Montana Cultural Resource Discovery (11-MT-c)
Cultural Resource Discovery Process
11-MT-c.1 - Conduct Initial Consultation with SHPO
The procedures in ARM 36.2.801-813 specify consultation with the Montana SHPO early in any decision making process that leads to a departmental action. As part of the preliminary consultation process, DNRC provides information on the proposed action; provides information on known cultural or fossil resources in a proposed undertaking’s area of potential effect (APE); requests that SHPO determine if sufficient inventory of the proposed action’s APE has been conducted and reported upon; and may request that SHPO conduct searches of the Cultural Resource Inventory System (CRIS) and Cultural Resource Annotated Bibliography System (CRABS) databases to determine if known antiquities are documented in a proposed undertaking’s APE.
(1) A federal or state entity that acts upon a proposed federal or state action or an application for a federal, state, or local permit, license, lease, or funding may request the views of the historic preservation officer concerning:
- (a) the recommended eligibility for a register listing of any heritage property or paleontological remains;
- (b) the effects of a proposed action, activity, or undertaking on heritage property or remains that are found to be eligible for register listing; and
- (c) the appropriateness of a proposed plan for the avoidance or mitigation of effects.
11-MT-c.2 - Make Recommendation
11-MT-c.3 - Consider Recommendations and Decide Whether to Require Antiquities Inventory, Inform SHPO
If DNRC finds insufficient cultural resource data exist for an area proposed for an action, an inventory of the APE may be required.
11-MT-c.4 - Does DNRC Require an Antiquities Inventory?
11-MT-c.5 - Was Project Denied?
If the department does not require an inventory, either the project has been denied or it may proceed as authorized.
11-MT-c.6 - No Permit Needed; Continue with Project as Authorized
11-MT-c.7 - Inventory Area of Potential Effect (APE)
Terms, definitions, significance criteria and field procedures used for Montana State Antiquities Act (SAA) compliance mirrors procedures and criteria established by the Federal government. There are three established methods for identifying what cultural or fossil resources. These are known as Class I, Class II and Class III levels of inventory.
A Class I inventory consists of a literature search to determine if documented cultural or fossil resources exist in a project area.
A Class II inventory consists of a literature review (Class I) and field inspection of a sample of the land contained within the area of potential effect.
A Class III inventory consists of a Class I level of research and an intensive field inspection of the land contained within the area of potential effect. As noted elsewhere, a Class III Inventory of a project area is:
...aimed at locating and recording all cultural properties that have surface and exposed profile indications, through systematic inspection commonly carried out by a crew of trained observers walking a series of close-interval parallel transects until the area has been thoroughly examined. Class III methods vary considerably from region to region due to environmental circumstances ... but conform to the prevailing professional survey standards for the region involved. [Typically], 30 meters is the standard distance between transects. (Smith, 1994)
Thus, the goal of Class III level inventory work is to demonstrate that the agency has made a credible effort to identify and formally record all cultural and paleontologic resources that exist within areas that may be disturbed, or removed from state ownership, with proposed project related developments. Class III level of inventory is typically the preferred and most defensible means of cultural and fossil resource identification. Following inventory and cultural and paleontologic resources identification, all identified resources are evaluated in order to provide recommendations for their potential listing eligibility in the National Register of Historic Places (NRHP). Once identified and evaluated, cultural and fossil resources can then be given appropriate consideration by the land/property administering agency in project related decision making.
11-MT-c.8 - Does DNRC Accept Inventory?
The DNRC reviews the inventory and either accepts the report or rejects the report and proposes revisions.
11-MT-c.9 - Have Cultural or Paleontological Resources Been Identified AND Determined to Be "Antiquities?"
The primary purpose of the SAA is to require state property managing agencies to take into consideration the debilitating effects that a proposed undertaking might have on antiquities (defined under the Act as heritage properties and paleontologic resources) on lands under that agency’s jurisdiction.
Heritage properties are cultural properties eligible for listing in the National Register of Historic Places.
Paleontologic resources are defined under the SAA as “fossilized plant and animal remains which are rare and critical to scientific research.”
