1. Matters pertaining to state regulation of historic preservation and archaeology are governed in Indiana primarily through IC 14-21-1 (sometimes referred to as the "Indiana State Historic Preservation Act" or "ISHPA").
2. The Indiana historic preservation review board (the "Board") is established at IC 14-21-1-20 to perform several functions under ISHPA. These functions are the following:
A. Upon recommendation by the division of historic preservation and archaeology (the "Division") of the department of natural resources (the "Department"), and the Department's advisory council for the bureau of lands and cultural resources, to approve a state preservation plan for the continuing integrity of historic sites and historic structures. IC 14-21-1-12.
B. To authorize additions or removals from the "register of Indiana historic sites and historic structures" (the "State Register"). IC 14-21-1-17.
C. To approve or disapprove requests for certificates of approval to alter or remove historic sites or historic structures that are (1) owned by the State of Indiana; or (2) listed on the State Register or the National Register of Historic Places in 16 USC 470 et seq. (the "National Register"). IC 14-21-1-18.
D. To conduct activities as required under 16 U.S.C. 470 et seq. and federal regulations relating to 16 U.S.C. 470 et seq. IC 14-21-1-22(2).
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E. To advise the Division as requested by the Department's director.[FOOTNOTE i] IC 14-21-1-22(3).
3. The ISHPA also designates numerous functions that are the responsibility of the Division. Those most pertinent to this proceeding are as follows:
A. To prepare and maintain the State Register and to establish criteria for listing on the State Register. IC 14-21-1-15(2).
B. To maintain the Indiana part of the National Register. IC 14-21-1-15(3).
Application of the Indiana Administrative Orders and Procedures Act to the Historic Preservation Review Board and the Natural Resources Commission
4. Administrative review of most state agency actions is governed in Indiana by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA").
5. The natural resources commission (the "Commission") and its administrative law judges are responsible for the implementation of AOPA review on behalf of the Department. IC 14-10-2.
6. The Commission is also responsible for adopting rules to carry out its responsibilities and those of the Department under IC 14. IC 14-10-2-4.
7. The Commission has adopted rules pertaining to this proceeding. Notably, these are to provide definitions with general applicability (312 IAC 1), to assist in the implementation of AOPA (312 IAC 3-1), and to assist in the implementation of the ISHPA (312 IAC 20).
8. As defined in IC 4-21.5-1-4, an "agency action" means:
A. The whole or part of an order.
B. The failure to issue an order.
C. An agency's performance of, or failure to perform, any other duty, function or activity under AOPA.
9. An "order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.[FOOTNOTE ii] The term includes a "license". IC 4-21.5-1-9.
10. A "license" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law. IC 4-21.5-1-8 and 312 IAC 1-1-23.
11. "Law" means the federal or state constitution, any federal or state statute, a rule of an agency, or a federal regulation. IC 4-21.5-1-7 and 312 IAC 1-1-22.
12. The "ultimate authority" means an individual or panel of individuals in whom the final authority of an agency is vested by law or executive order. IC 4-21.5-1-15 and 312 IAC 1-1-29.
13. An order by the Historic Preservation Review Board means an action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons. 312 IAC 1-1-25.
14. By law, the Commission is the "ultimate authority" for an order issued by the Board. 312 IAC 20-1-2(c)
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On several occasions, the Commission has exercised this authority. Illustrative are Kandrac v. Hist. Pres. Rev. Bd. and White River Park Dev. Comm., 7 Caddnar 47 (1994); Metamora H20 Committee v. DNR and Whitewater Valley Railroad, 6 Caddnar 109 (1993); and, Save the Tee Pee Committee v. DNR, 5 Caddnar 1 (1987).
Administrative Review of Endorsements to Place Smith Field on the State Register and on the National Register
15. On October 23, 2002, the Board endorsed the placement of Smith Field Airport in Fort Wayne on both the State Register and the National Register.
16. On November 4, 2002, the Fort Wayne-Allen County Airport Authority (the "Airport Authority") sought administrative review by the Commission of these endorsements.
17. The Airport Authority is an Indiana municipal corporation created by IC 8-22-3-1.1.
18. The request by the Airport Authority was timely and avers facts sufficient to seek administrative review under IC 4-21.5-3-7(a)(1). The Airport Authority has, under IC 8-22-3, a sufficient proprietary interest in Smith Field Airport to establish the requisite standing under IC 4-21.5-3-7(a)(1)(B). Similarly, see IC 4-21.5-3-5(b)(5).
19. On February 4, 2003, a telephone status conference was conducted in this proceeding. During the conference, the parties entered the following stipulation:
The parties stipulate that the...Commission has jurisdiction over the subject-matter and over the parties to provide administrative review, under IC 4-21.5 and 312 IAC 3-1, of the...Board's determination to place Smith Field [Airport] on the [State Register]. The parties dispute, however, whether the Commission has jurisdiction to provide administrative review of the [Board's] determination to nominate Smith Field [Airport] for the National Register.
