FEDERAL HISTORIC PRESERVATION LAW:
A RESEARCH PATHFINDER FOR LEGAL PRACTITIONERS
Advanced Legal Research,
Librarian Jackson
May 10, 2004
Permission for reproduction granted.
1
TABLE OF CONTENTS
I.
Introduction
A.
B.
II.
Beginning Research
A.
B.
III.
Statutes..........................................................................................................................8
Case Law…...………………………………………………………………..9
Legislative History……………….…………………………………………10
Administrative Sources....…………………………………………………...11
Secondary Sources
A.
B.
C.
D.
V.
Getting Started............................................................................................................7
Quick-and-dirty Research..........................................................................................7
Primary Sources
A.
B.
C.
D.
IV.
Overview and Scope of Pathfinder...........................................................................3
Summary of Historic Preservation Law...................................................................3
Texts and Treatises…………………………………………………………13
Bibliographies…………………………………………………………….....14
Looseleafs…………………………………………………………………..14
Practice Materials…………………………………………………………...15
Legal Research on the Internet
A.
B.
C.
D.
Westlaw…………………………………………………………………......16
Lexis-Nexis…………………………………………………………………16
Additional Legal Databases…………………………………………………16
Preservation-specific Internet Sources………………………………………17
VI.
Preservation Organizations……………………………………………………….17
VII.
Conclusion...............................................................................................................................19
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I. INTRODUCTION
A.
Overview and Scope of Pathfinder
The goal of this pathfinder is to lead legal practitioners researching federal historic preservation law
to helpful sources. What follows is by no means an exhaustive treatise on preservation law, nor is
what follows an exhaustive list of relevant materials. Rather, the information included in this
pathfinder is intended to serve as a starting point for most preservation law inquiries.
The sources included in this pathfinder are grouped together by types under headings and
subheadings. Each section begins with a brief description of the source type and how that source
type relates to the others and to preservation law in general. Section II of this pathfinder, however,
contains a combination of source types, and this section is intended to present a quick presentation
of the most important preservation law sources for those researchers with time-sensitive projects.
Within the individual sections, sources are generally detailed as follows:
Author/Editor (Who authored the source?); Title/Edition (What is the source called?);
Publisher/Place/Date (Who published the source, and when and where?); LCSHs (What Library
of Congress Subject Headings are relevant to the source?); U of M Call Number (What is the call
number for this source at the University of Minnesota?); Access Points (What tools are there to
find information in the source?); Updating Method (How is the information provided in the
source updated?)
Critical Description (How is the source useful to a researcher of preservation law?)
B.
Summary of Historic Preservation Law
In the past several decades, Americans have become increasingly aware of the importance of the
nation’s historic structures and sites. A general interest in the preservation of these sites and
structures arose in the 1960s, a time when preservationists and the public at large became concerned
about the destruction of both buildings and natural features caused by urban renewal, the interstate
highway system, and other massive public works projects.1 Many of them turned to the law as a
means to ensure the protection of their architectural heritage.
Historic preservation law has its roots in the basic land-use-planning notion of zoning. Zoning is
“the division of land into districts having different regulations.”2 The concept is a relatively new
one. New York City adopted the nation’s first zoning ordinance in 1916.3 New York’s plan
NORMAN TYLER, 44 HISTORIC PRESERVATION (W. W. Norton 2000).
EDWARD M. BASSET, ZONING 9 (Russel Sage Found., 1940) (1936).
3 Id. at 20-21.
The City, driven by an understanding that, among other things, “the conformation of
Manhattan island tended to produce buildings of great height and to cause congestion of housing and street
traffic,” id. at 23, knew that regulating only the height of buildings could only solve so many problems. City
officials were also concerned with the introduction of “improper uses” into otherwise homogeneous areas,
which generally resulted in the “premature depreciation of settled localities.” Id. at 25. The officials began,
then, to explore the possibility of a more comprehensive plan that would, under state police power, regulate
1
2
3
stemmed from nuisance law, the earliest form of land use control.4 At its base, the doctrine of
nuisance affords an individual remedies for any unreasonable interferences with the use and
enjoyment of his or her land.5
Most nuisance cases historically involved the establishment of a commercial or industrial use within
a residential area.6 Over time, judges came to realize that, while not inherently injurious, some uses,
like factories and refineries, were nuisances per se in certain neighborhoods.7 In other words, even
before zoning, courts were comfortable concluding that because of their geography or pattern of
development, particular localities are “properly and primarily devoted to certain activities and that
the introduction of incompatible activities must be deemed unreasonable.”8 A comprehensive set of
regulatory ordinances like New York City’s, then, merely codifies this notion by dividing the city into
three use districts: residential, commercial, and industrial.9 Indeed, “[z]oning is recognizing through
law and ordinance the fact that all parts of a city are not alike and that for the purpose of health,
morals or the general welfare of the community, they should not be alike.”10
Historic preservationists saw an opportunity in the fact that government may regulate land use “for
the purpose of health, morals or the general welfare of the community.” They began to push
legislatures to regulate the alteration of historic properties, because they believed that their integrity
benefited the “general welfare” of communities. But as historic preservation ordinances became
commonplace, owners of historic property—many of whom felt that they were no longer able to
use their property in the most profitable way possible—began to question whether the government
must subsidize the preservation of historic properties.
