Double Standards Part I: Historic Properties

Should the application and enforcement of state and federal historic preservation laws be equal across the board--or should a different standard be applied to historic properties that are "controversial?"

There are a lot of double-standards happening today--and folks seem perfectly fine accepting these.

At least situationally--if it fits within a certain ideology or goal.

Here is one example that is particularly stark:  Disparate treatment of Historic Properties under the Law

When Hurricane Ivan blew through the Pensacola area in 2004--tremendous damage was done to NAS Pensacola.  It was devastating!

I began work there in early 2005 as the recovery from the storm was well underway.  I worked as the interim cultural resources manager and dealt with a lot of the issues surrounding the recovery.  Specifically, the federal government has to follow federal law with respect to historic properties subject to the National Historic Preservation Act.  Although congress appropriated hundreds of millions of dollars for demolition and rebuilding structures on the base that were heavily damaged---the DoD and the Navy had to meticulously follow the Section 106 process that stipulates the way historic properties must be considered before demolition.  It is not a short undertaking either.  It is time-consuming, requiring case reports, public hearings, and consideration by the federal entity (in this case the DoD and the Navy).  But the relevant State Historic Preservation Officer (SHPO) has a big part to play, as does the National Trust for Historic Preservation--a board charged with the authority to consider demolition/destruction of historic properties.  A plan for the removal is mandatory, and the goal is always to minimize the loss of historic properties.  Importantly--at the end of the process--the relevant government entity always has the final say.  In the case of Ivan at NAS Pensacola--it was the Navy.  In the end in 2004-2006----lots of damaged buildings were demolished, some were saved, and a memorial trail with historic markings was constructed to help preserve and document what was there before the Hurricane.  I remember one structure was badly damaged and there was great consternation among some Ivy-League type historians that flew in to Pensacola from all around the country to consult with the Navy.  I remember one historian angrily confronting high-ranking Navy Personnel (Including the base CO at the time CAPT John Pruitt) saying [paraphrasing] "These are NOT your buildings--they belong to the people--all the people!)  It really was quite surreal--as the "historic property" at issue in that case was an old-dilapidated structure that was in poor condition prior to the storm, and all but destroyed after the storm.

Eventually--the demolition program at NAS ended with the largest number of historic structures razed anywhere in the country in the history of the NHPA.  The Navy followed the process to the letter, and in the end was able to make the decision (s) that were in the best interest of the mission in Pensacola--with respect to which historic buildings would be renovated and which would be razed.

Now--contrast that thoughtful, deliberate effort at compliance with Historic Preservation law by the US Navy Leadership in 2004-2006, complete with participation by out of town academics, consultations, public hearings and meetings, and complete transparency------------ with the light-speed, knee-jerk effort to remove a historic property in the City of Pensacola to appease a loud vocal group that want a historic property removed IMMEDIATELY.

Sure, the times have changed and there are passionate voices on both sides of the issue.

Some DEMAND that the statue be removed.  Others want it to remain--as a reminder of the history of our area.

Meanwhile, however, it appears that nobody was taking into account the historic property laws that may be applicable here.  Particularly applicable if a historic property is to be removed.  Acutely applicable if the object to be removed is a contributing structure in a district that is recognized as a National Register of Historic Places District--as the North Hill District is.

Read the legal complaint requesting the monument NOT be removed for yourself-- and pay particular attention to #12 and #18-#20.

But Judge Gary Bergosh--my brother-- issued an emergency temporary restraining order prohibiting the removal of the monument until such time as a hearing could be scheduled.

All of this will now have to be settled in court.  And the argument could be made that the Federal NHPA act is inapplicable as the property at issue is not federal property.  However, there are Florida Historic Preservation Laws that are very similar to the Federal NHPA--contained in Chapter 267 Florida Statutes.  And because the city receives some federal funds--the applicability of the NHPA could come into play.  Again--lawyers and judges will decide these complex questions.

But meanwhile--no out of state academics appeared to defend the historic preservation law as it pertains to the Lee Square monument.  Nope.  While they passionately, stridently defended every

Judge Bergosh Issues an Emergency Temporary Restraining Order Preventing the Removal of the Pensacola Confederate Statue

The Statue in the former Lee Square, recently renamed Florida Square, is now officially protected from removal by an Emergency Temporary Restraining Order signed by Circuit Court Judge Gary Bergosh this afternoon.

The judge granted the plaintiff's motion for this temporary restraining order and a request for a preliminary injunctive hearing.  From the order:

"Accordingly, it is hereby ORDERED, until further Order by the Court, Defendants and all their respective officers, agents, servants, employees, attorneys, and persons acting in concert of participation representatives, vendors, and contractors are hereby ENJOINED and RESTRAINED from:

1.  Taking down the Lee Park Cenotaph in the City of Pensacola, Florida;
2. Infringing on the Public's view of the Lee Park Cenotaph in any way, except to protect it from vandalism or unauthorized destruction by a mob."

Judge Bergosh, my brother, worked out at NAS Pensacola as a senior DoD Attorney during the aftermath of the devastating destruction of Hurricane Ivan in 2004-2006.  As I understand it, this was the largest demolition of historic buildings in the history of the National Historic Preservation Act. One of the things he became very familiar with in his work during that time, was the National Historic Preservation Act of 1966--and the Section 106 process as it pertains to the treatment of historic buildings, structures, or objects.  He is probably the Judge in this circuit who is most familiar with the protections, both state and federal, afforded historic properties--so he will be the ideal Judge to handle this matter.

This "monument" is actually a cenotaph.  One of the reconciliations necessary for the reformation of the union after the Civil War was the acknowledgment of the sacrosanct nature of graves.

One local attorney I spoke with late today who had already heard of this TRO stated flatly:  "They did not follow any of the laws designed for the protection of historic objects and properties--and this TRO will potentially give time for a thorough accounting of this."

From the order:

"A preliminary Injunction Hearing will be scheduled in coordination with the Court as soon as is practicable"