In February the new House Subcommittee on Public Lands and Environmental Regulation sent a letter to the Government Accountability Office (GAO) requesting a report on the regulatory burden of the National Environmental Policy Act (NEPA) over the past five fiscal years, including how long reviews take, how much delay has been caused to projects, and how many man hours have been invested in the NEPA process.  This GAO request is viewed as the first step in an effort to conduct comprehensive review and reform of NEPA.

Cultural Heritage Partners is bringing together organizations, companies and individuals in the historic preservation and cultural resources community to educate Congress about the public value created by NEPA and the importance of maintaining NEPA’s provisions that encourage public input on development projects.  To learn more, please contact Marion Werkheiser. 

CHP is working with our clients to advocate for appropriations for the Historic Preservation Fund.  Please see a notice that went out to many of our preservation partners this week:

ASK YOUR HOUSE MEMBERS TO SIGN ON TO FY14 FUNDING LETTER!

DEADLINE EXTENDED: April 12th, 2013

Representatives Michael Turner (R-OH) and Rush Holt (D-NJ), co-chairs of the Historic Preservation Caucus, have drafted a letter requesting $55.91 million in historic preservation program funding (via the Historic Preservation Fund) for FY14. The State Historic Preservation Officers (SHPOs) need your help in garnering House support for this important funding request. This bipartisan letter will be circulated throughout the House of Representatives to members of both parties.

The APRIL 12 deadline for House members to submit the letter is fast approaching, so please contact your Representatives in the House right away and ask for their support!  Note that the best way to contact your Representatives is via email. You can find your Representatives’ names and websites here: http://www.house.gov/representatives/find/

To make it easy for you, we have drafted a basic email for you to send to your Representatives. Just fill in the information specific to you, your company and your House members, and send!

If you need help or have questions, please email Marion Werkheiser at Cultural Heritage Partners. 

DRAFT EMAIL FOR HOUSE MEMBERS

Subject:          Request for support of $55.91 million in historic preservation program funding for FY14

Dear Representative __________,

I write on behalf of [organization name]. [Brief description of organization or of yourself, if writing on your own behalf. Include the state where company is based or where you live]. [I/We] request that you support funding for historic preservation program funding for FY14 by signing the attached letter.

Representatives Michael Turner (R-OH) and Rush Holt (D-NJ), co-chairs of the Historic Preservation Caucus, drafted the letter to the Chairman and Ranking Member of the Interior, Environment, and Related Agencies Appropriations Subcommittee that requests $55.91 million in historic preservation program funding (via the Historic Preservation Fund) for FY14.

This bipartisan funding request asks for funding level with FY12 and slightly increased from the amount allocated to the HPF post-sequestration:

$46.925 million, State Historic Preservation Offices

$8.985 million, Tribal Historic Preservation Offices

[I/organization name] ask you to sign on to the letter to support the program, which funds State Historic Preservation Officers (SHPOs). As explained in the letter, SHPOs carry out the National Historic Preservation Act, which provides citizens the tools they need to revitalize, rehabilitate and protect the places that give meaning to America. SHPOs facilitate National Historic Preservation Action compliance and funding them at these levels will allow [me/organization name] for better protection for cultural resources. Additionally, in 2012, the Historic Rehabilitation Tax Credit, administered by SHPOs, leveraged over $5.3B in private investment and created nearly 57,000 jobs.

Please note that the deadline for submitting the letter is April 12, 2013.

Please contact me with any questions regarding the historic preservation program or the funding request. [I/We] hope you will support this important program and sign the attached letter.

Kind regards,

[Signature block]

[Don't forget to attach or link to the letter]

SUMMER ASSOCIATE POSITION at Cultural Heritage Partners 

SUMMER 2013

Cultural Heritage Partners, PLLC, a multi-service law and government affairs firm serving clients in the cultural heritage, art, museum and historic preservation communities, is seeking one unpaid Summer Associate for Summer 2013. The Summer Associate is expected to work 40 hours per week over the course of a ten week period.

The Summer Associate will be given challenging work, a substantial amount of responsibility, networking opportunities, valuable mentoring relationships, and the ability to pursue and develop relationships in the art, preservation and cultural heritage fields. The firm is based in Washington, DC and operates on a virtual model such that the Summer Associate will not be required to come to an office, other than for occasional meetings and to ensure sufficient supervision and training.

