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Formats for Memoranda of Agreement Under 36 CFR 800

 

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This material is not in the textbook Federal Projects and Historic Places.

Explanatory notes in italics

FORMAT #1: MOA where ACHP has participated in consultation

MEMORANDUM OF AGREEMENT

AMONG THE U.S. BUREAU OF BURRO MANAGEMENT,

THE WASHAFORNIA STATE HISTORIC PRESERVATION OFFICER

AND THE

ADVISORY COUNCIL ON HISTORIC PRESERVATION

REGARDING THE SOUTH FIELDSTONE FODDER IMPROVEMENT PROJECT

WHEREAS the U.S. Bureau of Burro Management (Bureau) proposes to undertake the South Fieldstone Fodder Improvement Project (the Project), described as the preferred alternative on pages 12-17 of the draft Environmental Assessment titled "Draft Environmental Assessment: South Fieldstone Fodder Improvement Project" and dated December 4, 2003 (Draft EA); and

Identifies undertaking subject to review.

WHEREAS the Bureau has established the Project's area of potential effects (APE), as defined at 36 CFR 15 800.16(d), to be the watershed of South Fieldstone Creek as shown in Figure 2B of the Draft EA; and

Identifies APE.

WHEREAS the Bureau has determined that the Project may have adverse effects on archeological site WFSF342 as described in the Washafornia State Historic Properties Inventory, on Big Rock Ridge, a place of cultural importance to the Motomak Tribe, and possibly to unidentified subsurface archeological resources; and

Identifies properties known to be subject to adverse effect, with allowance for undiscovered properties.

WHEREAS the Bureau has consulted with the Washafornia State Historic Preservation Officer (SHPO), the Motomak Tribe, Burros, Incorporated, the Eastern Washafornia Archaeological Society, and the Advisory Council on Historic Preservation (Council) in accordance with Section 106 of the National Historic Preservation Act, 16 U.S.C. § (NHPA), and its implementing regulations (36 CFR Part 800.6(b)(2)) to resolve the adverse effects of the Project on historic properties; and

Identifies all consulting parties.

WHEREAS pursuant to 36 CFR 800.6(c)(2) the Bureau has invited the Motomak Tribe and Burros, Incorporated to sign this Memorandum of Agreement (MOA); and

Identifies invited signatory.

WHEREAS pursuant to 36 CFR 800.6(c)(3) the Bureau has invited the Eastern Washafornia Archaeological Society to concur in this MOA; and

Identifies invited concurring party.

WHEREAS the Bureau intends to use the provisions of this MOA to address applicable requirements of Sections 110(a)(1) and 110(b) of NHPA; and

Use only where MOA actually will be used to address such requirements. Adapt as needed regarding other NHPA requirements or the requirements of other cultural resource laws, but document how each other law is satisfied separately from the MOA, to avoid implying that the Advisory Council or SHPO are involving themselves in matters beyond their authorities under Section 106.

WHEREAS the Bureau has coordinated preparation of this MOA with development of its Plan of Action under the Native American Graves Protection and Repatriation Act (NAGPRA) in accordance with 43 CFR 10;

Use only where NAGPRA applies, and where coordination has occurred (as it should). Make sure the Plan of Action (POA) is a separate document developed by the agency and tribe(s), but that it is consistent with the terms of the MOA and vice-versa.

NOW, THEREFORE, the Bureau, the SHPO, and the Council agree that upon the Bureau's decision to proceed with the Project, the Bureau shall ensure that the following stipulations are implemented in order to take into account the effects of the Project on historic properties, and that these stipulations shall govern the Project and all of its parts until this MOA expires or is terminated.

Note that this clause is conditioned upon the agency's decision to proceed with whatever it is considering vis-a-vis the undertaking (constructing it, implementing it, permitting it, assisting it, etc.). This is to make it clear that the consulting parties are not pre-empting the agency's final decision on the project under other pertinent authorities, including the National Environmental Policy Act (NEPA). Note that it also includes the language of NHPA Section 110(l), specifying the "governing" (contractual) authority of the MOA.

Stipulations

The Bureau shall ensure that the following stipulations are implemented:

(Insert stipulations. Always include a "sunset" stipulation)

Execution of this MOA by the Bureau, the SHPO, and the Council, and implementation of its terms, evidence that the Bureau has afforded the Council an opportunity to comment on the Project and its effects on historic properties, and that the Bureau has taken into account the effects of the Project on historic properties.

This ultimate clause is the assertion of the signatories that the agency has – assuming it carries out the terms of the MOA – complied with the two requirements of Section 106: to take into account the effects of the undertaking on historic properties, and to afford the Council a reasonable opportunity to comment.

