Defend Arlington’s Official Regulatory Response

September 2, 2023

Ms. Renea Yates
Director, Office of Army Cemeteries
1 Memorial Avenue
Arlington, VA 22211

Via electronic submission:

[email protected]

https://www.arlingtoncemetery.mil/About/Confederate-Memorial-Removal

Re: Notice of Intent to Prepare an Environmental Impact Statement and Initiate Section 106 Public Consultation Regarding Removal of the Confederate Memorial from Arlington National Cemetery 88 Fed. Reg. 51786 (August 4, 2023)

Dear Director Yates:

On behalf of Defend Arlington and the undersigned organizations, we write in strong opposition to the Army’s intent to remove the Confederate Memorial (“Reconciliation Memorial” and “Memorial”) from Arlington National Cemetery (“ANC”). The Army’s proposed actions violate Congressional mandates in Section 370 of the FY21 National Defense Authorization Act (NDAA) and should not be finalized.

Comment Summary

Secretary of Defense Austin’s (“Secretary”), designation of the use of federal military resources occurred on January 4, 2023, when he ordered Army Secretary Wormuth to implement the Naming Commission Recommendations relating to the Memorial constituted final agency action; and that final agency action required review under the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”) Section 106.¹ The Secretary seeks to avoid these important procedures by focusing its review on how the removal will occur rather than on whether it should occur at all. If the Secretary had complied with NEPA and NHPA, he would have received important information from his federal advisory committee, members of the military, state historic preservation officers, the Advisory Council on Historic Preservation (“ACHP”), local governments, historians, academics, and the public about the significance of the Memorial, both historically and culturally, and he would have used that information to inform his decision about whether to implement the recommendation. Importantly, the Secretary would have considered that the recommendation failed to comply with the underlying statutory requirements at 370(g) and (j). Had the Secretary complied with NEPA and NHPA prior to expending federal funds and prior to directing the implementation of the Naming Commission’s recommendations, as required by law, he would have concluded that removal of the Memorial in ANC exceeds his authority, as that recommendation failed to comply with Congressional directives at §370(g) and (j). For these reasons, we believe the Army must not take additional actions to remove the Memorial until the following important legal and procedural requirements are met:

1. The U.S. District Court for the District of Columbia issues a decision in pending litigation,² including any appeal of that decision.

2. The Army extends the public comment period for the proposed EIS, including conducting an additional public scoping meeting, to ensure the purpose and intent of NEPA and the NHPA are met.

3. The Army’s consideration of the Report to the Secretary of the Army from the Federal Advisory Committee on Arlington National Cemetery, and also submission of the Report to the House and Senate Veterans Affairs Committees and House and Senate Armed Services Committees.

4. The Army revises the scope of its EIS and NHPA Section 106 reviews to consider the effects of the Secretary’s order to use federal military resources to remove the Memorial, including the connected actions of determining how and where deconstruction and removal would occur as required by NEPA and NHPA.

Statement of Interest

Defend Arlington³ is an unincorporated association of individuals and groups that include those dedicated to the preservation of the integrity of Arlington National Cemetery as a National Register Historic Site, particularly as it relates to the planned Orwellian destruction of one of the Cemetery’s most iconic memorials. Defend Arlington members develop resources and educational materials, articles, White Papers, attending and speaking at conferences and other events in furtherance of increasing understanding of the American Military History, and the cultural, artistic and military historic significance of the Reconciliation Memorial.

Defend Arlington is a consulting party in the NHPA Section 106 review. Defend Arlington has requested to be a consulting party in the NHPA Section 106 review.

The Virginia Council, an affiliate of the Common Sense Society, is a citizen's initiative whose mission is the preservation of Virginia History, civil discourse, and the rule of law. We are signatory to this letter because Moses Ezekiel was a preeminent internationally recognized Virginia artist.

Heritage Protection of North Alabama is a citizen’s initiative whose is to prevent destruction and/or relocation of all historical monuments; inform the public about heritage issues; assist in restoration / maintenance of historic sites / monuments / memorials and defend our Southern heritage by challenging those who seek to destroy it. HPNA is a grass-roots organization of concerned citizens across the five counties of the Tennessee Valley in north Alabama. HPNA is particularly concerned about the ANC Reconciliation Memorial because of the extensive connection between the State of Alabama and the Memorial. This not only includes the incorporation of the Alabama Coat of Arms on the Memorial, as well as the numerous Alabamians whose final resting place the Memorial marks, but also the significance of Alabama Senator and 33^rd US. Secretary of the Navy, Hilary A. Herbert, who recommended Sir Moses Ezekiel as the sculptor for the Memorial, and who served in leadership for the Memorial’s erection. HPNA has requested to be a consulting party in the NHPA Section 106 review.