Role and Responsibilities:

• Conduct legal research and prepare legal memos for supervising attorneys and clients.
• Draft client letters and contracts on a variety of topics.
• Monitor, analyze, and write about state and federal court cases and legislation.
• Advocate for legislation related to cultural heritage and preservation issues.
• Conduct research and analysis related to a broad array of public interest law issues.
• Draft articles, press releases, blog posts and other content related to business development.
• Assist with preparations for meetings with clients and potential clients.
• Work on pro bono matters for tribal and other clients.
• Perform other duties as necessary.

Qualifications:

• Current second-year law student.
• Excellent research, writing, and oral communications skills.
• Ability to analyze and clearly explain concepts of law and public policy.
• A demonstrated interest in art, museum, cultural heritage and/or preservation law.
• A demonstrated interest in advocacy and/or political work.
• A demonstrated commitment to the public interest.
• Applicants must be able to work 40 hours per week.

Application Deadline:

5 pm ET on March 15, 2013. Applicants should submit a cover letter, resume, writing sample (no more than 10 pages in length), and transcript via email to Eden Burgess at eden@culturalheritagepartners.com. Incomplete or late applications will not be considered.

Chocolate Goes With Everything… Even Antiquities Theft
A Review of Theft by Chocolate by Luba Lesychyn

Book Review by Sophia Chase, William & Mary Post-Graduate Public Service Fellow, and L. Eden Burgess

If you want to sink your teeth into a deep, satisfying book that takes a careful and analytical look at museums and antiquities theft, Theft By Chocolate is not for you.

On the other hand, if you are looking for a light cross between museum intrigue, jewel theft, a love story, and a serious chocolate obsession, Theft by Chocolate provides a fun escape from the everyday and a good read in the spirit of Valentine’s Day. (Warning: do not read it without an unhealthy supply of chocolate nearby.)

Theft by Chocolate, by Luba Lesychyn (Attica Books 2012), tells the story of Kalena Boyko, an administrator at the (fictional) Canada National Museum, who is suddenly put in charge of a new visiting exhibition called “Treasures of the Maya.” While shouldering the responsibility of the exhibit, Kalena is plagued by her horrific boss Richard. To survive, Kalena – being not just your average chocoholic but a certified “chocolativore” – relies on a multitude of delicious chocolate treats (described by Lesychyn in drool-worthy detail).

Influenced by her dislike of Richard – and likely by a constant sugar-high – Kalena comes to believe that he plans to steal priceless objects from the Maya exhibit. She manages to drag Marco, one of the Museum’s handsome young security guards, into her quest to save the exhibition. Completing the love triangle is the dashing Brit Geoffrey, complete with a secretive family history and even more secretive access to chocolate delights.

Despite being light on substance, Theft by Chocolate does a good job of portraying some of the real issues involved with displaying a major exhibition; Lesychyn clearly knows the subject matter (she worked at the Royal Ontario Museum for 20 years, and at a museum consulting firm). The book reflects the arduous work involved in every step of such an undertaking and the unpredictable disasters that may occur along the way: at one point, basketry becomes infested with pests that threaten the ancient textiles that are part of Kalena’s exhibition.

Don’t rely on this book, however, for accurate legal advice. In one instance, Kalena’s boss tells her that the museum could not recover stolen opals after an insurance payout. Because a thief cannot transfer title, if stolen items resurface, a museum would be able to seek recovery of the items. The stolen objects would likely be returned (assuming the museum can make its case), and the payout returned to the insurance company.

Theft by Chocolate has some glaring weaknesses: not every plotline is resolved and distracting errors pop up (when a museum is very busy, it is teeming with visitors, not “teaming”). But it is an enjoyable read and provides a unique perspective into the art museum world. Kalena’s exploits offer many laugh-out-loud moments, and the mysteries certainly keep you guessing. This entertaining story swirling together an art heist, love and chocolate is a good mix.

At CHP, we are fortunate to work with great clients and in a fascinating legal field. As a result, we get many inquiries from law school students and recent grads asking how they too can practice cultural heritage law.

In this blog post, we hope to answer some of the most common questions we hear and provide guidance to the next generation of lawyers who want to practice in art, museum, cultural heritage, historic preservation and related fields.

What classes should I take in law school?

We usually recommend the following courses to students interested in art and cultural heritage law (we didn’t take some of these and often wish we had!):

Nonprofit Taxation and/or Governance. Many entities in the art and cultural heritage field are nonprofits; learning about the rules under which they operate is critical.

