82 FR 43251 - Comments Regarding Listing on the National Register of Historic Places of Statue of Liberty Enlightening the World, Liberty Island, New York Harbor

DEPARTMENT OF THE INTERIOR
National Park Service

Federal Register Volume 82, Issue 177 (September 14, 2017)

In accordance with the National Historic Preservation Act of 1966, the National Park Service is publishing New York (NY) and New Jersey (NJ) State Historic Preservation Officers' (SHPOs) comments to the National Park Service Federal Preservation Officer (FPO) as well as responses to SHPOs' comments by the Keeper of the National Register (Keeper) prior to including the property in the National Register (NR).

[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Notices]
[Pages 43251-43252]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-19571]



[[Page 43251]]

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DEPARTMENT OF THE INTERIOR

National Park Service

[NPS-WASO-NRNHL-24004; PPWOCRADI0, PCU00RP14.R50000]


Comments Regarding Listing on the National Register of Historic 
Places of Statue of Liberty Enlightening the World, Liberty Island, New 
York Harbor

AGENCY: National Park Service, Interior.

ACTION: Notice.

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SUMMARY: In accordance with the National Historic Preservation Act of 
1966, the National Park Service is publishing New York (NY) and New 
Jersey (NJ) State Historic Preservation Officers' (SHPOs) comments to 
the National Park Service Federal Preservation Officer (FPO) as well as 
responses to SHPOs' comments by the Keeper of the National Register 
(Keeper) prior to including the property in the National Register (NR).

SUPPLEMENTARY INFORMATION: This notice includes comments on the NR 
Nomination entitled ``Statue of Liberty Enlightening the World'' 
received by the FPO from the NY SHPO and the NJ SHPO, and the responses 
by the Keeper to these comments.
    NY SHPO: The NY SHPO reviewed the following nomination and 
responded to the FPO within 45 days of receipt of the nomination. The 
NY SHPO objected to the period of significance established for the 
Statue, the period of significance proposed end date of 1957 (instead 
of 1986) for the district as a whole, and the omission of an area of 
landscape architecture and architecture as areas significance for the 
period 1957-1986. The specific comments received by the FPO from the NY 
SHPO are as follows:

    I am writing in response to your request for comments on the 
most recent revised draft for the Statue of Liberty Enlightening the 
World Historic District. Ruth Pierpont has retired and I am the new 
Deputy State Historic Preservation Officer for New York.
    I have reviewed the file and our comments remain the same as 
they were for the two previous drafts. Unfortunately, the New York 
State Historic Preservation Office cannot support a period of 
significance that extends ``in perpetuity'' because we do not 
believe it is possible to evaluate the significance of events that 
have not yet occurred. Absent any theme, place, or time in which to 
place these unknown events, there is no possible context in which to 
evaluate their meaning. This opinion, which I support, is explained 
in more detail in Ruth Pierpont's letter of June 6, 2012.
    We would also like to re-state our support of a period of 
significance for the landscape elements that extends to include the 
1986 alterations for the statue's centennial. The fact that you have 
judged changes related to its centennial as non-contributing after 
extolling the statue's unending significance is among the reasons 
that we feel a period of ``in perpetuity'' is unwise. At the very 
least, it will generate unnecessary confusion in the compliance 
process as each newly-proposed project then automatically becomes 
significant, regardless of its effect on the resource.

