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The National Historic Preservation Act and The National Park Service: A History
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Expanding the Register|
The National Historic Preservation Act and The National Park Service: A History
Expanding the Register |
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EXPANDING THE REGISTER
The National Historic Preservation Act authorized the Secretary of the Interior "to expand and maintain a national register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture, hereinafter referred to as the National Register...." The National Register was at the core of the act: nearly everything else was aimed at identifying, preserving, and protecting what would be included in it. The decisions made in implementing this provision were therefore basic to the national historic preservation program over the next two decades.
Those in the National Park Service charged with further defining, expanding, and maintaining the National Register had aided or witnessed the drafting of the act's language and were familiar with the testimony of its proponents during the legislative process. From this legislative history they derived and incorporated certain axioms that were not obvious from the act alone.
The first of these was that the National Register already existed in embryonic form, consisting of the national historic landmarks designated previously. This point was of much importance to George Hartzog, who insisted on having the law "expand" rather than initiate the Register. In this way he could tie the Register to longstanding Service activity under the 1935 Historic Sites Act, which authorized the landmarks program. Doing this would limit the possibility that the Department of Housing and Urban Development or some other agency might seize the new program, and it might enable the Service to carry out some of the program under the 1935 authority if funding were not forthcoming under the new legislation. [1]
Second, expansion of the Register was understood to cover properties of less-than-national significance. Nationally significant properties—the national historic landmarks—were included by virtue of the 1935 act. The thrust of the studies and testimony preceding the 1966 act was the need to be concerned about places of regional, state, and local significance as well. The bills introduced in March 1966 by Sen. Edmund S. Muskie of Maine and Rep. William B. Widnall of New Jersey, who had both served on the committee that produced the preservation blueprint With Heritage So Rich, explicitly described the Register as comprising this range of properties. [2] Although this breakdown was not included in the bill that was enacted, there was no question that the act's reference to properties "significant in American history, architecture, archeology, and culture" was meant to apply broadly and that its call for "comprehensive statewide historic surveys" would encompass places down to the locally significant level.
Third, although "objects" were included among the categories of properties on the Register, the Register was not intended to list small artifacts outside of their historic contexts, such as museum objects and collections. The act was primarily a response to concern about the effect of federal public works on historically significant real estate—sites and buildings. Portable objects whose significance was unrelated to their locations were not threatened by such activity. Testifying on a related bill before passage of the act, Gordon Gray, chairman of the National Trust for Historic Preservation, spoke of "historic places" as the object of its provisions. [3] Although it did not appear in the act, this phrase nicely captured the intended geographical basis of the Register.
In mid-1968 the Service began to refer to the "National Register of Historic Places." Office of Archeology and Historic Preservation staff adopted the suffix in preparing the first publication of the Register so that the title would signify its general content ("National Register" alone could have embraced anything). [4] Although the title was not selected deliberately to exclude objects, it did serve to reinforce the intended scope of the Register. The number of objects listed over the years has been small, and most of those included have been substantial in bulk and relatively fixed in location, like moored ships. The current Service definition of objects for Register purposes specifies that they must be "related to a specific setting or environment." [5]
In June 1966, four months before passage of the act, Bob Utley drew up an outline for implementing the expected program. The Service would immediately place in the National Register all properties eligible for national historic landmark designation and all buildings recorded by the Historic American Buildings Survey. Each state would be asked to designate an agency responsible for conducting its statewide historical survey, preparing its historic preservation plan, and receiving grants. Utley adapted criteria for properties of state and local historical significance on the Register from the Service's existing national significance criteria. Subsequently adopted, these criteria remain in force. [6]
At this point in the legislative process, proponents fostered the notion that the state surveys would be completed in a finite time period. Testifying before the House subcommittee considering the bill on July 15, George Hartzog explained why it authorized appropriations for only three more fiscal years:
The reason for the limitation of three years is that we were not able, and we still are not until you get this overall survey finished, to say what amount of money you need for this program. So four years from now we will be back before this committee and before the Congress seeking a broader charter for grants in response to the need that develops as a result of the survey. [7]
The Senate and House committee reports recommending passage of the legislation both repeated this expectation that expansion of the National Register via the state surveys would be completed by 1970. Ronald F. Lee was equally optimistic a month after the October 15 enactment. In a plan submitted to Hartzog he envisioned completion of the national historic landmark surveys in 1967 and the statewide surveys and preservation plans in fiscal 1970, with the results incorporated in the Register. [8]
An exchange between Hartzog and the Senate Interior committee chairman, Sen. Henry M. Jackson of Washington, during the Senate hearing in June 1966 also reflected the prevailing vision of the Register as something much narrower than it would actually become. Jackson expressed concern that local desires to benefit from the grants program would cause many unqualified properties to be nominated to the Register, and he asked how state nominations would be evaluated. Hartzog replied that they would be reviewed in the same manner as national historic landmark nominations—by the Secretary of the Interior's Advisory Board on National Parks, Historic Sites, Buildings, and Monuments. [9] The advisory board comprised 11 members of varied expertise who met twice a year to consider a diversity of business, including a few dozen landmark proposals. It would have been overwhelmed by any significant volume of state Register nominations. Fortunately, Hartzog's response was forgotten when the nominations started rolling in.
Serious planning for the National Register got underway in late November with the formation of a Service task force to draft standards and procedures for implementing the act. Bob Utley was chairman; the other members were Russell Keune, architect; Zorro A. Bradley, archeologist; Murray H. Nelligan, historian; William E. Brown, historian, later replaced by John A. Hussey; and Kay Thomas, secretary. The task force convened on November 22 with the members of Hartzog's special committee on historic preservation, Ronald Lee, Ernest Connally, and J. O. Brew.