Save Southern Heritage Florida Chapter (SSHFL) is an unincorporated association of individuals whose purpose is to preserve the history of the South for future generations. SSHFL focuses efforts on Florida history. SSHFL has a particular interest in the ANC as the State of Florida is recognized on the Memorial as its coat of arms is incorporated on the Memorial itself, and also in that three Floridians are buried in the Florida section in the concentric circles surrounding the Cenotaph.

SSHFL has requested to be a consulting party in the NHPA Section 106 review.

Military Order of the Stars and Bars, James I Waddell Chapter 32, Raleigh NC – like our namesake, James Iredell Wadell, the last to lower the Stars and Bars, we will be the last to surrender in the battle to honor our American ancestors by preserving the Reconciliation Memorial in its rightful place in America’s outdoor museum of Military History.

Society for the Preservation of Jewish Civil War History (SPJCWH) is an unincorporated group of individuals whose mission is to educate the public on the history of the Jewish people in the War of 1861-1865. The interest in the Reconciliation Memorial is due to the ethnicity of the Jewish artist, Sir Moses Ezekiel, and because of the anti-semitism removal from a United States government cemetery would ignite world-wide. SPJCWH has requested to be a consulting party in the NHPA Section 106 review due to the immense impact on the safety and security of Jews worldwide.

Military Order of the Stars and Bars, North Carolina Chapter – an association dedicated to being First, Foremost, and Farthest in the fight to save the Arlington Reconciliation Memorial just as our ancestors were in battle. The North Carolina coat of arms is represented on the Memorial and 47 known North Carolinian graves are marked by the Memorial.

R.E. Lee Monumental Association - a 501(c)3 nonprofit dedicated to cleaning, restoring, repairing, and managing all monuments in the New Orleans area and south Louisiana since 1989 and is interested in saving the Reconciliation Memorial because all memorials and monuments to American veterans should be honored, respected and preserved. These memorials serve to honor those who gave all, and to educate future generations about important events in American history and Louisiana’s contribution to it, especially the maintenance of the emblem of the State of Louisiana displayed on the Memorial.

Military Order of the Stars and Bars, Major General W H C Whiting Chapter 305, Wilmington NC – is a non-profit entity dedicated to preserving the heritage of its gallant ancestors who fought only for self-determination and continued that fight for America through every war after the War of Northern Conquest. The subject Arlington Memorial is a symbol of reconciliation, a grave marker. and a precious work of art that must be preserved for succeeding generations for its historic importance.

Friends of Judah P. Benjamin (“Friends”) – an unincorporated group of individuals who seek to educate and inform the public about the immense contribution of Jewish Americans in the history of our Nation and particularly in the American South where both Sephardic and Ashkenazi Jews alike were feely accepted into Southern society and valued as part of a multi-cultural, diverse society for their unique contributions. Judah P. Benjamin, himself, was the first Jewish member of a Presidential Cabinet, for Confederate President Jefferson Davis, and the first admitted Jew to serve as US Senator when he took office from the State of Louisiana in 1853. The Friends view the planned removal of the Memorial as an attack on Jewish-American history.

Hoods Texas Brigade Association (“HTBA”) – a 501(c)(3) non-profit corporation charted under the laws of the State of Texas whose members encourage and foster among the public an understanding of the history of Hood's Texas Brigade and its soldiers; advance historical appreciation for the part that the Brigade played in Texas and Confederate history; organize and sponsor educational activities such as seminars and symposiums about the Brigade. HTBA’s interest in the Memorial is the Texans whose final resting place is marked by the Reconciliation Memorial and the emblem of the State of Texas enshrined in the Memorial.

Guardians of American History, Inc. (GAH) is a non-profit whose mission is to preserve our American History including historical assets pertaining to America and the United States. The mission will be undertaken through education and direct preservation efforts and in collaboration with others with a common purpose to fight back against cancel culture. GAH has requested to be a consulting party in the NHPA Section 106 review.

Detailed Comments

The Proposed Removal Actions Exceed the Secretary’s Authority and Should Not Be Finalized

