logan law offices legal opinion - letter to senator david vitter

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LOIGAN LAW OFFICES

ATTORNEYS AT LAW APROFESSIONALLIMITEDLIABILITYCOMPANY TELEPHONE

504.522.5900

FAX504.522.5998

1010 COMMON STREET. SUITE 2910

NEWORLEANS, LOUISIANA 70112JAMES R. LOGAN. IV

September 16, 2011

VIA E-MAIL TRANSMISSION ONLY

rachae1rnason(2I)vittcr.senatc.gov

The Honorable David Vitter

UNITED STATES SENATE

516 Hart Senate Office Building

Washington, D.C. 20510

Attention: Rachael L. Mason

Re: National Register of

Historic Places Nominationfor Levee Breach Sites

Our File No. 075.1318

Dear Ms. Mason:

I write this letter at the request of Sandy Rosenthal with Levees.org to clarify what

a listing in the National Register of Historic Places does or does not do, and especially to address

your concerns about future improvements or modifications to the levee system.

First, there are certain key definitions within the National Register program

administered by the National Park Service that must be considered for a proper understanding ofwhat a nomination to, and ultimate listing on, the National Register means. There is a common

misunderstanding that only buildings or other manmade structures can be included in the National

Register, but this overlooks the fact that sites or historic places can be listed too - after all, it is

named the National Register of Historic Places. IAccording to NPS regulations,

a site is the location of a significant event, a prehistoric or historic occupation or

activity, or a building or structure, whether standing, ruined, or vanished, where the

location itself maintains historical or archeological value regardless ofthe value

of any existing structure.

36 CFR §60.3(l) (emphasis supplied). On the other hand, a "structure" is defined as "a work madeup of interdependent and interrelated parts in a definite pattern of organization. Constructed by man,

1 Although perhaps not as commonly recognized, there are at least 41 "sites" in Louisiana

already listed on the National Register; a printout of them from the Louisiana SHPO's website is

attached for your reference.



LOGAN LAWOFFICES

Ms. Rachael L. Mason

September 16, 2011

Page -2-

it is often an engineering project large in scale," 36 CFR §60.3(p), while "a building is a structure

created to shelter any form of human activity ...." id. at §60.3(a). The simple but important point here

is that a site, as an historic place, can be included in the National Register in its own right,independent of and not tied to any building or structure.

Within this background definitional context, it must be emphasized that the

submission from Levees.org only seeks to place the site of the levee breaches on the National

Register, not the levees or floodwalls themselves. The application is very clear on this point and

carefully makes the distinctions found in the NPS regulations: its Summary Paragraph explicitly

states that "[r[he nominated areas include only the locations of the actual breach sites; they do

not include the levees and flood walls themselves; the adjacent land, the canals, or the city-wide

drainage, flood protection, and navigation systems of which the sites are a part." In sum, and as

expressly provided for in the National Register regulations, the levee breach sites stand alone for

purposes of National Register nomination and any listing of them on the Register really has nobearing on the levees and floodwalls.

I also suspect that some broader concerns about National Register listing stern from

another common misunderstanding about the effects of a listing. The National Register is mainly a

planning tool used by federal agencies to indicate what historic properties should be considered for

protection from possible destruction or impairment brought about by federal actions; it also opens

the door to various grant programs and federal tax incentives. See gen. 36 CFR §60.2(a)-(d). But

importantly there simply are no restrictions put on the use of any historic properties listed on

the National Register.

Again the regulations are clear that listing in the National Register "does not prohibitunder Federal law or regulation any actions which may otherwise be taken by the property owner

with respect to the property." 36 CFR §60.2. Similarly, a "Myths and Facts" sheet about the

National Register Program published by the Louisiana Office of Cultural Development, Division of

Historic Preservation, copy attached for your reference, specifically emphasizes that a National

Register listing "DOES NOT restrict the use of the property. (For example, an owner can continue

to live in a listed, convert a listed property to another use, continue to farm ground where a listed

archeological site may be located, conduct new construction on the site, etc.)." (emphasis supplied).

I also want to point out that even if, for whatever reason, the levee breach sites were

not formally listed in the National Register, the federal review requirements of the National Historic

Preservation Act would nonetheless still apply to the sites, because they have already beenrecognized for their historic significance and thus would be considered as National Register

"eligible" sites. In other words, NHP A 106 review procedures must be undertaken by federal

agencies when dealing with historic properties that are either already listed in the National Register

or are considered to be eligible for listing.



LOGAN LAW OFFICES

Ms. Rachael L. Mason

September 16, 2011

Page -3-

We appreciate your consideration of this important National Register nomination, and

I would be happy to discuss these matters in greater detail with you or answer any specific questions

that you have.

Best regards,

JRLiv/alb

Enclosures



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• PROVIDES recognition of a property's significance in history, architecture, archaeology or engineering.

• PROVIDES a moral obligat ion, although not a legal one, to preserve the property.

• PROVIDES limited protection when a property is endangered by a federally funded or licensed act ion. The

following web site provides more information about this process: , " , ' .' 1 ' ." . ' .' • . • • . z. • .. • '• .• • " "' . • , c.: ' . ,. , ••" ' ••. , . . .• . . .• . .• .•. . .• . ..• .. . .. . , .

• PROVIDES the owner of income producing property (commercial or rental residential) the opportunity to

receive Investment Tax Credit for "Certified Rehabilitation."

• PROVIDES the owner of a private residence with the opportuni ty to apply for a Louisiana Homeowners Tax

Credit on state taxes, if a rehabil itat ion is certi fied.

• PROVIDES the owner the opportunity to apply for the Louisiana Department of Economic Development 's

Restoration Tax Abatement Program.

• PROVIDES the owner the opportunity to apply for matching grants-in-aid for restoration/rehabil itat ion (when

funding is available).

• DOES NOT restr ict the use of the proper ty. (For example, an owner can cont inue to live in a listed house,

convert a listed property to another use, cont inue to farm ground where a l isted archaeological si te may be

located, conduct new construction on the site, etc.)

• DOES NOT restr ict the sale of a property; unless under the jurisdiction of a federal agency.

• DOES NOT require continued maintenance of private property.

• DOES NOT require that any speci fic guidelines be followed in a rehabili tation (unless the owner is using

federal funds or receiving the Investment and/or Homeowners' tax credit ). (For example, the owner of a

listed property may paint his building any color he chooses.)

• DOES NOT require the owner to give tours of the property or open it to the public.

• DOES NOT guarantee funds for restorat ion.

• DOES NOT require or guarantee perpetual maintenance of the property.

• DOES NOT provide a National Register plaque or a state historic marker for the property (al though

property owners are eligible to acquire such markers at their own expense).

9/16/2011 10

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yths & Facts about the National Register Program http://www.crt.state.la.us/hp/nati onalregister/facts _my

TOURISM I PARKS I MUSEUMS I CULTURE I LIBRARIES I MEDIA

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