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Belmont, Town of v. Dole

ELR Citation: 15 ELR 20798
Nos. No. 83-1871, 766 F.2d 28/(1st Cir., 06/27/1985)

The court upholds the Department of Transportation's (DOT) archeological preservation regulation, promulgated to further §4(f) of the DOT Act and the National Historic Preservation Act. The regulation provides in part that highways may be built over significant historic sites that are important chiefly for the information they contain if the information can be recovered before the road is built. The court holds that the regulation is consistent with §4(f) of the DOT Act. First, there is no necessary conflict between the language of the statute and the regulation, since removal of the information removes the significance of the site and is not an adverse use of it. Second, the regulation is consistent with the preservationist purpose of the statute. Construction of a road across this sort of site, if accompanied by a carefully designed plan to retrieve buried artifacts from land that may otherwise be in the hands of private landowners free to ignore its archeological value, may be the best way to guarantee its preservation. Third, the regulation contains sufficient safeguards to ensure that the goals of the statute are not undercut; the regulation does to apply if the archeological items have special "in place" significance, and the court has before it only the narrow circumstance where all state and federal officials agree that application of the regulation is appropriate.

Counsel for Appellant
Thomas H. Pacheco, Robert L. Klarquist, F. Henry Habicht II
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2767

Counsel for Appellee
Edward A. Haffer, Peter S. Cowan
Sheehan, Phinney, Bass & Green
Hampshire Plaza, 1000 Elm St., Manchester NH 03101
(603) 668-0300

Before COFFIN, BREYER and TORRUELLA, Circuit Judges.