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Thursday, December 31, 2015

California’s Awful Bill 52

OK, it’s Assembly Bill 52, or just AB52 (See http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB52), and since July 1st 2015 it’s been law in California, but it really is awful. You won’t hear that from cultural resource management (CRM) practitioners in California – or rather, you will hear it, but you won’t see it in writing, because to reveal that this emperor has really ugly clothes would have implications for one’s job security. But if you actually read the thing, and think about what it says, it should be clear that the bill will have disastrous effects on Native California’s cultural resources. And what’s crazy is that tribes and their allies promoted it.

Apparently AB52 resulted from someone’s belief that places of cultural importance to tribes were getting short shrift in project reviews under the California Environmental Quality Act (CEQA) – that CEQA’s approach to defining the cultural environment was too dominated by the thinking of archaeologists and perhaps architectural historians. There’s a lot of truth in that perception; CRM under CEQA is seriously archaeo-biased (and where there are buildings involved, often architecto-biased). There’s good reason for tribes, and indeed anyone who thinks that cultural value in the environment may derive from something other than the interests of archaeologists, to seek reform.

However, there’s nothing fundamental to CEQA that created archaeo-bias; it’s something that’s built up through practice by CEQA consultants, influencing the choice of words and phrases used in the CEQA Guidelines issued and periodically revised by the State Resources Agency. The problem could have been addressed through minor wording changes in the Guidelines, and by educating consultants and government agencies.

The authors of AB52, however, elected to change the law, and they did so in some breathtakingly stupid ways, either never thinking through the consequences of their actions or willfully disregarding them.

Rather than clarifying the fact that CEQA really does require, and always has required, attention to the whole environment, including those aspects of it ascribed cultural value by Native Americans, the authors of AB52 implicitly accepted the notion that CEQA did not have such a holistic scope. Accordingly, in order to give tribal cultural places the consideration they deserve, the bill’s authors convinced themselves that they needed to broaden CEQA’s scope by “creating,” in the words of the statute:

“a new category of resources… called ‘tribal cultural resources,’ that considers the tribal cultural values in addition to the scientific and archaeological values when determining impacts and mitigation” (AB52, Section 1(b)(2))

Let’s not quibble about whether a “category” can “consider” or “determine” anything, and let’s not even wonder why the authors seem to take it for granted that “the scientific and archaeological values” are all CEQA required be considered before AB52 burst on the scene.  Let’s examine what comprises this “new category.”

AB52 defines “tribal cultural resources” at Section 21047(a) of the State Public Resources Code as either of the following:

(1)  Sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe that are either of the following:

(A)    Included or determined to be eligible for inclusion in the California Register of Historical Resources.
(B)    Included in a local register of historical resources as defined in subdivision (k) of Section 5020.1.

(2)  A resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Section 5024.1.

So to generalize, a “cultural resource” in California apparently has to be a site, “feature,” place, cultural landscape, “sacred place,” or “object. Never mind the semantic overlaps and redundancies (grist for the mills of lawyers); the big problem is that this language effectively precludes from consideration any of the following as cultural resources.

  • Animals (e.g. condors, salmon, whales, wild horses and burros)
  • Plants (e.g. oaks, sage, willow, redwood)
  • Water
  • Air
  • Viewsheds
  • Stories, songs, dances
  • Beliefs and traditions.

Never mind that some of us – including quite a few tribes – have been railing for years about the need to consider such resources more fully. Never mind that there’s a UNESCO convention on “intangible cultural heritage” (meaning stuff like songs, stories, and the like). In California, to be a “cultural resource” something now has to be a piece of real estate, or maybe a chunk of personal property (an “object”). So impacts on cultural significant plants, animals, water, air, viewsheds, stories, and the like no longer need to be considered in CEQA analyses. Nice for the land-development community, not so nice for tribes, to say nothing of others who value the cultural environment.

Adding insult to injury, a “tribal cultural resource” must be included in, or “determined (by someone) to be eligible for” the California Register of Historic Resources, or included in a local register. Are these registers maintained by tribes? Do tribes feel that those who do maintain them are always sensitive to tribal concerns? Is it tribes who “determine” things to be eligible under CEQA? Not that I’ve noticed.

