Montana Historical Society

Big Sky ~ Big History

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Review and Compliance

Consulting with Montana SHPO


Thank you for your careful consideration of Montana's cultural resources.

 

The Montana State Historic Preservation office provides assistance to private citizens, local governments, private organizations, and both State and Federal Government Agencies partaking in projects subject to Section 106 of the National Historic Preservation Act (NHPA) and Montana State Antiquities Act.

Projects (or "undertakings") may include but are not limited to construction, rehabilitation, demolition, licenses, permits, transfer of federal property, and landscape modification, such as logging, mining, prescribed burns.

Federal and state agencies working with historic properties or a private property owner, company, or local government agency receiving a federal grant or permitting need to get a letter from the Montana SHPO concerning your project’s effect on cultural resources. 

Federal and state agencies (or any agency using federal funds) is required to “take into account” cultural resources in its projects and activities. “Taking into account” cultural resources, like historic structures or archaeological sites, requires specific steps depending on which law you are trying to comply with.

Any undertaking on federal Land, using federal funds, or requiring a federal permit must comply with Section 106 of the National Historic Preservation Act.

Any project project on State Land must comply with the Montana State Antiquities Act.

To receive a letter from our office:

  1. Generate a letter to SHPO to initiate consultation by defining the Area of Potential (APE) for your project and requesting a “File Search” to determine if there are previously recorded cultural sites and surveyed areas within the APE.

  2. If recommended by SHPO you may need to hire a cultural resource professional to complete a survey to determine if you have any historic buildings or archaeological sites on the property.

  3. If resources are found and determined eligible for the National Register, additional documentation may be required. 
Review the Montana SHPO Consultation Guide to learn more about preparing your letter and the steps that follow. Contact a Montana SHPO Review and Compliance Officer with questions.
GUIDANCE

Cell tower construction may have visual impacts on historic resources and may affect archaeological sites. FCC licenses and certifications for cell towers are federal actions subject to compliance with Section 106 of the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA). 

Montana SHPO Guidelines for cell tower review 
(Appendix H: Consulting with Montana SHPO, 2023)

FCC’s NHPA guidance

Broadband Infrastructure and Section 106 Review

Program Alternatives for Broadband Project Section 106 Reviews

FCC Nationwide Programmatic Agreement for Collocation of Wireless Antennas

FCC Nationwide Programmatic Agreement for Telecommunications Projects

Program Comment for Wireless Communications Facilities

Program Comment for Positive Train Control

Program Comment for Communications Projects on Federal Lands and Property

SUBMIT A REQUEST
CONTACTS

Samantha Gilk (samantha.gilk@mt.gov
Review and Compliance Officer
(406) 444-6485

Vacant
Review and Compliance Officer

Jessica Bush (jbush2@mt.gov)
State Archaeologist
(406) 444-0388

Lindsay Tran (lindsay.tran@mt.gov)
Historic Architecture Specialist
(406) 444-7717

Damon Murdo (dmurdo@mt.gov)
Cultural Records Manager
(406) 444-7767

401 F Street NW, Suite 308
Washington, DC 20001
(202) 517-0200
achp@achp.gov
www.achp.gov

LEARN MORE

Whether or not the ACHP becomes involved in consultation, you may contact the ACHP to express your views or to request guidance, advice, or technical assistance. Regardless of the scale of the project or the magnitude of its effects, the ACHP is available to assist with dispute resolution and to advise on the Section 106 review process for Federal undertakings.

If you suspect Federal involvement, but have been unable to verify it, or if you believe the Federal agency or one of the other participants in review (including the Montana SHPO) has not fulfilled its responsibilities under the Section 106 regulations, you can ask the ACHP to investigate. In either case, be as specific as possible and try to have the following information available:

  • the name of the responsible Federal agency and how it is involved
  • a description of the project
  • the historic properties involved
  • a clear statement of your concerns about the project and its effect on historic properties

Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Phone: (202) 517-0200  |  Email: achp@achp.gov  |  Website: www.achp.gov

The Four Steps to Consulting with Montana SHPO

ACHP's Introduction to Section 106

  1. Initiating Section 106
  2. Identifying Historic Properties
  3. Assessing Effects
  4. Achieving a Resolution

RELATED RESOURCES

With passage of the National Historic Preservation Act (NHPA) in 1966, the federal government embarked on a new era of leadership in the preservation of our nation’s historic properties. 
Learn how you can participate in Section 106 reviews of undertakings with the potential to affect historic properties.

Several federal laws, state laws, implementing regulations, executive orders, policies, and guidelines have been enacted to regulate and manage cultural resources. This document provides an overview of laws and regulations relevant to preservation of cultural and historic resources in Montana. 