The Army’s proposed actions violate Congressional mandates in Section 370 of the FY21 National Defense Authorization Act (“NDAA”). The NDAA required consideration of local sensitivities⁴ and exempted grave markers from consideration for removal.⁵ The Secretary exceeded his authority when he directed the use of existing military resources to initiate the removal action without complying with these clear statutory directives. The Secretary also violated NEPA by failing to consider the environmental impacts and alternatives associated with the decision to deconstruct and remove the Memorial.⁶ Similarly, the Secretary violated the NHPA by failing to consider the impacts on historic and cultural resources prior to directing deconstruction and removal and by failing to provide the ACHP an opportunity to comment on the removal directive.⁷ The Army cannot change the fact that compliance with both NEPA and NHPA must occur prior to a Federal Agency decision and the approval of the expenditure of any Federal funds.⁸ The Army’s after-the-fact attempt at compliance with NEPA and NHPA, announced on August 4, 2023,⁹ is meaningless as that process will not address the triggering federal action. The triggering action was the Secretary’s decision to order the implementation of the Naming Commission’s recommendations which included the removal of the Memorial from Arlington National Cemetery, including the designation of federal funds to undertake the removal action. The Army’s illegal actions and invalid NEPA and NHPA processes have been challenged in litigation pending before the United States District Court for the District of Columbia.¹⁰ The Army should not expend any additional military resources until the court determines the validity of the Secretary’s actions.

The Army’s NEPA Process is Fatally Flawed

Even assuming the Army’s NEPA and NHPA actions are legitimate, but they are not. The process is rushed and deliberately designed to limit or completely exclude important voices. First, the Army announced an aggressive schedule for completing preparation of an Environmental Impact Statement under NEPA.¹¹ The Army intends to prepare a draft Environmental Impact Statement (“EIS”) within less than thirty days and a final EIS and Record of Decision before the end of 2023, completing the entire process within just a few months. The proposed timeline is unrealistic for such a significant undertaking. By comparison, preparation of an EIS for disposition of historical airport hangars within the Fort Wainright, Alaska, National Landmark, and historical district took three years.¹² The Army’s rushed schedule must be reconsidered and extended to provide sufficient time to ensure an informed agency decision, particularly, where the proposed destruction and removal action would be both expensive and irreversible.

Next, the Army has made significant decisions about Arlington National Cemetery without seeking input of the Congressionally chartered federal advisory committee established for providing advice regarding ANC.¹³ 10 U.S.C. 4723(a) directs “the Secretary of the Army shall establish an advisory committee” and (b) “shall advise and consult with the advisory committee regarding the administration, erection of memorials and master planning of ANC.” The Secretary violated these important mandates by failing to establish an advisory committee for the period of February 2020 to November 2022 and once the committee was established, discouraging it from developing an advisory report regarding the removal. Indeed, on November 8, 2022, after advisory committee members raised concerns with the decision to remove the Memorial. The Department of the Army responded that the decision to remove the Memorial had already been made and that there was no opportunity for the committee’s input to the Secretary.¹⁴ However, we understand that notwithstanding the Army’s discouragement, the Federal Advisory Committee on Arlington National Cemetery (“FACANC”) is preparing a report to the Secretary of the Army.¹⁵ No further action to remove the Memorial should be taken until such time as the findings of the FACANC are considered. In addition, 10 U.S.C. 7723(d) requires that, within 90 days after the report is received, the Secretary of the Army shall submit the report, and any comments or recommendations, to the Committees on Veterans’ Affairs of the Senate and House. The Army must comply with these mandates prior to conducting any removal actions in ANC.

Likewise, at the November 8, 2022, FACANC meeting, the Army abruptly determined, without explanation, that members of the public who had registered to speak would no longer be afforded the opportunity. Public input was similarly silenced when several people who had registered to present their views at the Army’s August 23, 2023, virtual public hearing experienced technical problems or were simply not called on to speak. The Army must address these procedural deficiencies prior to taking any further removal actions.

The Draft EIS Must Consider the Following:

1.  NEPA § 101(b)(4) states that the Federal Government must use all practicable means to “preserve important historic, cultural, and natural aspects of our national heritage.” 42 U.S.C. § 4331(b)(4). ANC is the nation’s premier military cemetery and Section 16 and the Memorial play an important role in conveying important aspects of our historic, cultural, and national heritage.¹⁶ The Army must describe the steps it has taken to comply with 42 U.S.C. § 4331(b)(4).

2. NEPA § 102(2)(C) requires federal agencies to evaluate the environmental consequences of their actions and consider any alternatives to proposals for all major Federal actions significantly affecting the quality of the human environment. The Army’s proposed actions will significantly affect the Memorial, Section 16, ANC and its collection and confluence of memorials to fallen American service personnel as ANC developed over time to become a historic district listed on the National Register. The Army must evaluate the environmental consequences of the Secretary’s order to remove the Memorial from ANC and consider any alternatives to the proposed action as required by NEPA. The Army’s NEPA analysis should first focus on the triggering action which was the Secretary’s order directing the use of federal military resources to remove the Memorial.

3. The Army’s EIS scope must include consideration of connected actions. NEPA requires that any connected actions, actions that are closely related to interdependent parts of the larger actions and would not occur without the other actions, must be considered in the same EIS. Decisions about “how and where” the destruction and removal would occur are connected actions under NEPA and must be analyzed as such in the same EIS. 40 CFR 1508.25(a)(1) (i-iii).

