is consistent with Secretary of the Interior's Standards and Guidelines for Archeological Documentation (48 FR 44734-37) and takes into account the recommendations of the Washafornia SHPO publication entitled "Chinese Immigrant Historic Context" and dated March 2, 1995.
A. The Bureau shall ensure that the data recovery plan describes and justifies the studies to be carried out, including but not limited to:
The research questions to be addressed, including but not limited to the questions about selective Chinese immigration to arid lands in the west posed by Lewis Ho in "Sinology in the Sand" (Researchrecord Press 2000);
Why the research questions are worth addressing in the public interest;
Why it is likely that the research questions can be addressed using data from the Wan Li Ranch Site;
The methods to be used in fieldwork and analysis, with an explanation of their relevance to the research questions;
The methods to be used in conservation, data management, and dissemination of data, with a justification for any unusual methods, and including a schedule;
How the recovered materials and records will be disposed of, consistent with Section 7-428B of the Utazona Public Resources Code and taking into account the wishes of the UCAHS as expressed in the letter of May 10, 2004, from UCAHS President Wilson Woo;
How the UCAHS and the Oriental Studies Department of the University of Utazona will be kept informed of the progress of data recovery, and afforded the opportunity to participate in the work;
A schedule for completing the data recovery, including analysis, reporting, and disposition of materials and records;
A schedule for providing progress reports to the Bureau, SHPO, UCAHS, and City of Yuccatown;
A schedule for completing a final report meeting the SHPO's Report Format Standards dated July 1995, including draft analytical articles for submission to professional journals if warranted; and
A preliminary plan for public interpretation of the data recovery results, subject to revision based on the results of the data recovery proceeds.
B. The Bureau shall ensure that the data recovery plan is submitted to the SHPO, UCAHS, and City of Yuccatown for 22 days review. Unless the SHPO, UCAHS, or City object(s) within 22 days after receipt of the data recovery plan, the Bureau shall ensure that the data recovery plan is implemented prior to and in coordination with those project activities that could disturb the Wan Li Ranch Site. If the SHPO, UCAHS, or City objects within 22days after receipt, the Bureau will consult with the objecting party to resolve the objection, subject to Stipulation XX.
Pursuant to Section 110(b) of the National Historic Preservation Act, the Bureau shall ensure that the following recordation measures are carried out in consultation with the Greengarden Historic District Commission before the Peck Building is demolished:
1. Existing drawings of the Grand Foyer will be photographically reproduced on mylar;
2. Measured drawings and large-format perspective-corrected photographs will be made on mylar depicting the present condition of the Grand Foyer and the south and west facades;
3. Sketch-plans will be made of all three occupied floors, the basement, and the attic;
4. 35 mm photographs will be made of spaces and elements selected by the researcher;
5. All grafitti in the basement will be photographically reproduced;
6. All historic photos of the building in the Building Manager's files will be reproduced on acid-free paper; and
7. Building Manager Carlyle Cornice will be interviewed about his 35-year career in the building; with the interview transcribed on acid-free paper.
The Bureau shall ensure that copies of this documentation are made available to the SHPO and the East Woodhenge Architectural History Society.
The Historic American Buildings Survey/Historic American Engineering Record is often used to "enforce" quality architectural and engineering documentation:
Pursuant to Section 110(b) of the National Historic Preservation Act, before the Peck Building is demolished the Bureau shall contact the Historic American Buildings Survey/Historic American Engineering Record (HABS/HAER) to determine what level and kind of recordation is required for the property. Unless otherwise agreed to by HABS/HAER, the Bureau shall ensure that all documentation is completed and accepted by HABS/HAER before the Peck Building is demolished. The Bureau shall ensure that copies of this documentation are made available to the SHPO and the East Woodhenge Architectural History Society.
Salvage of architectural and engineering elements is sometimes provided for, compensating for the loss of the building or structure to which they contributed by recycling the elements into new structures:
The Bureau shall ensure that the plan entitled "Salvage of Architectural Elements, Engineering Elements, and Street Furniture from the Bigbang Artillery Fabrication Facility," dated November 28, 2004 and attached hereto as Appendix 6, is implemented before demolition of the Facility begins, except that those salvage measures so identified in the plan shall be carried out as demolition proceeds.
During demolition of Building 72, the Bureau shall ensure that all Thomas Crapper toilets are removed in a manner that minimizes damage and are safely delivered to the Foreflusher Theme Park for re-use.
The Bureau will ensure that the Happytown Historic Preservation League (League) is afforded at least 30 days before demolition of the Samuel Addley House begins to select doors, windows, wall sconses, wainscoting, and other architectural elements for sale to homeowners in the Happytown Historic District for reuse. The Bureau shall provide the League with unrestricted access to the House to select such items. The Bureau shall ensure that items thus selected are removed by the Bureau's demolition contractor in a manner that minimizes damage and are safely delivered with legal title to the League.
Note that if Section 3(d) of NAGPRA might be triggered by the discovery of Native American cultural items on land under the jurisdiction or control of a Federal agency, any documentation or data recovery program stipulated would have to be carefully coordinated with the NAGPRA Plan of Action developed under 43 CFR 10.3.
One of the most important parts of any MOA is its suite of "administrative stipulations." These comprise the system that keeps implementation on track – or doesn't, if they're not done well or are ignored.
There's a host of standard administrative stipulations, many of which are shown below.You do not have to use all these stipulations! As always, you use only those you need, and modify them as needed. But you can bet you'll need some of them. An MOA without administrative stips is like a car without a steering wheel, a cruise missile without a guidance system, a meeting without a chair. How heavily implementation needs to be administered, of course, and hence how many and how draconian the administrative stips should be, of course depends on the subject and the conditions under which implementation is supposed to happen.
