Section 106 Regulations Under Threat

Welcome everyone. Welcome to our webinar program, Section 106, Regulations Under Threat. I'm Rob Nweg and I'm a senior vice president at the National Trust for Historic Preservation. Today's webinar will provide valuable information. We will offer an outline of some of the more serious problems with the proposed uh changes to section 106 with a focus on the potential impacts if those changes are finalized. The webinar program will provide information about next steps and about the timeline and that's very important and complex the timeline for this rule making process and especially the webinar program will offer guidance about what you can do to push back against this threat to historic preservation. Before we begin, just a few technical logistics. We will take questions from the audience during the webinar. Please send your questions to the panelists using the Q&A function on your Zoom screen. You're welcome to submit questions at any point during the webinar and they will be reviewed both by our backstage team and by the panelists. But we'll wait until the Q&A section at the end of the program to address your questions and then only if time allows. The closed captioning function for the Zoom meeting is available for this webinar. You can enable it yourself and disable it either through the controls at the bottom of your Zoom screen or through your audio settings depending upon what version of Zoom you're using. We've turned off the chat function for this webinar because we want to ensure that the focus is on the material being provided to you by these expert speakers rather than on traffic in the chat. Following the program, we will send out a link to the recording of today's webinar directly to the email address that you use to register. And then everyone should know that all forum webinars like this one are available on the National Trust's YouTube channel. Next slide, please. Across the country, preservationists are mobilizing to defend section 106 at the local and at the state and at the national levels. Today for our webinar, we will hear from a great lineup of national leaders. We'll hear from Marian Workheiser at Cultural Heritage Partners, from Ira Matt at the National Association of Tribal Historic Preservation Officers, from Eric Hine with the National Conference of State Historic Preservation Officers, and then also from Tom Maize who's on staff at the National Trust for Historic Preservation. So, the best lineup of mobilized expert preservationists to speak with you today. Before we begin our substantive program, I want to turn over the mic to Brent Legs, who's the president and CEO of the National Trust for Historic Preservation. Brent, >> thank you, Rob. Good afternoon and welcome all to the National Trust for Historic Preservations webinar on the Advisory Council for Historic Preservations proposed changes to the regulations for section 106. As Rob said, I'm Brent Legs, the president and CEO of the National Trust. It's an honor to be with you. The National Trust was chartered by Congress in 1949 to preserve historic assets important in American history. In essence, we exist to help protect and steward our national inheritance. This is my first opportunity to address this community since the start of my tenure just six weeks ago, and I couldn't imagine a more meaningful and urgent moment to come together. I think we had over 5,700 people register today. Wow. It is gratifying that preserving and protecting our nation's historic and cultural places, the places that tell America's story, is so important to so many people. I also want to thank Cultural Heritage Partners, the National Conference of State Historic Preservation Officers, and the National Association of Tribal Historic Preservation Officers for their diligent advocacy and for participating in this webinar. Safeguarding our nation's historic national assets is central to all of our missions, and we are in this together. At this moment, we are not only organizing to uphold the rules and procedures that govern historic preservation in the United States. We are also strengthening the nation's civic responsibility to steward our collective legacy. Ethical stewardship through public and private partnership is our northstar. For 60 years, section 106 of the National Historic Preservation Act has helped ensure that when the federal government initiates, funds, permits, or licenses undertakings, it first takes time to consider how those decisions might affect the historic places that define our communities. Just as important, section 106 enables public participation and comment in the process and empowers tribes, state and tribal historic preservation offices, local governments, preservation organizations, and concerned citizens to have a meaningful voice in those decisions. Section 106 has never been about stopping progress. Rather, it facilitates better decisions through consultation and collaboration and ultimately improves the process and enhances the outcome. Today, these long-standing practices face the most significant challenge in their history. Let me be clear. The Advisory Council on Historic Preservations proposed changes to section 106 threatened the history of our nation and the fabric of our society. This is an unprecedented and deliberate attack on our civic and cultural inheritance. The work of many, the work many of you do every day. The proposed changes will eviscerate the process that allows us to weigh in on federal agency actions that threaten our shared civic and cultural heritage. And these proposed changes will lead to more delays and more litigation as federal agencies and applicants try to navigate compliance without the well-known and wellused consultation process with which often leads to negotiated win-win outcomes. If implemented as written, the proposed changes would mean that federal agencies are no longer required to find ways to avoid or minimize harm to the historic