Alternative Dispute Resolution. The skills taught in this course are applicable in almost any situation. Also, art and cultural heritage entities generally prefer to resolve disputes through ADR rather than litigation, when possible.

Wills, Trusts & Estates, Family Law and Bankruptcy. Disputes over artworks often arise because of the 3 Ds: death, divorce and debt.

Land Use or Zoning Law.  Many historic preservation goals are achieved through use of local ordinances—understanding how they work is important.

And of course, any classes your law school offers in art, historic preservation, or cultural heritage law. The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) tries to maintain a list of relevant courses offered at law schools around the country.

This is only a handful of suggestions (other possibilities: Copyright, First Amendment, Federal Taxation). You should take courses that appeal to you, and availability differs from school to school.

Do I need a Master’s Degree, and do I need to speak another language?

Yes and no… that is, many applicants for legal positions in the art and cultural heritage field have a Master’s Degree in art history or archaeology, and speak another language (or multiple other languages). On the other hand, these are not strict requirements for a successful career. Just bear in mind who your competition may be in the job market.

With which activities should I get involved?

The LCCHP is a great resource for students interested in a legal career in this field. It offers a reduced rate for student members and annual writing and moot court competitions, and lists career opportunities on its website.

Join your law school’s art law society. If there isn’t one, start one; it looks great on your resume and you can find other students with similar interests who may be good contacts in the future.

Attend topical conferences to expand your network.  As they say, who you know is often more helpful than what you know.  You can learn more about the field while also expanding your professional network at conferences held throughout the year on art and cultural heritage law topics.  We list many on our calendar.

Is there really a future in the practice of art and cultural heritage law?

Yes, yes, yes! Even a quick look at CHP’s Facebook page, on any given day, will show just how important this field is. Art, cultural heritage, historical preservation and similar entities need and deserve reliable legal advice from well-prepared and experienced practitioners.

If you are looking to jump into the field right out of law school, however, a word of advice: getting in “through the backdoor,” so to speak, is easier and wiser. For example, Marion began her career practicing corporate, regulatory and international trade law, and also became a seasoned lobbyist before combining that experience with her first loves – cultural heritage and archaeology – and founding CHP. Eden started out as a civil litigator, then gained broad experience in museum, art and auction house disputes.

Art and cultural heritage law encompass a broad range of topics: tax, insurance, litigation, bankruptcy, intellectual property, wills, trusts, estates, contracts, nonprofit governance… the list goes on. Building your expertise in one of these areas, then looking for art and cultural heritage clients who need advice in that area is often the best way to enter the art and cultural heritage field.

*          *          *

CHP is thrilled to know that there is a next generation of lawyers excited about art and cultural heritage law. It bodes well for our clients and for the world’s art and cultural heritage.

If you are interested in an internship, summer clerkship or other position with CHP, please check our website and Facebook page for announcements when positions are available, and thanks for your interest!

At Cultural Heritage Partners, we regularly counsel clients seeking to amplify their impact in the art, cultural heritage and historic preservation fields. As we ring in a new year, we have our eye on several trends that may affect our clients:

1.    The Age of Austerity Continues.

Many cultural institutions continue to struggle with cuts to government spending and grant programs. Even as the economy improves, previous spending levels are unlikely to be reinstated at the federal, state or local levels.

Cultural and historic preservation organizations must adapt and seek out new funding sources to ensure that they can meet their objectives over the long-term. We encourage our clients to consider cost-saving partnerships that expand their audiences and develop new revenue streams.

2.    New Corporate Forms Gain Popularity.

As many cultural and preservation organizations seek to operate more like private businesses, they will find several states experimenting with new corporate forms to allow for a hybrid non-profit/for-profit structure.

For example, twelve states have passed legislation creating a new corporate structure: the benefit corporation. Benefit corporations are not required to value profit above all else, but instead must create a general public benefit. In addition, nine states have enacted legislation providing for a low-profit limited liability company structure called the L3C, which allows businesses created for a socially beneficial purpose to become LLCs. In contrast to traditional non-profits, an L3C can receive mixed investment, including from foundations and private investors.

These new corporate structures may provide organizations with additional flexibility to find funding or to pursue a purpose beyond maximizing profits.