    Keeper's Response to NY SHPO Comments: The Statue of Liberty 
(including its pedestal) is a singular (Keeper's emphasis), 
exceptionally significant, individually NR-eligible historic structure. 
The significance of the Statue to the nation is, and will always be, 
both transcendent and perpetual. It is not unprecedented for a property 
with transcendent significance to be listed in the NR with period of 
significance that is ongoing. The NR listing for National Mall Historic 
District in Washington, DC--under Criterion A--is another example. The 
Keeper notes that several properties located in the State of New York, 
including Our Lady of Mount Carmel Grotto, Richmond County, New York 
(listed in the NR in 2000), and Bohemian Hall and Park, in Queens 
County, New York (listed in the NR in 2001), also have ongoing periods 
of significance because of their recognition as NR-eligible Traditional 
Cultural Properties.
    The nomination as written is for a historic district. The Keeper 
notes that it is a long-established, and common NR program practice for 
an individually eligible or individually listed historic structure 
located within a larger NR-listed historic district to have a different 
period of significance than the district as a whole. Based on all 
relevant documentation and comments received for the nomination, the 
Keeper finds that the proposed end date for the period of significance 
for the district as a whole--1957--is appropriate. The Keeper concurs 
with the assessment stated in section 7, page 28 of the nomination, 
which states: ``Changes made to key elements of the Liberty Island 
Grounds in the mid-1980s and alterations over time to contributing 
buildings and structures preclude the District's eligibility in the 
areas of Landscape Architecture or Architecture.'' On balance, the 
Keeper also finds that the post-1957 changes in the landscape and 
buildings for the district as a whole (Keeper's emphasis), do not 
appear to satisfy the ``exceptional importance'' threshold embodied in 
NR Criterion Exception G for properties that have achieved significance 
within the past fifty years.
    NJ SHPO: The NJ SHPO reviewed the nomination and responded to the 
FPO within 45 days of receipt of the nomination. The NJ SHPO objected 
to the nomination document's failure to recognize the State of New 
Jersey's jurisdictional claim over a portion of Liberty Island and 
other related matters. The specific comments received by the FPO from 
the NJ SHPO are as follows:
    NJ SHPO Comment 1 (Concerning Section 2a): The opening page of the 
Registration Form should indicate that the two states in which this 
district is situated are New York and New Jersey, and that the two 
counties are New York and Hudson.
    Keeper's response to NJ SHPO Comment 1: The Keeper notes that the 
most important function of Section 2a. is to readily identify the 
location of the property in its most common format. In the present 
case, the Keeper has concluded, especially in light of the jurisdiction 
issues raised by the NJ SHPO, that the most appropriate way to achieve 
this purpose is to have Section 2a. of the Nomination Form read as 
follows for the items noted below:

Street & number: Liberty Island, New York Harbor
City or town:
State, County:
Vicinity: No
Not For Publication: No
    NJ SHPO Comment 2 (Concerning Section 7, page 6): The narrative 
should explain that while the majority of Liberty Island is situated 
within the State of New York, including the ground upon which the 
Statue stands, the western portion of the island (approximately 3.4 
acres) is ground within New Jersey borders. In 1834, a determination of 
the boundary between New York and New Jersey was the subject of a bi-
state compact, subsequently approved by Congress. Congressional 
approval of this compact acknowledged New Jersey's ownership of the 
submerged lands west of the midline of the Hudson River. In 1857 
Bedloes Island (today's Liberty Island) was carefully surveyed and 
mapped. It was found to be 9.9 acres in size to mean high water, 10.7 
acres in size to mean low water. An additional 183,756 square feet of 
filled land, or approximately 4.22 acres was added to Liberty Island in 
stages between 1901 and 1952.
    In light of the above, the statement that ``the entire island is 
Federally owned'' (Section 7, page 6) should be revised. New Jersey's 
position has historically been that the portion of the island that 
remains within New Jersey's sovereign jurisdiction is also owned by the 
State of New Jersey, as part of its ownership of riparian lands in New

[[Page 43252]]