It's safe to say that there's always the potential for disagreement about, or objections to, the way an agreement is implemented (and sometimes about whether it's being implemented at all). Accordingly, it's a rare MOA that shouldn't have a stipulation providing for resolving objections.
Over the years the ACHP has experimented with a number of standard forms for objection-resolution stips. The following is derived from the 1995 effort:
1. Should any party to this agreement object in writing to the agency regarding any action carried out or proposed with respect to the undertaking or implementation of this agreement, the agency shall consult with the objecting party to resolve the objection. If after initiating such consultation the agency determines that the objection cannot be resolved through consultation, the agency shall forward all documentation relevant to the objection to the Council, including the agency's proposed response to the objection. Within 30 days after receipt of all pertinent documentation, the Council shall exercise one of the following options:
This encourages the agency, and probably the other parties, to work out their differences, since generally speaking nobody wants to get the ACHP involved in things like this. But the ACHP needs options, too.
So . . .
Within 30 days after receipt of all pertinent documentation, the Council shall exercise one of the following options:
a. Advise the agency that the Council concurs in the agency's proposed response to the objection, whereupon the agency will respond to the objection accordingly;
If the ACHP thinks the agency's basically on the right track, it can say so, and that's that.
b. Provide the agency with recommendations, which the agency shall take into account in reaching a final decision regarding its response to the objection; or
If the ACHP doesn't agree with the agency, but also doesn't think the matter is worth taking to the Council membership for a comment to the agency head, it can provide staff-level recommendations, which the agency considers but doesn't necessarily have to follow.
c. Notify the agency that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4), and proceed to refer the objection and comment. The agency shall take the resulting comment into account in accordance with 36 CFR 800.7(c)(4) and Section 110(l) of NHPA.
If it's really a nasty situation, involving major issues, real bad impacts, real important properties, the Council membership can be brought in and a comment rendered to the agency head, who under Section 110(1) of NHPA must give it her personal attention.
But the ACHP is a collection of humans, and may not act at all, or act in a timely fashion.
So . . .
2. Should the Council not exercise one of the above options within 30 days after receipt of all pertinent documentation, the agency may assume the Council's concurrence in its proposed response to the objection.
It's important to keep the objection resolution from letting the agency off the hook for implementing those provisions that the objection doesn't relate to. If the SHPO objects to the agency's choice of paint colors and the ACHP ends up commenting on the subject, you don't want the agency to say "OK, that's that" and demolish the building.
So . . .
3. The agency shall take into account any Council recommendation or comment provided in accordance with this stipulation with reference only to the subject of the objection; the agency's responsibility to carry out all actions under this agreement that are not the subjects of the objection shall remain unchanged.
But what about objections that arise not from signatories and concurring parties, but from outside, from the public? You need to provide for these, too, and the standard language runs like this:
4. At any time during implementation of the measures stipulatedin this agreement, should an objection pertaining to this agreement or the effect of the undertaking on historic properties be raised by a member of the public, the agency shall notify the parties to this agreement and take the objection into account, consulting with the objector and, should the objector so request, with any of the parties to this agreement to resolve the objection.
So a passer-by objects to the fact that the agency is painting the Old Mill pink. The agency doesn't ignore the objection just because it has an agreement on painting the building under Section 106. On the other hand, it doesn't automatically make a big deal of it, either. It notifies the other parties and talks to the passer-by about the matter. If one of the other parties says "wait a minute, I thought you were going to paint it blue," then that party can jump in and participate in the discussion. The parties to the agreement then become a sort of screen, dismissing objections that they think are frivolous, but each having the ability to adopt a public objection as its own. Such an adoption triggers the more structured provisions of the stipulation for resolving objections among parties to the agreement.
Note: Elsewhere in the examples given in this chapter, I refer to this suite of objection-resolution stipulations as "Stipulation XX."
It's really important to specify when and how the agreement will die, so you're not stuck with it long after it's grown stale. So, Section 800.6(c)(5) of the 1999 regulation requires that:
A Memorandum of Agreement shall include provision for termination and for reconsideration of terms if the undertaking has not been implemented within a specified time.
Equally important where the agreement will be implemented over a period of time, you need to stipulate how performance under the MOA will be monitored for quality while it's alive. Otherwise you can wind up stuck with an bunch of outmoded requirements, or with performance that doesn't meet the drafters' expectations.
If you expect that work under the agreement won't take too long, you can use a simple "sunset stipulation," like this:
If the terms of this agreement have not been implemented by January 20, 2002, this agreement shall be considered null and void. In such event the agency shall so notify the parties to this agreement, and if it chooses to continue with the undertaking, shall re-initiate review of the undertaking in accordance with 36 CFR Part 800.
If you're concerned about changes getting made in the project without proper review (a very common problem), then you can try:
The agency shall not alter the specifications for window treatment without first affording the City Window Czar the opportunity to review the proposed change and determine whether it will require that revisions be made in this agreement. If revisions are needed, the agency shall consult in accordance with 36 CFR Part 800 to make such revisions.
Pitfall: People often write things like "the agency shall not alter this agreement without . . ." Well, one would hope not. The agreement is a multi-party instrument, and one party can't change it unilaterally. If everybody doesn't understand that, you've got troubles that language in an MOA won't fix.
Another thing to look out for is making the restriction on changes too broad. The agency needs some wiggle room; nobody's specifications are perfect. So you probably don't want to say "the agency shall not make any change whatever without consulting everybody." Focus on the places where changes would create problems.
