Government Affairs Committee - October 2003

Al Tonetti, Committee Chair

Federal Affairs

Kennewick Man Appeal

Since the May 16, 2003 OAC membership meeting, the OAC filed its friend of the court brief on behalf of the appellee (defendant) scientists to the Ninth Circuit Court of Appeals. The brief can be viewed here. OAC members Brad Lepper and Al Tonetti, and former OAC member and attorney Brad Baker, wrote the brief, which was filed by Baker. Lepper did the bulk of the research and writing. Tonetti edited and coordinated the writing and submission of the brief on behalf of the Board of Directors. Baker's pro bono work, valued at more than $5,000, focused on editing and formatting the brief. On September 10, 2003, the Ninth Circuit heard oral arguments in the case. Brad Lepper attended the hearing. Access to read a report on the hearing, copies of friend of the court briefs, and to keep abreast of the case.


Proposed Amendments to Section 106 of the National Historic Preservation Act

On September 25, 2003, the Advisory Council on Historic Preservation (ACHP) published a notice of proposed rulemaking in the Federal Register proposing changes to the Section 106 process. The Section 106 process requires Federal agencies to take into account the effects of their undertakings (projects) on historic properties and afford the ACHP an opportunity to comment on such projects. One of the proposed changes is a result of a September 4, 2003, D.C. Circuit Court of Appeals ruling declaring that the Section 106 process does not apply to Federal projects that are merely subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. Generally, this provision applies to individual projects, often permits, issued by a State or local government agency with the authority to issue such permits because the Federal agency in charge of the Federal program under which the permits are issued has delegated its authority to do so, such as permits for surface coal mining. Despite the ruling, the ACHP maintains that Federal agency approval and/or funding of State- delegated programs, not individual permits, is a federal undertaking and that Federal agencies must still comply with their Section 106 responsibilities. The ACHP is recommending that Federal agencies develop programmatic agreements with the ACHP to comply with Section 106. Programmatic agreements are used by Federal agencies and the ACHP to govern the Section 106 process on complex individual projects or simpler, numerous and similar types of projects. Comments from the public concerning the proposed amendment were being accepted by the ACHP until October 27, 2003. The impact of the Court's ruling and the proposed changes to the Section 106 process on archaeological properties is unclear, but the Ohio Department of Natural Resources, the State agency overseeing coal mining permits in Ohio, maintains a review process for archaeological properties under the Federal Surface Mining Control and Reclamation Act that basically parallels the Section 106 process.

Modernizing NEPA Implementation

On September 24, 2003, the Council on Environmental Quality (CEQ), the Federal agency overseeing implementation of the National Environmental Policy Act (NEPA), issued its interagency task force's final report on improving and modernizing the NEPA process. This process, separate from the Section 106 process under the National Historic Preservation Act, requires the assessment of Federal agency actions on the environment, including cultural resources such as archaeological sites. It is unclear how the Federal Government will change the NEPA process based on the recommendations contained in this report. One of the recommendations is that, in consultation with the ACHP, the CEQ develop a handbook to assist the integration of the NEPA process with the Section 106 process. The Section 106 process allows Federal agencies to substitute their NEPA compliance process for Section 106 compliance so long as their NEPA compliance process meets the standards of the Section 106 process. You can access the CEQ's report at

Historic Preservation Fund

A House and Senate conference committee was scheduled to meet the last week of October to resolve their differences over the Department of the Interior's fiscal year (FY) 2004 (October 1, 2003-September 30, 2004) appropriation bill. This measure includes funding for the Historic Preservation Fund (HPF), which provides most of the funds for State Historic Preservation Offices (SHPOs). The Senate version includes $3 million more for SHPOs than the House version ($37 vs. $34 million, the latter the amount SHPOs received in FY 2003). Recently, the Ohio Historic Preservation Office laid-off four employees, including Archaeological Survey Manager and OAC member Dr. Joni Manson, due to the combined affects of state and federal budget cuts.