National Historic Preservation Act (NHPA) of 1966

In 1966, Congress enacted the National Historic Preservation Act (NHPA), which declared that the preservation of our Nation's irreplaceable heritage was in the public’s interest. The NHPA called upon federal agencies to expand and accelerate preservation activities in a spirit of stewardship and partnership with American Indian tribes, the public, state and local governments, and other interested parties. The NHPA also established several institutions: the Advisory Council on Historic Preservation (ACHP), State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Offices (THPOs), the National Register of Historic Places (National Register), and the Section 106 review process.

When congress passed the NHPA they recognized that many federal actions were contributing to the loss of historic places. NHPA requires that Federal agencies consider the effects of their undertakings on historic properties and mandate early consultation to try and avoid or mitigate all adverse effects.

Section 106 of the NHPA

Crucial to the preservation of the historical and cultural foundations of the nation, Section 106 of the NHPA and its implementing regulations, 36 C.F.R. Part 800 (PDF) (revised August 5, 2004) require Federal agencies to consider the effects of projects they carry out, approve, or fund on historic properties.

A Federal project that requires review under Section 106 is defined as an "undertaking." An undertaking means a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval.

If the Federal agency determines the undertaking has the potential to adversely affect historic properties, the agency must make a reasonable and good faith effort to consult with interested Federal and state agencies, American Indian Tribes, the public, as well as the State Historic Preservation Office and/or the associated Tribal Historic Preservation Office to identify possible historic properties located in the Area of Potential Effects (APE). This identification effort often includes a new survey or inventory to locate and identify previously unrecorded prehistoric or historic properties. All properties identified in the survey or inventory effort are then evaluated by the agency to determine whether they are eligible for listing in the National Register of Historic Places (NRHP) (PDF) by using the National Register of Historic Places Criteria for Evaluation. All eligibility findings are determined in consultation with the State Historic Preservation Office/Tribal Historic Preservation Office and any American Indian Tribe or interested party that attaches cultural or religious significance to the impacted properties.

If the agency determines that the undertaking will have an unavoidable adverse effect on one or more NRHP-eligible historic properties, the agency consults further with the required and appropriate parties to establish necessary mitigation strategies. The agency may then enter into a Memorandum of Agreement (MOA) with consulting parties to formalize the agreed-upon mitigation measures.

Four Steps of the Section 106 Review Process

The four-step process originates in the implementing regulations (24 CFR 800) of the NHPA. Section 106 is the process federal agencies take when considering the effects to historic properties caused by their actions.

It is federal agencies, rather than project proponents, that must comply with cultural resource laws and regulations, and that SHPO is but one consulting entity in the process. The Section 106 review process (often referred to as "compliance") can be understood as a set of four (4) sequential steps of identification, assessment, and evaluation carried out by agencies in consultation with the SHPO and others.

 

The National Historic Preservation Act section 106 requires federal agencies to follow the four steps in consideration of historic Properties. People therefore often call the process – “section 106.” Section 106 applies whenever there is federal agency involvement: It takes place on federal land, uses federal money (including grants), or requires federal permits.

Section 110 of the National Historic Preservation Act

Federal agencies are directed under Section 110 of the NHPA to identify, evaluate and utilize historic properties under their management and planning. Section 110 also requires that federal agencies consult with the SHPO, pursuant to their responsibilities under Section 106. Section 110 calls on all federal agencies to establish their own historic preservation programs to head this effort.

Added to the NHPA in 1992, Section 110 requires Federal agencies to emphasize the preservation and enhancement of cultural resources. Section 110 directs agencies to initiate measures necessary to direct their policies, plans, and programs in such a way that federally-owned sites, structures, and objects of historical architectural or archaeological significance are preserved, restored, and maintained for the inspiration and benefit of the public. The agencies are also encouraged to institute (in consultation with the ACHP) procedures to assure Federal plans and programs contribute to the preservation and enhancement of non-Federally owned sites, structures, and objects of historical, architectural, and archaeological significance.

National Environmental Policy Act of 1964

The National Environmental Policy Act requires agencies to consider project impacts on all types of resources: cultural, natural, and economic. The impacts associated with various project alternatives are discussed in an environmental assessment (EA) or an environmental impact statement (EIS). These NEPA documents typically summarize the Section 106 NHPA process.

Compliance with NEPA does not guarantee compliance under Section 106 of the NHPA. While certain federal agency responsibilities are related in purpose under both laws, there are differences in scope and procedure. For example, many actions that qualify as Categorical Exclusions (CEs) under NEPA require further review under Section 106. Moreover, an adverse effect under the NHPA may not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA.

