## Facts

- The National Mining Association challenged an Advisory Council on Historic Preservation (ACHP) regulation defining “undertaking” to include projects “licensed or permitted by a State or local government agency pursuant to a delegation or approval by a Federal agency.”
- The challenged definition subjected certain projects permitted by state or local agencies under federally approved or delegated programs (including mining-related permitting) to NHPA § 106 consultation.
- The projects at issue were not, in the individual case, federally funded or licensed by a federal agency; rather, the relevant federal action was approval or delegation of the state program.
- NMA argued NHPA § 106 applies only to “Federal or federally assisted” undertakings and to federal issuance of licenses, so ACHP exceeded its statutory authority.
- ACHP argued the 1992 NHPA amendments’ broader statutory definition of “undertaking” permitted § 106 procedures to reach delegated state/local permitting.

## Issues

1. Whether ACHP exceeded its authority under NHPA § 106 by defining “undertaking” to include projects permitted by state or local agencies pursuant to federal delegation or program approval, even without project-specific federal funding or federal licensing.
2. Whether the 1992 statutory definition of “undertaking” expands the federal-action triggers for § 106 beyond federally funded or federally licensed undertakings.

## Decision

- The D.C. Circuit reversed the district court’s grant of summary judgment to ACHP.
- The court held the regulation was invalid to the extent it extended § 106 to projects merely permitted by state or local agencies under delegated or federally approved programs, absent a federal funding or federal licensing decision for the specific project.
- The case was remanded for further proceedings consistent with the court’s interpretation of NHPA § 106.
- The court concluded Chevron deference did not sustain the rule because the statute, as interpreted by controlling circuit precedent, foreclosed ACHP’s broader reading.

## Legal Principles

- NHPA § 106 imposes procedural obligations tied to federal agency actions—approval of federal funds for an undertaking or issuance of a federal license for an undertaking.
- ACHP’s regulatory authority to implement § 106 is limited to “federally funded or federally licensed undertakings.”
- The 1992 statutory definition of “undertaking” enlarges the set of projects that can be subject to § 106 when a federal trigger exists, but it does not expand what federal actions trigger § 106 procedures.
- Federal approval of, or delegation to, a state permitting program is not equivalent to a federal license or federal funding decision for each project permitted under that program.
- Circuit precedent interpreting § 106 after the 1992 amendments bound the court to reject an agency rule that treated delegated state/local permitting as independently triggering § 106.

## Conclusion

The D.C. Circuit held that NHPA § 106 review cannot be required for projects permitted solely by state or local agencies under federally approved or delegated programs unless the particular project involves federal funding or a federal licensing decision, and it invalidated ACHP’s regulation to the extent it imposed § 106 consultation without that federal trigger.


Nat’l Mining Ass’n v. Fowler, 324 F.3d 752 (D.C. Cir. 2003)