places that connect us to our shared history. From iconic architecture and storied neighborhoods to ancient sacred landscapes, these changes matter because historic places matter. Historic places are where a nation's history becomes tangible. On Main Street, at tribal cultural sites, in rural communities, at places of worship, and in the communities that shape our shared identity. It is odd and difficult to understand that as our nation commemorates, 250 years of American ideals and progress, historic preservation values and benefits are being undermined and dismantled. And yet, this proposed dismantling is not being done in isolation. From the actions leading to the partial demolition of the White House to the unpopular ideas for new public art called the arch and the garden of heroes to the proposed painting of the executive office building to the mismanagement of the Lincoln Memorial reflecting pool's restoration to the devaluing of a global institution called the Smithsonian. The American public must demand accountability from Congress, the courts, and the administration that our government does not endanger our most important cultural landscapes and historic assets. It is time for our movement and community to mobilize and advocate for our shared history. Today's webinar is designed to help all of us understand what has been proposed, what comes next in the rulemaking process, and most importantly, how we can work together with partners, advocates, and allies around the country to ensure that consultation, transparency, and thoughtful stewardship remains central to federal decision-making. At the conclusion of this webinar, we will issue several calls to action, including contacting your member of Congress and governor. And in honor of 250 years of American democracy, we are setting an ambitious goal to send 250,000 letters to our elected officials, demonstrating the crucial role Americans have in expressing their disapproval of unwarranted attacks on historic preservation. I invite you to help us mobilize the American public and ask that you join this effort. Thank you again for being here. Thank you for your commitment to historic preservation and for your collaboration with the National Trust and our partners across the country. Together, we have protected some of America's most meaningful places. And I am confident that together we will continue to stand up for the process that has helped make that possible. Now it is my pleasure to turn the mic over to my friend and colleague Marian Workheiser, co-founder and attorney at Cultural Heritage Partners. >> Thank you Brent. We are so grateful for your leadership especially now and I really appreciate the National Trust for hosting this webinar. Hi everybody. My name is Marian Workheiser. I'm the founding partner and managing attorney at Cultural Heritage Partners. We are a private law firm with a public mission. We believe cultural heritage is a human right. Section 106 practice isn't a side issue for us. It is core to who we are and what we do. We represent tribal nations, local governments, community organizations, and preservation advocates across the country. And right now, we're in active litigation against the administration over the Eisenhower Executive Office Building in the Kennedy Center. Through our war room initiative, we've been tracking and responding to the ACP section 106 regulatory overhaul in real time. And that's what I want to walk you through today. what's actually in the draft and what it would mean if it goes through as written. Next slide. So, let's get oriented. Three major themes run through this entire draft. First, it consolidates control in the agencies. Consultation becomes optional and agency directed instead of a shared process. Second, it reduces how often section 106 ever applies. Fewer projects get reviewed at all. And third, it shrinks what counts once you are in the process. Fewer places count as historic properties, and fewer effects count as adverse. So, everything I'm about to show you falls under one of these three buckets. Um, so keep them in the back of your mind as we go along. Next slide. Let's start with theme one. Consultation with state and tribal historic preservation offices and with local governments, the cornerstone of the section 106 process that provides critical information to inform federal agency's decisionmaking becomes optional. Consultation will now be up to the federal agency's own discretion. in the text may replaces shall. That's the whole ball game. The draft also cuts the public out. People who care about historic places, the organizations who own or steward them, you and me, we no longer have a seat at the table. Public participation becomes discretionary. The draft actually says the agency has quote exclusive discretion to determine the usefulness of public participation. And the agency shall consider how offering an opportunity for public participation is balanced against the cost of other values such as a public interest. what um and yes that last part is missing a word in the draft and then the definition of consultation itself gets rewritten. It now will only mean that the agency has to seek and consider other parties views not discuss them not try to reach an agreement. So, if they decide to reach out to you at all, you'll be able to send them a letter, but you can expect no followup. The agency could just decide to ignore you and they would still comply with these new regulations. Next slide. It gets even more concerning. applicants, the people or the companies applying for the federal permit license or funding in the first place can now initiate and conduct consultation directly with shipos and tippos. Those are the state historic preservation offices and tribal historic preservation offices on the agency's behalf. that consultation in that includes consultation with tribes assuming that the agency decides that it wants to do consultation at all. So the project proponent the party with