House Preservation Caucus

Recently, Rep. Mike Turner (R-OH, Dayton) and Rep. Brad Miller (D-NC) formed a Historic Preservation Caucus. The purpose of the caucus is to develop legislation in the House of Representatives that supports and advances historic preservation, and that educates Americans on the benefits of historic preservation in their communities. Rep. Deborah Pryce (R-OH, Columbus) joined the caucus. Rep. Pryce is the fourth-ranking member of the House and is chair of the House Republican Conference. Please consider contacting your Congressional representative asking them to join the House Preservation Caucus.

State Affairs

House Select Committee Studying the Effectiveness of Ohio's Historical Programs and Partnerships

At the May 16, 2003 OAC membership meeting, Al Tonetti reported that he thought the Select Committee's recommendations appeared dead. Surprising, however, in the 2004- 2005 (July 1, 2003-June 30, 2005) biennial budget bill (Amended Substitute House Bill No. 95) signed by Governor Taft on June 26, 2003, the Ohio General Assembly included a provision requiring that

"Not later than May 15, 2004, the Ohio Historical Society shall submit to the [State] Controlling Board a plan for the implementation of the recommendations of the Select Committee to Study the Effectiveness of Ohio's Historical Programs and Partnerships. No appropriations to the society for fiscal year 2005 [July 1, 2004-June 30, 2005] may be expended without prior approval of the implementation plan by the Controlling Board."

This means that a plan to implement the recommendations contained in the Select Committee's final report, a number of which were suggested by the OAC, including 1) developing and implementing a state archaeological preservation plan in cooperation with government agencies, the OAC, the Archaeological Society of Ohio, the Native American community, and other stakeholders; 2) developing and implementing an abandoned cemetery and unmarked human burial ground preservation program in cooperation with statewide organizations representing the archaeological, historical, genealogical, and Native American communities, government agencies and law enforcement officials, the Ohio Historic Site Preservation Advisory Board, and other stakeholders; and 3) terminating the State Registry of Archaeological Landmarks (ORC 149.51), must be developed and submitted to the Controlling Board by May 15, 2004. The Select Committee's report also recommends the transfer of the State Historic Preservation Office to state government, specifically to the Ohio Department of Development. The Select Committee's final report containing their recommendations can be accessed here.

State Historic Preservation Plan

The Ohio Historic Preservation Office (OHPO) sought comments on a draft State Historic Preservation Plan (Plan) by October 17. Only recently did the OAC find out about the Plan and comment period. You can access the Plan at The OAC submitted its comments on the Plan using a questionnaire developed by the OHPO. Our reply focused on consulting with the OAC and other interested stakeholders in the development of a State Archaeological Preservation Plan as recommended by the House Select Committee Studying the Effectiveness of Ohio's Historical Programs and Partnerships. A copy of our reply is posted here on the OAC's website.

House Bills 218 and 276, Lake Erie Coastal Management and Erosion Control

Two bills have been introduced to revise state law dealing with coastal management and erosion control on the shore of Lake Erie. House Bill 218 was introduced in June and was assigned to the Energy and Environment Committee. In mid-September, House Bill 276 was introduced and assigned to the same committee. House Bills 218 and 276 are very similar. The latter appears to be on a fast track and has had several hearings in the committee. The Committee has also taken testimony on House Bill 218. House Bill 276 will, among other things, abolish the Submerged Lands Advisory Council (SLAC) and the Coastal Resources Advisory Council and create the Lake Erie Coastal Advisory Council (LECAC) with somewhat similar membership and duties, and requires the Governor, not the Director of the Ohio Department of Natural Resources, to appoint most of the Council's members. Although the Director of the Ohio Historical Society or his designee is still represented, and membership in LECAC must include a broad range of interests, experience, and knowledge concerning the management, use, conservation, protection, and development of Lake Erie's coastal areas, the LECAC's membership appears to be heavily weighted toward development of the Lake Erie shoreline. Archaeologists, terrestrial or underwater, are not mentioned but are not excluded from membership. Underwater archaeology expertise was represented on the SLAC.


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