 

Antiquities Act of 1906

The Antiquities Act is the United States’ oldest law protecting historic, prehistoric, and scientific features on public lands. It gives the president the authority to create new National Monuments. It also prohibited the excavation or removal of antiquities from some federal lands; however, this portion of the law is largely superseded by ARPA. The legacy of the Antiquities Act is that it asserted the government’s interest and control over archaeological resources on federal lands.

Historic Sites Act of 1935

While the Historic Sites Act of 1935 has generally been superseded by later laws, it is politically and administratively important because it established the National Park Service as the government’s primary historic preservation expert. The National Park service publishes bulletins that are the industry standard with guidelines on identifying and evaluating all types of historic properties.

Executive Order 11593 of 1972

President Nixon issued Executive Order 11593, it directs agencies to treat any historic property that has been determined eligible for the National Register as if it were listed on the National Register.

Archaeological Resources Protection Act (ARPA) of 1979

The Archaeological Resources Protection Act prohibits unauthorized excavation, removal, or damage to archaeological resources on federal land that are at least 100 years old. This law has established penalties for damaging these resources including fines, confiscation or property, and prison terms. ARPA recognizes that archaeological resources are an irreplaceable part of the United States’ heritage and that damage to those resources is a crime.

American Indian Religious Freedom Act (AIRFA) of 1979

The American Indian Religious Freedom Act requires the federal government to consider impacts to the free exercise of traditional religion by American Indians. The religious practices, as well as the locations and objects used in those practices are covered by this legislation. While NHPA typically only applies to cultural resources that are less than 50 years old, AIRFA addresses impacts to modern and recent locations.

Native American Graves Protection and Repatriation Act (NAGPRA) of 1990

The Native American Graves and Repatriation Act protects Native American Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. NAGPRA requires federal agencies and museums to inventory human skeletal remains and offer to repatriate human remains and cultural items to culturally affiliated tribes.

Executive Order 13007 of 1996

President Clinton issued Executive Order 13007 to encourage agencies to avoid damage to sacred native American sites and to avoid limiting access to them by tribal practitioners. A sacred site need not be a historic property to merit consideration.

Montana Antiquities Act (MTAA)

The Montana State Antiquities Act (Montana Code Annotated 22-3-421 through 22-3-442) requires state, federal, and other agencies to consider the effects of their actions on heritage properties and paleontological remains on state-owned lands. Each state agency is responsible for establishing rules and procedures regarding the preservation of historic resources under their jurisdiction. The SHPO assists agencies in preserving heritage properties and paleontological remains and encourages the avoidance, whenever feasible, of heritage properties or paleontological remains on state-owned lands. The Montana State Antiquities Act review process closely corresponds with the Section 106 review process, although there is no Advisory Council oversite.

The Montana SHPO has adapted the four-step process of the section 106 process to the Montana Antiquity Act. In Montana, the State Antiquities Act applies: “when a project occurs on state owned lands and may have the potential to effect state owned Heritage Properties.” 

In 2011, the 62nd Legislature of Montana passed Senate Bill 3, amending Sections 22-3-422, 22-3-423, 22-3-424 of the Montana State Antiquities Act. The revised sections require state agencies and the Montana university system to submit a biennial report to the Preservation Review Board on their stewardship, as well as the status and maintenance needs of the agencies’ heritage properties.

 

 

 

 

Montana Human Skeletal Remains and Burial Site Protection Act of 1999

This is a state law that protects graves on non-federal lands. When human remains are found on private or state-owned land the county coroner should be immediately notified, followed by the State Burial Board.

It is possible for a federal agency to customize or expedite the Section 106 review process by entering into a Programmatic Agreement (PA) with the ACHP and SHPO. Use of these agreements may alter the standard Section 106 review and consultation process outlined in 36 CFR Part 800.

There are several types of PAs including:

  1. PAs for general federal agency programs.
  2. Project-specific PAs for complex, long-term undertakings.
  3. Property-specific PAs for cultural resources with which a federal agency consistently interacts.

PAs are most useful for considering the effects of routine and repetitive undertakings in a broad temporal or spatial approach, or where administrative decisions which may affect historic properties will be made before all historic properties in an APE can be identified and evaluated, or before possible effects can be assessed.
 

Examples of current PAs include those with:

  • Local communities regarding CDBG grants and rehabilitation programs.
  • National Forests regarding trails and logging properties.
  • Montana Department of Transportation (MDT) regarding historic irrigation ditches,
    roads, and bridges.
  • Bureau of Reclamation (BOR) regarding cabin leases.