the most interest in a project moving forward is the one who gets to run the process. Right? In addition, agencies gain broad authority to shorten, lengthen, or wave procedural deadlines, including the the council's own comment period, simply by telling you they're going to do that. They can just send out a notice. There's no comment on that decision. Next slide. Now, let's move to the second theme, which reduces when section 106 even applies. This is foundational because if something doesn't count as an undertaking in the first place, none of the rest of the section 106 process ever happens. The draft carves out nine categories of activities that will no longer be subject to section 106. And I'll just give you a flavor of them. They include state, local, or tribal actions taken under delegated federal authority. those are gone. Federal grants where the government doesn't control how or to whom the money goes, gone. Agent um actions that are merely subject to a federal veto but don't need affirmative approval are out. Projects with no or minimal federal involvement where the agency can't control the outcome are out. and actions where another statute is deemed to substitute for section 106 also out of the process completely. Now individually some of these can sound reasonable um but the draft is very unclear and it's very confusing about what would actually fall into these categories. So I think we have to understand that together they are nine separate ways to argue a project was never subject to review in the first place. Next slide. And it's not just those nine carveouts. Beyond that, the draft builds a streamline process for agencies to exempt whole categories or programs from section 106 review. The advisory council's objective, they say, is to align these exemptions with NEPA's categorical exclusions. Those are um exclusions from the National Environmental Policy Act environmental review process. But what it means is that far more project types will face no historic preservation review at all. And public participation in creating these exemptions is left to the proponent of the exemption to arrange. Meaning it's optional. It's not required. They never have to ask us if it's okay to create these exemptions. And once the exemption is granted, it's very hard under these regulations to claw it back. Next slide. Okay, we're going to move on to our third theme. Even when section 106 does apply, less counts once you're in the door. Right? We're going to start with the definition of historic property itself. The law says that the federal government has to take into account the effects of its projects on historic properties. The definition in these rags is still tied to national register listing or eligibility, but the draft adds two new requirements. It says that a place must include or have once included tangible human improvements like built structures and it must be quote geographically compact. The draft says this explicitly. It says non-compact, unimproved natural features, mountains, valleys, bodies of water, landscapes, including ethnographic landscapes, do not qualify as historic properties that the government needs to consider when approving projects. Think about what that excludes. traditional cultural places and sacred sites of deep religious and cultural significance to tribes and Native Hawaiian organizations, places that were never about a single building to begin with. And that same geographically compact language could just as easily threaten large rural historic districts, big urban historic districts, and large single property designations. Next slide. So even if a property still qualifies as historic, doesn't fall under those new exemptions, fewer things done to it will ever count as harm. The draft gets rid of consideration of indirect effects and cumulative effects. They're removed entirely. also removed the introduction of visual, atmospheric, or audible elements that diminish a property's integrity and changes to how a property is used. So, what's left is a new standard. Only effects with a reasonably close causal relationship to the specific undertaking will count. And effects from other separate projects don't count at all, even when they are clearly related. So this cumulative death by a thousand cuts that so many historic places actually experience under [snorts] this draft, they are no longer a concern. Next slide. This next one is close to home for anyone doing the actual identification and mitigation work. Field investigations, the heart of the cultural resource management practice, are only required, quote, taking into account reasonable considerations and factors like the cost and time of doing so. That's real discretion to do less work. And it means we will not learn about the existence of a lot of important places before they are lost forever. Agencies are no longer required to avoid or minimize adverse effects or even to consider alternatives. They can simply document that other considerations outweigh preservation full stop. When they do decide to mitigate effects, reasonable mitigation gets redefined to mean only what is technically and economically feasible. So costs alone can justify weaker or no mitigation. And those binding memoranda of agreement that events uh evidence AC compliance with section 106, those are going to give way to unilateral memoranda of decision where the agency decides on its own how or whether to address the harm that it's already agreed exists. Next slide. Let's talk about a couple more red flags before we move on. The draft expands the sweeping disaster or emergency declared by the president trigger for bypassing section 106 entirely. This is the same authority that was invoked under the January 2025 National Energy Emergency Executive Order to fasttrack energy projects nationwide. This is an open door to countless national emergencies that could be dis declared to bypass section 106. And separately, the draft is internally inconsistent in places. There