BUREAU OF BURRO MANAGEMENT

By:_______________________________ Date:__________

WASHAFORNIA STATE HISTORIC PRESERVATION OFFICER

By:_______________________________ Date:__________

MOTOMAK TRIBE

By:_______________________________ Date:__________

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By:_______________________________ Date:__________

CONCUR:

EAST WASHAFORNIA ARCHAEOLOGICAL SOCIETY

By:________________________ Date:__________

 

FORMAT #2: MOA where ACHP has not participated in consultation

MEMORANDUM OF AGREEMENT

BETWEEN THE U.S. GOVERNMENT SERVICES BUREAU

AND THE MOTOMAK TRIBAL HISTORIC PRESERVATION OFFICER

REGARDING

THE BIG BROWN BANK REHABILITATION AND REUSE PROJECT

WHEREAS the U.S. Government Services Bureau (GSB) proposes to rehabilitate the Big Brown Bank Building at 75-25 East Peltier Street, Town of Motomak, in accordance with the documents entitled "Conceptual Plans forBig Brown Bank Rehabilitation" dated October 7, 2003 (the Undertaking); and

Identifies undertaking subject to review. For purposes of the example, assume that the Town of Motomak is within the exterior boundaries of the Motomak Reservation, and the Motomak THPO has assumed the SHPO's responsibilities under 36 CFR 800.

WHEREAS GSB has established the Undertaking's area of potential effects (APE), as defined at 36 CFR 15 800.16(d), to be the Big Brown Bank Building itself, together with the streetscapes on Peltier, Banks, and Means Streets and the buildings facing the Big Brown Bank Building across all three of the above-named streets; and

Identifies APE.

WHEREAS GSB has determined that the Undertaking may have adverse effects on the Big Brown Bank Building and on the Deloria District as described in the report entitled "Historic Properties Survey, Big Brown Bank Rehabilitation Project", prepared by Architrave Associates and dated December 4, 2003, which GSB and the Motomak Tribal Historic Preservation Officer (THPO) have agreed meets the criteria for inclusion in the National Register of Historic Places, and possibly on archeological resources lying beneath the Big Brown Bank Building and the surrounding streets; and

Identifies properties known to be subject to adverse effect, with allowance for undiscovered properties.

WHEREAS GSB has consulted with the Motomak THPO, the Town of Motomak, and the Washafornia Chapter of the American Institute of Architects (AIA) in accordance with Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 (NHPA), and its implementing regulations (36 CFR Part 800.6(b)(1)) to resolve the adverse effects of the Project on historic properties; and

Identifies all consulting parties.

WHEREAS pursuant to 36 CFR 800.6(c)(2) GSB has invited the Town of Motomak to sign this Memorandum of Agreement (MOA); and

Identifies invited signatory.

WHEREAS pursuant to 36 CFR 800.6(c)(3) GSB has invited the AIA to concur in this MOA; and

Identifies invited concurring party.

WHEREAS GSB intends to use the provisions of this MOA to address applicable requirements of Sections 110(b) and 111 of NHPA; and

Use only where MOA actually will be used to address such requirements. Adapt as needed regarding other NHPA requirements or the requirements of other cultural resource laws, but document how each other law is satisfied separately from the MOA, to avoid implying that the Advisory Council or THPO are involving themselves in matters beyond their authorities under Section 106.

WHEREAS GSB has coordinated preparation of this MOA with development of its Plan of Action under the Native American Graves Protection and Repatriation Act (NAGPRA) in accordance with 43 CFR 10;

Use only where NAGPRA applies, and where coordination has occurred (as it should). Make sure the Plan of Action (POA) is a separate document developed by the agency and tribe(s), but that it is consistent with the terms of the MOA and vice-versa.

NOW, THEREFORE, GSB and the THPO agree that upon GSB's decision to proceed with the Undertaking, GSB shall ensure that the following stipulations are implemented in order to take into account the effects of the Project on historic properties, and that these stipulations shall govern the Project and all of its parts until this MOA expires or is terminated.

Note that this clause is conditioned upon the agency's decision to proceed with whatever it is considering vis-a-vis the undertaking (constructing it, implementing it, permitting it, assisting it, etc.). This is to make it clear that the consulting parties are not pre-empting the agency's final decision on the project under other pertinent authorities, including the National Environmental Policy Act (NEPA). Note that it also includes the language of NHPA Section 110(l), specifying the "governing" (contractual) authority of the MOA.

Stipulations

GSB shall ensure that the following stipulations are implemented:

(Insert stipulations. Always include a "sunset" stipulation)

Execution of this MOA by GSB and the THPO, and its submission to the Advisory Council on Historic Preservation (Council) in accordance with 36 CFR 800.6(b)(1)(iv), shall, pursuant to 36 CFR 800.6(c), be considered to be an agreement with the Council for the purposes of Section 110(l) of NHPA. Execution and submission of this MOA, and implementation of its terms evidence that GSB has afforded the Council an opportunity to comment on the Project and its effects on historic properties, and that GSB has taken into account the effects of the Project on historic properties.

Note that this ultimate clause is a little different from the one used where the Council participates in consultation, reflecting the language of the regulations with regard to this kind of MOA.

GOVERNMENT SERVICES BUREAU

By:_______________________________ Date:__________

MOTOMAK TRIBAL HISTORIC PRESERVATION OFFICER

By:_______________________________ Date:__________

TOWN OF MOTOMAK

By:_______________________________ Date:__________

CONCUR:

WASHAFORNIA CHAPTER, AMERICAN INSTITUTE OF ARCHITECTS

By:________________________ Date:__________

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