11-MT-a.10 - Consider Project Effects
Following inventory and cultural and paleontologic resources identification, all identified resources are evaluated in order to provide recommendations for their potential listing eligibility in the National Register of Historic Places (NRHP). Once identified and evaluated, cultural and fossil resources can then be given appropriate consideration by the land/property administering agency in project related decision making.
Following Section 800.16.i of the National Historic Preservation Act, a proposed undertaking or development will have an Effect on a heritage property (or paleontological resource) if the development will alter the characteristics that qualify it for inclusion in the NRHP or alter its scientific value.
11-MT-a.11 - Will Project Cause Adverse Effects to Antiquities?
Applying 36 CFR 800.16.i of the NHPA to the SAA, if the state land managing agency determines that a heritage property or paleontological resource will be affected with a proposed development, then it must assess whether or not the Antiquity will be affected adversely.
If the proposed finding is that a heritage property or paleontological remains are involved and that a proposed activity will have an adverse impact on the property or remains, the proposed finding must address all properties or remains involved and describe the characteristics that illustrate the qualities that make the property or remains eligible for inclusion in the register. If the proposed finding includes a conclusion that a property or remains may be eligible but additional information or study is needed to reach an eligibility finding, the finding must specify the type and amount of information required in accordance with standards and guidelines as provided in 22-3-428.
In some instances an Antiquity can be affected by a development, but the agency official, in consultation with the SHPO, may propose a finding of No Adverse Effect. In this instance an undertaking's effects are either considered to not be adverse, or the undertaking is modified, or conditions are imposed, to render potential effects insignificant.
Alternately, in the following instances if:
- no cultural or fossil resources were identified in a project’s area of potential effect;
- a cultural or fossil resource was identified within a project’s area of potential effect, but was evaluated and determined NOT to be an Antiquity; or
- an Antiquity is within a project’s area of potential effect, but the development will not alter the characteristics that qualify it for inclusion in the NRHP then the state land managing agency can seek, in consultation with the SHPO, a finding of No Heritage Properties Affected.
11-MT-a.12 - Does DNRC Require Mitigation?
(1) Avoidance of impacts to heritage property or paleontological remains is preferred. Avoidance may not be construed to constitute neglect of the property or anticipatory demolition.
(2) If it is not feasible to avoid impacts to heritage property or paleontological remains, a mitigation plan must be developed by the agency, in consultation with the applicant, to minimize adverse effects to the property or remains. Mitigation must be directed at the characteristics of the property that make it eligible for listing in the register. If requested by the agency, the historic preservation officer shall identify suggested mitigation actions in writing at the time that the historic preservation officer submits a proposed finding under § 22-3-429 MCA.
11-MT-c.13 - Engage in Mitigation
If the agency official, in consultation with the SHPO, concludes a finding of Adverse Effect, then mitigation measures intended to offset the diminishing effects of the development must be considered and, if feasible, implemented.
11-MT-c.14 - Consult with SHPO
If, after 15 days, the SHPO does not respond to the DNRC’s request of input, consultation is considered complete. If the SHPO disagrees with the DNRC’s findings or 8 conclusions, the SHPO informs the DNRC of its position in writing, and the two agencies may try to reach a compromise or other agreement. Ultimately, the DNRC Decision Maker makes the determination as to whether or not to implement the DNRC archaeologist’s or the SHPO’s recommendations. However, in the spirit of the law the Decision Maker must act in good faith to seriously consider the DNRC archaeologist’s or the SHPO’s recommendations and weigh those recommendations against administrative mandates, public safety, and other management issues.
11-MT-c.15 - Continue with Project as Authorized
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- Title 36 CFR 800 Protection of Historic Properties
- MCA 22-3-421 et seq. - Montana State Antiquities Act
- MCA 22-3-421 - Montana Antiquities Definitions
- MCA 22-3-429 - Montana Antiquities Consultation, Notice, Appeal
- MCA 22-3-430 - Montana Antiquities Avoidance and Mitigation
- MCA 22-3-435 - Report Discovered Heritage Properties or Paleontological Remains