So a “cultural resource” not only has to be a piece of real estate; it has to be a piece of real estate whose cultural value has been recognized by an official body – and not a tribal official body.

Oh yes, another way for a piece of property to be recognized as a “tribal cultural resource” is for a “lead agency” – that is, a state or local government agency – to find that it meets the criteria set forth in Section 5024.1, subsection (c) of the Public Resources Code. Which takes us right around in a circle, since (a) the “lead agency” is not likely to be a tribe, or necessarily very friendly to tribes, and (b) Section 5024.1(c) is California’s gloss on the National Register Criteria (36 CFR 60.4) – and hence all about places. So once again, animals, plants, water, stories, traditions and the like are left out in the cold. And in order for the “lead agency” to determine that a “resource” meets the Section 5024.1(c) criteria, the determination must be based on “substantial evidence” – presumably as defined by the lead agency. Can we guess what sorts of evidence most state agencies and local governments will demand?

AB52 goes on to add several more twists and turns to the Public Resources Code, the gist of which is that lead agencies ought to think about “tribal cultural resources” (as defined) when considering whether chunks of real estate are cultural landscapes or historic resources or archaeological sites of various kinds. These jots and tiddles are necessary because CEQA-mongers have turned the whole law into a convoluted mess of tangled definitions and rules, each of which has to be adjusted any time a change is made.

But tribes have to be consulted, yes? Yes, in theory they do, and that’s a good thing, but –

  • The lead agency need consult a tribe only if the tribe has formally requested that it be consulted; there’s no obligation placed on the agency to check around and find out if anybody’s out there – as there is under federal law;

  • The tribe must respond within 30 days of being contacted, in order to trigger consultation; otherwise presumably it’s tough luck, Charley;

  • The lead agency, “acting in good faith and after reasonable effort” (presumably as determined by itself) can “conclude that mutual agreement cannot be reached,” and bring consultation to an end. Whereupon, apparently, the lead agency’s CEQA compliance can be certified as complete, and away we go.

  • And of course, consultation has to be about those “cultural resources” as defined – i.e. about those pieces of real estate; never mind the animals, plants, viewsheds, etc., and never mind anything not officially recognized as eligible for the California Register.

One truly wonders why it was necessary to buy the right to be consulted in this limited, stilted manner by throwing away a substantial part of what a tribe might want to be consulted about.

Now, consider a case where both CEQA and federal environmental and historic preservation law apply to a case. Say, a project to install wind turbines on a combination of federal and private land. Under the National Environmental Policy Act (NEPA), we might want to consider the impacts of, say, slicing and dicing culturally important songbirds by the turbines’ props, but under CEQA the critters can’t be considered “cultural resources.” Unless maybe they’re non-tribal cultural resources, in which case the lead agency may (if it feels like it) talk with non-tribes about them, but needn’t talk with tribes.

Meanwhile, under Section 106 of the National Historic Preservation Act (NHPA), the responsible federal agency is expected to consult broadly with tribes and other parties about impacts on any places that might be eligible for the National Register of Historic Places. The burden is on the federal agency to find out what’s eligible, how it will be affected, and what to do about it, in consultation with tribes and others. But under CEQA the lead agency (which may or may not be the same as the responsible agency under federal law) need consult only with tribes that have filed requests within the specified time limits, and need only discuss places that are already included in registers or that the lead agency has somehow determined, based on what it defines as “substantial evidence,” to meet California’s equivalents of the National Register Criteria.

What could possibly go wrong?


The bottom line, I think, is that CEQA is a mess, and rather than trying for a comprehensive rework that would make it simpler and more functional, different interest groups keep tinkering with it; AB52 is part of this ignoble tradition. It’s unusually bad because it will work against the very interests it’s designed to serve, and will do damage out of all proportion even to the good it was (I guess) intended to do. It would be nice to undo it, but it’s going to produce a lot of money for lawyers, so I imagine the citizens of California are stuck with it, and California tribes have gotten screwed again. Self-screwed, but screwed nonetheless.

Where Did We Go Wrong?

As we stumble into 2016, the fiftieth anniversary of the U.S. National Historic Preservation Act (NHPA), it's timely to ask where we went wrong in implementing the law.