are duplicate and renumbered provisions. There are terms that are not defined. They're drafting errors. And that is not a minor point that creates real ambiguity and real litigation risk for agencies and applicants alike. It also tells me that this draft was a rush job and I really doubt that good lawyers reviewed it before it was circulated. Next slide. I want to slow down here because this is this section is really important. Tribal nations in particular are dramatically harmed by this proposal. First move when that consultation becomes optional. What used to be a required government to government process becomes something that an agency or even the project's own applicant can run at its discretion. Secondly, sacred places get to find out. These new geographically compact built structure tests write sacred mountains, waters, and cultural landscapes right out of the definition of historic property. It also guts off reservation protections. The explicit duty to consult regardless of location is deleted which undercuts protection for sacred sites on ancestral or seated lands and most sacred sites in traditional cultural places that outside of today's reg reservation boundaries. And finally, the sovereignty and trust language is deleted outright. References to the governmentto government relationship and the federal trust responsibility are struck from the rule entirely. These are four separate moves with the result that tribes go from sovereigns with a guaranteed seat at the table to one optional party that an agency may choose to hear from or not. Next slide. I want to be clear, this isn't only a preservation problem and it isn't only a tribal problem. It consolidates all of these functions of the section 106 process inside federal agencies that don't have the staff to do this work. It excludes tribal expertise and undermines the federal government's trust responsibility. But it also excludes state and local expertise too which invites unanticipated discoveries, project delays, and tort liability for developers themselves when they damage important places. It strips project proponents of a structured way to resolve community concerns and that means that conflict will be pushed into other less predictable venues. The poor drafting creates internal inconsistencies and ambiguous cross references. That means litigation risk goes up substantially for agencies and applicants alike. Nobody actually wins here, including the people whose projects that the draft is supposedly designed to help move faster. Next slide. So what does this actually look like on the ground? Four things. Communities are not going to be warned about projects in advance. The federal government is going to do things in your backyard and they are not going to tell you about it before the bulldozers show up. Unmarked burial grounds and sacred sites, often best identified through community knowledge, will get bulldozed before communities even have the opportunity to flag their existence. tribes, African-American descendant communities, local governments, and other rights holders have their parti participation left entirely to agency discretion, which severely limits the ability to hold developers accountable throughout a project's life cycle. Places central to a community's cultural life will get destroyed with no record and no recourse. and tribal cultural resources and historic properties located off reservation and tribal land are especially vulnerable. And finally, fights are going to shift to the streets and to the courts. When communities can't resolve disputes with developers through early negotiation and consultation, the only options left are litigation and protest. Those are slower, costlier paths that are worse for communities and developers alike. So that's the landscape as it stands today. This is still a draft, which means there's still a window to weigh in, organize, and push back before it becomes final. And that's why I'm so glad that you are here so that we can fight back together. And now I'd like to turn it over to Ira Matt who's going to talk more about the impact on tribes. Uh everybody halt good morning, good afternoon depending where you're at. I'm back in the beautiful west coast. Uh very happy to have shed my DC existence recently. Um I'm the executive director the national association of tribal historic preservation officers and I'm a consider a citizen of the confederated sailor and tribes. So, um, Marian Brent, they already laid out so many of the legal, the structural problems with these proposed regulations, and today I'm going to focus on ways that this reduces tribal participation. And y'all heard a lot of that already, but I do want to talk a bit about what that means uh, in practice. So, if you could go to the next slide, please. Um, and really there's not enough time to talk through every failure in the proposed regulations. There is a lot of them. And I've been watching the chat. There's I think everything you guys are calling out, the questions you don't have answers to, the concerns you guys have, these are all big issues. and even the echo echo echo you guys talked about. Um these are all things that are going to play into these conversations today because you're going to hear me echo a lot of what Marian talked about and what Brent brought forward. Um but in particular um those biggest concerns that I want to talk about it's where it narrows those places that can be recognized uh the protections for tribal knowledge and even the ability for tribal nations individual tribal members to influence the process. Um and that really how placing more of the decision-makings in the hands of the federal agencies is going to undermine so much of what it is that we seek to achieve and do in this world. And that last part's important to me uh because throughout this new rule, agencies are given more control that identification, the record, deadlines, findings, objections, final decisions. And we're going to touch