In Penn Central Transportation v. City of New York,11 the Supreme Court answered the subsidization
question in the negative, thereby providing legal justification necessary for the vast majority of the
country’s historic preservation ordinances. Penn Central Transportation Company (Penn) brought
suit to overturn a decision by the Landmarks Preservation Commission of the City of New York
(Commission) denying a permit to build an office building above New York’s famed Grand Central
Station (Grand Central). The company based its argument on the Fifth Amendment of the United
States Constitution, which provides that “private property [shall not] be taken for public use,
without just compensation.”12 Specifically, Penn maintained that by designating Grand Central a
public landmark, New York was regulating the station to such an extent that it was as if the city
“took” part its property.
the use of buildings and land, in addition to height. Id. at 23-27. The novelty of this plan was that it provided
for different regulations in different districts. Id. at 26.
4 See DANIEL R. MANDELKER, LAND USE LAW § 1.04 (4th ed. 1997).
5 DANIEL R. MANDELKER & JOHN M. PAYNE, PLANNING AND CONTROL OF LAND DEVELOPMENT: CASES
AND MATERIALS 58 (5th ed. 2001) (citing Prosser).
6 MANDELKER, supra note 4, § 1.04.
7 MANDELKER & PAYNE, supra note 5, at 59-60.
8 Id. at 60.
9 See MANDELKER, supra note 4, § 1.04.
10 CIVIC DEVELOPMENT DEPARTMENT, CHAMBER OF COMMERCE OF THE UNITED STATES, ZONING: A
STATEMENT OF PRINCIPLES AND PROCEDURE 11 (1929) [hereinafter PRINCIPLES].
11 483 U.S. 104 (1978).
12 U.S. CONST. amend V.
4
The Court began by framing the issues at hand: First, was there a “taking” as understood by the
Fifth Amendment?; second, if there was a “taking,” was there “just compensation”?13 The first issue
was viewed as dispositive, and as such, there was no need to address the second.14 In order to place
Penn’s concerns in context, the Court started its analysis with a review of relevant Fifth Amendment
jurisprudence—or, stated another way, what the Court has thought constituted a “taking” in the
past.15 The Court defined the “taking” clause as a guarantee “designed to bar Government from
forcing some people alone to bear public burdens which, in all fairness and justice, should be borne
by the public as a whole.”16 But it noted that over the years, the Court has not been able to develop
any “set formula” to determine the exact nature of “all fairness and justice.”17 Instead, the Court’s
“taking” decisions have been extremely fact driven.18
There is a recurrent theme, however, in many of these individual cases. The Court pointed out that
it has long condoned land use regulations that adversely affect property interests as long as the
regulations have “the health, safety, morals, or general welfare” of society in mind. 19 Zoning laws,
like those discussed above, are the classic example;20 a “taking” does not result when an individual
property owner cannot build a factory in her backyard (which would probably be economically
advantageous), because society as a whole is benefited by the opportunity to live in safe and stable
residential areas. But does historic preservation further such general societal interests? Fortunately
for this analysis, the Court, only two years before, recognized that a local government may enact
land use restriction to preserve the “character and desirable aesthetic features of a city,” because it
“enhance[s] the quality of life.”21
The Court continued that a regulation, despite the presence of an acceptable governmental purpose,
might create a “taking” if it “so frustrate[s]” an “investment-backed” economic expectation.22 To
illustrate this proposition, the court cited Pennsylvania Coal v. Mahon.23 In that case, the plaintiffmining company sold a house (at a discount, no doubt) on the condition that it could forever mine
the coal underneath the property.24 After the sale, the State of Pennsylvania passed an ordinance
prohibiting the mining of land under inhabitable structures.25 While the Court found the
Pennsylvania statue to further an important public policy—to minimize the possibility that homes
will collapse on their inhabitants—it concluded that the regulation amounted to a “taking,” because
it had the same effect as a complete destruction of the company’s rights; without being able to mine,
the company could not expect any return on its investment.26
Penn Central, 438 U.S. at 122.
Id.