Of course, plenty of people, institutions, and government bodies with interests to protect will assure us that we didn’t go wrong, that everything's rosy with NHPA, that it's done nothing but good for the nation and its people, for the world, for history and culture. There are those who think otherwise, however, and I'm one of them -- despite the fact that I've made a passable living as an NHPA specialist these last fifty years, and maybe even helped preserve a thing or two.

Let me be clear: I certainly think that the NHPA has done positive things, but others in this anniversary year will explain these (and more) in great and flowery detail. I appreciate being thus relieved of the need to “balance” this posting, and will focus on the NHPA’s downsides – which others, I’m confident, will ignore.

My impression of the NHPA is easily summarized: I think that we’ve used the law to create a turgid bureaucracy and a symbiotic consultant community, most of whose members –

  • Happily pursue narrow research agendas grounded in their particular fields of study (notably archaeology and architectural history);

  • Manipulate abstruse classificatory and regulatory minutiae (e.g. the National Register Criteria);

  • Exercise the thin powers of petty despots; and

  • Pass money back and forth to one another.

While playing our roles in this “system,” we effectively turn blind eyes to or conspire in the destruction of the nation's and world's cultural heritage. All the while congratulating ourselves on our accomplishments, and on the purity of our principles.

You don't agree? Tough; this is my blog.

So how did we get here? Where did we go wrong? I can identify nine key “decisions” – none of them ever mindfully articulated and thought through – that I think have brought us to our current condition.

  1. Relying on bureaucracy. This was probably inevitable, because no one had – or has, for that matter – an alternative model, but hanging the NHPA’s hat on a system of federal/state (and later tribal and local) bureaucracies has hatched some ugly chickens that have now come home to roost.

It is in the nature of a bureaucracy to give primacy to its own self-preservation, and this has clearly happened with the nation’s preservation apparatus. What calls itself leadership in the National Park Service (NPS) and Advisory Council on Historic Preservation (ACHP), and among the State Historic Preservation Officers (SHPOs) is manifestly interested only in maintaining the status quo, with some grudging allowance for marginal adjustments. People working in the system are mostly committed to career advancement and comfortable retirement. The result is a mindless, procedure-bound system that cannot even conceive of substantial improvement, let alone pursue it.

  1. Putting NPS in charge. When Congress was debating enactment of the NHPA in 1965-6, two possible venues were considered for the bureaucracy thought necessary to its implementation: the Department of the Interior’s NPS and the Department of Housing and Urban Development (HUD). Placing the preservation program in HUD would probably not have been a good idea; it would have at least given it too narrow an urban/architectural focus, and HUD has not proved to be a great steward of anybody’s heritage. But placing it within NPS was little better.

Lodging the program in NPS inevitably made it the poor stepchild of National Park System management. Moreover, it imposed upon the preservation system a “Parky” philosophy in which (a) preservation is justified as a means of interpreting the past to the masses, (b) the ideal model of preservation is public acquisition and maintenance for interpretive purposes, and (c) interpretation is something for experts to do and the public to appreciate. Alternative models are sometimes given lip service by the preservation system’s leadership, but in the end must conform to the traditional structure or be – with regret, of course – consigned to oblivion.

  1. Failing to create effective relationships with environmental conservation writ large. At the very time that the NHPA-based programs were coming together, the National Environmental Policy Act (NEPA) was being enacted and such new governmental entities as the Environmental Protection Agency (EPA) and Council on Environmental Quality (CEQ) were being organized. The opportunity existed to build a broad-based system for managing the human environment overall.

Instead, historic preservationists in government hunkered down and protected their newly created turf. Historic preservation and environmental protection programs accordingly developed on parallel tracks, occasionally interacting but never developing much synergy and never even considering coalescence. As a result, the NHPA continues to be perceived – not without reason – as a law whose major effect is to advance the narrow interests of architectural historians and archaeologists.

  1. Making far too much of the National Register of Historic Places (NRHP). Establishing the NRHP (or something like it) was probably unavoidable, but it didn’t have to be set up as the program’s centerpiece.

By making it such – a failure of imagination at best – the preservation bureaucracy inevitably cast itself as maintaining and promoting an elitist abstraction. Never mind what citizens regard as their heritage; the government’s business became the care and feeding of what NPS thought worth putting on its precious list.