The first objective was to define the Register consistent with the act's general language encompassing "districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture." According to the minutes of the next meeting on November 28:
The question arose as to what "Culture" would include, and Mr. Utley said it was his understanding that Culture is anything not under the heading of history, archeology, and architecture. It is not possible to define it too well. The Smithsonian Institution has the most objects, but they are not in the picture, and we will have to make sure that they do not attempt to run away with the ball. [10]
A good deal of discussion revolved around the matter of ranking Register properties. Should the national historic landmarks be grouped together at the top of the list? Should further distinctions be made among properties of regional, state, and local significance? Should there be different standards of protection based on the significance levels?
At the November 28 meeting the task force favored "a category of inviolate properties of national significance, such as Mount Vernon and Independence Hall—everything else would be subject to destruction if determined to be in the public benefit." Bill Brown prepared a paper for the next meeting on December 5 advocating that all properties be ranked by significance and assigned to "must preserve," "should preserve, and "desirable to preserve" categories. The projected volume of Register properties and competing public interests made such priorities essential, in Brown's view; he thought it better to focus preservation attention on the most important places than to diffuse it indiscriminately among all. [11]
Ronald Lee favored three significance categories—national, state or regional, local—but did not want to assign different preservation standards to them in such explicit fashion. Ernest Connally, who would exercise heavy influence over the task force recommendations as the prospective chief of OAHP, was even less inclined to rank Register properties. To do so, he feared, would signal that those in the lower categories were expendable. Rather than prejudging whether particular sites "must" or "should" be preserved, he preferred to weigh the public benefit of their preservation in the context of actions affecting them, during the review process to be established by the Advisory Council on Historic Preservation under the act. [12]
The task force report reflected Connally's position, prescribing the Register format as an ungraded, uncategorized list of properties arranged alphabetically by States." [13] The first publication of the Register, in the February 25, 1969, Federal Register, did not even identify which properties were national historic landmarks. Bill Murtagh, Keeper of the National Register, viewed the Register primarily as a means to recognize and reinforce the environmental and aesthetic contributions of locally significant properties in community life. To him and other devotees of this "new preservation," the landmarks program overemphasized associative values (the "Washington slept here" syndrome) and museum-type properties isolated from contemporary social concerns.
Although landmark status was noted in later publications of the Register, landmarks were still listed alphabetically with other entries and with no suggestion that they warranted higher consideration. In 1980 the National Historic Preservation Act was amended to give landmarks somewhat more protection from federal undertakings than other Register properties, but no change was made in the Register itself reflecting this modification.
In his earlier proposal for the Register's initial content, Bob Utley had included all structures recorded by the Historic American Buildings Survey. This was quickly seen as unworkable: many of the HABS-recorded structures had been demolished, and there was no way to tell which survived without extensive investigation. Nothing was entered in the Register solely because it appeared in HABS, therefore. Instead, HABS structures that had not been listed by mid-1969 as a result of landmark status or state nomination appeared in the Advisory List to the National Register of Historic Places published by OAHP that year, along with properties that had been considered but rejected for landmark designation. Copies went to the states with the suggestion that they investigate these places during their surveys.
The task force prescribed for automatic placement in the Register another class of properties that Utley had not mentioned in his prospectus: the historical units of the National Park System. The national significance of most had been established by Congress in authorizing them, and they clearly fell within the intended comprehensive scope of the Register. Little or no thought was then given to the fact that the Service's own development of these parks would become subject to Advisory Council review under Section 106 of the act. The Advisory Council's review procedures had not yet been worked out, and Section 106 compliance was seen in any case as applying largely to other federal agencies whose programs regularly impaired historic properties. [14]
Utley's proposal that each state be asked to designate an agency to handle its Register program was implemented in January 1967, when Secretary of the Interior Stewart L. Udall signed letters to all state governors. Drafted by James M. Lambe in the Service's legislative office, they read in part:
I would appreciate very much your letting me know the officer or agency whom you designate to represent the State in preparing surveys, receiving grants, and carrying out other phases of the program. With this information we can consult with your representative to work out the basis for grants when funds become available, and can eventually obtain the name of the State representative authorized to enter into contractual relationships on behalf of the State. [15]
The letters enclosed copies of the act and an explanatory statement. This procedure and arrangement closely followed the implementation of the Land and Water Conservation Fund Act of 1965 by the Bureau of Outdoor Recreation. The officials designated by the governors even received the same title—state liaison officer (SLO)—as those responsible for the Land and Water Conservation Fund program; the more descriptive "state historic preservation officer" (SHPO) was not substituted until 1973. They were a varied group, falling into three general categories of roughly equal size: state park administrators, state historical society directors, and a polyglot of highway, housing, and planning officials. Among the initial designees were a former Park Service director, Conrad L. Wirth, then chairman of the New York State Historic Trust, and a future Service director, William Penn Mott, Jr., general manager of the California Department of Parks and Recreation.
Contrary to the expectations of some in the Service, the state park and historical society offices were frequently less adapted to handling the state programs than the diverse offices in the third category. The parks departments and historical societies were accustomed to dealing with historic sites, museums, and archives that they operated with their own employees. Offices dealing more broadly with planning, on the other hand, often seemed better able to grasp the vision of the nationwide preservation program, view preservation in environmental and economic development terms, and take advantage of citizen involvement. Bill Murtagh later regretted that his office had not promptly supplemented Udall's letter with guidance on the selection of state preservation officers and agencies: "Had better direction been given...we might have had the responsibility placed in more State planning agencies where it might have functioned better and quicker." [16]
A 1975 Service report by Robert B. Rettig found that 21 state historic preservation offices were then parts of broad historical or cultural agencies, 16 were in natural resources or parks departments, and 11 were independent agencies. Rettig thought all arrangements satisfactory "if the office has sufficient public identity and ability to function on its own. Generally, this situation is likely to occur when the preservation office is an independent agency or is a fairly autonomous division of a larger agency, and when the SHPO has day-to-day contact with the preservation program." [17]
Among the products of the Utley task force was a draft handbook outlining procedures for conducting statewide surveys and plans, nominating properties to the National Register, applying for grants-in-aid, and accounting for grants funds. After circulation to the SLOs, members of the Advisory Council, and other interested parties for review and comment, it was refined under Russell Keune's direction and issued in the summer of 1968 under the title Grants for Historic Preservation: Guide for State Participation.