15 See id. at 123-128.
16 Id. at 123 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
17 Id.
18 Id.
19 Id. at 124.
20 See id. at 125.
21 Id. at 129 (citing New Orleans v. Duke, 427 U.S. 297 (1976)).
22 Id. at 127.
23 260 U.S. 393 (1922).
24 Penn Central, 438 U.S. at 127.
25 Id.
26 Id.
13
14
5
Penn’s primary “taking” argument rested on this line of reasoning.27 Penn did not object to the
benefits of landmarking a property, but the company did contend that maintaining Grand Central’s
landmark status “so frustrates” its ability raise revenue from the station that the applicable
regulations amount to a “taking.”28 The airspace above Grand Central is an extremely valuable
property interest. Like the mining company’s rights in Pennsylvania Coal, above, Penn reasoned that,
since its two proposals to build office space over the station were denied, the “gainful use” of its “air
rights” has been effectively destroyed.29 The Court did not agree. In a bold move, the Court stated
“‘[t]aking’ jurisprudence does not divide a single parcel into discrete segments and attempt to
determine whether rights in a particular segment have been entirely abrogated.”30 Rather, to
determine whether a regulation amounts to a “taking,” the Court concluded that it is necessary to
look at the “parcel as a whole,” meaning, for Grand Central, the entire city tax block that had been
designated as a landmark site.31 Viewed from this angle, it was clear to the Court that Penn’s
“taking” claim was invalid, because the company’s ability to operate a railroad terminal–as it had done
for the last sixty-five years–had not been affected by the regulations accompanying its landmark
designation.32
The importance of the Court’s decision that the restrictions imposed did not curb the reasonable
beneficial use of Grand Central cannot be overstated;33 it was this decision that helped spur
considerable growth in the adoption of preservation ordinances by cities and towns throughout the
United States.34
Penn’s other arguments are beyond the scope of this brief summary.
See id. at 129.
29 See id. at 130.
30 Id.
31 Id.
32 See id. at 136.
33 See NORMAN TYLER, 84 HISTORIC PRESERVATION (W. W. Norton 2000).
34 See National Trust for Historic Preservation, A Layperson’s Guide to Historic Preservation Law, SG040
ALI-ABA 1, 24 (2001) (stating that there were only 500 preservation ordinances in 1978; today, there are
more than 2,300).
27
28
6
II. BEGINNING RESEARCH
A.
Getting Started
It is helpful to have some background or understanding of historic preservation before beginning
researching federal preservation law. The following two sources are highly recommended as general
introductions to historic preservation.
Tyler, Norman. Historic Preservation: An Introduction to its History, Principles, and
Practice. New York, NY: W.W. Norton, 2000. [LCSH: (1) Historic Preservation – United States;
(2) Historic Sites – Conservation and Restoration – United States] [E159.T95 2000]
The best and most concise introduction to historic preservation. All areas of the topic are covered,
and it includes a legal primer.
National Trust for Historic Preservation, 1785 Massachusetts Avenue NW, Washington D.C.
20036, www.nationaltrust.org
The National Trust for historic Preservation was established in 1949 as the umbrella organization
for preservation activities at federal, state, and local levels across the country. Although established
by Congress, it has a quasi-public/private status, relying primarily on memberships and donations to
cover expenses. The Trust has a wide range of activities, including stewardship of nineteen historic
properties across the country. Other significant activities include sponsorship of an annual national
preservation conference, publication of Preservation magazine, and support for its National main
Street Center. The National Trust website has a wealth of information for those interested in
learning more about historic preservation.
B.
Quick-and-dirty Research
Often times, research projects are time sensitive. If quick-and-dirty research is required into
preservation law, the following three sources are essential guides.
National Historic Preservation Act of 1966 (as amended) (NHPA), Pub. L. No. 89-665; Pub. L.
No. 96-515; 80 Stat. 915; 94 Stat. 2997; 16 U.S.C. § 470.
The National Historic Preservation Act established a federal policy to protect historic sites and
values in cooperation with other nations, states, and local governments. It establishes a program of
grants-in-aid to states for historic preservation activities. Subsequent amendments designated the
State Historic Preservation Officer as the individual responsible for administering programs in the
states. The Act also creates the President’s Advisory Council on Historic Preservation.
7
National Trust for Historic Preservation. Preservation Law Reporter. Washington, D.C.:
National Trust for Historic Preservation, 1982-. [LCSHs: (1) Historic buildings – Law and
legislation – United States; (2) Historic sites – Law and legislation – United States; (3) Historic
Preservation – Law and legislation – United States] [KF4310.A15—but not held by the University of
Minnesota library] Updated quarterly by new pages.
This is a wonderful resource and arguably the best and fastest way to determine the present state of
the law. It, however, is not as readily available as other sources, as it is not held by many libraries.