  1. Building a program that was merely multidisciplinary rather than interdisciplinary. The preservation program organized within and around NPS was the creature of architectural historians, with archaeologists as junior partners. Fifty years later, this remains the case, though archaeologists have wormed their ways into some positions of power.

What has not been developed – in government, academia, or the preservation community in general – is an interdisciplinary system synergizing the expertise of disciplines across the academic spectrum – history, archaeology, architecture, engineering, anthropology, geography, social psychology, urban planning, agriculture, education, ethnic and Native American studies, and all the others. As a result, the NHPA program is variously understood and represented by its practitioners to be focused on the built environment, on archaeological and historical data, on a vaguely defined sort of historical ambience, and just on preserving anything that’s old and constructed by humans. The program lacks a clear focus of relevance to the citizens it is supposed to serve, and it fails to tap into the best thinking of any of the relevant disciplines.

  1. Relying too heavily on SHPOs. Nobody likes the federal government, even when its services are most needed, so since the NHPA’s enactment there has been pressure on NPS and the ACHP to decentralize and delegate. Delegation has been almost exclusively to the SHPOs, with nods every now and then to local governments and under narrow circumstances to tribes.

Some SHPOs have set up responsible, even laudable, programs, but others have evolved into mere despotisms. Moreover, the notion that the SHPO, in the ill-considered words of the NHPA Section 106 regulations, “reflects the interests of the State and its citizens in the preservation of their cultural heritage[1]” has encouraged federal agencies and others whose decisions can threaten the cultural environment to regard NHPA compliance as requiring only the submission of project plans to SHPOs for approval. SHPOs are congenitally ill-funded, often staffed by ill-qualified and hence highly self-protective “professionals,” subject to high levels of political pressure, and given little protection by the NHPA regulatory system. As a result, project plans submitted for “clearance” often receive it with little attention even to loudly expressed public opposition – provided the submitting agency has organized its paperwork according to the SHPO’s specifications. SHPOs become co-conspirators in heritage destruction. By doing so – and by maintaining a narrow focus of interest (See 3, 4, and 5 above) – they also ensure that they are poorly understood and ill-appreciated by the public, guaranteeing that they remain ill-funded and poorly staffed.

  1. Failure to recognize and relate positively with interests in the broader cultural environment. The many scholars, organizations, activists and other interests who seek preservation of a human heritage that extends far beyond the boundaries of “historic places” find little support from the NHPA-based system, and much in it to puzzle and discourage them.

Do you want to protect the integrity of wild horse herds and their habitats, or salmon, or whales? Sorry, the NRHP doesn’t list animals. Do you want to bring back your tribe’s traditions of plant gathering, wood carving, or dance? That’s nice, but we’re interested in historic places. Are you concerned about what this proposed pipeline or highway or military base or industrial development will do to the natural environment or neighborhood qualities that your community has valued for generations? Well, if you can show us that some aspect of the landscape or neighborhood meets the NRHP criteria, maybe the law will do something for you, but we’re not going to help you do it, and if we’re working for the pipeline or highway or military or industrial change agent, we can find plenty of ways to interpret the law to exclude your environment from consideration.  

The historic preservation system thus remains marginal to much of what people and communities think is important about their cultural heritage, and worthy of preservation. This marginal condition is relatively safe and comfortable for the preservation bureaucracy, but in the long run it means irrelevance.

  1. Failure to engage the academic community. Confronted with such “systems,” it is probably not surprising that academic historians, archaeologists, and architects have viewed the NHPA largely as the authority under which their less talented students can find employment. Little or nothing is done by the preservation bureaucracy to encourage them to view it otherwise.

So students may be encouraged to structure traditional historical research in support of National Register nominations, or to produce regional syntheses to inform the evaluation of archaeological sites, but that’s about it. Do we, for instance, ever see class projects in which students from several different disciplines – or even one! – critique the (usually godawful) “cultural resource” sections of an environmental assessment or impact statement? We do not. Do we ever see such a project focusing on how an SHPO’s operations could be made better? Not that I’ve observed. Do we ever see SHPOs or NPS or the ACHP trying to organize such deployments of analytical thinking? Nope. Academics go their ways, and government-based preservation people go theirs, with rare overlaps and no synergy. And the SHPO offices, government agencies, and consulting firms serve as dumping grounds for graduates who aren’t equipped to graze in the green pastures of academia, perpetuating the very characteristics of the system that discourage academic involvement and minimize relevance.