on a lot of that as I move through fairly quickly uh my presentations. But the fact that tribal nations we're going to have less ability to influence that review while the agency who's doing the funding as Marian noted who really is in control of this process is going to have more authority on how that unfolds. And that's why for me it was important to include the picture that you guys see over there. Uh, that's a photo of my two oldest daughters fishing at a place that we know well as a family. I know the stories of my grandparents, my sila, my skepe, you know, my father and my uncles, my smiles and noo-noos and my kids. And we have a connection to that place. I know what it looks like, right? It's not just a a place on a map. And I'm not going to lie, there's not much for physical features out there that are going to help you document this generational history that my family and others have had out there. It's truly that accumulation of stories, practices, the relationships, and the responsibilities that we carry across generations out there. But you guys can also see the bridge, right? Um, this isn't a place that's remained untouched through time. It's experienced change, but those changes happened with planning, discussion, and a process that allowed those needs, but that larger landscape to remain intact while really serving different needs. And so, people can travel through this area now and conduct what activities they need to, transportation, logging, whatever actions they're working on. But those of us with a connection to that, the fishing areas, the hunting, the harvesting and cultural practices, we're still able to operate. And because we've balanced that, there's actually infrastructure out there that we utilize to help amplify our cultural practices to access areas. But this balance does not happen by accident. It requires a process that identifies what they're what's there. Um, it listens to the people who know the place in particular in these circumstances, the elders who spoke about the significance of these fishing locations. It considers what's going to be lost and it determines how that change can occur without severing the relationship. And I think it might have been Mr. legs who talked about you know removing any avoidance or minimization uh which are huge in particular from cultural communities and that's a larger concern here that regulations narrow what the process can recognize uh reduces the role of the people who carry the relevant knowledge and it gives the agency responsible for the undertaking more control over which history is considered uh and what ultimately is going to survive. So, next slide. And we talked about this one quite a bit. Uh, Congress require tribal consultation. And I had a little bit of fun with this because I was trying to underline like the important language. And then I was underlining pretty much everything. I was trying to bold stuff. And after like 10 minutes, I I sort of gave up because this is an important passage straight out of the National Historic Preservation Act uh that recognizes the properties of traditional, religious, and cultural importance to an Indian tribe may be determined eligible for the register. It then requires federal agencies carrying out section 106 to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to the the property. And that word property matters in particular in its isolation with how it's utilized in the National Historic Preservation Act. It notes that it may be eligible. This is one of those times that the May versus Sha is actually better because it really recognizes the fact that at the time these amendments happened in '92, tribes had not been integrated to the historic preservation framework. Databases, you know, archaeological uh surveys and other efforts hadn't taken the time to identify these site locations, these areas that didn't have what the current regulations are proposing. that tangible human impact to it. Um, and overall this language is incredibly important because of the sequence that it imposes. Um, consultation is often how the agency learns that these properties even exist. You know, why they matter and whether they should be eligible. Under the current proposal, an agency one of first to decide that a mountain, waterway, landscape, you know, those areas that Marian talked about and other tribal places of significance do not even meet their proposed definition of a historic property. And then from that, they're going to conclude that they don't even need to consult about the place. And for me, I've seen some of the folks ask about direct conflict with statute that directly violates, you know, section 302706 of the act because it allows the agency to exclude the property before consultation has been performed, which is a function that Congress required. And it also removes so much of the other framework uh that gave tribal consultation substance. you know how they changed in the regulations and Marian hit on this so I'll breeze over it but the current regulations give tribes a you know quote reasonable opportunities to identify their concern advise on identification documentation strategies the evaluation and for me that's always been as important as somebody who spent my first 16 years working for my tribal government because the amount of folks that came to our lands that came to not only our reservation 1.317 7 million acres, but that operated even in our legally seated lands 22 million. We would constantly have to remind them about connections between even different tangible features, but what they should be looking for out on a landscape because what they may have studied and learned in North Carolina did not translate well to the Rocky Mountains out there in western Montana. And I'm not going to touch on how it really changes uh a lot of the direct engagement in the consultation process. Marian hit on that. Um but I do want to call out the fact that even with the existing regulations that have