There are also more general Programmatic Agreements with the USDA Forest Service Northern Region (USFS) and with the Bureau of Land Management (BLM) that modify the standard Section 106 review process to more appropriately address organization and management needs. The ACHP regulations providing for such alternative programs are found at 36 CFR Part 800.14, and guidance on preparing such agreements can be found in the ACHP's Preparing Agreement Documents.

Under Construction

Administrative Rules of Montana 10.121.9
https://rules.mt.gov/gateway/Subchapterhome.asp?scn=10.121.9

Advisory Council on Historic Preservation
https://www.achp.gov/

Montana Archaeological Society
https://mtarchaeologicalsociety.org/

Montana Code Annotated Title 22-3-4
https://leg.mt.gov/bills/mca/title_0220/chapter_0030/part_0040/sections_index.html

National Association of Tribal Historic Preservation Officer
https://www.nathpo.org/

National Conference of State Historic Preservation Officers
https://ncshpo.org/

National Park Service, publications of the National Register of Historic Places
https://www.nps.gov/subjects/nationalregister/publications.htm

National Trust for Historic Preservation
https://savingplaces.org/

Preserve Montana
https://preservemontana.org/

Answers to Frequently Asked Questions

Section 106 is the portion of the National Historic Preservation Act where Federal Agencies are required to take into account, during the planning process, the effects of their actions on Historic Properties and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on that agency consideration. Federal Agencies, then, are required by law to take steps to identify Historic Properties which may be affected by their actions and to follow procedures to minimize or avoid effects. To learn more about Section 106 or how to consult with the Montana SHPO please see our Guidelines and Procedures planning bulletin.

Cell tower construction may have visual impacts on historic resources and may effect archaeological sites. FCC licenses and certifications for cell towers are federal actions subject to compliance with Section 106 of the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA). Click here for the Wireless Telecommunications Bureau's "Learning Unit" which will assist interested parties in understanding the National Programmatic Agreement for Review of Effects on Historic Properties, or view the Montana SHPO Guidelines for cell tower review.

An undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency. Undertakings requiring consideration under the National Historic Preservation Act are:

(A) those carried out by or on behalf of the agency;

(B) those carried out with Federal Financial assistance;

(C) those requiring a Federal permit, license, or approval; and

(D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.

In 1966, Congress enacted the National Historic Preservation Act (NHPA), which declared that
the preservation of our Nation's irreplaceable heritage was in the public's interest. The NHPA
called upon federal agencies to expand and accelerate preservation activities in a spirit of
stewardship and partnership with American Indian tribes, the public, state and local
governments, and other interested parties. The NHPA also established several institutions: the
Advisory Council on Historic Preservation (ACHP), the State Historic Preservation Offices
(SHPOs), the National Register of Historic Places (National Register), and the Section 106
review process.

The Section 106 review process (often referred to as "compliance") can be understood as a set of four (4) sequential steps of identification, assessment, and evaluation carried out by agencies in consultation with the SHPO and others:

1) Initiate Consultation Process, define the Undertaking and Area of Potential Effect (APE)
2) Identify Historic Properties in the APE
3) Assess Adverse Effects
4) Resolve Adverse Effects.

Although 36 CFR Part 800 differentiates between the steps, steps may overlap in practical
application. For example, some agencies combine the identification and effect assessment steps (Steps 2 & 3). This is often done by conducting cultural resource surveys (the physical search for and recording of cultural resources) and submitting an inventory report (a compilation of information resulting from field survey, records or archival research, oral interviews, and other information about cultural resources in the area of concern) to the SHPO along with the federal agency’s determinations about the significance of identified sites and possible impacts of the undertaking.

Each step must be completed for all historic properties before formally moving to the next step. (Programmatic Agreement may allow exceptions). For example, the SHPO is unable to concur with an effect finding (the overall or comprehensive effect of an action or decision) until the resolution of the Eligibility of all cultural resources and the impact on all eligible properties that are not avoided. Impacts to each historic property are considered in a comprehensive effect assessment, which takes into account the total effect of the undertaking on all historic properties in the subject area. As the regulations highlight at 36 CFR 800.3(g), these sequential steps are also intended to provide consulting parties and the public adequate time to review and comment at specified and known points in the Section 106 review process.