  1. Failure to embrace change. Opportunities have presented themselves repeatedly over the years for changing the system, broadening its focus and simplifying its operations, for engaging other interests and better including the interested public. Preservationists have routinely dodged these opportunities.

When NEPA was enacted, serious consideration could have been given to wrapping the NHPA programs into the EPA. Instead they stayed in NPS.

When the Archaeological and Historic Preservation Act (AHPA) was enacted in 1974, real efforts could have been made to open up the NHPA system to the other kinds of “scientific, prehistorical, historical, or archaeological data[2]” addressed by the statute, and to create the links to the academic community needed to manage them. NPS could not even bestir itself to finalize AHPA regulations.

When Jimmy Carter merged NPS and related Department of the Interior programs into the Heritage Conservation and Recreation Service (HCRS), an opportunity was created to get the erstwhile NPS external programs out from under the Parks umbrella and give them independent life. Instead, preservation’s bureaucrats fretted and mumbled and waited until Ronald Reagan rescued them by taking things back to the pre-Carter status quo.

When the ACHP tacked across the Reaganite winds in the mid-1980s to simplify the NHPA Section 106 regulations and increase their relevance to the public, NPS promised to follow suit with revisions to the NRHP regulations, but then got cold feet and did nothing.

And so on. Back in 1966, preservationists delightedly found that they had created a comfortable governmental niche, and have relaxed in it ever since. Modern practitioners don’t seem even to imagine that things could be different, and more responsive to public interests.

The impending fiftieth anniversary affords us another opportunity to rethink the NHPA and retool it to face the challenges of its second half-century. It would be nice to think that preservation’s leadership would seize the opportunity, and consider:

  • Finding at least partial alternatives to a permanent federal/state/tribal preservation bureaucracy;
  • Getting the program out from under NPS;
  • Building relationships with an improved and re-invigorated national program of environmental protection;
  • Putting the NRHP in its place;
  • Making heritage management interdisciplinary;
  • In the process, thoroughly rethinking the role and structure of SHPOs;
  • Reforming the system to make it relevant to the academic community, and enlisting its participation, and
  • Making the system much more citizen-oriented.

But I’m not holding my breath. It’s far more likely that change will be avoided until it is forced on us, and what’s forced on us may not be at all to our liking.



[1] 36 CFR §800.2(c)(1)(i)
[2] AHPA of 1974, §3(a)

Thursday, December 17, 2015

IN VIRGINIA, SPRAWL CONQUERS ALL

My friend. colleague, and one-time client David Blake called the other day to tell me that he’s given up on Virginia. I was tempted to ask what had taken him so long; Virginia has long struck me as such a benighted state that I try to avoid crossing the Potomac. But I know something of what’s driven David to stay, and respect him for doing so. I’m sorry to see him go, and sorrier for what’s driven him out.

David has long been a major force behind the Buckland Preservation Society (http://bucklandva.net/tag/buckland-preservation-society/).  Buckland is a pretty well preserved 19th century mill village in Prince William County, on the southwest side of Broad Run. It includes the site of a substantial Civil War cavalry action. Its landscape remains one of rolling green fields and scattered woodlots, albeit bisected by the godawful U.S. 29 with its uncontrolled globs of commercial development.

But on the northeast side of Broad Run, snarling and slavering, crouches the scourge of Northern Virginia, sprawl development. A scourge that’s been enthusiastically welcomed by the state’s economic and political movers and shakers, chewing up the landscape and pooping out miles and miles of look-alike housing tracts and shopping malls and light industry “parks.” A scourge that’s been fought by a few recalcitrant organizations like the Piedmont Environmental Council and the Buckland Preservation Society, and by individuals like David.

Years ago, David and his group hired me to help them fight a proposal to widen the highway bridge across Broad Run, which – under the guise of a safety improvement – would have opened the village and battlefield to accelerated development. We won that one, in the process helping the Advisory Council on Historic Preservation (ACHP) to take a pretty enlightened posture on the cumulative effects of transportation projects – to which, sadly the Federal Highway Administration continues to turn an eye that is at best myopic. And like the cavalries of the Late Unpleasantness, the Society fought a series of running fights thereafter. Winning some, losing some, and meanwhile buying up property in the village and battlefield and slapping preservation easements on it.