had so much additional context to help guide folks as to what should be done and what's important. For anybody familiar with section 106, you know, it's still rampant with failures with consultation and consideration, even with as much effort as has been placed in to walks walk folks through it. [clears throat] So by deleting a lot of that, even if their intent may not be to change some of what we're identifying, by placing more power and authority into applicants and into agencies, what it's ultimately going to do is create more confusion and more delays as we move through the process. Next slide, please. So tribal knowledge is expertise. I mean for anybody that has been paying attention for the last five, seven, eight years, right, those terms from traditional ecological knowledge have grown into indigenous knowledge and there's just been a dedicated effort from the White House to the advisory council itself to further clarify how indigenous knowledge and tribal expertise is evidence and should be reflected in the process. And that's one of the most consequential deletions of the current regulations. Well, not called out in the National Historic Preservation Act. The fact that they no longer recognize the special expertise of Indian tribes. [clears throat] The existing regulations recognize that tribal nations are not merely stakeholders, right? We offer opinions that should not just be able to offer our opinions after professional analysis is finished, right? We have expertise regarding our histories, our religions, our cultures, our relationships to place that only we can share, right? And for a lot of people that might not be familiar, that expertise, it's not something that we have documented and ready to go to hand over in some section 106 handbook. It's carried through our language, the place names, their old histories, our practices, those family relationships you've seen ceremony. uh it's a lived experience. It's accumulated. It's practiced and it's transmitted. And so to kind of put that through practice a little bit, a fluent speaker is going to hear the name of a place and they're easily going to understand that it records a significant event in our history, describes a resource or an action that needs to be taken, can even communicate a warning, or it serves as a teaching, right? the words of our creator or lessons that came from my people from Cintlet from Coyote who was sent down to prepare the world for our people and he fought monsters and a lot of people think monsters and they say oh like big dragons a lot of these were monsters such as greed right cold but he wasn't perfect in this and so we left a lot of our teaching and and lessons out there that we could communicate and transfer through time. And one thing that I want to bring forward that you all may be familiar with are things like pictographs, right? Maybe these qualify under this new tangible human improvement, but not all tribes do pictographs the same way. Yeah, you can document the pigment. You may be able to measure these and and try to interpret what their functions are. And some of these even in our culture were placed by people. But a number of these came before the time humans were here. They were left for us by the animal people to guide us, to help us become better and survive this world. So this very scenario that we're being placed into almost forces us to choose between our cultural knowledge, our cultural truths, what we know to be the world, which maybe some of these were not human modifications, and the regulations now that are asking us to possibly define these as human modifications or not to be considered. And so those are some of the ways that tribal knowledge is going to conflict. Not even just in the sense of tangible and intangible, but when these two different worldviews try to come together and really make these new regulations something that we can put into practice. Um, next slide, please. Um, the removal of tribal expertise even becomes more serious when it's paired with Right. Marian hit on this proposed definition of historic property that narrows the framework and it excludes so much very specifically of what the indigenous people of this nation, what Native Hawaiians, what other folks that are currently considered Mexican or Canadian, those indigenous folks see in the landscape. And that's a major problem because our stories aren't limited to buildings. It was archaeological deposits, which I might say, by the way. Uh my elders used to make fun of me all the time when we would be recording the lithic scatter because as they would say, uh you guys having fun playing in our garbage and and they would remind us that, you know, that's that's what was left behind. We lived over there. We kept our house clean. We can tell you where we lived, but you might not find evidence of some of those resources. And so when you start to narrow this and you start to allow those relationships to be broken down and to dismiss the larger hole because it's not geographically compact from some arbitrary statement that is not defined. Um how that will be defined and applied is hopefully not something that's going to occur in every different undertaking. It's going to lead to destruction to some degree. And for tribes, and this is for a lot of people, preservation is not just about the physical survival of something. Preservation is about perpetuation, cultural perpetuation, lifeways, memories, and so many other component. Next slide. And I promise I'll breeze through the last because I know I'm probably taking too much time, but I did want to bring this uh this out. I included the treaty cartoon because for tribal people, the story is familiar. We've seen what happens when one party gets to define the terms, control the record, decide what matters, and determine the outcome. When that much authority is placed in the hands of a party with a competing interest, the potential for failure is extreme. And that's essentially for