4. The Army must conduct a cumulative impact analysis to include a comprehensive review of the remaining cultural resources within ANC that may be threatened for removal on similar grounds, and the impact of potential additional future removal actions on Section 16 and ANC, including any impact on the ability of ANC to retain its listing on the NR as a historic district. 40 CFR 1508.25(a)(2).

5. The Army must conduct an air quality analysis, particularly PM 2.5 and airshed analysis to assess the impact on air quality and increases in criterion pollutants from the operation of heavy equipment, and construction vehicles.

6. The Army must conduct an analysis of the environmental impacts on environmental justice communities, including air, dust, noise, traffic, vibration, and congestion caused by the removal; and a cumulative impact analysis considering existing environmental burden.

7. A work plan must be developed, in coordination with fence line communities, the public, and ANC, taking into consideration impacts on the peace and serenity experience in Section 16 and ANC, interference with burial ceremonies from increased noise, interference with traffic patterns, and increased dust and air emissions during construction.

8. The Army must prepare a detailed budget, including assurances that the work will be conducted by appropriately licensed and trained contractors.

9. A study must be conducted to show that the graves will not incur damage. Verbal assurances are insufficient. The study must, at a minimum, comply with accepted scientific methodology and be cognizant of social and cultural cemetery practices.

10. Viewshed modeling must be conducted to assess the impact of removal on the ANC historic district and the Monument Corridor Viewshed.

11. The Army should consult with each State represented on the Memorial, and whose service personnel will be de-marked by the planned removal.

12. The Army should provide an earnest attempt to contact all the living descendants of those buried in Section 16 and consider the opinions about and the effect of de-marking them.¹⁷

The Proposed Scope of the EIS and NHPA Section 106 Review Must be Revised to Include the Following:

1.  The Memorial is Eligible for Listing on the National Register of Historic Places

The Memorial is an extraordinary historic and cultural resource eligible for listing on the National Register. The Army National Military Cemeteries Phase II Intensive level survey evaluated the Memorial and determined it is potentially eligible to be included in the National Register of Historic Places.¹⁸ The survey found the Memorial potentially eligible “because it constitutes a significant physical example of the contested national effort to commemorate the Civil War, and specifically the Confederacy, as part of late-nineteenth and early-twentieth century efforts at reconciliation.”¹⁹ In addition, the survey found the Memorial potentially eligible “for its design by sculptor Moses Ezekiel, a master sculptor whose distinctive work stands out from other Confederate memorials constructed during the same period of significance. It merits listing in the NRHP due to its status as a unique historical artifact that embodies, in monumental form, the discourse surrounding the memorialization of the Civil War.”²⁰ The Memorial is also significant in our nation’s military and cultural history and remains relevant today as a symbol of how America healed its wounds from our own Civil War as described by Jim Webb, U.S. Senator, Navy Secretary and Marine infantry officer in Vietnam.²¹ As such, under NHPA regulations, the Army must identify and evaluate the historic significance of this historic property and determine its eligibility prior to proceeding with removal. 36 CFR 800.4(c).

2.  The Memorial as a Contributing Resource to the Arlington National Cemetery Historic District

Arlington National Cemetery, the Nation’s military cemetery, is on the National Register of Historic Places and the Memorial is listed as a contributing resource to the historic significance of ANC.²² ANC is the final resting place for more than 300,000 veterans of every American conflict, from the Revolutionary War to Iraq and Afghanistan. Since its founding in 1864, ANC has provided a solemn place to reflect upon the sacrifices made by the men and women of the United States Armed Forces in the name of our country.²³ The Civil War makes up a critical and defining conflict in our nation’s history, and soldiers who perished on Civil War battlefields are rightly recognized and buried at ANC. Indeed, the ANC was created and founded as a direct result of the Civil War – built on grounds previously owned by and resided on by Mary Custis Lee, her husband General Robert E. Lee, and their family.