Federal agencies rather than applicants or consultants are responsible for consulting with the
SHPO on all undertakings assisted, funded, undertaken, permitted, or licensed by the lead federal agency. In some instances, however, the lead federal agency delegates some or all of the Section 106 review process to the recipient (applicant) of the funding, license, or permit. Blanket Delegations of Authority—where the federal agency delegates the entire Section 106 review process to the applicant—are typically only used by non-land managing federal agencies (e.g. the Rural Utilities Service and the Federal Communications Commission). When a federal agency has formally delegated some or all of its responsibilities under Section 106, it retains legal accountability and is required to make an effort to resolve any disagreements that might arise. A federal agency must have a previous agreement in place with the ACHP and SHPO prior to utilizing a Blanket Delegation of Authority.

In order to ensure that the project will not be unnecessarily delayed, it is important that applicants ask agencies whether they or the agency will initiate consultation with the SHPO. In order to avoid confusion, federal agencies should notify the SHPO as early as possible when
forming such agreements

Compliance with the National Environmental Protection Act (NEPA) does not guarantee
compliance under Section 106 of the NHPA. While certain federal agency responsibilities are
related in purpose under both laws, there are differences in scope and procedure. For example, many actions that qualify as Categorical Exclusions (CEs) under NEPA require further review under Section 106. Moreover, an adverse effect under the NHPA may not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA. The goal of the Section 106 review process is for federal agencies to identify historic properties potentially affected by a proposed undertaking, assess the effects of the undertaking, and seek ways to avoid, minimize, or mitigate any adverse effects. The initiation of the Section 106 review process should occur early in project planning and in advance of a federal agency making binding decisions regarding the location, design, and siting of a project. By statute, the Section 106 requirements must be met prior to a federal agency approving the expenditure of funds on an undertaking (other than funds for non-destructive planning) or prior to issuance of a license, permit, or approval needed by the undertaking. Further, an agency must complete the NEPA and Section 106 review before signing a decision document. The NEPA review may conclude with a CE, a FONSI, or a ROD. Under the Council on Environmental Quality’s (CEQ) regulations, CEs, EAs, FONSIs, and EISs are not decision documents. Agencies should avoid issuing NEPA documents that present a final agency decision before they have completed the Section 106 review process, because the Section 106 process may result in a finding that requires the NEPA document to be revised or supplemented (NEPA and NHPA: A Handbook for Integrating NEPA and Section 106).


If a federal agency is unable to complete eligibility and effect determinations for the entire APE prior to the release of a FONSI or ROD, the ACHP regulations recognize a phased application of the Section 106 review process as an alternative option (36 CFR Part 800.4(b)(2) and 800.5(a)(3)). A project-specific PA detailing the agreed-upon measures for phased identification, evaluation, and effect findings must be completed prior to the signing and release of a decision document.


While NEPA and Section 106 of the NHPA are separate laws, federal agencies are encouraged to coordinate the processes. The ACHP’s regulations concerning NHPA-NEPA coordination,
integration, and substitution requirements are found at 36 CFR Part 800.8 and 800.14. If a
federal agency wishes to substitute the NEPA process for the purposes of Section 106, the
federal agency must notify the ACHP and SHPO in advance and follow the standards set out in
36 CFR 800.8(c). Coordination of Section 106 and NEPA may also raise concerns regarding
public disclosure or release of sensitive information. Please see the confidentiality
subsection for more information on this critical concern. Further information is available in
the NHPA and NEPA: A Handbook for Integrating NEPA and Section 106 published by the CEQ
and the ACHP.

It is possible for a federal agency to customize or expedite the Section 106 review process by
entering into a Programmatic Agreement (PA) with the ACHP and SHPO. Use of these
agreements may alter the standard Section 106 review and consultation process outlined in 36
CFR Part 800. There are several types of PAs including: (1) PAs for general federal agency
programs, (2) project-specific PAs for complex, long-term undertakings, and (3) property-specific PAs for cultural resources with which a federal agency consistently interacts. PAs are
most useful for considering the effects of routine and repetitive undertakings in a broad temporal or spatial approach, or where administrative decisions which may affect historic properties will be made before all historic properties in an APE can be identified and evaluated, or before possible effects can be assessed.
 

Examples of current PAs include those with local communities regarding CDBG grants and
rehabilitation programs; with individual National Forests regarding trails and logging properties;
with the Montana Department of Transportation (MDT) regarding historic irrigation ditches,
roads and bridges; and with the Bureau of Reclamation (BOR) regarding cabin leases. There are
also more general Programmatic Agreements with the USDA Forest Service Northern Region
(USFS) and with the Bureau of Land Management (BLM) that modify the standard Section 106
review process to more appropriately address organization and management needs.
The ACHP regulations providing for such alternative programs are found at 36 CFR Part 800.14,
and guidance on preparing such agreements can be found in the ACHP's Preparing Agreement
Documents.