CADDNAR


[CITE: Ross v. Historic Preservation Review Bd., 11 CADDNAR 182 (2007)]

 

[VOLUME 11, PAGE 182]

 

Cause #: 07-154H

Caption: Ross v. Historic Preservation Review Bd.

Administrative Law Judge: Lucas

Attorneys:  Ross, pro se; Knotek

Date: August 30, 2007

 

 

FINAL ORDER OF DISMISSAL

 

The action by the Indiana Historic Preservation Review Board, made during a meeting held on April 25, 2007, to deny an addition to the National Register of Historic Sites with respect to the John Ross Farm in Lake County, constitutes a recommendation to the Indiana State Historic Preservation Officer and to the Keeper of the National Register.  The exclusive remedy to a person aggrieved by listing or non-listing of additional territory to a site on the National Register rests with review through the Federal agency.  The Natural Resources Commission lacks subject-matter jurisdiction to grant administrative review to Dean Ross.  This order is specifically made without prejudice as to whether the Historic Preservation Review Board properly denied the petition to add territory within the John Ross Farm to the Indiana State Register.  As to the National Register, there is no reason for delay, and the matter is ripe for a final order of dismissal.

 

 

Findings of Fact and Conclusions of Law

 

1. On July 17, 2007, Dean Ross filed a petition for administrative review with the Natural Resources Commission (the “Commission”) with respect to an April 25, 2007 action by the Historic Preservation Review Board to deny the inclusion, on the National Register and to the Indiana State Register of Historic Sites, of additional area within the John Ross Farm located at Crown Point in Lake County.  This order addresses the request for administrative review as it pertains to the National Register, only.  The order expressly does not address the request for review as it pertains to the Indiana Register.

 

2. In reviewing the petition for administrative review under IC 4-21.5-3-7, the administrative law judge finds the Commission lacks subject matter jurisdiction to consider listing on the National Register.  For reasons stated below with more particularity, that authority rests with a federal agency, the Keeper of the National Register (the “Keeper”) within the National Park Service.

 

3. With respect to the National Register, for consideration in this proceeding is the denial of 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, a nomination that to become effective must be first approved by the Keeper. 

 

[VOL. 11, PAGE 183]

 

4. The role of the Indiana Historic Preservation Review Board (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…Board.  The…Board shall review the nomination forms or documentation…and any comments concerning the property’s significance and eligibility for the National Register.  The…Board shall determine whether or not the property meets the National Register criteria for evaluation and make a recommendation to the State Historic Preservation Review Officer to approve or disapprove the nomination.”  [Emphasis added by the administrative law judge.]  Action by the Board as to eligibility for added territory to a site on the National Register is merely a recommendation and is not even binding on Indiana’s State Historic Preservation Officer.

 

5. As provided in 60 C.F.R. 60.6(1), if the State Historic Preservation Officer and the Board “disagree on whether a property meets the National Register criteria for evaluation, the State Historic Preservation Officer, if he…chooses, may submit the nomination with his…opinion concerning whether or not the property meets the criteria for evaluation and the opinion of the…Board to the keeper of the National Register for a final decision on the listing of the property.  [Emphasis added by the administrative law judge.]

 

6. The Keeper has independent authority to determine whether a property is eligible for listing on the National Register without agreement by the Board or the State Historic Preservation Officer.  Even where a state court annuls a listing on the State Register, and a State Historic Preservation Review Board determines a site is ineligible for listing on the National Register, the Keeper 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.

 

7. Any person or organization which supports or opposes the nomination of a property by the 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.  A petition received by the Keeper prior to listing or a determination of its eligibility is to be substantively reviewed.

 

8. 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 may “petition the Keeper during the nomination process….”)

 

[VOL. 11, PAGE 184]

 

9. 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.  The remedies afforded by 36 C.F.R. 60.6(t) and 36 C.F.R. 60.12 are those authorized by 16 U.S.C. 470a.  They are exclusive and are those incorporated by the Indiana General Assembly through IC 14-21-1-22(a)(2).

 

10. For nominations to the National Register, the Board makes recommendations to the State Historic Preservation Officer.  The State Historic Preservation Officer makes recommendations to the Keeper of the National Register that may or may not conform to the recommendations of the Board.  The Keeper exercises independent authority and is not bound by the recommendations of the Board or those of the State Historic Preservation Officer.  A person who is aggrieved by a disposition of listing on the National Register must seek administrative review from the Federal agency. 

 

11. The Commission has previously considered grievances from nominations to the National Register and determined that it lacks subject-matter jurisdiction.  Ft. Wayne-Allen County Airport Authority v. ISHPA, 9 Caddnar 92 (2003) is consistent with this order and includes a more detailed legal analysis.  The Commission’s analysis here is supported by the clear Federal structure established for reviews.  In addition, it is supported by IC 4-21.5, Indiana’s state procedural law, which applies to the Indiana Historic Preservation Review Board.  IC 4-21.5 is triggered by agency determinations and orders, not by actions which are merely recommendations.

 

12. The Commission lacks subject-matter jurisdiction to review the recommendation by the Board to deny listing of the subject property as an addition to the John Ross Farm in Lake County.