According to this grants manual (the shorthand term for it), the results of a state's survey were to become the first volume of the state's "comprehensive statewide historic preservation plan" prerequisite to grants under the law. The survey would be conducted under the direction of the SLO and his staff, which was to include professionals qualified in history, archeology, and architecture; and the properties identified would be evaluated by a state review board, also containing members qualified in these disciplines. The survey volume would consist of a preface, completed National Register inventory-nomination forms on all eligible properties identified, and a certificate of approval signed by a majority of the state review board. The notion that all of a state's Register nominations could be submitted en masse following a single survey seems naive in retrospect, but it was consistent with the impressions conveyed during the legislative process.
The decision to require professional credentials on the state staffs and review boards was an important one. It reflected early awareness that the National Register would become in large measure a state rather than a federal creation, so that expertise at the state level would be vital to its credibility. The fact that Register nominations had undergone professional scrutiny at that level was helpful in countering legal challenges to Register listings. Defenders could show that nominations were based on "a consortium of trained, informed opinion-making," in Bill Murtagh's words, not on caprice. [18]
In practice, it was difficult for many states to obtain and maintain staffs and review boards with the required credentials. The Service did not insist on these requirements in the early years, but in September 1973 Jerry Rogers told an SHPO committee that too many exceptions threatened the integrity of the national program. The following April Russell Mortensen, OAHP director, wrote all SHPOs warning that participation in the program after January 1976 would require state staffs with the full complement of preservation expertise. Henceforth each state would submit a current staff and review board roster with its annual work program for recertification by the Park Service. [19]
In response to a complaint from the Kansas SHPO about the stiffer policy, Mortensen reviewed the background to it and revealed its tactical component:
[A] very small percentage of the States had been responsive to basic guideline requirements promulgated in 1966 [sic] that each of the States develop a State staff professionally competent in the fields of architecture, history, and archeology or other disciplines as may be locally deemed necessary. In the interest of getting the program off the ground when the funding levels were of a negligible nature, it was deemed relatively unimportant, in the overall scheme of things, that this guideline was not then being followed....With the growth of the funding level, however, the political sensitivity of the programs has increased. Continuing to ignore this basic requirement potentially jeopardizes the entire national structure as the program grows. Any intelligent lawyer could make mincemeat out of any attempted defense of an historic site in Kansas jeopardized by a federal project were he to uncover that neither we nor you are following the basic guidelines laid down after passage of the act in 1966.
Further, with the coming Bicentennial and the general temper of the times, it appears to us that the time is right for the establishment of a well staffed preservation-oriented office within each State....
Look upon this as a stick which we are placing in your hands with which you can go to your State legislature, organized industry, organized philanthropy, or whatever other source you may have, to provide your match as a means to strengthen your case for enlarged local financial assistance...." [20]
In a 1975 report prepared for Senator Jackson, the Advisory Council declared: "Only 10 States are conducting surveys on a comprehensive, scheduled basis, while the remaining 43 programs are conducted without a definite plan.... A major shortcoming has been the lack of coordination of local survey efforts with State surveys and the National Register program." The Park Service then rated only 14 programs as operating with sufficient professional expertise. Nearly all states had at least one full-time historian, archeologist, and architect, according to the simultaneous Rettig report, but a majority had no more than this three-person minimum. [21] Still, the situation was better than it had been. "[The] decision to key professional staffing standards to the grants process resulted in an obvious improvement of the number and quality of working professionals at the state level...," Bill Murtagh declared in 1979. "Most of the States rendered thanks for our assistance in giving them clout with their State legislatures to secure minimum staff." [22]
The Utley task force prepared definitions of the kinds of properties eligible for the National Register, criteria for evaluating their significance, and a form—subsequently refined for data processing purposes in consultation with IBM—on which states would nominate properties. Getting the state surveys and nomination process underway would require more than disseminating paper, however. A major missionary campaign was needed to spread the word about the new program and inspire participation—especially in the absence of any significant grants to the states until 1969.
In January 1967 the task force met with representatives of several future participants, including the Pennsylvania Historical and Museum Commission, the Virginia Historic Landmarks Commission, and the New York City Landmarks Preservation Commission. The task force report was made public at a Williamsburg preservation conference in March sponsored by Colonial Williamsburg and the National Trust and coordinated by Bill Murtagh (still with the Trust). Discussions there relating to the new program were summarized in a widely distributed booklet, Historic Preservation Tomorrow.