3.  Section 16 of ANC as Potentially Eligible for Listing on the NRHP and Must be Evaluated.

The Army has failed to include any mention of Section 16 of ANC in conducting the required identification efforts. The Army must make a reasonable and good-faith effort to identify historic resources within the project’s area of potential effects.²⁴ Section 16 contains an area that has been specifically set aside and designated by Congress to re-inter the remains of approximately 260 Confederate soldiers who died in prisoner-of-war camps and in hospitals and battlefields near Arlington.²⁵ After Section 16 was established, the Memorial was erected. Section 16 would continue to be an active burial site for Southern veterans and their spouses into the 1960s. Section 16 has its roots in the early 1900s and came about as an effort by President McKinley, himself a veteran of the Union in the War, and a symbol of reconciliation between the North and South in the post-reconstruction era, and in the post-Spanish American War era. Section 16 was promoted by President McKinley, who also led the effort to re-inter at ANC American service personnel from Cuba who perished on the USS Maine in the lead-up to the Spanish-American War. The mast of the Maine was eventually placed as the focal point of that circular burial site, marking the sailors who perished in the Maine’s sinking. McKinley similarly promoted the establishment of Section 16, which, likewise, originated with re-internments and was later marked with a central marking memorial. These two neighboring twin memorials stand together in the history of ANC and launched a plan to commemorate casualties of significant American sacrifices that continues to today. As such, the Army must evaluate Section 16 under criteria set forth in National Park Service regulations at 36 CFR Part 60, (a)-(d). At a minimum, the Army should evaluate the degree to which Section 16 meets criteria (a) that are associated with events that have made a significant contribution to the broad patterns of our history; and (b) that are associated with the lives of persons significant in our past. We believe Section 16 is individually eligible under these criteria for listing on the NRHP. The Army may not move forward with the removal of the Memorial until these important eligibility decisions are made. In addition, eligible or not, the Army must consider the impacts, both direct and indirect, of the removal of the Memorial on the integrity of Section 16.

4.  The Memorial as a Contributing Resource to a Broader Monument Core

This memorial is part of the Washington Monumental Corridor Master Plan.²⁶ The Monumental Corridor was part of the “American Renaissance” and North-South linkage promoted by renowned architects McMillan and Olmstead. They envisioned a “city beautiful” plan for Washington, DC that extended over the Potomac River into Virginia to Arlington House and the Cemetery. The bridge was to become a symbolic link between North and South from DC to Arlington and the addition of the George Washington Memorial Parkway, punctuated with monuments and memorials evidenced this American Renaissance, and to demonstrate to the world American unification. This beaux-arts style memorial is the most significant monumental artwork at Arlington, and part of the American Renaissance which ignited a movement to build monumental art around the country. The entire Monumental Corridor, the Viewshed from Mount Vernon through to the Capitol, must be included in the EIS study area and the NHPA Area of Potential Effects (“APE”), as they are part of the master plan and significant in the north-south reunification and the American Renaissance. The APE must be expanded to include the entire Viewshed of the Washington Monumental core.

5.  The Memorial Site as Eligible for Consideration as a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site

The Memorial is significant to Canada and other nations and is potentially eligible to be a UNSECO World Heritage Site. One of the graves in the plot marked by the Memorial is of a Canadian citizen, Jerry Cronan, who was killed at the Battle of Spotsylvania. There were many more citizens of other nations who perished in service to one of the states represented on the Memorial. These other nations need to be identified and consulted as they are being impacted as well. Because of its significance in American history, Arlington House and the Arlington National Cemetery are eligible for listing as a UNESCO World Heritage site.

6.  The Memorial as Significant to the Descendants of the Buried

There are over 500 soldiers and widows whose remains are interred in concentric circles at the Memorial, which marks the site of their burials. Some of the remains were relocated in Section 16 from other sections of Arlington, others from POW camps nearby before the Memorial was erected. However, after the Memorial was erected, others chose to be buried there, undoubtedly because of the new Memorial. The Army must make a sincere effort to contact the descendants of the buried dead and seek their views.

7.  The Memorial as a Grave Marker

The Memorial is a grave marker for Moses Ezekiel. Unveiled in 1914 and dedicated by President Woodrow Wilson, the Memorial was designed by noted American sculptor Moses Jacob Ezekiel, a Confederate veteran and the first Jewish graduate of Virginia Military Institute, to mark Section 16. Ezekiel originally named the Memorial the New South Memorial. It is also commonly referred to as the Reconciliation Memorial. Ezekiel was buried at the base of his creation in 1921. It was Ezekiel’s request to be buried at the base of the Memorial in Section 16 of Arlington—laid to rest inches from the base of his Memorial without the traditional approved white marble headstone authorized for use in Arlington. Three other service personnel and spouses are interred inches from the base of the Memorial: Lt. Harry C. Marmaduke, Capt. John M. Hickey, and Brig. Gen. Marcus J. Wright. The graves of the approximately 500 Southern service personnel and their spouses are arranged in concentric circles around the Memorial and its abutting graves. The fact that the Memorial is a grave marker precludes its removal. In NDAA § 370(j), Congress explicitly exempted grave markers from the Naming Commission’s consideration for renaming or removal. Congress delegated to the Naming Commission the definition of Grave Marker, i.e. “Markers located at the remains of the fallen”. As the Memorial is inches not only from Ezekiel’s grave, but also marks the entire plot of graves, the Memorial meets the Naming Commission’s definition of a Grave Marker, and so this removal is outside the scope of the NDAA and the Naming Commission’s remit.²⁷