One of my favorite standard control stips is one providing for annual reporting and review. Its purpose is to allow the parties to monitor how the agreement is being implemented, and make changes as needed.
In the ACHP's old "PAD" guideline (ACHP 1988), there's a standard stip that says "The parties to this agreement shall consult annually to review implementation of the terms of this agreement." Don't use this one. It almost certainly won't work, because it has no action-forcing provision, no "trigger." It also requires the parties to meet whether there's anything to meet about or not. The standard stip that replaced it (c.f. ACHP 1995) puts the onus on the agency to prepare a report on a date certain each year (or other period) and provide it to everybody else. The parties can then decide whether they need to meet, and whether changes are needed in the agreement or the work being done under it.
On or before August 24 of each year until the agency, SHPO, and tribe agree in writing that the terms of this agreement have been fulfilled, agency shall prepare and provide an annual report to the SHPO, tribe, and East Backscratch Archeological Soeicty addressing the following topics:
a. Progress in constructing the highway;
b. Progress in archeological data recovery under Stipulation 3;
c. Progress in recording, marketing, and relocating the Roy Crater House;
d. Any problems or unexpected issues encountered during the year; and
e. Any changes that the agency believes should be made in implementation of this agreement.
The agency shall ensure that its annual report is made available for public inspection, that potentially interested members of the public are made aware of its availability, and that interested members of the public are invited to provide comments to the SHPO, tribe, and Council as well as to the agency.
The signatories to this agreement shall review the annual report and provide comments to the agency. Non-signatory parties to this agreement may review and comment on the annual report at their discretion.
At the request of any party to this agreement, the agency shall ensure that a meeting or meetings are held to facilitate review and comment, to resolve questions, or to resolve adverse comments.
Based on this review, the signatories to this agreement shall determine whether this agreement shall continue in force, be amended, or be terminated.
With this kind of stip, all the SHPO and other parties have to do is keep track of the date, and if a trigger date arrives without receipt of a report, call up the agency and ask what gives. This stip also gives the agency some structure around which to plan implementation. Finally, it simplifies life by not requiring everybody to meet if everything's going swimmingly; you just get the report, say "fine," and get on with it.
Where an agency directs someone else to do something – the applicant for a permit or license, for example – or where that someone else offers, proposes, or agrees to do something, it's often a good idea to have some guarantee that the work will really be done, and carried through to completion.
The Bureau of Land Management sometimes requires that bond be posted to guarantee enough money to finish the work, whatever it is. Perhaps other agencies do the same. The BLM approach was the basis for the following standard stipulation.
1. The agency shall require Full-Lode Mining Company to post a surety in an amount sufficient to cover all costs associated with implementing the data recovery program and tribal coordination program established by Stipulation IV and Attachment II to this agreement. Such costs may include, but are not limited to:
(a) Costs of background research;
(b) Costs of field excavation, recordation, documentation;
(c) Costs of laboratory analysis;
(d) Costs of report preparation and publication of at least 500 copies;
(e) Costs of public participation;
(f) Costs of ongoing consultation with the Motomak Tribe, including financial support for elders' attendance at meetings; and
(g) Costs of repatriation and, at the Tribe's request, reburial or other disposal of artifacts and ancestral remains.
2. The agency shall require that the Company post the surety subject to forfeiture if the tasks required by Stipulation IV and Attachment II are not complleted within the time periods specified in Stipulation VII, provided that the agency and the Company may agree to an extension any such time periods in consultation with the Tribe, subject to review and comment by the SHPO. The agency shall notify the Company that the surety is subject to forfeiture and shall allow the Company 30 days to respond before taking action to execute forfeiture.
3. The agency shall release the surety, in whole or in part, as specific provisions of Stipulation IV and Attachment II are completed to the satisfaction of the Agency in consultation with the Tribe, subject to review and comment by the SHPO.
This kind of stipulation, I think, should always be included in MOAs covering speculative ventures like mining and commercial shipwreck salvage.
Besides ensuring that interested members of the public have the opportunity to participate in the process leading to an MOA, it's often appropriate to provide for public participation in implementing it. Of course, it's not always appropriate. There may be liability problems, security problems, or cultural issues that demand that the work of implementation be kept more or less private. Or the work to be done under the MOA may just be so frightfully dull, or highly technical, that few people are likely to be interested. However, we ought to remember that the major rationale for taking care of historic properties is that it's in the public interest. If follows that we ought to try to maximize the public value of what we do.
Sometimes public participation measures are explicitly called out in the text of the MOA:
The Service shall ensure that the following measures are carried out in order to afford the interested public an opportunity to participate in the architectural documentation work to be carried out under Stipulation 14:
* The Historic Homes Club of Los Diegos will be invited to participate in the project, and training will be provided to its members to help them participate effectively.
* Press releases describing the project and its progress will be provided on a weekly basis to local news media.
* Public walking tours will be conducted on at least three occasions in the course of the project, with appropriate pre-announcement in local media, to permit members of the public to see the ongoing work first-hand.
Other times, a separate public participation plan may be developed and included in the MOA by reference:
The City shall ensure that the public participation program entitled Citizen Involvement in the Big Muddy Swamp Project (Northcoast Consultants, Inc., January 2002), attached hereto as Appendix IV, is carried out in order to afford the interested public an opportunity to participate in the data recovery project provided for in Stipulation 5(f).