But despite winning some battles, David explained, he’s concluded that preservation has lost the war. Or maybe that’s saying too much, since David is actually beating a strategic retreat to South Carolina, where he’s already preparing for new struggles. But for Northern Virginia he’s lost hope; the stormtroopers of sprawl have proved too powerful, their strategists too clever. Since federal preservation and environmental laws have proved troublesome, the sprawlers and their legislative lackeys have found ways around them – ways to build pretty much anything without enough obvious federal involvement to bring NEPA and Section 106 into play, or to render them impotent if they are invoked. So, David has had enough, and is withdrawing to what he – and I – hope will be more defensible positions in South Carolina.

The Buckland Preservation Society has had lots of valued support from the National Trust for Historic Preservation and the American Battlefield Preservation Program; I imagine that they, like I, will be sorry to see David go. There are probably people at the ACHP who’ll miss him, too – pain-in-the-backside as he often has been to them. But I imagine that they, like I, will understand all too well what has driven him south, and like me wish him well in his new environment.

I’m sorry for Buckland, but its fate reinforces my belief that it’s wise to stay north of the river. 

Friday, December 11, 2015

Oops!

Last Saturday I found that for some reason Blogspot stopped notifying me of comments on blog postings sometime back in October, and I had a backlog of some fifty-plus to screen, publish, and where appropriate respond to. Apologies to anyone who feels ignored; I think I've published them all now (some were duplicates, some were spam) and replied to those that seemed to demand replies. So if you've been wondering, please visit the blog and check your comment. And again, my apologies for letting things go so long.

ORAL HISTORY AS IT OUGHT TO BE DONE

If you’re looking for an example of a published oral history that’s a model of the form, I don’t think you’ll go far wrong by looking at Harry Butowski’s just-published I Survived: My Name is Yitzkhak (2015: Word Association Publishers[1]). It’s the recollections of the late Isadore (Yitzkhak) Neiman, covering his youth in what would become at various times part of Russia, Poland and Belarus, his escape from Hitler’s military and loss of his family to the Holocaust, and his struggles to survive inside, outside, and around the armies of Poland and the USSR through World War II and its aftermath until his immigration to America in 1951.

Over the decades, I’ve read a fair amount about 20th century Europe and the near-destruction of its Jewish population by the Nazis, but I don’t think I’ve ever read anything – other than maybe Anne Frank’s diary – that’s quite as evocative as Mr. Neiman’s account. His youth in the village of Czuczewicze, his love of potatoes, his rationalizations for stealing to survive, his plodding treks across vast stretches of the continent with thousands of others trying to stay ahead of the Nazi armies, his diversity of coping mechanisms in the chaos of the post-war USSR – it all comes through with remarkable, touching honesty.

This clarity reflects Butowski’s skillful recording and editing. Butowski began recording Yitzkhak’s recollections in 1974 out of simple interest and friendship, lost track of him when he (Butowski) came to Washington to work as an historian with the National Park Service, and resurrected his notes and tapes after retiring. He has used the latter in editing the former, apparently with a very light hand. A few footnotes to add historical detail, a useful prefatory section that puts Mr. Neiman’s life in historical context, and that’s about it (though anyone who's edited oral history knows that there had to be a lot of effort behind that light touch). So what at least seems to be Yitzkhak’s authentic voice comes through, and is truly compelling.

I Survived is a triumph, and should stand as a testament to the millions who didn’t.



[1] http://www.amazon.com/I-Survived-My-Name-Yitzkhak/dp/1633851001/ref=sr_1_1?ie=UTF8&qid=1449879850&sr=8-1&keywords=I+Survived%3A+My+Name+is+Yitzkhak

Wednesday, December 02, 2015

On Being “Only Hortatory”

In a somewhat obscure but important piece of litigation known as Center for Biological Diversity, et al. v. Chuck Hagel, et al.[1], the U.S. District Court in San Francisco recently declined to restrain construction of a military base that threatens cultural resources because, it found, “the NHPA ‘take into account’ process is only hortatory, mandating no particular result.” Accordingly, the court found, “there is no likelihood that the United States government, in response to an adverse declaratory judgment, will voluntarily halt construction.”

