Practice Areas & Industries: Holland & Hart LLP

Practice/Industry Group Overview

Holland & Hart's attorneys have an unique depth of experience in historic preservation law and policy.  We are particularly well-versed in the regulatory provisions of the National Historic Preservation Act of 1966 ("NHPA") and the preservation regulations governing the siting, construction and operation of a wide variety of projects and facilities.  These include private projects located on federal lands, and those that are federally funded, licensed, permitted or authorized, all of which must therefore undergo review under Section 106 of the NHPA.  We also have experience with preservation review of transportation and airport-related projects under Section 4(f) of the Department of Transportation Act.

Our attorneys help clients in a range of industries solve complex preservation problems across the country.  We are very familiar with the preservation issues faced by linear rights-of-way projects like oil and gas pipelines, electric transmission lines, railroad and highway projects.  We have significant experience with the siting of telecommunications and broadcast towers under the provisions of the Nationwide Programmatic Agreement ("NPA") adopted by the FCC.  We have done considerable work with issues of cultural resources and tribal rights of consultation under the NHPA.  We have also dealt with preservation issues for projects crossing wetlands and waters under the jurisdiction of the U.S. Army Corps of Engineers, and those located on the outer continental shelf under the jurisdiction of the Minerals Management Service, or FERC. 

We have managed consultations and negotiations with the full range of consulting parties, from State Historic Preservation Officers ("SHPOs"), Indian tribes and Tribal Historic Preservation Officers ("THPOs"), the Advisory Council on Historic Preservation ("ACHP"), state and local governments, and local, regional and national preservation organizations.  We have counseled and trained consultants and cultural resource management firms.  We have dealt with historic properties of every kind, including archeological sites both in the ground and under water, architectural properties, cultural resources, National Historic Landmarks and large properties like districts and designed landscapes.

In short, we are prepared to help our clients in every industry, in every state and territory, resolve virtually any historic preservation issue.

Services Available

Our Experience

Our attorneys help clients on virtually every aspect of historic preservation, from rehabilitation tax credits and conservation easements, to land use, to litigation and coordination with related laws such as NEPA and state and local historic preservation laws and ordinances.

Examples of our historic preservation experience include:

• Managing Section 106 consultations and negotiations with SHPOs, THPOs and consulting parties in most states and some territories;
• Helping resolve compliance issues regarding Section 4(f);
• Negotiating and/or resolving tribal consultation issues arising under Section 101(d)(6) of the NHPA;
• Securing withdrawal of the largest historic preservation enforcement action ever mounted by the Federal Communications Commission;
• Obtaining approval for a multi-use broadcast, micro-wave and public safety tower overlooking two Civil War battlefields in Maryland;
• Providing comprehensive Section 106 training for consultants and cultural resource management ("CRM") firms over the past 5 years; and
• Securing positive SHPO concurrence in numerous contested adverse effect cases.

Technical Issues in Preservation Law

We have worked extensively with clients on the many technical aspects of preservation law that can impact regulatory reviews, including issues of the eligibility and potential eligibility of historic properties under the standards of the National Register of Historic Places, the Secretary of the Interior's Standards for Rehabilitation and Professional Qualification, and the ACHP's criteria for evaluating adverse effects in Section 106 reviews, among many others.  We have developed some of the most effective arguments against the inappropriate assertion of alleged adverse visual effects to historic properties.

MoAs and Programmatic Agreements

Our lawyers have developed proven methods for getting projects approved in a timely fashion by obtaining agreement on the avoidance or mitigation of adverse effects.  We have also developed appropriate agreements to accomplish that, including agreements for findings of conditional no adverse effect, memoranda of agreement ("MoAs"), and local, regional and nationwide programmatic agreements.

We have particular experience in negotiating and working with programmatic agreements under the ACHP's rules, having participated in the development of two nationwide agreements adopted by the Federal Communications Commission in 2001 and 2004 and having analyzed or worked on numerous other programmatic agreements from across the country.

We assist with regulatory compliance, obtaining permits and licenses and negotiations with interest groups, regulatory staff, and public officials at all levels, and we have mounted effective defenses against agency enforcement actions.

Indian Tribes and Consultation of Projects Not On Tribal Lands

The NHPA provides that any federally recognized Indian tribe that attaches religious and cultural significance to a historic property that may be impacted by a federal undertaking has a right to be consulted in the Section 106 review of that undertaking.  This right of consultation can be triggered by any project, whether located on or off of tribal lands, and federal law requires that the responsible federal agency, or undertaking proponent, identify those tribes that may have a historic connection with the project area, even though that tribe may have no current presence or proximity.

Holland & Hart's historic preservation attorneys have significant experience with these requirements as they have been applied in various regions of the country and interpreted by government agencies and Indian tribes alike.  We can provide clients with knowledgeable guidance for choosing the most efficient path for negotiating the compliance requirements of these unique regulations.