After Ernest Connally, Murtagh, Jerry Rogers, and other new OAHP staff arrived at midyear, planning began for a series of regional conferences to explain the National Historic Preservation Act and clarify state roles under it. Meetings were held in Boston, Richmond, Columbus, San Juan, Savannah, Denver, Omaha, and Pacific Grove, California, between November 1967 and May 1968. In addition to OAHP officials, attendees included SLOs and representatives of the National Trust, the American Association for State and Local History, the American Institute of Architects, the American Institute of Planners, the American Society of Landscape Architects, the American Society of Civil Engineers, the Society of Architectural Historians, the Society of American Archeologists, and the Garden Club of America. According to Murtagh, "The meetings were used as a vehicle to mix the public and private preservation interests for the first time on a large scale." They enabled federal and state officials to get acquainted, SLOs to raise issues, OAHP staff to learn about local problems, and lagging states to become motivated to greater participation. [23]
State nominations came in slowly at first. Only six properties from the states were listed during 1968. A report on the year's activity attributed this rate of progress to the lack of grants appropriations but noted that some states were proceeding on their own initiative. OAHP shared responsibility for the slow start: it did not distribute nomination forms until January 1969. That March the National Register Newsletter, an informational circular on the program, noted eight more listings including the Old Post Office in St. Louis, Chateau-sur-Mer in Newport, Tuckahoe in Virginia, and the Walter Luther Dodge House in West Hollywood, California (demolished the following year). By August 220 nominations had come in from 24 states. Virginia led with 57; Missouri was next with 44. [24]
Still composed almost entirely of Park Service historical areas and national historic landmarks—totaling some 960 properties—the National Register was published in the February 25, 1969, Federal Register primarily to inform federal agencies of what they would need to take into account under Section 106. Additions appeared periodically in subsequent issues. The Service published a popular version of the Register in hard and soft cover, with short property descriptions and selected illustrations, a year later (although it bore a 1969 date). The book was ceremoniously presented at a candlelight reception hosted by George Hartzog and the Public Printer (head of the Government Printing Office) at the National Trust's Decatur House. Copies went to all state governors and members of Congress as well as the SLOs. Later editions appeared in 1972, 1974, and 1976. The book format was discontinued thereafter: the Register was growing too large and too fast to be published with reasonable currency and economy in such fashion.
Nominations increased rapidly after 1970. There were more than 1,000 new entries in the Register in 1971, more than 2,000 in 1973, and more than 3,000 in 1978, when new tax benefits for commercial rehabilitation of Register properties began to have a significant effect on the volume. In 1977 OAHP supplemented its How To Complete National Register Forms publication with guidelines on multiple resource nominations and thematic group nominations. These nominations encompassed all eligible properties in a given area or related to a particular theme as a means of expediting the process.
A backlog of unprocessed nominations developed and grew coincident with the shift of the program to the Heritage Conservation and Recreation Service in 1978. Director Chris Delaporte set a 60-day emergency period that November and December to catch up on the backlog and institute other reforms. With the assistance of staff detailed from other functions, the backlog was largely eliminated. [25]
The National Trust did a study of the Register's composition as of November 1981. It counted some 20,300 individual properties and about 2,500 districts containing 147,000 individual properties, for a total of 167,300 properties. Although districts constituted less than 11 per cent of the entries, they contained more than 90 percent of all included properties. Only about 1,700 entries were nationally significant historical parks and landmarks; the rest were properties of state and local significance. The most common area of significance was architecture, relating to 71 percent of all listings More than two-thirds of the properties were 19th century; less than five percent were prehistoric. Sixty-five percent of individually listed properties were privately owned, and 33 percent of all listings included private residences. [26]
The framers of the National Historic Preservation Act envisioned that federally owned properties would also be entered in the Register and afforded review protection under Section 106 when affected by undertakings of their custodians or other federal agencies. In November 1967 Bob Garvey, executive secretary of the Advisory Council, first suggested that federal agencies might nominate their eligible properties to the Register. At that time Bob Utley persuaded him that the state surveys would take care of federal property nominations. [27]
As it developed, the Park Service itself upset this understanding. When a representative of the Wyoming SLO visited Yellowstone National Park in 1969 to inventory eligible properties there, Superintendent Jack K. Anderson protested what he viewed as state interference to George Hartzog. Hartzog sided with Anderson and let it be known that the Service would nominate its own properties (outside the already listed historical areas). [28] "The Park Service is now undertaking its own inventory of the historic resources within the natural and recreational areas under its jurisdiction," the April 1969 National Register Newsletter announced. "In conducting these surveys the National Park Service welcomes the advice and assistance of the State Liaison Officers, but there is no need for them to make a duplicate survey." The SLOs were promised copies of forms on listed properties.
The Newsletter announcement was in fact a statement of intent more than reality. Although Park Service historians completed National Register forms on a few park resources, no comprehensive Service inventory was underway or imminent. Nominations of properties held by other federal agencies also lagged, in some cases because states were reluctant to include them in their surveys. In 1970 a Council on Environmental Quality task force with members from OAHP met to consider ways of improving the national preservation program. Several of its ideas were included in President Richard M. Nixon's February 8, 1971, environmental message to Congress. One culminated in Nixon's Executive Order 11593 of May 13, 1971, "Protection and Enhancement of the Cultural Environment."
Executive Order 11593 directed all federal agencies to do what the Park Service said it would do in 1969. In cooperation with the SLOs, they were to "locate, inventory, and nominate to the Secretary of the Interior all sites, buildings, districts, and objects under their jurisdiction or control that appear to qualify for listing on the National Register of Historic Places" by July 31, 1973. Simultaneously, the Secretary of the Interior was to encourage states to survey and nominate federal properties.
The executive order also resulted in official recognition of a new category of historic properties: properties eligible for the National Register. When Bob Garvey had presented draft preliminary procedures for Section 106 compliance at the second meeting of the Advisory Council in September 1967, the Council members advocated giving as much consideration as possible to qualified properties not yet listed in the Register. OAHP's Advisory List to the National Register of Historic Places, which included unlisted properties that had been identified by HABS and the landmarks program surveys, went to federal agencies in 1969 to indicate "those places which merit consideration in the planning and approval procedures associated with their projects until such time as they might be added to the National Register." [29] The executive order gave force to these urgings. It required agencies to "exercise caution during the interim period until inventories and evaluations are completed...to assure that any federally owned property that might qualify for nomination is not inadvertently transferred, sold, demolished, or substantially altered." They were to "refer any questionable actions to the Secretary of the Interior for an opinion respecting the property's eligibility for inclusion on the National Register of Historic Places." If the Secretary—in consultation with the SLO—determined the property eligible, the agency could not proceed with its action until it had given the Advisory Council an opportunity to comment.