Jersey. The State of New Jersey has a long history of selling portions 
of its riparian lands at fair market value, to appropriate users, in 
the form of ``riparian grants.'' The National Park Service bought a 
riparian grant from New Jersey in 1904 to legitimize its expansion of 
Ellis Island, but even though New Jersey sought from the 1930s to the 
1950s to reach agreement with the Federal government to convey title 
for the filled portions of Liberty Island, no agreement, and therefore 
no such transfer, was effected. No Federal purchase of the land has 
subsequently been completed. The Federal government has continued to 
use the property without obtaining a riparian grant. That situation has 
not changed. As a result, the State of New Jersey's ownership interest 
in the land artificially filled after 1834 was not extinguished and 
still remains in effect.
    In addition, the further statement that ``the land mass [of Liberty 
Island] is considered part of New York County, New York.'' (Section 7, 
page 6) should also be revised. Only the portion of Liberty Island that 
reflects the island as it existed in 1834 lies within New York County, 
New York. In our previous comments on the earlier draft, we provided a 
map that delineated the area the island's fill, showing that New 
Jersey's territory comprises approximately 3.4 acres of the island's 
14.1 acres. (see attachment)
    New Jersey disagrees with the wording of footnote #5 (Section 7, 
page 6), which has a tendentious effect. The National Park Service has 
every reasonable basis to conclude, as New Jersey holds, that Liberty 
Island is situated in both states, and does not need to claim in this 
footnote that it is not pronouncing upon an issue that Section 2 of the 
document clearly does.
    Your letter cites the 1998 Supreme Court decision in New Jersey v. 
New York, decided in New Jersey's favor (a point not mentioned in 
footnote #5), in which it was held that the portion of Ellis Island 
composed of landfill emplaced subsequent to the Compact of 1834 has 
remained in the territory of New Jersey since the time of that compact. 
With respect to the neighboring Liberty Island, the factual 
circumstances are nearly identical and the same legal reasoning applies 
that formed the basis of the Ellis Island decision. As a result, the 
National Park Service should recognize New Jersey sovereignty over the 
western portion of the island.
    Keeper's response to NJ SHPO Comment 2 (Concerning Section 7, page 
6): The Keeper disagrees with the NJ SHPO's contention that, ``The 
National Park Service has every reasonable basis to conclude, as New 
Jersey holds, that Liberty Island is situated in both states . . .'' 
The Keeper agrees with the NPS assertion that boundary issues between 
states are matters of original jurisdiction with the U.S. Supreme 
Court, and that neither the Keeper nor the National Park Service are 
fitted by expertise or authority to pronounce upon them. Since the 
issue regarding jurisdiction that was raised by the NJ SHPO cannot be 
resolved within the context of this nomination, the Keeper has 
determined that the most appropriate course of action is to ensure 
that, as approved by the Keeper, the paragraph under ``Setting'' on 
page 7-6 reads:

    Liberty Island is located within New York Harbor, one of the 
world's busiest shipping ports. It is accessed by ferries that run 
regularly from landings at Liberty State Park in Jersey City, New 
Jersey, and Battery Park at the southern tip of Manhattan, New York 
City. The island is manifestly flat, with an average elevation of 
about 15 feet (ft) above sea level. The landform is approximately a 
quarter-mile long and about .15-mile wide at its widest point. Two 
significant filling events, conducted on the west side of the island 
by the US Army during the First World War and on the northwestern 
end of the island by the National Park Service in the early 1950s, 
accreted the island to its current 14.1-acre form. Liberty Island is 
surrounded by New Jersey state waters. The Statue in its entirety 
was constructed and remains within the territorial jurisdiction of 
the State of New York. The entire island is administered by the 
National Park Service. The Statue of Liberty is located on the 
southern portion of Liberty Island and is immediately surrounded on 
the east, west, and south sides by grass lawns. Visitors arrive at 
the island's West Pier after a ferry trip from Manhattan or Jersey 
City and usually walk to the Statue on the island's primary 
circulation system, a wide paved system of malls and plazas that 
conveys visitors to the main entrance to the Statue. The malls and 
plazas are lined with linden trees and yew hedges that give the 
setting a park-like feel. A secondary circulation system consisting 
of interior paths and a perimeter promenade offers other views of 
the Statue and New York Harbor from a variety of vantage points. 
Operational facilities such as maintenance buildings and staff 
housing are located primarily in the northwest corner of the island 
and are screened from public view in most directions. (**Note: 
footnote #5 referenced in the NJ SHPOs comments regarding the above 
paragraph has been corrected to read as footnote #6 in the final 
nomination document.)

    Authority:  The National Historic Preservation Act of 1966, 54 
U.S.C. 302104 (c)(5)-(6) of; 60.13 of 36 CFR part 60.

    Dated: August 14, 2017.
J. Paul Loether,
Chief, NR of Historic Places/National Historic Landmarks Program and 
Keeper, NR of Historic Places.
[FR Doc. 2017-19571 Filed 9-13-17; 8:45 am]
 BILLING CODE 4312-52-P