36.2.804    DEPARTMENT CONSIDERATION OF SHPO RECOMMENDATION

If SHPO responds to the department's initial consultation request, the department shall consider that response and determine if actions other than those proposed in its initial consultation request pursuant to ARM 36.2.803(1) (g) are appropriate. The determination of whether to implement SHPO's recommendations rests solely with the department. The department shall follow the following procedure:

(1) If SHPO recommends a professional antiquities survey and:

(a) the department accepts that recommendation, the department shall cause a survey to be conducted and conduct a post-survey consultation in accordance with ARM 36.2.805; or

(b) the department rejects that recommendation, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of the antiquities that will be required. The department may not proceed with the proposed action until five working days after written notice to SHPO. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities.

(2) If SHPO's response does not include a recommendation for a professional antiquities survey and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, proceed with the department action, and implement the recommendations; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing and document therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department within those five working days receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation measures and the action.

History: 22-­3-424, MCA; IMP, 22-3-424, MCA; NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL, 1996 MAR p. 771.