This extension of the Council's responsibility was ratified in the 1976 amendments to the National Historic Preservation Act (which gave the Council independent status) by modifying Section 106 to apply to eligible as well as listed properties. [30] Register eligibility thus attained legal standing.
Secretary of the Interior Rogers C. B. Morton wrote to all agency heads on August 5, 1971, to publicize Executive Order 11593 and ask them to designate liaison officers for property nominations. [31] OAHP held a meeting in November to instruct the agency representatives, and it issued procedures for federal nominations and eligibility determination requests. Because the latter were normally triggered by impending projects, efforts were made to expedite them. Properties found eligible were published in tandem with listed properties in the Federal Register.
As happened with the state programs after the 1966 act, federal agency surveys and nominations under the executive order got off to a slow start. Few agencies had missions relating even remotely to historic preservation or staff with any training in the field. Without the incentive of grants, success depended heavily on proselytizing by OAHP and on the specter of legal action should an agency threaten some potentially eligible property without having followed the prescribed procedures.
The July 31, 1973, deadline for identifying and nominating all likely candidates was wildly unrealistic and passed almost without notice. Even the Park Service made no serious effort to meet it. In its 1975 report to Senator Jackson, the Advisory Council characterized the executive order's inventory and nomination requirement as "partially effective." Fifty-five agencies had designated preservation officers. "Twenty-five of these agencies are conducting substantial identification programs, while the remainder vary in quality from poor to nonexistent," the Council reported. It gave highest marks to the General Services Administration, which had 105 Register entries, while noting that "few other agencies have devoted sufficient staff or funds to do a comparable job." [32]
The expired deadline raised some doubts as to the continuing effect of the executive order requirement, which in any event lacked the force of law. To reaffirm and strengthen the requirement, the National Historic Preservation Act Amendments of 1980 repeated it as an open-ended mandate:
With the advice of the Secretary and in cooperation with the State historic preservation officer for the State involved, each Federal agency shall establish a program to locate, inventory, and nominate to the Secretary all properties under the agency's ownership or control by the agency, that appear to qualify for inclusion on the National Register....Each Federal agency shall exercise caution to assure that any such property that might qualify for inclusion is not inadvertently transferred, sold, demolished, substantially altered, or allowed to deteriorate significantly. [33]
By directing agencies to establish a program" for inventory and nomination, the law allowed for some discretion in procedure. Surveys focused on areas of project impact would continue to take precedence over comprehensive surveys. A 1986 report prepared by the Park Service on the national preservation program endorsed this priority:
In some cases where agencies do not expect to be affecting properties either immediately or in the distant future, there is no compelling reason for the agency to nominate such properties to the National Register. Often the effort and expenditure needed to prepare and process those nominations could be applied to other activities, including more immediate materials preservation needs. [34]
At the regional conferences held in 1967-1968 to promote the National Register program, Bill Murtagh educated his audiences on the concept of local significance—the basic ingredient of the "new preservation." He encouraged them to stop thinking primarily in terms of individual landmarks and to think more in environmental terms, leading them to identify and nominate districts to be "preserved as a living part of our community life and development," as the preamble to the 1966 act urged.
Taking an expansive view of local significance, Murtagh was not troubled by the breadth with which some interpreted it in nominating properties. He was inclined to defer to local opinion, believing that "the further you go down the spectrum of significance, the further up has to go a federal staff's reliance on local professional value judgment-making." [35] At the same time, if federal dollars were going to be spent on properties and federal agencies were going to have to consider them in their planning, some consistency in evaluation was required.
The 1977 National Heritage Trust Task Force proposed broadening the scope of the Register even further. It recommended that in addition to the "districts, sites, buildings, structures, and objects" specified in the 1966 act, the Register accept neighborhoods, cultural landscapes, and networks. Neighborhoods were defined by their contemporary ethnic character (like a Chinatown), cultural landscapes were natural settings with human associations (like Walden Pond), and networks were extended resources linked geographically or thematically (like the Oregon Trail or the California missions). The task force wanted to eliminate the existing criteria restrictions on birthplaces, graves, cemeteries, and properties achieving significance less than 50 years ago, and it suggested dropping the national, state, and local significance gradations. [36]
The new resource categories were included in the Carter administration's proposed National Heritage Policy Act of 1979, but neither the legislation nor the categories were adopted. The view prevailed that "neighborhoods" should not be accepted unless they also met the historic district definition. The other proposed categories appeared unnecessary given the ability of the existing district category and the new thematic resource nomination format to cover the kinds of resources they envisioned. Nor were the criteria restrictions and significance gradations abandoned.
The opposition to these recommendations reflected a growing concern that the Register was becoming overly inclusive. A report by staff investigators of the House Appropriations Committee in February 1979 voiced this concern:
The legislative history of the 1966 act clearly reflects the intent of the Congress to establish a National Register which would afford recognition and protection to properties of State and local, as well as National, significance. It is not so clear that the Congress intended that State and local significance be interpreted so broadly as the present directions of the preservation movement seem to indicate.
