Circumventing Consultation Under the National Historic Preservation Act: How Judicial Misapplication of Section 106 is Putting Historic and Cultural Resources at Risk

Abstract

The Advisory Council on Historic Preservation’s website proudly features “Section 106 Success Stories” where broad and meaningful consultation led to exemplary outcomes. But what if the consultation process that lead to those successes was never triggered? Unfortunately, there are too many stories of far less success because of legal opinions that mistakenly determined federal actions not to be “undertakings” under Section 106 of the National Historic Preservation Act. This article attempts to settle the question of “What is an ‘undertaking’ in Section 106?” Through an analysis of statutory and regulatory changes, legislative history, and legal opinions, this article demonstrates that courts have misapplied “undertaking” to federal actions by interpreting the term narrowly, failing to follow Congress’s more broad intent. Congress did not intend for each word in Section 106 to be interpreted as individual prerequisites. Instead, Congress intended the undertaking determination as dependent on amount of federal involvement -- more specifically whether the federal agency has discretionary approval authority over a proposed action. While reconstructing the legislative and judicial history of Section 106, this article also reveals an interesting tussle between the three branches of government related to the triggering of federal historic preservation’s most significant compliance process.