Sometimes you'll want to provide for participation by a particuar party, which may or may not be a party to the MOA itself:
The Corps shall ensure that the County affords the Motomac Tribe (Tribe) the opportunity to participate in implementation of the environmental monitoring plan referenced in Appendix 7(c). The purpose of such participation will be to give the Tribe the ability to determine for itself whether pumping from the water table is beginning to affect the growth of culturally important plants in and around Bysmal Bog. Actions to be taken by the County to facilitate tribal participation include, but are not limited to providing training to tribal members in the methods of environmental monitoring and assisting the Tribe financially in its participation in the monitoring program.
Should the Tribe conclude that culturally important plants are being affected, and so advise the Corps, the Corps will consult with the other signatories and concurring parties to this agreement, subject to Stipulation XX, and may suspend the County's permit if it determines that adverse effects are likely to be occurring or be imminent, until such time as the County eliminates or reverses the adverse effect.
Often an agency will want to keep its mitigation costs under control, and though preservation people may huff and puff about the value of historic properties not being reducible to mere dollar terms, it's a perfectly reasonable thing for an agency to want to do. Agencies are, after all, directly or indirectly playing with our money.
Sometimes a hard and fast dollar limit will be sought – like one percent of project costs (See King 1998:201). I recommend resisting this temptation as overly limiting on the agency's discretion in the face of unpredictable circumstances. If you find that the Nondescript Archeological Site is really a Stegosaurus butchering locality, and you've spent your one percent, you don't want to have to go back and revise the MOA to cover the costs of enhanced data recovery.
The standard language in the Council's 1995 stip package goes like this:
A. The Bureau shall monitor the costs of carrying out the terms of this agreement, including the costs of data recovery, rehabilitation, redesign, painting, celebrations of milestones reached, bribes, etc. etc.
B. Should the Bureau determine that the costs of carrying out the terms of this agreement may exceed five dollars ($5.00), the Bureau shall contact the other parties to this agreement and the parties shall consult to consider and if possible adopt ways of limiting costs, subject to Stipulation XX (dispute resolution stip).
This provision is designed to split the difference between an agency's desire for predictabilit and the desire of other parties not to get boxed in, by providing for the parties to review the situation and see what cost containment measures they can agree upon (if any), should the costs approach an agreed-upon level.
Another frequent agency preference is to make implementation contingent on future funding, using clauses like "subject to appropriations." Resist this one, too. Put it in, and all the agency has to do to get out of the agreement is not ask for the money, or not ask very hard. You may trust your negotiating partner not to do this, but don't trust her bosses up the chain of command.
Still, an agency can't very well commit to do something it knows it doesn't have the money to do, and this may very reasonably need to be dealt with in the agreement. Here's one way to do it:
The Bureau shall include the costs of carrying out the terms of this agreement in its project budget. Should Congress not appropriate amounts sufficient to cover such costs, the Bureau shall contact the other parties to this agreement and the parties shall consult to consider how to address any predicted shortfall, subject to Stipulation XX.
This acknowledges reality (the bucks may not be there) and gives the parties something to do about it. Consultation may not seem like much of a thing to do, but remember that "Stipulation XX" provides for an ACHP comment to the agency head in extreme circumstances, and there is also always the possibility (discussed below) that a signatory will "pull the plug" and terminate the agreement, leading to such a comment. If the ACHP sees the matter as really serious, it can comment to the President and Congress as well. Most agencies will look really hard for the bucks rather than exposing themselves to such high-level scrutiny.
One thing administrative stips often try to do is control the qualifications of the people who'll carry out whatever it is the MOA stipulates will be done.
Let's suppose you want to stipulate what qualifications people will have to have in order to do or supervise work under your agreement. There are two standard stips. The first is for use where everything you need done is within the competence of some particular kind of specialist – say, a bricklayer.
The agency shall ensure that all masonry work carried out pursuant to this agreement is carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of the Interior's Standards for Historic Bricklayers (citation).
But what if you need multiple forms of expertise? You want to be careful not to wind up requiring yourself to hire roofers to do brickwork, or archeologists to do historical architecture.
So . . .
The agency shall ensure that:
(1) All masonry work carried out pursuant to this agreement is carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of the Interior's Standards for Historic Bricklayers (citation);
(2) All trenching is performed by or under the direct supervision of a person or persons meeting at a minimum the SHPO's qualification standards for historic earthmovers (citation); and
(3) All painting is done by or under the direct supervision of a person or persons meeting at minimum the certification standards of the American Society for Historic House Painters (citation).
The Secretary of the Interior's Personnel Qualifications, found at 36 CFR 61.11 and in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (NPS 1983:44738-9) are the standards most often referred to in qualifications stips, but you can use whatever standards the consulting parties agree to.
It's obviously important to have reports prepared and filed on many things done under an agreement. Archeological reports are the most obvious example; archeological data recovery is all about translating information-in-the-ground into information-in-books (or reports, monographs, journal articles, databases, etc.). But you also may well need to document how a rehabilitation project was done, how consultation was carried out – all kinds of things. There's a pretty simple standard stipulation:
The agency shall ensure that a report on all activities carriedout pursuant to this agreement is provided to the THPO, the Lower Kneecap Historical Library, and, upon request, to other interested parties.
You may need something more tailored to the kind of work performed under the MOA, or to some other variable, for example:
The Bureau will ensure that a final report on the data recovery provided for under Stipulation C is filed with the SHPO in a form acceptable to the SHPO for inclusion in the Washafornia Library of Gray Literature (WLGL).
The Bureau will ensure that a draft report on the historical study provided for under Stipulation D is provided to the Cabeza de Huevo Center for Hispanic History (Center) for 90-day review and comment, that any Center comments received during the review period are addressed subject to Stipulation XX, and that a final report addressing all Center comments is filed with the Center.