3.    Access to Technology and Information Grows Exponentially.

A recent study by the IDC Digital Universe predicted that by 2020, the world’s data will grow fifty times, and that the number of servers required to hold all of that data will grow by ten times. We are only beginning to explore the repercussions of this exponential growth in information technology for the cultural heritage field.

In 2013 and beyond, we will be watching organizations like Digital Antiquity, which seeks to digitize archaeological reports through the Digital Archaeological Record (tDAR). We will be following how the world’s museums make their collections available online through the Google Art Project. And we will be thinking about how instant access to information changes the user experience, the perception of public value, and businesses in the cultural heritage tourism sector.

4.    Energy Booms.

New technologies are fueling an energy boom, with shale gas development, wind farms and solar fields impacting huge swaths of land across the country. How will we ensure protection for cultural and historic resources impacted by this development? How will we address regulatory shortcomings, ensure that solutions deliver value to the public, and gain useful information from sites that are affected by energy development?

5.    Congress Continues to (Dys)Function.  

 These days, it seems that Congress lurches from one manufactured crisis to another: the fiscal cliff, the sequester, the debt ceiling. The traditional budgeting process has been turned on its ear. Just this week, the White House made it clear that the President’s budget will be released much later than usual, and Congress has shown no urgency to pass a regular budget; federal agencies have begun to accept that operating on a continuing resolution is the new normal.

With the traditional appropriations process a big question mark and partisan gridlock reigning on the Hill, we must be vigilant and vocal to ensure that Congress hears and shares our preservation priorities.

*          *          *

We welcome your comments—what trends are you watching for 2013?

On October 12, 2012, the Department of Justice (DOJ) announced a new policy formally recognizing Native Americans’ right to possess and use protected eagle feathers and other parts considered sacred by many tribes.

Migratory birds, including the eagle, have long been protected under federal wildlife laws such as the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. These acts prohibit the import and export, sale, use and possession of feathers and other parts of such birds. While the DOJ has stated that it is their practice not to prosecute tribal members under these laws, actual practice has created a great deal of confusion. In past years, the U.S. Fish & Wildlife Service (FWS) conducted sting operations and raids on Indian reservations resulting in a number of seizures from and arrests of tribal members for the possession of protected bird feathers. The new policy formally recognizes the rights of tribal members to use otherwise protected bird feathers and other parts in recognition of the religious and cultural importance of eagles and other migratory birds to Native Americans.

According to the new DOJ guidelines, tribal members will continue to be prohibited from killing eagles and other migratory birds, and from purchasing or selling feathers and parts of such birds. Tribal members are able to legally obtain feathers and parts of eagles through the National Eagle Repository, and of other migratory birds through non-eagle migratory bird repositories administered by FWS. Additionally, tribal members will be allowed to pick up naturally molted or fallen feathers found in the wild and donate, loan, and exchange protected feathers and parts to other members without compensation. International travel and the import and export of protected bird feathers will continue to require appropriate permits issued by FWS (and, in certain instances, may require additional permits issued under the Convention on International Trade in Endangered Species of Wild Fauna and Flora).

Please contact Cultural Heritage Partners if we can help you navigate the new DOJ policy, or other federal, state and international wildlife laws and exemptions.

The Presidio of San Francisco announced this week that Greg Werkheiser, a founding member of Cultural Heritage Partners, will lead the transformation of historic Fort Winfield Scott into a national home for service and leadership.  Greg will bring his strong background in social entrepreneurship and cultural heritage law to the project, where he will guide the transformation of up to 21 historic buildings for use as classrooms, offices, lodging, dining and recreational facilities, lead a substantial capital campaign, and leverage partnerships to build ground-breaking programs that better prepare cross-sector leaders to solve society’s great challenges.

The U.S. Army’s Fort Winfield Scott guarded the coastline during much of the Presidio’s tenure as America’s longest operating military base. By act of Congress, the Presidio’s 1,500 acres and 800 buildings became part of the world’s largest urban national park in 1996. Fort Scott is a prize site within the park. With 11 historic, Mission Revival style buildings arranged in a crescent overlooking the Golden Gate Bridge and the Pacific Ocean, Fort Scott has long been imagined as a campus of national significance and enduring public purpose. The Presidio Trust, an innovative federal agency that has achieved financial independence for the park, will now convert Fort Scott into the National Center for Service and Innovative Leadership (NCSIL). The Center will be dedicated to evolving the way Americans provide leadership in service to community and country. Werkheiser’s appointment is a capstone to the two-year planning phase of the effort.