The case deals with Section 402 of the National Historic Preservation Act (NHPA), which governs U.S. government actions in foreign countries, but the “take into account” language is common to Section 402 and Section 106, the NHPA’s domestic project review requirement. The court’s decision, therefore, seems to undercut the viability of the NHPA’s review requirements both abroad and at home. Theoretically, an agency could simply say “Nope, we’re just not gonna pay any attention to that silly Section 106 stuff,” and the courts would shrug their shoulders and say “OK.”

But what does “hortatory” mean? According to the dictionary, it means “tending to exhort; encouraging”[2]. When I exhort you to vote for Bernie Sanders (as I do), my speech is hortatory. It obviously doesn’t control what you do in the privacy of the voting booth. Apparently the court reasoned that since an agency doesn’t have to preserve anything in response to Sections 106 or 402, the law’s requirement to take effects into account is only hortatory – only encouraging.

Does this really make sense? Well, far be it from me to argue with a judge, but I don’t think so.

For one thing, although certainly the NHPA is intended to result in things of historic and cultural importance being preserved, the requirement imposed by Sections 106 and 402 on federal agencies is not preservation per se, but that agencies give due consideration to preservation, by taking effects into account. The requirement to take effects into account is far more than an encouragement. It’s an order; the agency shall take its effects into account. The fact that Sections 106 and 402 don’t dictate an outcome doesn’t mean that it’s not mandatory to do as they say. 

By way of analogy, the purpose of a speed limit presumably is public safety, but the fact that the speed limit on my street is 25 mph doesn’t guarantee that I’ll be safe and not endanger anyone when I drive away from my house. However, I am nevertheless required not to exceed the speed limit, and can be punished if I do. In the same way, an agency may or may not wind up preserving anything by going through 106/402 review, but it’s nevertheless required – not just encouraged – to take the potential effects of its actions into account. If it doesn’t, it can be punished by having its projects hung up in court.

Furthermore, exhortation sometimes works. Every week in this country and around the world, sermonizers exhort their congregations to do things – be they loving their neighbors or preventing abortions or fending off immigrants – and sometimes, for better or worse, their congregant act on the strength of this encouragement. Jack Kennedy exhorted us to ask not what the country could do for us, but what we could do for the country; I joined the Navy as a result, and many wiser kids joined the Peace Corps. A good-sized percentage of the Bible is given over to hortatory exhortations, and I believe the same can be said of the Quo’ran and other ostensible Words of God that have, on occasion, impelled people to act.

There’s a substantial record of Section 106 – hortatory as it perhaps is with respect to the desired goal of preserving historic places – actually causing things to happen. A very current example of Section 106’s effectuality is the case of “Badger-Two Medicine” on the Lewis and Clark National Forest in Montana. Here the Departments of Agriculture and Interior, in “taking into account” the effects of oil and gas drilling on the area’s traditional Blackfeet cultural landscape, concluded per the Section 106 regulations that there would be an adverse effect on the landscape. They consulted with the Blackfeet and others, but could not reach agreement, so the case went to the Advisory Council on Historic Preservation (ACHP). Layering exhortation upon exhortation, the ACHP issued comments strongly recommending that the drilling not be permitted. The Secretaries of Agriculture and Interior didn’t have to do as the ACHP’s exhorted, but just last week they said that they will[3]. In other words, in response to an undeniably hortatory comment pursuant to what the court says is a hortatory provision of law, the U.S. government has decided not to do something that it had been on track to do for some 25 years – permit the oil and gas under the Badger-Two Medicine to be extracted.

There are, in fact, thousands of cases every year in which agencies do something substantive as a result of taking effects into account under Section 106. Sometimes it’s minor – doing some documentation or data recovery. Other times it’s a lot more major – redesigning projects, pursuing alternatives hitherto unthought-of. Year before last my colleague David Moore and I worked on the proposed demolition of a historic building on a Veterans Affairs medical campus; the result was that the demolition plan was abandoned in favor of rehabilitating the building as a much-needed mental health facility. And occasionally, as in the Badger-Two case, “taking into account” results in the decision that, you know, this just wasn’t a very good idea, so maybe we’d better not do it at all.