It is the opinion of the Investigative Staff that HCRS should take a second look at the National Register criteria, and decide what the role of the National Register should be. If all the built environment ends up listed in the National Register, it is obvious that the significance of such listing will be demeaned. [37]
In subsequent questions directed to HCRS, Chairman Sidney R. Yates of the House Interior appropriations subcommittee suggested that "very few areas would fail to qualify for listing in the National Register" if the latest administration proposals were adopted. HCRS responded by agreeing that the Register criteria must remain selective, and it cited examples of recently rejected nominations. [38]
Yates' comments also suggested that federal efforts should be directed more to nationally significant properties, allowing the states to take primary responsibility for those of state and local significance. This indication of shifting sentiment by the Democratic legislator most responsible for preservation funding anticipated by two years the direction predictably favored by the Reagan administration in 1981. Assistant Secretary of the Interior G. Ray Arnett then approved a "Federal Historic Preservation Agenda for the 80's" which in part recalled Bill Brown's position back in 1966 on ranking Register properties. Because the Register did not distinguish sufficiently among them, the document stated, "the same level of administrative obligation is applied to properties of varying degrees of significance....What is needed is a redefinition of the National Register criteria in order to clearly distinguish and articulate the difference between historic properties of local or State or National significance so that decisionmaking can be made on a sliding scale based upon the degree of a property's significance." [39]
Just six months earlier, the National Historic Preservation Act Amendments of December 12, 1980, had given national historic landmarks their first explicit recognition in law and specified greater consideration for landmarks than other Register properties by requiring federal agencies "to the maximum extent possible, [to] undertake such planning and actions as may be necessary to minimize harm" to them. It also authorized direct grants to landmarks threatened with demolition or impairment. [40] In 1979, while under HCRS, the landmarks program had been subsumed under the National Register Division and all but terminated. With the abolition of HCRS in 1981 and the return of the preservation programs to the Park Service, the landmarks program was replaced in the History Division (its home until 1973) and given much greater attention. The division revived the nationwide thematic surveys that formed the basis for landmark designation, and in 1986 it published the first landmarks catalogue in a decade. These developments all reflected a swing of the pendulum back toward the traditional federal focus on national significance.
Another issue affecting the progress of the National Register over the years was that of owner participation and consent. A property's qualifications for the National Register were determined by professional evaluation; its owner's wishes with respect to listing had no legitimate role in the decision. The Service insisted, moreover, that listing had no effect on an owner's rights. It constrained only federal agencies from affecting Register properties without complying with the Advisory Council's review process. A private owner remained free to alter, demolish, sell, or do anything else with his property subject to any local restrictions.
Some owners were not persuaded by this argument. Although Register listing per se might not affect their freedom, it could abet passage of local historic district ordinances that would. There was also the possibility that an owner seeking to benefit from a federal undertaking affecting his property would be unable to do so. W. R. Grace and Company encountered this situation when it sought a federally guaranteed bank loan for mining operations on land within the Register district of Green Springs, Virginia, in the mid-1970s. Its attorney asked that owner consent be required for Register listing, citing "the fact that once a property is listed in the National Register the owner of the property is placed in a position to be denied equal standing with others under Federal programs." [41]
Although the Service maintained its opposition to owner consent, some states found it politic to consider the opinions of owners and local officials in deciding to nominate properties. The California SHPO was giving local authorities an effective veto over nominations by 1974. A year later the Advisory Council reported, "It is not uncommon for a nomination, professionally proper, to be held up by a State, frequently by the Governor's office, because entry on the National Register will prove inconvenient for a construction project advocated by the State." [42] Two steps taken in 1976 would bring the owner consent issue to a boil by the end of the decade. The Service embarked on a multi-year study of properties associated with commerce and industry to identify potential national historic landmarks in these themes. The study resulted in the nomination of numerous stores, office buildings, shops, and factories—many still in commercial or industrial use. Coincidentally, the Tax Reform Act of 1976 contained provisions designed to encourage preservation of such income-producing properties listed in the National Register. As an incentive to their rehabilitation, it allowed rapid depreciation or amortization of rehabilitation costs. To discourage their demolition, it forbade demolition costs to be treated as deductible business expenses and denied any form of accelerated depreciation for new structures built on their sites. [43]
With the latter provision, it was no longer possible to assure affected property owners that Register listing would not interfere with their present and future use or plans (assuming no federal involvement). Listing now carried a financial penalty for demolition. Not surprisingly, some owners objected. The chairman of Marshall Field and Company, whose Chicago store was among the landmark nominees in 1977, wrote, "[W]e simply cannot be put in a position where additional hurdles and competitive restraints may be placed in the path of upgrading and adapting the store to meet the needs of our customers and the changing demands of the central city." [44] R. H. Macy, Montgomery Ward, Sears Roebuck, and the American Stock Exchange were among others protesting nominations of their historic properties. Under Secretary of the Interior James A. Joseph nevertheless included these properties among 30 commercial landmark designations in 1978.
The next batch of landmark nominations from the theme study, in 1979, included Proctor and Gamble's Ivorydale plant near Cincinnati. The company's board chairman wrote Secretary of the Interior Cecil D. Andrus to express concern about the effect of the tax act. "Also, we are concerned that the Congress, having once imposed restrictions on landmark owners, might oppose other and perhaps more onerous restraints in the future...," he added. [45] His attitude typified that of other industry representatives, already faced with federal health, safety, and antipollution requirements, who feared the demolition disincentives of the tax act less than the precedent they set for further entanglements.