me what this rulem does. It gives substantially more control to the federal agency responsible for the undertaking. They can shape everything. And for me, it just brings back more concern when everything for tribes for the last several decades has been an uphill battle to establish the footing we've had in historic preservation. Next slide. Um, I think this is about it for me. Uh, the fact that NASPO tribes have never argued that the current regulations are beyond improvement. As a matter of fact, to quote Nina Oyola, Semino tribe of Florida, you know, par quote, we have, you know, 25 years now of experience. We have hindsight, we can tell you what can be improved in this process. And I think those were wonderful words of wisdom that if we all sat down and worked together and we took into account hurdles and challenges that tribes have experienced, those of states and local communities, we could find a way to make this more efficient. Everybody doesn't want to place more time into decision-m then is what is necessary. What we want though is the best opportunity to focus on what's important and establish an outcome that benefits everybody. Good reform does not reduce consultation to notice. It doesn't compress the deadline. Really, what we need to do is retain a meaningful voice of the people. And I look forward to working with you all to achieve that. And for me, that's it. Lem le um for the opportunity to be here, the speakers, and to everybody out there. I'll turn it over to Mr. Eric. Good afternoon everybody. Uh thank you for joining us. I've really been in uh enamored by the questions. Um I'm uh Eric Hine, executive director of the National Conference of Shipos. And um I want to start off first by um because I've seen so many questions in the chat um recommend that if you haven't done so recently to please go ahead and read the National Historic Preservation Act text because you know when we refer to the fact that the proposed regulations now regulations uh take a law and put it into action. Um, if you have questions about why uh the regs seem to exceed what is in law, that is certainly the the entire point uh behind the conflict um and what we are so concerned about. So take a look at the act. Um it's really uh it's a good practice to do now and then. Um next slide please. So on a for the perspective of state historic preservation offices um and of which there are 59 uh of course in each state US territory and the District of Columbia um there's some pretty consistent themes that we've identified and they're not different than what you've already heard. So I won't spend a great deal of time on them. Um but you know of course the big issue for us and for all of you is the loss of con required consultation. Making consultation optional uh is definitely something that we're concerned about. Um deliberately cutting states, tribes and local governments out of the regs uh as a required consulting party uh is certainly a problem. um completely sidelines the ability uh for shipos and tribes to be able to provide their expertise uh or or even a requirement for the information that they have that may help agencies make better decisions uh when looking at um the identification of historic properties which we believe would substantially deteriorate or lead to no identification at all. This essentially puts everything in the hands of federal agencies, which in a an environment where everyone is sort of questioning uh regulations and processes um just does not seem to be a wise move. Uh I don't think anyone here after knowing how many federal agents agency employees have lost their jobs or left over the last few years um would trust that agencies have the required resources in place to even be able to take this on if we wanted them to. Excuse me. Um it limits the properties that would be subject to section 106 and you've heard a lot about that already. uh particularly cultural landscapes. Anything that would be more of a natural um uh or ethnographic resource as opposed to a physically built one uh would not be uh covered by section 106. And it trades um what ultimately is the final documentation of the section 106 process which is uh you know typically a memorandum of agreement. It trades it for a memorandum of decision is essentially what it does. An agreement um assumes that there has been some consultation, some back and forth and consensus. Um, of course, a decision means that they can ignore basically everything that you've talked about along the way um and just simply publish their decision. And in our view, all of these together, and again going back to my suggestion that you reread the National Historic Preservation Act if you haven't done so, um, violates the very intent of the National Historic Preservation Act. Next slide, please. Which really is this on the screen if you're able to see it. Um in the 1950s and60s uh we had a lot of investment in urban renewal in infrastructure and spending which I think some will would say we accomplished a lot during those years but we also did a lot of things wrong. Um and the entire reason the act was uh put into place was that we lost entire neighborhoods. We saw uh communities scarred by federal projects or federally funded projects and no one had a voice in the decision-making. That is literally why the act was created. This is why it created up a partnership between the federal government, states and then ultimately tribes. I just want to highlight uh section 302303 of the act uh which specifically outlines the responsibilities of state historic preservation officers to consult with federal agencies. It's a very important principle in order to lead to better decisionmaking. Also take a look at sub chapter five which is where they talk about the role of federal agencies and the requirement that they take into account the effects on historic properties undertakings. These are foundational and in our view this is why the regulations that have been proposed grossly