Hodgkins, Jenny. The Preservation and Protection of America’s Cultural Resources: A Legal
Research Guide. Buffalo, N.Y.: W.S. Hein, 2000. [LCSHs: (1) Cultural property – Protection –
Law and legislations – United States – Legal Research; (2) Historic preservation – Law and
legislation – United States – Legal Research] [KF4310.H63 2000]
This is an excellent guide to the universe of preservation law. This guide was extensively consulted
for its organization and text in the preparation of this pathfinder.
III. PRIMARY SOURCES
A.
Statutes
Federal statues are congressional promulgations of legal authority. The initial step in approaching
most legal research problems, then, is to determine whether or not there is a governing statute. To
find laws governing the protection of historic sites and structures, the United States Code, or either of
the two unofficial (but more helpfully annotated) versions of the code, the United States Code
Annotated or the United States Code Service, should be consulted.35
United States Code. Washington D.C.: Government Printing Office, 1920-. [LCSH: Law –
United States] [KF62 2000] Text is organized by code section. Reissued every six years, but with
annual, cumulative supplements.
The USC is the official codification of United States statutes. While official and more readily
available, the USC does not contain any annotation.
United States Code Annotated. Saint Paul: West Group, 1927-. [LCSH: Law – United States] [KF
62 2000]. Text is organized by code sections. Pocket parts, pamphlets, bound cumulative
supplements, and replacement volumes.
The United States Code Annotated is updated more frequently, and it is annotated with cases and
other materials that interpret code sections. As such, it is a more useful research tool than the USC.
United States Code Service. Rochester: Lawyer’s Co-Operative; San Francisco: Bancroft-Whitney,
1972-. [LCSH: Law – United States] [[KF62 2000] Text is organized by code sections. Pocket parts,
pamphlets, bound cumulative supplements, and replacement volumes.
Like the USCA, the USCS is annotated to include materials relevant to code sections.
35
For more information on the various source types used in this pathfinder, see George R. Jackson,
Advanced Legal Research, at www.tc.umn.edu/~g-jack/ALR, from which much of this pathfinders’s
explanations were taken.
8
The following federal statutes provide much of the legal basis for the protection and preservation of
the nation’s historic sties and structures:36
American Antiquities Act of 1906, Pub. L. No. 59-209; 34 Stat. 225; 16 U.S.C. §§ 431-33.
The American Antiquities Act was the first general act providing protection for archeological
resources. It protects all historic and prehistoric sites on federal lands and prohibits excavation or
destruction of such antiquities without the permission of the secretary of the department which has
jurisdiction over those lands.
Historic Sites, Building, Objects, and Antiquities Act of 1935, Pub. L. No. 74-292; Pub L. No.
100-17; 49 Stat. 666; 16 U.S.C. §§ 461-67.
This Act declares a national policy to preserve historic sites, buildings, antiquities, and objects of
national significance. The Act provides procedures for designation, acquisition, administration, and
protection of such sites.
National Historic Preservation Act of 1966 (as amended) (NHPA), Pub. L. No. 89-665; Pub. L.
No. 96-515; 80 Stat. 915; 94 Stat. 2997; 16 U.S.C. § 470.
The National Historic Preservation Act established a federal policy to protect historic sites and
values in cooperation with other nations, states, and local governments. It establishes a program of
grants-in-aid to states for historic preservation activities. Subsequent amendments designated the
State Historic Preservation Officer as the individual responsible for administering programs in the
states. The Act also creates the President’s Advisory Council on Historic Preservation.
Archaeological and Historic Preservation Act of 1974 (Archaeological Recovery Act), Pub. L.
No. 86-523; 16 U.S.C. § 469.
This Act applies whenever a federal agency receives information that a direct or federally assisted
activity could cause irreparable harm to prehistoric, historic, or archaeological data. If such
resources are found, federal agencies are required to provide for recovery or salvage of those
resources. The Act authorized up to one percent of project funds to be used to pay for salvage
work, though additional funding for this purpose was later authorized by the National Historic
Preservation Act.
B.
Case Law
To find case law relevant to preservation law, one of the annotated codes described above (USCA
or USCS) is a good place to start. These sources detail the majority of the cases that have dealt with
a given code provision. If researching a particular preservation provision, then, the USCA or USCS
is ideal.
The summaries of these pieces of legislation are from The Preservation and Protection of America’s Cultural
Resources: A Legal Research Guide, see above.
36
9
A more general inquiry into preservation case law can be made by using a digest. Digests are arranged
alphabetically by broad subject areas which are further subdivided into more specific areas.37 Within
the more specific subject areas, you will find citations to cases. Since this pathfinder is concerned
with federal preservation law, the appropriate digest is the Modern Federal Practice Digest:
Modern Federal Practice Digest, 4th. Saint Paul: West Group, 2000. [LCSH: Law reports,
digests, etc. – United States] [Rep KF105.A134x]. Organized by subject areas. Kept up to date by
quarterly cumulative pamphlets, cumulative annual pocket parts, and replacement volumes.