The parties agreed that whether the Commission has jurisdiction to provide administrative review of the [Board's] determination, with respect to the National Register, is a crucial threshold issue that must be determined by the Administrative Law Judge. A prompt determination by the Administrative Law Judge is critical to a meaningful disposition of the proceeding. Accordingly, they stipulated that the determination by the Administrative Law Judge should be subject to immediate judicial review by either party....
20. The parties' stipulation is legally well founded as to administrative review of the Board's determination to place Smith Field Airport on the State Register. The pronouncement by the Indiana General Assembly at IC 14-21-1-17(c) is direct and unmistakable. The Board "shall make the final decision regarding a nomination [to the State Register], subject to administrative review by the [C]ommission." AOPA applies, and the Commission is the "ultimate authority" for the administrative review of Board decisions whether to include a site on the State Register.
21. Although not so patently
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obvious, reading the ISHPA and AOPA together yields a similar result for determinations to alter or remove an historic site or structure, where State financial resources are involved, from the State Register or the National Register. As provided in IC 14-21-1-18(a), a "certificate of approval" is required from the Board before undertaking this activity. A "certificate of approval" is a type of "license", and a "license" is a type of "order". The Board issues the order. An aggrieved person may take administrative review to the Commission of an order by the Board. AOPA applies, and the Commission is the "ultimate authority" for the administrative review of Board decisions whether to approve a certificate of approval.
22. In addressing listing on the National Register, the Indiana General Assembly could have used language similar to IC 14-21-1-17(c). Indeed, the Indiana General Assembly could have used language virtually identical to IC 14-21-1-17(c), merely substituting a reference to the National Register for the reference to the State Register. It did not. In the alternative, the Indiana General Assembly could have used language similar to IC 14-21-1-18(a). Again, it did not.
23. Instead, the Indiana General Assembly provided the Board "shall carry out the duties...as required under 16 U.S.C. 470 et seq. and the regulations relating to 16 U.S.C. 470 et seq." IC 14-21-1-22(a)(2).
24. Through IC 14-21-1-22(a)(2), the Indiana General Assembly incorporated by reference the substantive and procedural law established by 16 U.S.C. 470 et seq. As applicable to listings on the National Register, the most pertinent statutory and regulatory provisions are 16 U.S.C. 470a and 60 C.F.R. 60, respectively.
25. There are five processes by which a property may be added to the National Register. These are set forth in 60 C.F.R. 60.1(b):
(1) Those Acts of Congress and Executive orders which create historic areas of the National Park System administered by the National Park Service, all or portions of which may be determined to be of historic significance consistent with the intent of Congress;
(2) Properties declared by the Secretary of the Interior to be of national significance and designated as National Historic Landmarks;
(3) Nominations prepared under approved State Historic Preservation Programs, submitted by the State Historic Preservation Officer and approved by the NPS;
(4) Nominations from any person or local government (only if such property is located in a State with no approved State Historic Preservation Program) approved by the NPS; and
(5) Nominations of Federal properties prepared by Federal agencies, submitted by the Federal Preservation Officer and approved by the NPS.
26. For consideration in this proceeding is a nomination initiated under 60 C.F.R. 60.1(b)(3). Indiana has an approved State Historic Preservation Program. At issue is a nomination by Indiana's State Historic Preservation Officer ("SPHO"), a nomination that to become effective must be first "approved by the NPS".
27. The role of the Board is preparatory to nomination under 60 C.F.R. 60.1(b)(3). As provided in 60 C.F.R. 60.6(j), a completed nomination "and comments concerning the significance of a property and its eligibility for the National Register are submitted to the State Review Board. The State Review Board
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shall review the nomination forms or documentation...and any comments concerning the property's significance and eligibility for the National Register. The State Review Board shall determine whether or not the property meets the National Register criteria for evaluation and make a recommendation to the State Historic Preservation Officer to approve or disapprove the nomination." [Emphasis added.]
28. Action by the Board as to the eligibility for a site on the National Register is merely a recommendation and is not even binding upon the SHPO. As provided in 60 C.F.R. 60.6(k):
Nominations approved by the State Review Board and comments received are then reviewed by the State Historic Preservation Review Officer and if he or she finds the nominations to be adequately documented and technically, professionally, and procedurally correct and sufficient and in conformance with National Register criteria for evaluation, the nominations are submitted to the Keeper of the National Register of Historic Places, National Park service, United States Department of the Indiana, Washington, D.C. 20240.
29. As provided in 60 C.F.R. 60.6(l), if the SHPO and the Board "disagree on whether a property meets the National Register criteria for evaluation, the State Historic Preservation Officer, if he or she chooses, may submit the nomination with his or her opinion concerning whether or not the property meets the criteria for evaluation and the opinion of the State Review Board to the keeper of the National Register for a final decision on the listing of the property. The opinion of the State Review Board may be the minutes[FOOTNOTE iii] of the Review Board meeting." [Emphasis added.]