The City shall ensure that all final archeological reports resulting from the surveys provided for in Stipulation D and the data recovery provided for in Stipulation M are submitted to the SHPO, the Dustbowl County Archeological Society, the Senamanche Tribe, and the Dustbowl Historical Society, and to the National Park Service (NPS) for possible peer review and incorporation into the National Archeological Database (NADB). The City shall ensure that all such reports are responsive to contemporary professional standards, and to the Department of Interior's Format Standards for Final Reports of Data Recovery Program (42 FR 5377-79).
The agency shall ensure that a report on the results of the archeological research provided for in this agreement are reported in a form consistent with the standards of the Journal of American Oldstuff, and submitted to that journal for consideration.
Note that if American Oldstuff is not a party to the agreement, you can't require that it actually publish the report.
What if you want somebody to publish a popular report, videotape, or other information disseminator about the work you've done, or about its results?
The Service shall produce an educational compact disk (CD-ROM) about the project and its results. The Service will ensure that this CD-ROM is distributed free of charge, in order to make the general public aware of. The Service will notify the public of the availability of the CD-ROM, and provide it to those who requrest it.
The Service will ensure that the CD-ROM constitutes an accurate portrayal of the project and its results, and that it is designed to convey information to people who read at a high-school level of comprehension.
Of course, using similar language you could stipulate a videotape, an interactive web site, or whatever else everyone agrees to.
Sometimes the consulting parties may agree that it's desirable and justifiable for an agency to synthesize a large body of unorganized data pertaining to the history, prehistory, architecture, engineering, or culture of a region:
The Forest shall ensure that by April 17, 2006, a report is prepared that summarizes, synthesizes, and interprets archeological and other pertinent data resulting from background research, field survey, data recovery, and similar projects carried out by the Forest and all other parties in the vicinity of the Kindling National Forest. The Forest will ensure that the report meets the standards set forth in the document entitled "Standards for Synthetic Archeological Studies" (East Miami Archeological Society 1999) and appended hereto as Appendix D, that it is submitted in draft to the SHPO and the Motomac THPO for review and approval, and that when finalized it is submitted to the Society for Washafornia Archeology for possible publication in its "Occasional Papers" series.
There are all kinds of variants on the above themes; whatever works for the consulting parties is all right, as long as the basic requirement of Section 110(b) of NHPA is met – in other words that a report is produced and is filed in a location agreed upon by the consulting parties.
Where the MOA provides for some activity that will produce information, such as a survey, archeological excavation, or oral historical documentation, you'll need to specify how the information should be managed. For example:
The Agency will ensure that information resulting from the background research, field survey, evaluation and data recovery provided for in Stipulations B-2, B-3, and B-7 are submitted to the THPO in a form acceptable to the THPO for inclusion in the Tribal Historic Property Inventory.
This kind of stipulation can cause data to be recorded on particular forms for easy inclusion in a database, or for them to be supplied to the database agency in a specified electronic format.
There are cases where reports and database entries may not be appropriate – for example, where they might reveal data to the world that could lead to an invasion of privacy, a threat to historic properties, or conflict with a Native American group's practice of religion (See NHPA Sec. 304). In such cases it's pretty common practice to stipulate something like this:
Precise locational data may be provided only in a separate appendix if it appears that their release could jeopardize the integrity or traditional use of historic properties.
Such a stipulation, however, is not entirely consistent with Section 304 of NHPA. Section 304 provides for information to be withheld from release in a broader range of circumstances than the stipulation indicates. It not only allows but requires that information be withheld where releasing it could lead to a significant invasion of privacy or impede a tribe's or Native Hawaiiant group's practice of traditional religion. However, Section 304 permits non-disclosure only after consultation with the Secretary of the Interior, who is represented in such matters by the Keeper of the National Register.
Where the properties involved are archeological resources as defined under ARPA, on Federal or Indian land, Section 9 of ARPA applies,and information may be withheldwithout consultation with the Keeper, but only where release of information could lead the resources to be damaged somehow (e.g., by illegal excavation or by vandalism).
So, the simple language provided above should generally be used only where Section 9 of ARPA applies, i.e., where releasing information could lead to damage to or destruction of an archeological resource on Federal or Indian lands. On non-federal, non-Indian lands, or where potential invasion of privacy or conflict with Native American religious practices are the issue rather than physical disturbance of the resource, a somewhat different approach is appropriate. One possibility would be something along the following lines:
With the concurrence of the Keeper of the National Register, the Forest will ensure that precise data on the character and location of historic properties are provided only in a separate appendix.
The problem with this approach, of course, is that it requires going to the Keeper every time you want to keep data confidential. The solution to this problem probably lies in programmatic consultation with the Keeper, or in finding ways to not collect perilous information in the first place.
Arguably, every signatory party's ability to seek to amend an agreement goes without saying, but you don't want to argue about it when the occasion arises, so you ought to say it. That is, you'll want to have a provision in your agreement for its amendment (and see 36 CFR 800.6(c)(7), which explicitly permits and hence implicitly encourages such provisions). Here's the standard language:
Any party to this agreement may propose to the agency that the agreement be amended, whereupon the agency shall consult with the other parties to this agreement to consider such an amendment. 36 CFR 800.6(c)(1) shall govern the execution of any such amendment.
So, anybody who has signed the agreement can propose that it be amended, whereupon the agency and the other parties have to consider the proposition. If they elect to amend the agreement, they negotiate the terms of the amendment, and give the public the opportunity to participate in the negotiation, just as they would with a new agreement.