“Greg Werkheiser brings creativity and commitment to efforts to build and strengthen civic engagement and community leadership, and he is an excellent choice for this unique opportunity,” said U.S. Senator Mark Warner, a longtime collaborator with Werkheiser on civic engagement initiatives.

Read the full press release.

By Eden Burgess

If you are involved with a mid-sized or small museum, risk management likely doesn’t occupy a lot of your time. Everyday tasks like handling your flooded email inbox, making sure the heat and A/C work, and updating the website and Facebook page occupy all your attention.

Over the long-term, however, ignoring risk issues can really hurt.

Money management

Museums tend to focus most of their energies on raising money. Board members are selected not only for their personal interest in the museum, but also for their connections to private donors and corporate sponsors.

Managing money at a museum, however, goes far beyond collecting checks. If your museum has a gift shop or café, tax issues must be handled with caution. Federal, state and local forms must be filed. The museum must acknowledge donations in a timely manner, in writing, and with the information required by the IRS. Perhaps most importantly, donated funds must be used for a proper purpose – generally, to further the museum’s mission.

Improper use of funds often gets museums into serious trouble. Petaluma Wildlife & Natural Science Museum, a small but innovative student-run museum in California, found out in 2010 that its director was embezzling funds to the extent of overdrawing the museum’s bank account. Public outcry from the community, students and donors led to the director’s ouster, but it took a year for the museum to begin to recover its reputation and financial health, which is still an ongoing effort.

Board member education

Being an active member and responsible museum board member takes work. Do you know the mission of the museum? Do you review programs and activities to ensure the mission is being followed? What about museum policies – such as conflict of interest, whistleblower, and gift acceptance – are these updated, reviewed and followed? How are new board members educated about the museum’s policies and procedures?

An uninformed board can lead to a museum’s collapse. Earlier this year, the Texas Attorney General sued the Texas Highway Patrol Museum, accusing several board members of squandering donations. The attorney general said in a court filing that the museum’s board members asked few questions about improper expenditures by staff. The board voted to relinquish the museum’s $1.2M in assets, which a judge ordered to be transferred to a court-ordered receiver. The charity that formed the museum dissolved in August pursuant to a settlement. Museums of all sizes suffer from inadequate board member education: in 2010, the California’s Attorney General ordered the board of the Museum of Contemporary Art in Los Angeles to undergo special fiduciary training due to budget mismanagement that violated state law.

Collections issues

Does your museum have gift acceptance guidelines? For example, will your museum accept an object with a condition that it never be deaccessioned? What provenance research must your institution do before an object is accessioned into the collection? How are loaned objects treated? What about copyright – how does your museum ensure that it has permission to make posters, mugs and mouse pads from the image of a loaned object?

A recent story about a Renoir purchased in a $7 box of junk at a West Virginia flea market garnered a lot of press. The Baltimore Museum of Art has documentation that the painting was loaned to it 1937, then stolen in 1951. Unfortunately, for reasons unknown, the museum never reported the theft to any registries of stolen art, such as the Art Loss Register or INTERPOL. In a similar story of discovery, this past spring, the Evansville Museum of Arts, History & Science discovered a valuable Picasso work in storage, where it had languished for 50 years after being donated. Maintaining and updating records of all objects in the collection is critically important to museums of all sizes.

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If you think your museum needs help in these areas – or if you want to conduct a risk assessment to find out – please contact us.

Last week, CHP co-chaired the inaugural Cultural Resources continuing legal education conference, held over 2 days in Washington, DC.

The meeting featured some of the nation’s foremost experts on legal issues surrounding Section 106 of the National Historic Preservation Act, the National Environmental Protection Act, tribal sites, historic preservation, alternative dispute resolution, ethics in cultural resources, and working with archaeologists and historians in court. The keynote speaker was James Goold of Covington & Burling, who fascinated the audience with his story of the well-publicized five-year legal fight over the Mercedes, a Spanish galleon that sank off the coast of Portugal in 1804. Earlier this year, Mr. Goold helped Spain win its claim to the $500 million in objects recovered from the ship.

The conference drew attendees from all over the country and from private companies, tribes, and government agencies, reaching capacity attendance. The reviews are in, and the conference was a resounding success.  Please let us know if you would like to be involved in planning for next year!