Yes. Preservation groups could sue over a final rule implementing Section 106—the federal historic-preservation review requirement—if it injures them or their members. A challenge to the current draft, however, would likely be premature because it is not final agency action.
The title overstates the documented event. The Advisory Council on Historic Preservation (ACHP) is developing a proposal, not enforcing a final "Trump" rule. Section 106 still requires federal agencies to consider effects on historic properties and give ACHP a reasonable opportunity to comment.
Table of Contents
- What has ACHP actually proposed?
- Why would a lawsuit now be premature?
- What could support a challenge to a final rule?
- Who has the clearest practical stake?
What has ACHP actually proposed?
On July 24, 2026, ACHP voted to send a draft notice of proposed rulemaking to the Office of Management and Budget for interagency review. That review comes before Federal Register publication, according to ACHP's announcement. A notice of proposed rulemaking, commonly called an NPRM, presents possible regulatory changes for public review.
It is not the same as a final regulation with binding legal effects. The documented sequence therefore matters. ACHP has taken a step toward proposing changes, but it has not completed the rulemaking described in the research record.
Why would a lawsuit now be premature?
Administrative Procedure Act lawsuits ordinarily require "final agency action." Under the Supreme Court's Bennett v. Spear decision, the agency must have completed its decision-making process, and the action must determine rights or produce legal consequences. The current draft likely fails that test.
It remains subject to interagency review and has not become a final rule governing federal agencies or consulting parties. That does not mean preservation groups must ignore the proposal. It means a lawsuit aimed solely at the draft could be dismissed before a court considers whether the proposed changes are lawful.
What could support a challenge to a final rule?
After a final rule, a preservation organization would first need standing. It could attempt to show that the rule directly harms the organization or creates a concrete injury for at least one member. The group could then argue that ACHP acted arbitrarily, capriciously, or contrary to law. The Administrative Procedure Act allows courts to set aside final agency action that meets those standards. Congress gave ACHP authority to issue section 106 regulations, so regulatory change is not automatically unlawful.
But Congress also directed those regulations to provide for local-government participation in Council proceedings involving undertakings affecting those governments, as shown in 54 U.S.C. § 304108. A final rule also could not repeal Section 106 itself. Federal agencies would remain responsible for considering effects on historic properties and giving ACHP a reasonable opportunity to comment. The dispute would concern whether ACHP lawfully defined the procedures for carrying out those duties.
Who has the clearest practical stake?
Current Part 800 procedures require agencies to consult state or tribal historic preservation officers, invite eligible consulting parties, and give consulting parties and the public an adequate opportunity to express their views. Those requirements appear in 36 C.F.R. § 800.3.
The rules also treat direct or indirect changes that diminish a historic property's integrity as adverse effects. Agencies then consult about avoiding, minimizing, or mitigating those effects. Any final rule narrowing those safeguards could directly affect preservation groups, tribes, local governments, and communities near covered projects. Groups evaluating a possible challenge should: Until a final rule exists, the most useful step is preserving specific evidence of lost participation or historic-property risk, rather than suing over the draft.
- Monitor the Federal Register for the actual proposed and final text.
- Compare each change with existing consultation and public-participation protections.
- Document specific harm to an organization or identifiable members.
- Identify projects or historic properties affected by any narrowed protection.
- Track whether local governments retain the participation required by federal law.