This digest covers cases decided since 1989; earlier cases can be found in earlier editions of this
digest.
Within the Modern Federal Practice Digest, if it is not known exactly which broad subject area will
contain citations to relevant cases, use the detailed subject index provided called the DescriptiveWord Index. This subject index helps to determine the most relevant broad subject and subdivision
of that subject under which to look for relevant cases. The Modern Federal Practice Digest also contains
a Table of Cases which is arranged alphabetically by the first party’s name.38
West Publishing produces most of the legal digests found in law libraries. Consequently, West has
created a subject arrangement that is used in their digests. The large subject area is called a topic and
each subsection of the topic is assigned a key number. The following key numbers are helpful for
preservation law research:



C.
West Key No. 148 Eminent Domain
West Key No. 414: Zoning and Planning
West Key No. 149EIII: Historical Preservation
Legislative History
Legislative history can be an incredibly useful research tool. Looking back to the proceedings that
produced a given piece of legislation can help to define the intent behind Congress’ words.
Legislative history documents can take a variety of forms (committee reports, debates, etc.), but they
all can be most easily found in the U.S. Code Congressional and Administrative News (USCCAN).
United States Code Congressional and Administrative News. Saint Paul: West Group, 1953-.
[LCSHs: (1) Executive orders – United States; (2) Legislative Histories – United States; (3) Law –
United States] [KF48.W45] Organized by bill number. Accumulation of monthly publication.
Contains public laws, legislative history, proclamations, executive messages and orders,
administrative regulations, lists of committees, indexes and tables, for each session of Congress.
37
38
See Suzanne Thorpe, Finding Court Cases, at www.law.umn.edu/library/tools/pathfinders/ctcases.html.
Id.
10
The legislative history most relevant to preservation is that which accompanied the passage of the
National Historic Preservation Act of 1966.
H.R. 2067, 1966 U.S. Code Cong. and Adm. News, p. 3320; H.R. 96-1457, 1980 U.S. Code Cong.
and Adm. News, p. 6378.
Legislative notes on the 1966 Act and its 1980 revision.
E.
Administrative Sources
Administrative materials are those primary materials emanating from the executive branch of
government and its administrative agencies. They consist of agency rules and regulations, agency
decisions and adjudications, presidential documents and executive orders, proposed rules, and
notices. These materials are central to preservation law research, because, while the statues listed
above provide broad powers to federal agencies, they do not define how that power is to be used.
Administrative materials are found in the Code of Federal Regulations:
Code of Federal Regulations. Washington, D.C.: Government Printing Office, 1949-. [LCSH:
Administrative Law – United States – Periodicals] [GS4.108] Organized by title, then by agency.
Revised annually.
The CFR is an annually revised codification of the general and permanent rules published in the
Federal Register by the executive departments and agencies of the Federal Government.
What follows is a sampling of some of the relevant regulations, standards, and executive orders that
concern preservation law:39
National Register of Historic Places, 36 C.F.R. § 60.
The National Historic Preservation Act authorizes the Secretary of the Interior to expand and
maintain a National Register of Historic Places which includes districts, sites, buildings, structures,
and objects significant in American history, architecture, archaeology, engineering, and culture.
These regulations establish the procedures required for listing cultural resources on the National
Register.
Procedures for Approved State and Local Government Historic Preservation Programs, 36
C.F.R. § 61.
The National Historic Preservation Act requires the Secretary of the Interior to promulgate
regulations regarding approval of state historic preservation programs and certification of local
governments to carry out the purposes of the NHPA. These regulations establish procedures for
approval and review of state and local historic preservation programs, as well as awarding grants to
such approved programs.
The summaries of these administration materials are from the Preservation and Protection of America’s Cultural
Resources: A Legal Research Guide, see above.
39
11
Determinations of Eligibility for Inclusion in the National Register of Historic Places, 36
C.F.R. § 63.
Federal agencies are required by a variety of laws and regulations to assess the significance of cultural
resources on lands under their jurisdiction or control, or on lands to be affected by proposed
actions. These regulations have been developed to assist agencies in identifying and evaluating the
eligibility of cultural resources for inclusion in the National Register.
National Historic Landmarks Program, 36 C.F.R. §65.
The Historic Sites, Buildings, Objects, and Antiquities Act authorized the Secretary of the Interior to
erect and maintain tablets to mark or commemorate historic and prehistoric places and events of
national history or archeological significance. These regulations establish a National Historic
Landmarks Program, whose purpose is to identify and designate national historic landmarks, and to
encourage the long-range preservation of nationally significant properties that illustrate or
commemorate the history and prehistory of the United States.
