Leap, Baby, Leap! The Military LAND Act

Darrell Issa, (D-CA), representing California's 49th congressional district, fears that history could get in the way of protecting national security -- or something. Accordingly, late last year he and 17 co-sponsors introduced HR 3687, the Military Land and National Defense Act (a semi-cleverly acronym, the Military LAND Act).

HR 3687 would amend the National Historic Preservation Act (NHPA) to prohibit listing anything on federal land in the National Register of Historic Places, or as a National Historic Landmark, if the ostensibly responsible land management agency thought that doing so was objectionable for "reasons of national security." It would also require the Secretary of the Interior to speedily issue regulations for the removal of any federally-owned properties from the Register that have managed to slip into it, should the ostensibly responsible agency determine that national security demands it.

Even in the House of Representatives as currently configured, HR 3687 is given little chance of clearing committee, and less chance of being passed, but it's indicative of what passes for responsible congressional thinking on Capitol Hill these days when it comes to balancing environmental protection and the protection of special interests, so it's worth a look.

NHPA requires federal agencies to identify and take care of historic places -- defined as places included in or eligible for the National Register -- on lands under their jurisdiction and control. They're not necessarily required to protect them in perpetuity, at the expense of other public interests; they're simply required to give their protection due consideration, in consultation with those who value such places (historic preservation authorities, Indian tribes, citizens in general). The law at present provides no opt-out for agencies; they can't decide that their missions are so important that they can just ignore the cultural sensitivity of the lands they manage. They can consult with those who value such places and then -- even over their objection -- blow away historic places to accommodate their mission needs, but they can't just pretend that because they have jobs to do, history can be suspended.

But some federal officials -- being human, after all -- don't like to consult with the people they're reputed to serve, and they don't like things that get in the way of their plans. And those who benefit financially from the actions of such officials, like defense contractors, aren't wild about such things either. So federal agencies have been known to neglect their responsibilities.

Nomination to the National Register is an important fail-safe mechanism in the NHPA system. If a federal agency resolutely refuses to identify and manage a place that people think is historically significant, anybody can nominate it to the Register; listing in the Register then requires the agency to consider and consult about it. Not necessarily to protect it, but to consider and consult about it. Nomination is a laborious, expensive, complicated, bureaucratic chore, but it's something a concerned citizen can do if an agency is being utterly irresponsible.

Mr. Issa and his colleagues would deprive citizens of this right when "national defense" (however and by whoever defined) is concerned. If given the chance, it's a fair bet that they would do the same with respect to other aspects of the environment -- endangered species, water quality, air quality, whatever. If something gets in the way of your interests, just define it out of existence.

NHPA, like the National Environmental Policy Act (NEPA), is widely understood as a "look-before-you-leap" law, requiring federal agencies to consider the potential effects of their actions before taking them. Mr. Issa and his colleagues apparently don't approve of this sort of caution. Their motto seems to be "Leap, baby, leap!"