The NHPA Section 106 Review Must Consider the Following:

NHPA § 106 requires Federal agencies with jurisdiction over Federal undertakings, prior to the approval of the expenditure of any Federal funds, shall consider the effect of the undertaking on any historic property and provide the Advisory Council on Historic Preservation an opportunity to comment.²⁸ The Secretary’s directive to implement the Commission’s removal recommendation is a Federal undertaking.²⁹ Any site that is included in the National Register is considered historic property.³⁰ The Arlington National Cemetery is listed on the National Register of Historic Places. The entirety of the cemetery is counted as one contributing site, and every resource except the small-scale features within the boundaries is contributing to the ANC Historic District. The Memorial is listed as a contributing resource to the historic significance of ANC. The Army must consider the adverse effects that removal of the Memorial will have on the integrity of the Arlington National Cemetery as our nation’s military cemetery. In addition, as stated previously, the Memorial itself and Section 16 are potentially individually eligible for listing and must be evaluated under the National Park Service criteria prior to any removal actions.

NHPA compliance requires the agency to proceed through specific steps in consultation with SHPOs, consulting parties and the public to first identify historic properties potentially affected by the removal, assess the effects, and seek ways to minimize or mitigate any unavoidable adverse effects. Failure to proceed consistent with these regulatory requirements is a violation of the statute.³¹

The Advisory Council’s NHPA implementation guidance recommends that each step of the Section 106 process must be completed prior to moving to the next step.³²

As stated previously, the Army has not completed a reasonable, good-faith effort to identify important historic and cultural resources, including whether the Memorial and Section 16 are individually eligible. The Army has also neglected to include the Washington Monument Core district in the scope of review.

Furthermore, The Army is violating the NHPA by seeking public input on mitigation measures prior to completing the following regulatory requirements:

• Identifying the proper scope of review (36 CFR 800.4),
• Identifying historic properties (36 CFR 800.4(b)),
• Evaluating historic significance under the National Register criteria (36 CFR Part 63),
• Determining whether a property is eligible for listing on the National Register (36 CFR 800.4(c)(2)),
• Notifying consulting parties that there are historic properties that may be affected by the undertaking and invite their views (36 CFR 800.4(d)(2)),
• Applying criteria of adverse effect (36 CFR 800.5)(d)(2)).

Only after completing all these steps in consultation with SHPOs and other consulting parties, is it appropriate for the Army to seek input on resolving adverse effects, including modifications or alternatives to avoid, minimize or mitigate.³³ Without completing this important information gathering and consultation requirements, the Army has not provided the public with the information necessary to engage in a meaningful discussion of mitigation.

Recommendations:

Scope of Review

• The Army must determine an appropriate scope of review, defined as the Area of Potential Effects (APE).
• The APE must include the entire Viewshed, as the Memorial is an important contributing element in the ANC historic district and the Washington Monumental Core that extends from the Washington Monument across the Memorial Bridge to ANC, including Section 16 and the Memorial around which Section 16 was built.
• Aerial and visual impact modeling must be completed to analyze impacts.

Identification of Adverse Effects

The Army must develop information on the direct, indirect, and cumulative adverse effects of the removal action, including the following:

• Physical destruction of the Memorial from removal and relocation or destruction of the bronze elements - a study must be conducted.
• Change in character of Section 16 caused by the removal action.
• Transfer out of federal control without adequate preservation restrictions.
• The cultural impact of removal on those States that are represented in the Memorial and whose service personnel are marked by the Memorial or who were citizens of such State.
• The cultural and emotional impact of removal on the descendants of those interred in Section 16.
• Viewshed impacts.
• Impact on ANC historic district from removal of the Memorial, a known contributing element to the district’s significance.

Resolving Adverse Effects

The Army must consider alternatives for avoidance, minimization, and mitigation of adverse effects:

There is no adequate mitigation:

o   The Memorial represents a significant historic work of art.

o   The Memorial was commissioned; and designed by the artist for; display at the designated site, marking the graves in Section 16.

o   No alternative location is suitable. ANC is the Nation’s Most Sacred Shrine and a historic district on the National Register of Historic Places. The Memorial has been determined to be a contributing element to the historic district. Removal would have a devastating impact on Section 16 and the district.

o   The Reconciliation Memorial is a focal point for the graves interred in Section 16. The mortal remains of American service personnel and wives, including the Memorial’s creator, are located under the Memorial. The FY21 NDAA clearly stated the Naming Commission’s objectives were to preclude grave markers; yet the Reconciliation Memorial is central to the design of Section 16, and removal will leave over 400 gravestones facing an empty slab without interpretation.

o   Arlington National Cemetery, as a National Register Historic District, is an outdoor museum dedicated to American military sacrifice and a display of the respect that Americans show for that sacrifice. Removal of the Memorial will extricate and suppress from Arlington the complete historical timeline and story told through the sequence of memorial monuments at Arlington and will diminish the respect and significance of this important historic site.

o   Any proposal to move the Memorial must be codified, after providing for public notice and comment, in an enforceable Memorandum of Agreement with the consulting parties prior to taking any actions that would adversely affect the Memorial or the ANC historic district in which it is located.

