“Addressing Political and Practical Issues of Historic Mining Properties”
Presentation by Jim Garrison
Jim: There are two factors related to historic properties affected by a federal agency that must be addressed from the beginning, they are eligibility and compliance. Mining properties are no different.
The first thing related to eligibility is the type of property that is being considered. In the world of historic preservation the five types of properties are buildings, structures, sites, objects and districts. Buildings are works occupied by humans. Structures, including most mines in this classification system, are works of engineering. The interesting thing about mines is a lot of them are unseen and below ground so we don’t appreciate the structure as much as we should. Historic mining properties can become sites but the word site is most often referred to archeological site. The site definition of national register is: the place where something happened whether the evidence of what happened is there or not there. So a site can be a battlefield or a site can be where an event happened or a building that is no longer there but the site location of that activity is enough to say that place is historic. Objects used to include things like locomotives and ships but these have been placed in the structure category and objects have pretty much been applied to sculptures and works of art. Districts are any combination of the previous types of properties that form a unified whole. In the districts of Tombstone and Jerome there are the multiple kinds of properties.
To be eligible for listing in the state or national registers of historic places a property has to have significance and integrity. These are the two keys words for nominating a property. For significance preservationists use the ABCD significance classification system of the National Park Service. Significance under criterion A is history being a specific contribution to a broad pattern of history. Significance under criterion B is relationship to an individual. It is quite difficult to nominate a B property because it must be the primary property associated with that individual. Criterion C is significance related to construction and design. Most works of engineering would fall under the criterion C category. Criterion D is significance related to properties that have yielded or are likely to yield important information. This is pretty much limited to archaeological sites.
If the property has significance its integrity must be addressed. The seven aspects of integrity are location, design, setting, materials, workmanship, feeling and association. Integrity of location asks if the property is in its original location. Integrity of design assesses stylistic or engineering uniqueness. Integrity of setting relates to those qualities of place that are unique or distinctive. In a lot of urban properties the setting changes drastically throughout time. Integrity of materials relates to types of materials and combinations of materials. This is where the world of preservation uses the phrase “amount of original fabric remaining.” Arizona has a very unusual type of stone from Flagstaff called Moenkopi Sandstone and is found in Old Main at Northern Arizona University. This material was used all the way from Chicago to Los Angeles and, in fact, the Los Angeles city hall used to be of Moenkopi Sandstone.
Integrity of workmanship is often overlooked. People can focus on the materials and overlook the workmanship, how the materials are put together. The aspect of integrity that is probably most interesting to lawyers is feeling. It is definitely the most subjective. What is the unique “feeling of place.” Integrity of association of assesses the relation of the place to events and people. In 1989, I took all the above information and made a matrix that is shown in the illustrations to this presentation.
There are also levels of significance and to be listed on the National Register of Historic Places. A property doesn’t have to be of national significance, it can be of state or local significance. Because the national historic preservation act is primarily a planning tool for federal agencies they need to know what is important in any community not just what is important nationally.
In most cases a property must be 50 years old to be considered for listing on the state or national registers. In extremely rare cases a property may have exceptional importance and achieve significance in less than 50 years.
To establish significance a property must be placed in a context. A context is a theme and a location, within a time period. It could be “Copper Mining in Arizona 1890-1910.” The context looks at a class of properties and establishes why the property under study contributes to the class. It may be a rare example of a once common type, the best of the class, an evolution of the class or a transition to another class. Establishing a context is the most challenging aspect of nominating a property.
“Section 106 Review” refers to Section 106 of the National Historic Preservation Act. It says that federal agencies must take historic properties into consideration in their work. I think most mining properties are privately held but if they are involved with a federal agency for funding or permitting then they’re involved with 106. Federal agencies must complete the process but some shift this responsibility onto the applicant. The regulations of the Advisory Council for Historic Preservation, who administers the review process, is found in 36 C.F.R. Part 800.
The regulations outline a four-step process: 1) initiate the process, 2) identify historic properties, 3) assess effects and 4) mitigate any adverse effects. These regulations were updated about 15 years ago. The major change in the regulations was adding step one to initiate the process and find interested parties who are interested in the project and its potential to affect historic properties. Luckily, there is a comprehensive chart that addresses this whole thing.
