Stoel Rives partner Michael O’Connell reports:
On January 4, 2010, the Keeper of the National Register determined that Nantucket Sound is a traditional cultural property (TCP) of two Indian tribes that is eligible for listing in the National Register of Historic Places, even though the area is submerged. The Keeper made that determination in response to a request from the Mineral Management Service (MMS), which is considering a request for a lease of outercontinental shelf land for 130 wind turbines for the Cape Wind Project. MMS and the Massachusetts State Historic Preservation Officer (SHPO) disagreed on whether Nantucket Sound was eligible for listing.
In a January 4 press release, Secretary of the Interior Ken Salazar proposed that the principal parties get together the week of January 11 to consider the Keeper’s findings and to discuss how to find a common-sense agreement on actions that could be taken to minimize and mitigate Cape Wind’s potential impacts on historic and cultural resources. If an agreement among the parties cannot be reached by March 1, Secretary Salazar said he is prepared to take the steps necessary to bring the lease application process to conclusion. He added: “The public, the parties, and the permit applicants deserve certainty and resolution.”
Cape Wind is the Nation’s first, major off-shore wind project. Secretary Salazar noted that “America’s vast offshore wind resources offer exciting potential for our clean energy economy and for our nation’s efforts to reduce our dependence on foreign oil.” He added that “as we begin to develop these resources, we must ensure that we are doing so in the right way and in the right places.”
Under regulations implementing section 106 of the National Historic Preservation Act (NHPA), 36 CFR Part 800, a federal agency must consider measures to avoid, minimize and mitigate potential adverse impacts of the federal action on properties listed in or eligible for listing in the National Register. As a procedural statute, NHPA Section 106 does not prohibit agencies from taking action that would adversely affect such properties. If an agency terminates consultations without a mitigation agreement with the SHPO, the agency must request comments from the Advisory Council on Historic Preservation, notify all consulting parties and take into account any comments provided by the Council before reaching a decision. The agency must prepare a summary that contains the rationale for its decision and evidence of consideration of the Council’s comments, provide the summary to the Council prior to approval of the action, provide a copy of the summary to all consulting parties, notify the public and make the record of the decision available to the public.
The Keeper’s determination regarding Nantucket Sound is significant for projects involving federal agency action. The Keeper found that Nantucket Sound was eligible for National Register listing under each of the four criteria for listing – any one of which would have made the Sound eligible for National Register listing. The decision lends support to claims some Indian tribes have made in other proceedings or may make in the future that relatively large areas of cultural and religious importance to Indian tribes are eligible for National Register listing as traditional cultural properties or TCPs.
The Keeper’s decision relied on record evidence of the tribes’ historic and cultural relationship with Nantucket Sound, federal regulations and National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties (widely known as Bulletin 38), for its rationale. Bulletin 38 is a guidance document which has not been adopted by rule.
Even where federal agency action is not involved, many state historic preservation laws and regulations afford protection to properties eligible for National Register listing. Thus, the rationale for the Keeper’s determination that Nantucket Sound is eligible for National Register listing may have impacts on projects subject to state historic preservation laws and regulations.