30. The Keeper of the National Register has independent authority to determine whether a property is eligible for listing on the National Register without agreement by the representatives of a State Historic Preservation Program. Even where a state court annuls a listing on a state register, and a state review board determines a site is ineligible for listing, the Keeper of the National Register may list a site on the National Register. "Every circuit court to have considered the federal government's authority under the National Historic Preservation Act and related statutes to determine a property's eligibility for the National Register has concluded that the federal government is not bound by the determinations of local authorities." Moody Hill Farms Ltd. v. U.S. Dept. of Interior, 205 F.3d 554, 558 (2nd Cir. 1999); cert. denied 528 U.S. 874.
31. Congress also provided for administrative review by the federal agency of determinations for listing on the National Register. As set forth in 16 U.S.C. 470a(5):
Any person or local government may appeal to the Secretary a nomination of any historic property for inclusion on the National Register and may appeal to the Secretary the failure or refusal of a nominating authority to nominate a property in accordance with this subsection.
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32. The statutory pronouncement is implemented through two federal regulations. These are 36 C.F.R. 60.6(t) and 36 C.F.R. 60.12(a), and they establish separate and distinct remedies.
33. As provided in 36 C.F.R. 60.6(t):
Any person or organization which supports or opposes the nomination of a property by a State Historic Preservation Officer may petition to the Keeper during the nomination process either to accept or reject a nomination. The petitioner must state the grounds of the petition and request in writing that the Keeper substantively review the nomination. Such petitions received by the Keeper prior to the listing of a property in the National Register or a determination of its eligibility where the private owners object to listing will be considered by the Keeper and the nomination will be substantively reviewed.
34. As provided in 36 C.F.R. 60.12(a):
Any person or local government may appeal to the Keeper the failure or refusal of a nominating authority to nominate a property that the person or local government considers to meet the National Register criteria.... (This action differs from the procedure for appeals during the review of a nomination by the National Park Service where an organization or person may "petition the Keeper during the nomination process....)"
35. Neither 16 U.S.C. 470a nor 36 C.F.R. 60 anticipate an opportunity for state administrative review of a determination to list or to decline to list a site on the National Register.
36. The remedies afforded by 36 C.F.R. 60.6(t) and 36 C.F.R. 60.12(a) are those authorized by 16 U.S.C. 470a. They are those incorporated by the Indiana General Assembly through IC 14-21-1-22(a)(2).
37. The Board makes recommendations to the SHPO concerning the placement of a site on the National Register. The SHPO makes recommendations to the Keeper of the National Register that may or may not conform to the recommendations made by the Board. The SHPO's recommendations are subject to approval by the Keeper, who exercises authority independent from the SHPO, and to whom concerned or aggrieved persons must seek relief.
38. The Commission lacks jurisdiction to provide administrative review of a determination to list or to decline to list a site on the National Register. By federal statute and regulation, and as incorporated in Indiana state statute, that authority lies with the Secretary of the Interior acting through the Keeper of the National Register.
39. The Keeper of the National Register must properly determine whether Smith Field Airport should be listed on the National Register.
FOOTNOTES
i.There are several references in IC 14-21-1 to the "director". The Airport Authority concludes the term "director" refers to the Director of the Division of Historic Preservation and Archaeology. One illustration is on page 2 of the "Response to Board's
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Motion for Partial Dismissal", where, citing IC 14-21-1-19, it states: "In Indiana, the SHPO [State Historic Preservation Officer] is the director of the Division of Historic Preservation and Archaeology." The term "director" is not defined in the ISHPA but is defined at IC 14-8-2-71 with application to all of IC 14. With an exception in IC 14-8-2-71(b) that is not here germane, the "director" refers to the Director of the Department of Natural Resources. The Director of the Department of Natural Resources is the Indiana State Historic Preservation Officers, and other references in the ISHPA to the "director" are also to the Director of the Department of Natural Resources.
ii. The Airport Authority suggests the reference in 312 IAC 3-1-1 to a person aggrieved by a "determination" has broader application than the concept of "order" in AOPA. The term "determination" is used in AOPA in several instances to indicate a usage that is equivalent or narrower than "order". Within the definition of "order" itself are the inclusions of a "license" or a "determination under IC 4-21.5-3-6(a)(3) or IC 4-21.5-3-6(a)(4)." AOPA later references types of orders that are subject to particular notice requirements and there includes a "determination of tax due or other liability", as well as a "determination of status". IC 4-21.5-3-5. The purpose of 312 IAC 3-1 is to assist the Commission in administration of AOPA. There is nothing in this multi-section rule to support the proposition that the Commission used the term "determination" in a different sense than the word is used in AOPA. Neither does the rule support the proposition the Commission intended to broaden the statutory scope of AOPA reviews.
iii. The minutes are the "official record" of a Board meeting. 312 IAC 1-1-4 and 312 IAC 2-1-2.