Amendments have traditionally been memorialized in either of two ways:
* If the amendment is minor, and provides for things that will be done relatively quickly (generally, within about a year), then you can just write in the changes and have everyone initial them.
* If the amendment is more substantial or complicated, or will require a longer time to carry out, then you should prepare a new agreement. This agreement should contain a "whereas" clause along the lines of the following:
WHEREAS the Forest Service, the Washafornia State Historic Preservation Officer (SHPO) and the Senemanche Tribe executed a Memorandum of Agreement in June-July 2002 (signed on June 12, June 20, and July 7 respectively) taking into account the effects of the Dixie Dogwood Timber Sale on historic properties; and
WHEREAS the same parties have agreed that an amendment to this Memorandum of Agreement should be executed;
NOW, THEREFORE, the above-referenced Memorandum of Agreement of June-July 2002 is amended by replacing all its stipulations with the following:
The agreement should also be given a title that clearly distinguishes it from the original agreement – something like "AMENDED MEMORANDUM OF AGREEMENT REGARDING THE DIXIE DOGWOOD TIMBER SALE."
Just as you need to provide for amending your agreement, you should also give each of the signatories the right to terminate it. Otherwise you may find yourself stuck implementing an agreement that is no longer appropriate, or be forced to accept implementation of one that is inadequate.
For example, back in the late 1970s the Council, California SHPO, and Department of Housing and Urban Development executed an MOA dealing with the impacts of HUD-assisted construction on a big parcel in San Francisco. Those who negotiated the agreement had focused their attention on historic buildings, giving little thought to the Gold Rush era archeological resources that actually were pretty thick on the project site. Years later it became apparent that these were in fact the primary resources that would be affected. We tried to amend the MOA to cover them, but HUD wouldn't hear of it; they had their agreement, and that was that. So then we tried to terminate it, and found we couldn't do that either, because the original MOA didn't provide for it. The project proceeded with minimal attention to archeological resources, though some data recovery was done under State law.
Presumably because of this kind of problem, Section 800.6(c)(8) of the 1999 regulation provides that:
If any signatory determines that the terms ofa Memorandum of Agreement cannot be carried out, the signatories shall consult to seek amendment of the agreement. If the agreement is not amended, any signatory may terminate it.
But what if a party determines not that the MOA cannot be carried out, but that it's just not being carried out, or that it was a mistake to enter into it in the first place? The regulation doesn't seem to cover this possibility. If you can get everybody to go along, you can use the MOA to fill this gap, with language like the following:
1. If the agency determines that it cannot implement the terms of this agreement, or if the SHPO, Tribe, or City determines that the agreement is not being properly implemented, such party may propose to the other parties to this agreement that it be terminated.
2. The party proposing to terminate this agreement shall so notify all parties to this agreement, explaining the reasons for termination and affording them at least 27.5 days to consult and seek alternatives to termination. The parties shall then consult.
3. Should such consultation fail, the agency or other signatory party may terminate the agreement by so notifying all parties.
4. Should this agreement be terminated, the agency shall either:
a. Consult in accordance with 36 CFR 800.6 to develop a new MOA; or
b. Request the comments of the Council pursuant to 36 CFR 800.7.
Finally, there are some kinds of stipulations that one uses only in a Programmatic Agreement (PA):
When an agency does a whole host of little actions that would be difficult to subject to "standard" Section 106 review, it often creates and adopts a preservation plan of some sort, which it uses to comply programmatically with Section 106. The plan itself is subjected to 106 review and a PA is executed adopting it. Alternatively, Section 106 review is done to establish the standards to be used in preparing the plan, which are embodied in a PA. Then the plan is prepared and approved by the PA's signatories. Here are some examples:
A. Fort John Wayne will implement the Historic Properties Component (HPC) of the plan entitled "Integrated Cultural Resource Management Plan: Fort John Wayne," dated March 10, 2003, in lieu of compliance with 36 CFR 800.3 through 800.6.
B. As part of its Environmental Compliance Assessment System (ECAS), the Army will review implementation of the HPC on a five (5) year cycle, with the first review occurring in 2006. The Army will ensure that the SHPO, Motomac Tribe, the City of Duke, and the interested public are notified of the ECAS review at least six (6) months in advance of its occurrence, and given a full opportunity to participate in review of the HPC.
C. Based on this review, the Army, the SHPO, and the Council shall determine whether this Programmatic Agreement shall continue in force, be amended, or be terminated.
D. Should this Programmatic Agreement be terminated, Fort John Wayne will comply with 36 CFR 800.3 through 800.6 on all individual actions otherwise covered by the HPC.
This kind of provision can be used where a plan (by whatever name) has already been developed; it simply expresses the consulting parties' approval of the plan and stipulates how it will be administered.
If the plan hasn't yet been prepared, and the parties are agreeing about how it will be prepared and what it will contain, then you can use something along the following lines:
A. Within one (1) year after execution of this agreement, the Navy will develop an Integrated Cultural Resource Management Plan (ICRMP) for Ironbottom Bay Naval Shipyard. The ICRMP will include at least the following historic preservation elements:
1. A system to ensure that all buildings over 45 years old are maintained in accordance with the Secretary of the Interior's Standards for Treatment of Historic Properties (36 CFR 68), except where the Navy and Utazona SHPO agree in writing, after consultation with the Architectural Preservation Society of Ironbottom Bay (APSIB), that a different maintenance standard should be employed.
2. A system to ensure that all earthmoving and dredging activities are designed to avoid, minimize, or otherwise mitigate impacts on both identified and unidentified historic and prehistoric, terrestrial and submerged archeological sites.
