MGKF attorneys regularly assist our clients to address their projects' impacts on historic and archeological resources. Pursuant to Section 106 of the National Historic Preservation Act, all agencies performing federal actions must, prior to implementation, take into account the impacts of the federal action to historic and archeological resources. "Federal actions" include, but are not limited to, the granting of monies or the issuance of permits or approvals, such as the issuance of a Clean Water Act Section 404 wetlands permit by the U.S. Army Corps of Engineers. Accordingly, historic and archaeological resource issues may arise in a variety of contexts involving federal permitting or funding.
Lawyers at the firm understand and have participated in the entire Section 106 process, from the initial step of determining whether a structure or site is eligible for the National Register of Historic Places, to identifying potential effects of a project on any National Register-eligible property, through preparing and executing a Memorandum of Agreement with a State Historic Preservation Office and the federal Advisory Council on Historic Preservation. In providing this assistance, we have worked closely with our client's cultural resource consultants to ensure that the technical record is developed on the pertinent facts.
When clients have come to us after their projects were underway, we have negotiated with the appropriate agencies to resolve any disagreements and allow our clients' projects to proceed. Although each situation is highly fact-specific, our understanding of the process and thorough knowledge of the applicable guidance documents have allowed us to resolve matters to our clients' satisfaction.
Representative matters implicating historic or archaeologic resources in which the firm has been involved include the following:
- MGKF represented a municipality in negotiations with a state Department of Transportation ("DOT") to ensure that the DOT properly observed all of the requirements of Section 106 when the DOT proposed a new interchange located along an interstate highway within the municipality. The firm was successful in forcing the DOT to acknowledge the existence of a greater number of cultural resources in the municipality than it previously had identified, and also to provide protection to all those resources.
- Our firm negotiated a settlement on behalf of a religious institution that allegedly destroyed an historic farmhouse to build a new facility without first receiving proper approvals, including an agreement with the Advisory Council on Historic Preservation and the issuance of an Army Corps of Engineers Section 404 permit.
- We negotiated and drafted a Memorandum of Agreement executed by two of our residential developer clients, the State Historic Preservation Office, and the Advisory Council on Historic Preservation. The Memorandum of Agreement memorialized the mitigation measures we negotiated with the government agencies to preserve and protect an historic farmhouse and barn on the project site. The mitigation measures set forth in the Memorandum of Agreement included landscaping to reduce visual impacts, earthen berms and buffer areas, and a descriptive permanent roadside marker summarizing the significance of the structure.
- The firm coordinated with the U.S. Army Corps of Engineers to properly define the Corps' jurisdiction pursuant to Section 106, which enabled our client to focus its investigative efforts on just that area of the development site, and not the entire project area.
- In another matter, MGKF successfully argued that the Corps had overstepped its authority by requiring in a comment letter that our developer client undertake an archaeological study of a large development site. A subsequent comment letter from the Corps limited the scope of the required archaeological study.
- February 24, 2020MGKF Litigation Blog