Reps. Gallego, Grijalva and Haaland Demand Answers On National Park Service Changes To National Historic Preservation

Congress of the United States Washington, AC 20515 July 19, 2019 Secretary David Bernhardt Department of the Interior 1849 C St., NW Washington, DC 20240 Re: Proposed Changes to the Regulations Governing Federal Ageney Nomination of Properties to the National Register of Historic Places Dear Secretary Bernhardt: On May 14, 2019, we wrote to express our concerns with the National Park Service's proposed rule, Fed, Reg, 41, 6996-7005, issued on March 1, 2019. To date, we have not received a response to our letter. We ‘write to reiterate our deep concems about inaclequate tribal consultation and the consequences of finalizing the proposed rule without changes. We also request a response to our concems in the form of a congressional briefing with relevant National Park Service staff prior to final rulemaking. In light of the clear impacts this proposed rule would have on tribes, we were encouraged to see that the National Park Service revised its initial stance that “tribal consultation is not required because the rule will not have a substantial direct effect on federally recognized tribes” when, on May 24, 2019, it published a “Notice of Tribal consultation” and acknowledged the substantial direct effects the proposed rule would have on tribes. However, the tribal “consultation” described in the notice, consisting of one meeting and one teleconference in the space of a week, falls far short of the substantive consultation required by your Department's own policy and by our federal trust responsibilities as outlined in Executive Order 13175. Tribes maintain deep cultural, historical, and archeological connections to what are now federal lands. In fact, the NHPA explicitly states that tribes have special expertise in identifying and assessing the NRHP eligibility of properties significant to them, and that agencies are obligated to consult with them on federal undertakings regardless of location, For this reason, it is critical that the Department not merely “check a box” when it comes to consultation with our tribal partners, but rather engage in a meaningful government-to-government consultation process. In this context, meaningful consultation includes, but is not limited to, engagement with tribal nations by Departmental officials possessing decision-making authority in all the geographical regions in which tribes are located to ensure that tribal concems are comprehensively gathered and fully addressed before a final rule is promulgated. Even in the context of the inadequate “consultation” process offered by your Department in this case, multiple substantive concerns regarding the proposed rule were raised by tribal leaders, reflecting the issues touched on in our previous letter. During the “consultation,” Department officials indicated their desire for more detail with regard to certain substantive concems, which could be better fleshed out and addressed in a full and meaningful consultation process,One such concer, which has been raised by many tribal govemments and organizations, is the proposed rule’s exceedance of the scope of the 2016 amendments to the National Historic Preservation Act (NHPA). First, the proposed rule would make federal agencies the only entities capable of initiating a nomination or determination of National Register of Historic Places (NRHP) eligibility of properties located on federal lands. Second, the proposed rule would improperly eliminate a party’s ability under the NHPA, as amended, to appeal a federal agency’s failure to nominate a property to the National Register of Historic Places. These changes directly conflict with the intent and content of the 2016 amendments to the NHPA and would effectively exclude multiple stakeholders, including tribes, from the federal process of preserving historic and cultural properties under the NHPA. Additionally, as noted in our previous letter, the proposed rule would grant effective veto power to large land owners in and around potentially NRHP-eligible properties, who in many cases are ranch-owners, mine-owners, or energy developers whose interests directly conflict with historic preservation, We are concerned that this change, which does not reflect any existing provision in the NHPA, would jeopardize the preservation of historical and cultural properties of tribal significance on federal lands, which are an essential part of the rich heritage and history of America, Due to our considerable procedural and substantive concerns with this proposed rule, we respectfully request a congressional briefing from relevant, decision-making staff at the National Park Service on the development, substance, and status of the rule before itis finalized. Additionally, we request that you reevaluate the proposed rule’s compatibility with a good-faith interpretation of the NHPA and suspend. further action on this proposed rule until the Department completes a full and meaningful government-to- ‘government consultation process and fully addresses the concerns with the proposed rule expressed by tribal governments and organizations. We look forward to receiving your response to our requests, Sincerely, Ruben Gallego Cc M. Mu eb FTaaland Chairman Chairman Chairwoman ‘Subcommittee for Indigenous House Committee on uo ‘Subcommittee on National Peoples of the U.S. Resources Parks, Forests, & Public Lands CC: Dan Smith, Deputy Director, exercising the authority of the Director of the National Park Service

Reps. Gallego, Grijalva and Haaland Demand Answers On National Park Service Changes To National Historic Preservation

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Reps. Gallego, Grijalva and Haaland Demand Answers On National Park Service Changes To National Historic Preservation

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