Ernest Connally, believing that many of the industrial properties did not lend themselves to preservation and concerned about brewing political repercussions, advised HCRS Director Chris Delaporte to hold the protested nominations, but Delaporte insisted on forwarding them to Secretary Andrus. Letters from Sen. John Glenn and other Ohio politicians backing Proctor and Gamble also arrived on the Secretary's desk. The opposition triumphed when Rep. Willis D. Gradison, Jr., of Cincinnati managed to insert a provision in the fiscal 1980 Interior appropriations bill, enacted November 27, 1979, "That none of the funds appropriated to the Heritage Conservation and Recreation Service may be used to add industrial facilities to the list of National Historic Landmarks without the consent of the owner." [46]
Proponents of owner consent sought to extend it to all National Register nominations in pending legislation to amend the National Historic Preservation Act. HCRS and most preservation groups tried to head off the requirement. Acting Keeper of the National Register Carol D. Shull wrote all SHPOs in August 1980, "We firmly believe that the integrity of the National Register can be maintained only if additions can be made to the Register if a property meets the National Register criteria, regardless of an owner's consent." Director Delaporte reaffirmed the bureau's position to Rep. John F. Seiberling, chairman of the subcommittee considering the legislation: "[W]e do not support the concept of owner concurrence for the evaluation and recognition of historic resources and believe it is important to emphasize that listing on the National Register does not in any way restrict what a private property owner can do with his property...." When the House Interior committee reported favorably on the legislation with the owner consent provision, added through the efforts of Rep. Dick Cheney of Wyoming, five committee members recorded their disagreement: "We feel that this change is a most unwise decision. It constitutes a serious threat to the current professional integrity of the National Register, and will result in a significant diminishment of the usefulness which the Register has served for so long, as a professional tool to identify and to assist in the preservation of historic properties nationwide." [47]
Congress nevertheless passed the National Historic Preservation Act Amendments of 1980 with the provision, and President Carter signed the measure on December 12. The owner consent requirement was worded thus:
The Secretary [of the Interior] shall promulgate regulations requiring that before any property or district may be included on the National Register or designated as a National Historic Landmark, the owner or owners of such property, or a majority of the owners of the properties within the district in the case of an historic district, shall be given the opportunity (including a reasonable period of time) to concur in, or object to, the nomination of the property or district for such inclusion or designation. If the owner or owners of any privately owned property, or a majority of the owners of such properties within the district in the case of an historic district, object to such inclusion or designation, such property shall not be included on the National Register or designated as a National Historic Landmark until such objection is withdrawn. [48]
The provision went on, however, to specify that
The Secretary shall review the nomination of the property or district where any such objection has been made and shall determine whether or not the property or district is eligible for [Register] inclusion or [landmark] designation, and if the Secretary determines that such property or district is eligible...he shall inform the Advisory Council on Historic Preservation, the appropriate State Historic Preservation Officer, the appropriate chief elected local official and the owner or owners of such property, of his determination. [49]
This allowance for eligibility determination meant that properties kept off the Register by objecting owners could still become subject to the Advisory Council's review process under Section 106. Representative Seiberling called the overall provision "a reasonable and workable compromise which adequately takes into account the concerns of private owners without seriously eroding the usefulness of the National Register as a planning tool and comprehensive historical record." [50]
Enactment of the legislation forced an immediate moratorium on the listing of private properties until November 16, 1981, when new regulations incorporating procedures for notification, objection, and eligibility determination went into effect. [51] Except for national historic landmark nominations initiated at the federal level, the burden of the notification requirements fell largely on the SHPOs. Relatively few nominations—at least among those forwarded to Washington—encountered owner objections. The demolition disincentives in the tax code that had fueled the owner consent issue expired at the end of 1983, leaving less cause for objection thereafter. [52] By 1986 about 650 properties whose owners objected to listing had been found eligible for the Register under the new regulations.
The elevation of owner consent to legal resolution provides an interesting commentary on the workings of the federal system and the relative sensitivity of the federal and state governments to local interests. At the state level there was some willingness not to press nominations when owners and elected officials objected. The federal program administrators, further removed from local pressures, insisted on proceeding with their landmark nominations in the face of such opposition. They were attempting, quite properly, to keep the process "pure"—guided only by professional considerations. They were also inviting what usually happens when bureaucrats pursue courses at odds with public sentiment: politicians intervene to redress their constituents' grievances. It was thus the Washington-run landmarks program rather than the state-based programs that first prompted congressional action for owner consent.
When state nominations were trickling in, relatively speaking, during the late 60s and early 70s, the National Register staff in OAHP had time to scrutinize each before both Bill Murtagh and Ernest Connally signed their approval. As the trickle increased to a flood, especially after the tax benefits enacted in 1976, and as the staff failed to increase commensurate with the nomination and tax act certification workload, substantive review of Register forms became more difficult.
In 1973 Jerry Rogers, then chief of registration, proposed automatic acceptance of nominations from states with demonstrated professional capability. There was doubt about the legality of doing this; and notwithstanding Murtagh's desire to defer to state and local opinion on properties of state and local significance, too many states could not be relied on for consistency in both the substantive and technical aspects of nomination. State staffs were not of uniformly high quality, and the review boards, which enabled public involvement and gave SHPOs the final recommendations on nominations, were a weak link in the process. Murtagh especially regretted his office's lack of contact with these boards to foster broader understanding of the Register's intended content and purpose. [53] Despite much published guidance, including the comprehensive How To Complete National Register Forms booklet first issued in 1972 and the supplementary "How To" bulletin series begun in 1978 (how to establish Register boundaries, evaluate properties of recent significance, improve photo quality, etc.), the quality of nominations remained uneven.