Protection of Historic and Cultural Properties, 36 C.F.R. § 800.
These regulations implement the provisions of Section 106 of the National Historic Preservation
Act. They guide federal agencies, State Historic Preservation Officers, and the Advisory Council on
Historic Preservation in conducting the Section 106 process.
The Secretary of the Interior’s Standards for Rehabilitation, 36 C.F.R. § 67.
Detailed listing of standards.
The Secretary of the Interior’s Standards for the Treatment of Historic Properties, 36 C.F.R. §
68.
Detailed listing of standards.
Executive Order 11593: Protection and Enhancement of the Cultural Environment, 1971, 7
C.F.R. § 626.2.
This order requires federal agencies to take a leadership role in preservation by surveying all lands
under their ownership or control and nominating to the National Register of Historic Places all
properties which appear to qualify. It also requires agencies to avoid inadvertently destroying such
properties prior to completing their inventories.
12
IV. SECONDARY SOURCES
Secondary legal literature includes law reviews and legal periodicals, legal treatises, annotations, and a
wide variety of other resources. A secondary source is likely to identify primary legal materials and
to provide relevant analysis and commentary. The following sources, then, are all excellent for
furthering an understanding of preservation law, as well as for finding additional primary sources
such as cases, statutes, or ordinances.
A.
Texts and Treatises
Unfortunately, no annotation or encyclopedia contains provisions detailing preservation law. The
bulk of what follows are monographs.
Tyler, Norman. Historic Preservation: An Introduction to its History, Principles, and
Practice. New York, NY: W.W. Norton, 2000. [LCSH: (1) Historic Preservation – United States;
(2) Historic Sites – Conservation and Restoration – United States] [E159.T95 2000]
The best and most concise introduction to historic preservation. All areas of the topic are covered,
and it includes a legal primer.
King, Thomas F. Cultural Resource Laws and Practice: An Introductory Guide. Walnut
Creek, CA: AltaMira Press, 1998. [LCSHs: (1) Historic preservation – Law and legislation – United
States; (2) Cultural property – Protection – Law and legislation – United States] [KF4310.K56 1998]
A general introduction that extends to areas beyond historic preservation law.
Kanefield, Adina W. Federal Historic Preservation Case Law, 1966-1996: Thirty Years of the
National Historic Preservation Act. [LCSH: Historic preservation – Law and legislation – United
States] [Y 3.H 62:2 F 31/2]
A case law-only summary.
Mandelker, Daniel R. Land Use Law. Charlottesville, VA: Michie Co., 1993. [LCSHs: (1) Land
use – Law and legislation – United States; (2) Zoning law – United States; (3) City planning and
redevelopment law – United States] [KF5698.M29 1993] Updated by pocket parts.
A comprehensive treatise on land use law, with a helpful section on preservation law.
Morris, Marya. Innovative Tools for Historic Preservation. Chicago: American Planning
Association, 1992. [Historic buildings – Conservation and restoration – United States] [E159.M67x
1992]
Strategies for historic preservation, including legal ones.
Mackintosh, Barry. The National Historic Preservation Act and the National Park Service: A
History. Washington, D.C.: National Park Service, 1986. [LCSH: Historic sites – Law and
legislation – United States] [I 29.2:H 62/25]
An interesting introduction of the background behind the law.
Duerksen, Christopher J. A Handbook on Historic Preservation Law. Washington, D.C.:
Conservation Foundation, 1983. [LCSHs: (1) Historic sites – Law and legislation – United States;
13
(2) Historic buildings – Law and legislation – United States] [KF4310.H36 1983]
A bit outdated, but contains helpful background information.
Morrison, Jacob H. Historic Preservation Law. Washington, D.C.: National Trust for Historic
Preservation, 1974. [LCSHs: (1) Historic buildings – Law and legislation – United States; (2) Zoning
law – United States] [KF 4310.M6X]
Again, a bit outdated, but contains helpful background information.
B.
Bibliographies
Preservation-specific bibliographies can be used as a research shortcut, or as a tool to check the
sufficiency of already-completed research.
Hodgkins, Jenny. The Preservation and Protection of America’s Cultural Resources: A Legal
Research Guide. Buffalo, N.Y.: W.S. Hein, 2000. [LCSHs: (1) Cultural property – Protection –
Law and legislations – United States – Legal Research; (2) Historic preservation – Law and
legislation – United States – Legal Research] [KF4310.H63 2000]
This is an excellent guide to the universe of preservation law. This guide was extensively consulted
for its organization and text in the preparation of this pathfinder.
Winson, Gail. Historic Preservation Law: An Annotated Survey of Sources and Literature .