Attachments

In addition to this document, we submit the following that address the inability to mitigate the removal of the Memorial, as well as the Area of Potential Effect, and the environmental and cultural impacts of removal:

   “Save the Confederate Memorial at Arlington”, Wall Street Journal August 18, 2023, by Senator Jim Webb and

   Arguments Against Naming Commission Recommendation Re: Arlington National Cemetery Confederate Memorial: A collection of White Papers, articles, testimony, and the Presidential Monument dedication speech.

Conclusion

The Army’s proposal to remove the Reconciliation Memorial from Arlington National Cemetery violates Congressional mandates in Section 370 of the FY21 National Defense Authorization Act (NDAA) and procedural requirements of both NEPA and the NHPA. The Army’s after-the-fact attempt at compliance with NEPA and NHPA is meaningless as that process will not address the important question the Secretary seeks to avoid, of whether the Memorial should be removed. As discussed in these comments, the Army has neglected to consider the impacts on important historic and cultural resources in its politically charged rush to complete an EIS and complete removal by year’s end. These illegal actions have been challenged in court and the Army must not take any further actions until the validity of these actions is decided.

Respectfully submitted,

s/Vincent Balducci
Defend Arlington

s/Dr. Ann McLean
The Virginia Council, an affiliate of the Common Sense Society

s/Lt. Col. Edwin Kennedy, US Army, Retired
Heritage Protection of North Alabama

s/James Shillinglaw, US Navy, Retired
Save Southern Heritage Florida Chapter

s/Commander
Military Order of the Stars and Bars, James I. Waddell Chapter

s/ Lunelle Siegel
Society for the Preservation of Jewish Civil History

s/Howard Talley, III
Military Order of the Stars and Bars, North Carolina Society

s/Geary Mason
RE Lee Monumental Association

s/H.K. Edgerton
Veterans Defending Arlington

s/Commander
Military Order of the Stars and Bars, Major General W.H.C. Whiting Chapter 305

s/Glenn Carroll, President
Hood’s Texas Brigade Association

s/David R. McCallister
Friends of Judah P. Benjamin

s/MJ Stephens
Guardians of American History, Inc.

Links to Important Resources

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Defend Arlington's recording of the 35 or so speakers on behalf of the Confederate Memorial at Arlington National Cemetery that took place Wednesday, March 15, 2023 in a virtual meeting of the Remember and Explore Subcommittee of Arlington National Cemetery.

View testimony which starts at 1:38:59.

Here is a link to Defend Arlington's donation page that states:

CHIP IN FOR THE ARLINGTON NATIONAL CEMETERY MEMORIAL LITIGATION DEFENSE FUND. You can also pay with Zelle. Send to

[email protected].

Please Donate Now -- THANK YOU!

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Defend Arlington update with link to February 28, 2023 Tucker Carlson interview with Christopher Bedford on the Confederate Reconciliation Memorial in Arlington National Cemetery.

Defend Arlington update, Tucker Carlson segment on YouTube

Hot off the press! Here is a link to the new 385 page PDF from Defend Arlington that flips pages as you read. It contains all the great scholarly white papers gathered up by Defend Arlington to make sure that Woke ignorance DIES at Arlington National Cemetery.

Defend Arlington's 385 Page Book of White Papers

Here is a link to an informative nine minute video, "The Arlington Confederate Monument," produced by the Abbeville Institute.

The Arlington Confederate Monument

Here is a link to the outstanding scholarly PDF white papers written for Defend Arlington. You can download them all with one click. Please share them far and wide, especially the letter from Defend Arlington's attorney, Karen C. Bennett, to Secretary of Defense Lloyd Austin.

PDF White Papers from Defend Arlington

Here is link to an excellent video refuting point by point a historically false Prager University video by Ty Seidule, who is naming commission vice chair. This one is produced by Bode Lang and entitled "The Civil War Was Not for Slavery."

Click Here for Bode Lang's excellent video

Here is a link to an excellent video of a Georgia lady calling out Elizabeth Warren and her Massachusetts hypocrisy.

