Montana Code 22-3-429. Requests for consultation — public notice — appeal of findings
22-3-429. Requests for consultation — public notice — appeal of findings. (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:
Terms Used In Montana Code 22-3-429
- Affected property owner: means a person or entity whose real property will be physically affected by the activity of an applicant or whose real property is proposed for incorporation into a historic district proposed as eligible for listing in the National Register of Historic Places. See Montana Code 22-3-421
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Applicant: means a person who applies to a governmental entity, including a federal, state, or local governmental entity, for a permit, license, or lease on property owned by the governmental entity. See Montana Code 22-3-421
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Heritage property: means any district, site, building, structure, or object located upon or beneath the earth or under water that is significant in American history, architecture, archaeology, or culture. See Montana Code 22-3-421
- Historic preservation officer: means the officer provided for in 2-15-1512. See Montana Code 22-3-421
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Paleontological remains: means fossilized plants and animals of a geological nature found upon or beneath the earth or under water which are rare and critical to scientific research. See Montana Code 22-3-421
- Process: means a writ or summons issued in the course of judicial proceedings. See Montana Code 1-1-202
- Property: means real and personal property. See Montana Code 1-1-205
- Register: means the National Register of Historic Places, the official list of the nation's heritage properties worthy of preservation because of national, state, or local significance. See Montana Code 22-3-421
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- State agency: means any executive agency of the state of Montana. See Montana Code 22-3-421
- Writing: includes printing. See Montana Code 1-1-203
(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.
(2)A request for comment pursuant to 16 U.S.C. § 470f may be made simultaneously with a request pursuant to subsection (1). The historic preservation officer shall respond in writing to a request within 30 calendar days of receiving the request and shall address each property in the request and each topic of the request. In the event that an agency requests simultaneous consultation for two or more criteria under this section, the agency and historic preservation officer may extend the 30-day review period by mutual agreement. If the historic preservation officer fails to comment within that time, that failure is construed as concurrence with the agency’s recommendation. In the event of failure to comment on a specific undertaking, the historic preservation officer may not change a finding for a heritage property at a later date.
(3)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.
(4)At the time that the state or federal agency requests the views of the historic preservation officer as provided in subsection (1), the agency shall provide notice to the applicant, affected property owners, and other interested persons of the request for consultation and shall identify locations where the submitted materials may be reviewed.
(5)The applicant and any affected property owners have 20 days in which to appeal the historic preservation officer’s finding to the director. The appeal notice must include a written statement of reasons for the appeal and any additional supporting information.
(6)The director of the historical society shall issue a final finding within 30 days of the expiration of the 20-day appeal period provided for under subsection (5). The issuance of this finding does not limit the rights of any applicant or affected property owner to challenge a finding under an existing federal law, regulation, or regulatory or administrative process.
(7)If the applicant or an affected property owner is not satisfied with the finding of the director of the historical society concerning the eligibility of the property or remains for listing in the register or a finding of adverse effect to the property, the entity or property owner may appeal the finding to the district court in a county in which affected property is located. Appeal may be taken by filing a petition with the district court citing the decision by the director of the historical society and the evidence upon which the director relied. On appeal, the district court may consider any documents supporting or not supporting the finding, the written comments received by the director of the historical society, and any additional evidence that may be submitted to the court. The district court may substitute its judgment for the judgment of the director of the historical society as to the weight of the evidence.
(8)A state agency may not require a historical or archaeological survey as a condition of applying for or receiving a state or local permit, license, lease, or funding for a project to reconstruct or maintain an irrigation ditch or appurtenant structures or equipment when the ditch or appurtenant structures or equipment are in use or have been in use within the past 10 years, if the reconstruction or maintenance will occur within the existing ditch easement and if the project is not on land owned by the state.