exceed what is permitted under the law and it's an extremely disturbing uh prospect for us. Um I know that uh there's a lot that uh we'd like to cover today. So I'm happy to be brief since so many of the concerns have already been uh shared. So, I'm going to go ahead and turn uh this over to Tom Mazize. >> Thank you, Eric. And uh thank you also Ira and Marian for um all of your work on this and for setting the stage on it. I am the chief legal officer at the National Trust and I want to share with you both a timeline of what will happen and then what we can do about it. Next slide, please. So, first on the timeline, here's what's going to happen. The advisory council voted to move this forward on July 24th. Uh, NASPO, Nickpo, and the National Trust, all of whom sit on the um advisory council, voted no, but it moved forward anyway. And the next step uh is for the advisory council to submit it to the office of information and regulatory affairs called OIRA. And that we understand has just happened. I think we're going to include a link to that site uh in the chat. OIR will now review it and OIR's review includes working with other agencies, hearing their viewpoints, hearing from uh tribal governments, hearing from governors and others. We're going to encourage people to participate in the OIRA process to make their comments known. There's not a specific timeline for the OIRA process. So at some point it will come out of OIR and come back to the advisory council and the advisory council will throughout this process work to resolve the comments that are made during the OIR process. After that the advisory council will publish a notice of proposed rulemaking [clears throat] and it'll be published in the federal register for public comment. That is the moment in time when they uh will look for public comment. We will be strongly encouraging public comments. You heard Brent set the goal of 250,000 comments. So you'll hear more about that as we get to the next next step. During this process and even before and after, the advisory council will be doing tribal consultation on the the proposed changes. After that, the advisory council will review the input and comments. They're required to do this and they'll also receive input from the members and then they will vote on the final rule. We don't know exactly what the final rule will look like, but we suspect it will move forward in substantially the same way. It will then be resubmitted for OIRA review briefly and then the final rule will be published in the Federal Register. It doesn't immediately become effective, but becomes effective 30 days later. Then it is in that period that we will prepare for litigation if it is necessary because they have not gone through the process properly or because it's inconsistent with the National Historic Preservation Act. That's generally the time frame for how this will move forward. If you could move to the next slide. So the big question, what can we do about this? What can you do about it? first um follow the updates at savingplaces.org as well as at the other organization links that um that Priya and others have been dropping into the chat. Uh Nathpo will be providing updates, Nickpo will be providing updates and Cultural Heritage Properties uh Cultural Heritage Partners has also created a war room for information about it. All the links will uh continue to be updated over time. We'd like for you to send us examples of section 106 consultations that benefited your community so that we can use these examples to make the case for preserving the section 106 process and you'll find a way to do that on our website. We want you to write to your governor and share how these changes can impact historic properties in your location. And again, there will be a link with information on how to do that at our website. We strongly encourage you to write to your member of Congress and also consider contacting the district office of your member during the August recess to make your voice heard about this. And finally, be prepared to send comments to the advisory council when the comment period opens. These are the immediate next steps. They're relatively simple. Monitor the links that we've provided for you, particularly the National Trust Saving Places uh link. And we'll continue to provide updated information as this moves forward. And with that, I'm going to uh briefly turn it back to Rob for him to uh close out this very useful webinar. And thank you to all of our participants. Uh thank you Tom and Ira and Marian and Eric very much for your information. Remember that this uh webinar has been recorded and a link to it will be sent to everyone who registered for this webinar. All forum webinars are on the National Trusts YouTube channel. Um thank you to the speakers. Thank you to the attendees. The questions are marvelous. They will be used to update to be addressed in an updated version of our frequently asked questions. Please go to the saving places uh web page so you can get more information about the proposed regs themselves, access to read them directly, so you can get ideas about how to make the best case when you are writing to your governor, when you are writing to your members of Congress. More information will come out from all of the associated and many organizations are collaborating to defend the law. You will get more information as goof goes forward. We will be doing more webinars so that you can get more information in this form. Thank you. This afternoon um next uh slide please. Um, bear in mind that there is the National Preservation Law Conference coming up in October. This issue will still be alive. That law conference, which is available both in person and online, will be another way to for us all to be directly engaged in protecting and defending the law that helps us all to defend the unique and irreplaceable historic places, cultural sites that are now in danger. Um, thank you. And that is the conclusion of our webinar.