3. A system to ensure that the people of Tule Elk Rancheria are afforded unrestricted access to Elktail Slough, and that Elktail Slough is not modified in any way without consulting the Tule Elk Rancheria and adopting means of mitigating any impacts on the Slough's ecosystem and its use by Tule Elk Rancheria members.
4. A system to ensure that the historic character and ambience of Master Chiefs' Row, as identified on the "Preliminary Map of Historic Properties, Ironbottom Sound Naval Shipyard," dated January 4 1999 (hereinafter, "the Map"), are preserved.
5. A program to restore the historic character of Officer's Row, as identified on the Map.
6. A system to control the unauthorized excavation of archeological sites and defacement of pictographs, including but not limited to educational activities, cooperation with responsible avocational archeological organizations, security patrols, and coordination with Seal Team training.
7. A program of education and public participation to encourage knowledge of and respect for the Shipyard's historic properties by uniformed and civilian personnel, visitors, and residents of surrounding communities.
8. Provision for routine briefings of personnel in the chain of command regarding the components and operation of the ICRMP.
9. A system to ensure that adequate funding to implement the ICRMP are routinely requested by the Shipyard and its resident Activities, and that ICRMP funding when received is used for the purposes intended.
10. Provision for periodic review of ICRMP implementation as part of the Navy's Environmental Compliance Evaluation (ECE) Program, including provision for consultation with the Shastoc THPO, the Utazona SHPO, the City of Ironbottom, the Tule Elk Rancheria, the APSIB, and other interested parties during the conduct of each ECE review.
B. The Navy will ensure that the ICRMP is developed in consultation with the Shastoc THPO, the Utazona SHPO, the City of Ironbottom, the Tule Elk Rancheria, the APSIB, and other interested parties identified by any of the parties to this Programmatic Agreement (PA).
C. When the ICRMP is complete in draft form, the Navy will provide copies of the draft to all parties to this PA for review and acceptance of all elements dealing directly or indirectly with historic properties. Disagreements or questions about the draft HPP will be resolved through consultation among the parties.
D. Upon acceptance of the ICRMP's historic preservation elements by the parties to this PA, the Navy will will finalize and implement it in lieu of compliance with 36 CFR 800.4 through 800.6
E. Until the ICRMP's historic preservation elements are accepted by the parties to this agreement, the Navy shall shall continue to comply with 36 CFR 800.4 through 800.6, except as provided in Stipulation XIX.
This kind of provision is for inclusion in a PA executed before the plan (by whatever name) is developed. It has the advantage of ensuring agreement by the consulting parties on the standards to be employed in plan development before time and money are invested in developing the plan.
One of the commonest kinds of PA is the "CDBG PA" – a PA prepared for a city's Community Development Block Grant program. HUD is authorized to delegate its Section 106 responsibilities to cities administering CDBG and some other grant programs, so the PA is executed between the SHPO and city government, with appropriate public participation and optional ACHP participation. Most cities use a lot of their CDBG money to upgrade housing, so the standard CDBG PA commits the city to rehabilitating historic (or sometimes just old) buildings in a sensitive manner. Although this kind of agreement is most commonly used by local governments, it could be used by any Federal agency involved in a similar program.
A. The City of Featherberg (City) shall ensure that a survey of each year's CDBG Target Area is undertaken to identify properties that might meet the criteria for listing in the National Register of Historic Places (36 CFR 60.4; hereinafter, the criteria), and shall apply the criteria to each identified property. The City shall ensure that the survey and evaluation are conducted in consultation with the SHPO and the Featherberg Historical Society (Society), and that it is designed with reference to the Secretary of the Interior's Standards and Guidelines for Identification and Evaluation (48 FR 44720-26) and the SHPO's "Standards for Scoping Historic Preservation Surveys (West Carolina SHPO 2000)..
B. Until the survey provided for in stipulation A is completed, buildings that may be affected by the City's CDBG housing renovation program will be evaluated by the City in consultation with the SHPO and the Society, against the National Register criteria in accordance with 36 CFR 800.4(c). At its option, the City may consider a building eligible for the National Register without formal evaluation.
C. The City shall ensure that buildings meeting the National Register Criteria or assumed to be eligible are rehabilitated in accordance with the recommended approaches in the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings (U.S. Department of the Interior, National Park Service, 1992) (Standards and Guidelines).
D. The City shall ensure that a plan for each rehabilitation project, including plans and specifications at the 35%, 75% and 95% design stages are provided to the SHPO for review and comment, subject to Stipulation XX.
E. The City shall ensure that photographs of the properties taken before and upon completion of the rehabilitation are provided to the Society for archiving.
F. The City shall retain documentation of the rehabilitation, including work write-ups and photographs, as part of the permanent project records.
G. If the City determines that the recommended approaches in the Standards and Guidelines cannot be met, if the SHPO does not concur in the rehabilitation plan, or if the project will result in demolition of, or other adverse effect to, a property that meets or may meet the National Register criteria, the City shall comply with 36 CFR 800.6.
H. On or before March 15 of each year, the City will notify the public of its current and upcoming planned actions under the the CDBG housing renovation program, and make available for public inspection documentation on such actions. Included in this documentation will be information on the type(s) of activities undertaken with CDBG funds during the prior year and activities projected for the current year; information on identified or assumed historic properties, and/or areas where historic properties may be present, which might be affected by these activities; the funding known or projected to be available for work under the CDBG program i the current program year; and how interested persons can receive further information on the program and advise the City, SHPO, and Society of any concerns they may have about program's effects on historic properties.