Click Here for Georgia Lady Teaching Elizabeth Warren a Lesson

Here are important Southern Legal Resource Center links. SLRC mailing address is: Southern Legal Resource Center, 90 Church St., Black Mountain, NC 28711-3365.

Click Here to donate to the Southern Legal Resource Center

Click Here to follow on Facebook

Click Here to go to their website

NOTES:

¹ 42 U.S.C. § 4332 (2)(C) and 54 U.S.C. § 306108.

² See Hudson, et al. v. United States Dep’t of Defense, USDC DC; Case No:1:23-cv-02094;

Defend Arlington c/o Save Southern Heritage Florida, et al. v. United States Dep’t of Defense et al., USDC DC, Case No. 1:23-CV-00441.

³ Signatories Defend Arlington and Save Southern Heritage Florida and their members are Plaintiffs in a lawsuit filed February 16, 2023, in the U.S. District Court for the District of Columbia, CV No. 23-CV-441 challenging the Secretary of Defense’s, and the Secretary of the Army’s illegal actions under the Administrative Procedures Act, NEPA and NHPA.

⁴ Pub. L. No. 116-283, §370(g).

⁵ Id. at §370(j).

⁶ NEPA § 102(2) requires federal agencies to evaluate the environmental consequences of their actions and consider any alternatives to proposals for all major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332 (2)(C).

⁷ NHPA § 106 requires Federal agencies with jurisdiction over Federal undertakings, prior to the approval of the expenditure of any Federal funds, shall consider the effect of the undertaking on any historic property and provide the Advisory Council on Historic Preservation an opportunity to comment. 54 U.S.C. § 306108.

⁸ See Lee v. Thornburgh, 877 F.2d 1053, 1056 (D.C. Cir. 1989) (NHPA applies prior to approving the expenditure of funds).

⁹ 88 Fed. Reg. 51786 (Aug. 4, 2023).

¹⁰ Hudson, et al. v. United States Dep’t of Defense, USDC DC; Case No:1:23-cv-02094; Defend Arlington c/o Save Southern Heritage Florida, et al. v. United States Dep’t of Defense et al., USDC DC, Case No. 1:23-CV-00441

¹¹ See Arlington National Cemetery - Home (arlingtoncemetery.mil)(announcing August 23, 2023 Public Meeting announcing a draft EIS would be completed in September, just shortly after the September 2, 2023 close of the scoping public comment period to discuss mitigation of adverse impacts of removal of Confederate Memorial).

¹² Disposition_of_Hangars_2_and_3_FinalEIS.pdf

¹³ Established pursuant to 10 U.S.C. § 4723, and in accordance with the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended) and 41 C.F.R. Section 102-3.50(a).

¹⁴ Meeting of the Advisory Committee on Arlington National Cemetery, Nov. 7-8, 2023, meeting minutes available at: ACANC Meetings (arlingtoncemetery.mil).

¹⁵ Meeting of the Remember and Explore Subcommittee of the Advisory Committee on Arlington National Cemetery, August 11, 2023.

¹⁶ See Senator Jim Webb, Save the Confederate Memorial at Arlington, Wall Street Journal, August 18, 2023.

¹⁷ 40 CFR §1508.25(a)(2).

¹⁸ See Phase II Intensive-Level Survey of the Confederate Memorial (000-1235) SHR File No. 2022-0201, March 20, 2023 available at: ConfederateMemorial-Phase II Survey Report- 230803-DHR 2022-0201_1.pdf (arlingtoncemetery.mil).

¹⁹ Id. at pg. 1.

²⁰ Id.

²¹ See Webb, Wall Street Journal, Aug. 18, 2023.

²² Id. (In 2014, the Confederate Memorial had been listed as a contributing resource to the Arlington National Cemetery Historic District (000-0042).

²³ See U.S. Dept. of the Interior, National Register of Historic Places (https://www.dhr.virginia.gov/wp-content/uploads/2019/01/000-

0042_ArlingtonNationalCemetery_2014_NRHP_nomination_FINAL_complete.pdf.)

²⁴ 36 CFR §800.4(b)(1).

²⁵ See Nat’l Park Service, Arlington National Cemetery, Arlington

(https://www.nps.gov/nr/travel/national_cemeteries/virginia/arlington_national_cemetery.h tml).

²⁶ See FrameworkPlan1_Intro.pdf (ncpc.gov).

²⁷ The Naming Commission Final Report to Congress; Part III: Renaming Department of Defense Assets.

²⁸ 54 U.S.C. § 306108.

²⁹ 36 CFR §800.16(y).

³⁰ 54 U.S.C. § 300308.

³¹ See 36 CFR Part 800 procedures for how Federal agencies meet these statutory responsibilities.

³² See CitizenGuideSmallSizeFinal4Web.indd (achp.gov).

³³ 36 CFR §800.6