Littleton, CO: Fred B. Rothman & Co., 1999. [LCSH: Historic preservation – Law and legislation –
United States – Bibliography] [KF 4310.A1 W56 1999]
Another competent guide to researching preservation law.
Paseltiner, Ellen Kettler. Historic Preservation Law: An Annotated Bibliography. Washington:
Preservation Press, 1976. [Historic sites – Law and legislation – United States – Bibliography]
[KF4310.A1 K45]
This bibliography really only has—pun intended—historic value.
C.
Looseleafs
Looseleafs usually present, synthesize, and comment on developments in a specific area of law.
They are called looseleafs because superseded pages are continually replaced my new pages so as to
reflect the current state of the law. Preservation law is a relatively narrow area, but there is one
looseleaf dedicated to its development.
National Trust for Historic Preservation. Preservation Law Reporter. Washington, D.C.:
National Trust for Historic Preservation, 1982-. [LCSHs: (1) Historic buildings – Law and
legislation – United States; (2) Historic sites – Law and legislation – United States; (3) Historic
Preservation – Law and legislation – United States] [KF4310.A15—but not held by the University of
Minnesota library] Updated quarterly by new pages.
This is a wonderful resource and arguably the best and fastest way to determine the present state of
the law. It, however, is not as readily available as other sources, as it is not held by many libraries.
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D.
Practice Materials
Oftentimes, federal, state, or local bar associations will sponsor conferences to highlight an area of
law for its members. These conference proceedings are often published, and they are particularly
helpful for practitioners, as they tend to highlight the “nuts and bolts” of actually practicing that area
of law. Nationally, the National Trust for Historic Preservation, with the American Law Institute
and the American Bar Association, frequently sponsors preservation-specific practice conferences.
A sampling of past topics follows.
National Trust for Historic Preservation, SG040 ALI-ABA 1 (October 7-8, 2002).
 Recent Development in Case Law Interpreting the National Historic Preservation Act
 Legal Tools for Fighting Freeways and Saving Historic Roads
 Elements of a Good Preservation Plan
 Preparing a Historic Preservation Ordinance
 Disability Law and Historic Preservation Law: Accommodation of Public Policy to Ensure Preservation is
for all.
 “Regulatory Takings” and Historic Preservation
 The Religion Clauses and Historic Preservation
 Ethical Issues Relating to Historic Preservation
National Trust for Historic Preservation, SG040 ALI-ABA 1 (October 15-16, 2001).
 Historic Preservation and the Federal Lands
 Historic Preservation and the Force of Law
 Penn Central, Historic Preservation, and the Newer Just-Compensation Cases
 Historic Preservation Grants and the Establishment Clause
 A Guide to Tax-Advantaged Rehabilitation
 Material on Federal Tax Incentives for Historic Preservation
 Model Historic Preservation Easement
 A Layperson’s Guide to Historic Preservation Law
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V. LEGAL RESOURCES ON THE INTERNET
A.
Westlaw
Westlaw is an electronic resource. Virtually all legal materials available in hardcopy at a library are
accessible (and searchable) on the Internet via Westlaw, www.westlaw.com. But this convenience
comes at a price; searching Westlaw is quite expensive.
Westlaw’s information is organized into individual databases. The Westlaw databases that contain
the information already listed in this pathfinder follow. Within these databases searching “historic
preservation” (be certain to use quotation marks) will retrieve the relevant information.
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B.
United States Code Annotated = USCA
U.S. Code Congressional and Administrative News = USCCAN
Federal caselaw = ALLFEDS
Code of Federal Regulations = CFR
Secondary sources (Journals and Law Reviews) = JLR
Lexis-Nexis
Lexis-Nexis is analogous to Westlaw. Its URL is www.lexis-nexis.com. Lexis-Nexis’ databases,
however, are listed differently. A comprehensive list of available databases can be found at
www.lexis.com/sourcelist.
C.
Additional Legal Databases
There are many alternatives to high-cost Internet sites. They are generally not, however, as reliable
or comprehensive. But for the preservation researcher on a budget, the following free sites are
worth consulting:
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www.thomas.loc.gov = U.S. Code and legislative history
www.access.gpo.gov/nara/cfr = Code of Federal Regulations
www.findlaw.com = Case law
www.google.com = Legal and non-legal inquiries
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D.
Preservation-specific Internet Sources
In addition to general legal sites, there are a handful of internet sources that contain preservation
information only.
National Register Collections, www.cr.nps.gov/nr/nrcollc.htm
Documents the nearly 70,000 properties listed on the National Register of Historic Places, including
photographs, physical descriptions, and information regarding history and importance.
National Register Information System, www.nr.nps.gov/nrishome.htm
Official database of the National Register of Historic Places, containing more than 80,000 properties
and a searchable index of more than two million terms.