A common problem for land managing agencies is how to handle common historic property types like prehistoric flake scatters, historic roads and trails, mining and logging facilities, and even Native American spiritual places. Actually, the problem is often not how to manage such properties, but how to process their management through the 106 process. Everybody may agree that flake scatters should be recorded and then can be destroyed with impunity, or that the treatment of spiritual places should be worked out in confidential consultation with those who value them, but things can get bogged down when we have to establish which scatter or structure or site is eligible for the National Register.
Years ago, the ACHP and Forest Service developed an approach to this kind of problem – execution of a "property type" PA. In a PTPA a common property type is defined (often in an attached or referenced study of some kind), and standard identification procedures are set forth to ensure within reason that all such properties in a given project's APE will be identified. All properties of the type are categorically assumed to be eligible for the Register, and a standard treatment procedure is outlined.
The agency then carries out the standard identification procedure, and whenever it runs into a property that falls within the defined type, it treats it according to the standard treatment procedure, without having to consult about eligibility and effect. Progress is monitored periodically to see if adjustments are necessary.
A PTPA needs a "Whereas" clause that establishes what the agreement is about:
WHEREAS the parties to this Programmatic Agreement (PA) have agreed that historic mining sites and structures, as described in the document entitled "Heavy Metal: Early Twentieth Century Lead Mining in the Sierra Pequeno" (Pickenshovel 2002), hereinafter "Lead Mining Facilities," are usually eligible for the National Register of Historic Places and can appropriately be managed using a standard set of treatment practice without further consultation regarding their eligibility for the National Register or the effects of Forest projects on such sites and structures;
Other "Whereas" clauses are included as needed, and then the stipulations include something like the following:
The Forest shall ensure that the area of potential effect (APE) of each timber sale, road construction project, and other Forest undertaking, is defined as outlined in the document entitled "Protocol for APE Definition on the Tinderbox National Forest" dated July 5, 2000, and appended hereto as Appendix I;
The Forest shall ensure that the APE of each Forest undertaking is studied to identify all types of historic properties, and that such study routinely includes the "System for Identifying and Documenting Historic Lead Mining Facilities" dated July 6, 2000, and appended hereto as Appendix II;
The Forest shall ensure that any Lead Mining Facility identified in the APE of an undertaking is treated as set forth in the document entitled "Standard Treatment Protocol: Lead Mining Facilities on the Tinderbox National Forest" dated July 8, 2000, and appended hereto as Appendix III.
Be sure to include administrative stipulations providing for periodic reports and review, and for resolving objections.
The PTPA is a relatively simple way of dealing with a well-defined property type about which the consulting parties are able to agree on standard treatment measures. The complicated parts of such a provision, of course, are defining the property type and establishing how it will be treated.
It's often particularly difficult to deal with Native American spiritual places under Section 106 because those who value them feel very strongly that it's inappropriate, at best, to release any information about them to the public. While Section 304 of NHPA ostensibly lets agencies and SHPOs keep information about such places confidential, it's generally best to minimize the information about them one asks Native American people to share. And it's often perfectly feasible to establish what an agency can do to minimize impacts on such places without collecting much – or any – information about them. Here's a stipulation for use in a PA to establish management actions to be taken without identifying and evaluating specific properties.
The Bureau, in consultation with Washute Tribe (Tribe), will ensure that the following measures are employed in the conduct of each Bureau undertaking in the Owl Creek watershed, to avoid or minimize impact on properties of traditional cultural importance to the Tribe and/or to the Tribe's traditional use of the watershed, without causing such properties and/or uses to be documented otherwise placed in a public record.
(1) Only selective logging will be permitted, with cutting to occur only in the months of August through October.
(2) Integrated Pest Management (IPM) projects such as pesticide applications will be conducted only in consultation with the Washute Basketmakers' Coalition, to avoid application of pesticide to basketry plants.
(3) Prescribed burning for purposes of fire management will be conducted only in the months of August through October, and will be scheduled and conducted in consultation with the Washute Elders' Council.
(4) Prescribed burning for purposes of fire management will be conducted only in the months of August through October, and will be scheduled and conducted in consultation with the Washute Elders' Council.
36 CFR 800.14(c) provides for agencies to establish "exemptions" from Section 106 review, much as they establish Categorical Exclusions from NEPA. Actually, categorical exemptions from Section 106 have routinely been provided for in the past under PAs, using language along the following lines:
The Base need not identify historic properties, nor consult with the SHPO about effects on historic properties, with respect to the following types of undertaking, provided the control measures outlined below are employed:
(1) Grading within established rights-of-way;
(2) Trimming vegetation to protect power lines;
(3) Installation of signs;
(4) Stream flow monitoring with equipment in place as of the date of this agreement; and
(5) Apprehension of illegal artifact collectors.
To control any possible impacts of actions that fall into one of the above categories, the Department will ensure that the Base Cultural Resource Management Officer (CRMO) is notified of each such action when it is planned, and given the opportunity to participate in planning or object to the proposed action.
In a categorical exclusion PA, it's important to provide for periodic reports and reviews, with the number, kinds, and outcomes of categorically excluded projects being among the bodies of information reported.
So . . .
All the wheels discussed in this chapter have been invented and are ready for use. But don't use them blindly. If they're the wrong size, or have the wrong tread, or need different hubcaps, for heaven's sake change them accordingly. And don't be dound by them. It's perfectly fine to invent new stipulations to serve your special needs.
For examples of current Section 106 cases and their resolution, generally involving MOAs, see the ACHP web site at www.achp.gov.