Preservation Laws

Summary of Legislative Requirements for the Treatment of Historic, Archaeological and Cultural Resources

Prepared by Anne Ketz, The 106 Group

There are many federal and state laws that govern the treatment of historic, archaeological and cultural resources. The primary ones that may affect your project are summarized below.

National Historic Preservation Act of 1966

Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on such undertakings. The State Historic Preservation Office acts on behalf of the Advisory Council in each state. The Section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency officials and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties. A Federal undertaking includes such activities as transfer of funds, issuing of permits, providing loans etc.
For further information see http://www.achp.gov/regs.html.

Minnesota Field Archaeology Act, 1963 (M.S. 138.31 - 138.42)

This Act established the Office of State Archaeologist (OSA) and directs OSA and MHS to make recommendations for the preservation of archaeological sites endangered by construction or development on all public lands. The OSA issues licenses, with the concurrence of the Minnesota Indian Affairs Council, for all archaeological investigations associated with public funding or on public land.

• Licensure through the OSA is required for field archaeology undertaken on all lands or waters owned, leased by or subject to the paramount right of the state or its subdivisions, as well as on lands impacted by publicly-funded development projects (http://www.admin.state.mn.us/osa/).
• Only professional archaeologists meeting the Secretary of the Interior's Standards for Archaeology (36 CFR Part 61) may be licensed to conduct such investigations in the state of Minnesota.
• When a state archaeological site is known or suspected to exist, the controlling agency must submit development plans to MHS and OSA for review.
• The controlling agency (RGU), in consultation with MHS and OSA, is directed to preserve such sites and is authorized to use its funds for such activities.
• If a site is related to American Indian history or religion, OSA must coordinate with the Minnesota Indian Affairs Council (MIAC) for review and comment.

For more information see:
http://www.mnhs.org/preserve/shpo/index.html

Minnesota Private Cemeteries Act, 1975 (M.S. 307.08)

This act provides protection for marked and unmarked human burials and remains older than 50 years, and located outside of platted, recorded or identified cemeteries, protection from unauthorized disturbance. This statute applies to burials on either public or private lands or waters. Highlights include:

• It is a crime to intentionally destroy or remove human skeletal remains or burials.
• The Act directs the OSA to authenticate all burial sites.
• When human remains or burials are American Indian, the OSA and MIAC must attempt to identify their tribal identity.
• No authenticated American Indian burial may be relocated without approval of the MIAC.
• When American Indian burials are known or suspected to exist on public lands, the political subdivision controlling the land must submit development plans to the state archaeologist and the MIAC for review prior to advertising bids.

For further information see http://www.admin.state.mn.us/osa/

Minnesota Historic Sites Act, 1965 (M.S. 138.661 - 138.6691)

This Act creates a state register of properties "possessing historical, architectural, archaeological, and aesthetic values" for which adverse effects resulting from state funded or licensed projects must be mitigated. Important points:

• Historic sites are defined as properties named in the Act or listed on the National Register of Historic Places.
• Similar to federal regulations, any undertaking receiving funding or licensing by any political subdivision is covered by the Act.
• If the undertaking affects historic sites, the agency must consult with the Minnesota Historical Society (MHS) to avoid or mitigate adverse effects.
• If the parties agree in writing to an appropriate course of action, the undertaking may proceed.
• If the parties cannot reach agreement, any of the parties may request that the governor appoint a mediation task force.

For more information see
http://www.mnhs.org/preserve/shpo/index.html

Minnesota Environmental Assessment Worksheet (MN Rules 4410.1000 to 4410.1700)

A document providing basic information about a project that may have the potential for significant environmental effects; the EAW is prepared by the Responsible Governmental Unit and used by the RGU to determine whether an Environmental Impact Statement should be prepared.

25. Nearby resources. Are any of the following resources on or in proximity to the site?

Archaeological, historical or architectural resources? Yes No

If yes, describe the resource and identify any project-related impacts on the resource. Describe any measures to minimize or avoid adverse impacts.

Minnesota Rules, Chapter 4410.4300 Mandatory EAW Categories

Subp. 31. Historical places. This chapter discusses when the filing of an EAW is required. Subpart 31 specifically states that an EAW is mandatory when a project (an undertaking with any level of governmental funding, licensing or permitting) results in total or partial demolition or moving of a property that is listed on the National Register of Historic Places or the State Register of Historic Places. If the only effect is to a historic property, this requirement does not apply to projects reviewed under Section 106 of the National Historic Preservation Act of 1966, as amended, the Section 106 review replaces the EAW.

Minnesota Environmental Protection Act (MEPA) of 1973 (M.S. 116D.01 - 116D.11)

MEPA was set forth to protect environmental resources. The development of Environmental Assessment Worksheets (EAW) and Environmental Impact Statements (EIS) were set forth in this act. The EAW is a brief description of the basic facts involved in a proposed action and is used to determine if an EIS is required. In regards to the EIS, the act states, "Where there is potential for significant environmental effects resulting from any major governmental action, the action shall be preceded by a detailed environmental impact statement prepared by the responsible governmental unit." The purpose of the EIS is to describe the proposed action, analyze its significant environmental impacts, discuss appropriate alternatives to the proposed action and their impacts, and it explores methods by which adverse environmental impacts of an action could be mitigated. The act also specifically protects cultural resources as stated in chapter 116D.02 (d).

Minnesota Environmental Rights Act (MERA), 1971

MERA allows for any individual to file suit against any person, agency or other, including local government units, who is an alleged "polluter". MERA creates a cause of action to protect, preserve, and enhance natural resources in the state. The Act defines "natural resources" as including all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational, and historical resources. Scenic and aesthetic resources shall also be considered natural resources when owned by any government unit or agency. The burden of proof is on the person bringing the suit.