National Register Publications, www.cr.nps.gov/nr/nrpubs.html
Contains information on National Register Publications, including many bulletins, guidance
documents, and forms.
Preserve/Net, www.preservenet.cornell.edu/preserve.htm
Preserve/Net is an Internet site administered by Cornell University that features information on
preservation across the country, as well as links to other websites.
VI. PRESERVATION ORGANIZATIONS
Preservation organizations at the federal, state, and local level play a large role in shaping
preservation law. These organizations offer a wealth of information, and their websites are useful
tools to keep a finger on the preservation pulse. A list of the largest of these organizations follows:40
American Association of State and Local History, 1717 Church Street, Nashville, TN 37201,
www.aaslh.org
The intent of the ALH is to promote knowledge, understanding, and activities in history at the local
level.
American Cultural Resources Association, 6150 East Ponce de Leon Avenue, Stone Mountain,
GA 30083, www.acra-crm.org
The membership of ACRA is made up of interdisciplinary professionals; the largest percentage are
archeologists, but other architecture and planning disciplines are represented. The organization
supports a number of preservation issues.
These organizations and their descriptions were taken from Historic Preservation: An Introduction to its
History, Principles, and Practice, see above.
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American Institute of Architects, 1735 New York Avenue, Washington, D.C. 20006,
www.aiaonline.com
The AIA has 58,000 members in more than thirty local, state, and international chapters. Through
its outreach, education, and government affairs activities, the AIA provides technical bulletins to its
members regarding preservation issues.
American Planning Association, 122 South Michigan Avenue, Suite 1600, Chicago, IL 60603,
www.planning.org
The APA is a professional organization dedicated to advancing the art of social planning. The
Planners Book Service makes available a variety of publications on historic preservation planning.
International Council of Monuments and Sites, 401 F Street NW, Room 331, Washington, D.C.
20001, www.unesco.org/whc/ab_icomo.htm
ICOMOS encourages preservation activities at the national and international levels through
education and training, international exchange of people and information, technical assistance,
documentation, and advocacy. The U.S. Committee of ICOMOS includes professionals,
practitioners, supporters, and organizations committed to conservation of the word’s cultural
heritage. The committee publishes a monthly newsletter.
National Alliance of Preservation Commissions, P.O. Box 1605, Athens, GA 30603,
www.arcat.com/search/profile.cfm?id8371
The NAPC forms a network of over 2,000 landmark and historic district commissions and boards of
architectural review in the United States. It provides a forum for the exchange of views among
active preservationists and gives local commissioners a national voice.
National Council for Preservation Education, Department of City and Regional Planning, 210
West Sibley Hall, Cornell University, Ithaca, NY 14853
The National Council connects preservation educators across the country.
National Main Street Center, 1785 Massachusetts Ave. NW, Washington, D.C. 20036,
www.mainst.org
The Main Street Program is administered through the National Main Street Center and is part of the
National Trust for Historic Preservation. The center works with communities across the nation to
revitalize their historic or traditional commercial areas.
National Park Service, Department of the Interior, 1849 C Street NW, NC330, Washington, D.C.
20240, www2.cr.nps.gov
The Heritage Preservation Services Division of the National Park Service provides federal support
to preservation activities across the country.
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National Trust for Historic Preservation, 1785 Massachusetts Avenue NW, Washington D.C.
20036, www.nationaltrust.org
The National Trust for historic Preservation was established in 1949 as the umbrella organization
for preservation activities at federal, state, and local levels across the country. Although established
by Congress, it has a quasi-public/private status, relying primarily on memberships and donations to
cover expenses. The Trust has a wide range of activities, including stewardship of nineteen historic
properties across the country. Other significant activities include sponsorship of an annual national
preservation conference, publication of Preservation magazine, and support for its National main
Street Center. The National Trust website has a wealth of information for those interested in
learning more about historic preservation.
Preservation Action, 1350 Connecticut Avenue NW, Washington, D.C. 20036,
www.preservenet.cornell.edu/pa.htm
Since its founding in 1974, Preservation Action has lobbied for stronger legislation at the federal,
state, and local levels. The organization’s goals are to elevate historic preservation as a national
priority through legislative actions; monitor federal agency action that affects preservation;
participate directly in policy development; and create an environment for others to succeed with
their preservation initiatives.
VII. CONCLUSION
The purpose of this pathfinder is to provide a starting point for legal practitioners researching
federal historic preservation law. While the sources provided here serve as an efficient and effective
starting point, it must be remembered that they are not exhaustive and that the law is never static. If
this pathfinder leads to a useful source, it is always wise to check that source’s citations for
additional, perhaps more up-to-date, information.
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