The review backlog that accumulated by late 1978 necessitated a crash program to overcome and greater management emphasis to see that it did not recur. Congress reinforced this imperative in the National Historic Preservation Act Amendments of 1980. It specified that a property nominated without owner objection by a state (or federal agency) with an approved historic preservation program would be automatically listed in the Register 45 days after receipt unless the Secretary of the Interior disapproved it within that period. Commenting on this provision in its report on the legislation, the House Interior committee made clear that substantive review of all nominations was not required:
The purpose of this provision is to assure that there are no unnecessary delays in processing the nominations. If the procedures for making nominations have been properly followed, and if the documentation is sufficient, the Secretary should be able to approve the nomination without a substantive review. The Secretary should, however, review particular nominations on a spot-check basis, or as otherwise necessary, to insure the integrity of the program. [54]
The Register office adopted a new system for operation within the 45-day requirement. All nominations would receive technical review to insure that the required documentation was present; those with missing or inadequate information would be returned immediately. For substantive review purposes, states and federal agencies were divided among three categories based on their past performance. Those with a return rate under 15 percent during fiscal years 1979-1980—29 states—were assigned to Category I and would have only one-fifth of their nominations subjected to substantive review. Eleven states with a return rate between 15 and 24 percent went into Category II; one-third of their nominations would be scrutinized. The remaining states, in Category III, would receive substantive review of all nominations. With its announcement of the new system, the office provided recommendations for improving nominations: it sought summary paragraphs at the beginning of the description and significance sections; better evidence of property context and integrity, stronger justifications for exceptions to Register criteria (e.g., for properties attaining significance less than 50 years ago), clear delineation of contributing and noncontributing resources in districts, and more precise boundaries. [55]
The National Historic Preservation Act Amendments of 1980 did more to elevate the role of the states. The legislation gave statutory recognition to the state programs with their SHPOs, professional staffs, and review boards—previously just administrative creations of the federal program—and specified the responsibilities of the SHPOs in administering the programs. It also provided that local governments meeting certain requirements could participate officially in the nomination process and grants program upon certification by the SHPOs. By 1986 there were 180 certified local governments.
To maintain their status as approved programs under the legislation, state programs must be evaluated periodically by Park Service program officials. As a result of these state program evaluations, the nomination review formula adopted in the early 1980s gave way to a more refined approach focusing on the particular problem areas of particular states or, as Jerry Rogers told Director Russell E. Dickenson in 1984, on "nominations from States known to have difficulty with specific types of properties or documentation." [56] This selectivity insured that staff effort would be concentrated where it was most needed.
Rogers' goal was a "programmatic nomination process" whereby the Service would concentrate largely on the process of nomination and leave the content to the states. As he explained it to Dickenson:
After 17 years experience, all States are familiar with the National Register process and most are adept in its use. Since the vast majority of State nominations are for properties of State and local significance it is appropriate to rely on a State's judgment when the State uses a demonstrably sound, consistent, and professional process based on the National Register criteria, with documentation that meets a reasonable standard....
When moving to carry out a programmatic nomination process, certain things will not change. The Service will continue to "keep" a strong and vital National Register and be fully accountable for the registration process. The States, however, must shoulder primary accountability for the integrity of nominations of individual listed properties.
Improvement of state historic preservation planning was essential to increased reliance on the states. According to the early guidelines, the comprehensive statewide plans required for grants-in-aid under the 1966 act were to incorporate and be based on completed state surveys (page 30). This was quickly recognized as unrealistic. States went through the motions of preparing "preliminary" plans using what survey data they had, but these were largely paper exercises. Lawrence E. Aten, chief of the Interagency Resources Division, later faulted the methodology of this approach:
The "accumulation" strategy assumes that historic property data are unique and additive, and that effective planning cannot be under taken until all or most of the potential data have been collected. Even if this were true, it obviously would be an impractical strategy because the desired information would not be available for decades, if then, while development and land use decision are being made now. Moreover, "planning" based on this strategy does not aid public administration because it considers all properties to be of essentially the same importance, having no system developed for differentiating between them; it requires that all properties need to be located in order to develop a management plan.... [58]
In 1975 the Interagency Archeological Services Division developed a methodology to help Interior's outer continental shelf oil leasing program anticipate which areas would be most likely to hold submerged archeological resources. By 1978 Larry Aten and others had translated this predictive methodology into a new general planning approach, designated the Resource Protection Planning Process (RP3). According to Aten:
The alternative approach emphasizes the use of information other than its accumulation.... It assumes that the cultural landscape was created by non-random processes and that by identifying the significant roles in past settlement played by one or more key factors (such as environment, transportation networks, technology, etc.) a practical framework can be developed for partitioning an undifferentiated inventory of properties into manageable units. Working with these units, less ambitious management priorities and strategies can be developed with respect to sets or classes of information. These, in turn, make the identification, evaluation, and protection of individual properties and situations relate to an appropriate cultural context. [59]
By 1986 the great majority of states had adopted some version of RP3 and were identifying properties in the context of the thematic, temporal, and geographic study units they had developed. Jerry Rogers called the new kind of state plan based on this methodology "no longer something you write, but something you do." [60] By rationalizing property identification and evaluation, RP3 aided the transition to his desired programmatic nomination process.
As the Service moved away from nomination review, it moved toward increasing the utility of the National Register as a planning tool—its primary intended function. The state inventories were still more comprehensive than the Register, and in practice, these had become the data base for planning that the Register was supposed to be. (The Service asked federal agencies to consult the states rather than rely solely on the Register in their project planning.) But there was potential for making the Register more useful, much of which would be realized in the National Register Information System (NRIS).
The Utley task force envisioned computerization of the Register in 1966, and IBM helped design the nomination form for this purpose. Nearly two decades passed before the objective was in sight. By the end of 1986 NRIS would encompass all Register entries (although not yet the Register-eligibles). Forty-five data elements on each property would enable rapid retrieval of a wide variety of information. States and federal agencies were expected to use the same elements to automate their inventories, broadening the system's planning value. They would be given access to the system and would eventually be able to enter nomination data directly. In addition to aiding planning, this unprecedented accessibility to the Register was foreseen as enabling further decentralization of decisions on listings, eligibility determinations, and significance certifications for tax purposes. [61]
The general effort to decentralize responsibility was not universally appreciated by the states, especially as it was accompanied by less rather than more federal money to them after 1979. Advanced under Jimmy Carter and accelerated under Ronald Reagan, the trend nevertheless reflected the ascendant governmental philosophy of the 1980s. Most of the "new preservation" was essentially of local benefit and fell logically within the traditional spheres of state and local concern. The federal government might "keep" the National Register, but the states would properly become the dominant partners in expanding it.
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