In step one, “initiate the process,” you have to establish if there is an undertaking or not. If the federal program or project does not involve on the ground activities then it may not be an undertaking under the regulations. As an example the repair of federal highways like the interstate system are not considered undertakings by the Federal Highway Administration. Once there is an undertaking and parties interested in the project and its potential to affect properties then one moves to step 2) looking for historic properties.
This is where the eligibility questions, discussed above, come into play. If there are no historic properties the review process ends. Now within the realm of mining properties, assessing eligibility can become a problem. I know there are a couple of examples such as a uranium mine, near the Grand Canyon and an asbestos mine near Globe, Arizona where assessing has been an issue. In these two examples, archeologists refused to go on the sites because of the potential for exposure to hazardous materials. In the long run, public safety trumps historic preservation.
If there are historic properties, then the effect of the undertaking on the historic properties must be assessed in step three. If there is no adverse effect, the process is over and the undertaking can move forward. If there is an adverse effect then the process moves to step four to consideration of mitigation of the adverse effects. Most adverse effects are mitigated through avoidance or modification of the undertaking to meet preservation standards. Obviously, the easiest way to avoid an adverse effect is to avoid the historic property. It is often pretty difficult to avoid in the case of a mining property. Other mitigations are documentation of the property if it is going to be destroyed.
This is the process of 106, initiate the process, look for historic properties, determine if you are going to affect those properties adversely and try to mitigate those adverse effects. Now this is all the responsibility the federal agency, not the private individual, but a lot of these tasks will be asked of the private individuals by the federal agency. That’s why its go to know the principles of eligibility and compliance when dealing with a federal agency.
Question: Is there any way of determining whether or not certain sites are held sacred between various Indian tribes?
Garrison: You pretty much need to talk to the tribes. Most “traditional cultural places” are only known to the tribes. In step one of the 106 process you need to determine which tribes are interested parties to your undertaking.
Question: What is the proportion of cases where historic designation is promoted by the community and the owner versus being promoted by the community and not by the owner?
Garrison: I would say it is 80/20, with 80% of people wanting their properties listed and as long as they have use of the property and they can do whatever they want to do with the property because there is no federal involvement or federal agency involved. The simplest answer from the state’s point of view is if you don’t want to deal with the issue of whether your property is historic then don’t go after federal assistance. It is easy to say but not always easy to do.
Question: With respect to 106, it seems like the triggers are often pretty formal, federal money, action, have you had any experience where the historic significance still respected and yet there some kind of much less formal process that is going on. I am just thinking the situation to the extent that mining sites might be cleaned up through voluntary agreements, can we still insure these considerations of respect historic significance is still respected.
Garrison: The State Historic Preservation Officer (SHIPO) is available to discuss any preservation issue. Historic preservation is first of all local and truly the local community can help determine if mining properties are historic.
Question: You have mentioned earlier you have been trying for some time to get the actual mining features in Tombstone to be recognized in the National Historic List nomination, I am just curious what is the rationale the Keeper [within the National Park Service, the officer responsible for listing] uses to say no?
Garrison: The landmarks program has done some studies but the nomination has never been updated. It is a matter of time and money not a question of eligibility.
Question: How do traditional cultural properties affect determinations of eligibility? Does the focus of your review change and are you able to say okay that exists?
Garrison: Traditional cultural places are often thought to be related to tribes, but we have an example right here in Tucson called “El Tiradito.” This is a Hispanic related cultural place. Other ethnic groups can have traditional culture places that would be eligible as one of the property types. They need to tie it back to one of the property types. To be eligible there must be a tradition and a place, if the tradition is lost but the place is known there is a problem. If the place is lost but the tradition is known there is a problem. If the tradition is lost and a place is lost a determination of eligibility can’t be completed.
Question: Are there situations that you have dealt with in the 106 consultation processes where preservation of a landscape vista was an issue?
Garrison: It is a grey area. Within the definition of cultural landscape is ethnographic landscape. The Keeper has not provided specific standards for ethnographic landscapes.
Question: Do tribes always prefer avoidance as mitigation?
Garrison: Well, I would say that tribes have not been in the process long enough to really know what their options are. They immediately gravitate towards avoidance as their primary concern. This is logical but I think there are many other mitigation approaches that could occur.
 James Garrison has been a registered architect in Arizona since 1973. He has specialized in historic preservation projects especially the conservation of adobe buildings and the rehabilitation of historic buildings. He became Arizona’s State Historic Preservation Officer in 1992 and retired from this position in May, 2016.