Whether this sort of thing could happen in the Hegel case is impossible to say; lots of things influence how any case turns out. But that’s not relevant. Lots of things could happen to make me run over some wandering urchin when I drive down my street, even if I’m going 10 mph; conversely I may very well not run over anybody if I speed. But the speed limit’s exhortation is there for a reason, and the law requires that I pay attention. The Section 106/402 “take into account” provision is there for a reason too. The fact that an agency stamps its foot and insists that taking effects into account won’t cause it to change its mind, regardless of the outcome, should be no more meaningful to a court than my (hypothetical) insistence on driving at 60 mph down Windsor Street.

Sunday, November 29, 2015

Badger-Two Medicine

The Interior Department's decision to cancel an oil and gas lease in the Badger Two Medicine area of Lewis and Clark National Forest, out of respect for tribal cultural values, is getting a good deal of press. What's not being very widely reported is that this is a rare case in which review under Section 106 of the National Historic Preservation Act (NHPA) has resulted in a U.S. government turnaround.

Usually these days, sadly, Section 106 review ends with a BS "programmatic agreement" or a slightly more respectable (sometimes) memorandum of agreement under which the government and private sector economic interests have their way with the cultural environment with a few cosmetic "avoidance" or "mitigation" measures. In the Badger Two case, though, the anti-exploitation forces held firm, no agreement was reached, and the Advisory Council on Historic Preservation (ACHP) rendered a very good comment to the Secretary of Agriculture, whose Forest Service controls the Forest's surface rights. and to the Secretary of the Interior whose Bureau of Land Management holds the mineral estate. The Secretaries actually listened and agreed.

Congratulations to the ACHP, and to the Blackfeet Tribal Historic Preservation Officer (THPO), who had the guts to terminate consultation and throw the case to the ACHP for comment.

Since it's worth knowing about, and because the ACHP deserves a pat on the back for it, and since they don't seem to have posted it to the web themselves, here's the text of the ACHP's letters and comment. Note especially the ACHP's recommendation regarding doing 106 review prior to a leasing decision. This has been an issue with Interior since the ancient days when I was with the ACHP; it will be interesting to see if Interior finally has the sense to pay attention to it.

September 21, 2015

The Honorable Thomas James Vilsack
Secretary, U. S. Department of Agriculture
1400 Independence Avenue, SW Room 200-A
Washington, DC 20250

Dear Mr. Secretary:

In accordance with Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108) and its implementing regulations, “Protection of Historic Properties,” (36 C.F.R. Part 800), I am providing to you the final comments of the Advisory Council on Historic Preservation (ACHP) on the proposed release from suspension of the Permit to Drill by Solenex LLC in the Lewis and Clark National Forest.

These comments are provided to you so that you may take them into account in developing your recommendation to the Secretary of Interior regarding whether or under what conditions the Bureau of Land Management (BLM) may release the Permit to Drill from suspension.

These comments are also being provided to Secretary of the Interior Sally Jewell. In accordance with Section 110(l) of the Act (54 U.S.C. § 306114) and 36 C.F.R. § 800.7(c)(4), she must take into account the ACHP’s comments and respond to them prior to making a final decision on the permit.

In addition to our comments specific to this permit, our comments include recommendations for program improvements in the consideration of effects to historic properties in federal minerals leasing and in the coordination and transparency of federal roles in Section 106 review regarding such undertakings. The ACHP welcomes the opportunity to work with Forest Service and BLM to implement these recommendations. We would appreciate a copy of your recommendation to the Secretary of Interior regarding this matter when it is available.

Sincerely,

Milford Wayne Donaldson FAIA
Chairman

----------------------------

September 21, 2015

The Honorable Sarah "Sally" Jewell
Secretary U. S. Department of Interior
1849 C Street, NW, Room 6156
Washington, DC 20240

Dear Madam Secretary:

In accordance with Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108) and its implementing regulations, “Protection of Historic Properties,” (36 C.F.R. Part 800), I am providing to you the final comments of the Advisory Council on Historic Preservation (ACHP) on the proposed release from suspension of the Permit to Drill by Solenex LLC in the Lewis and Clark National Forest.

You must take these comments into account, and respond to them, prior to making your final decision on the permit. As required by Section 110(l) of the Act (54 U.S.C. § 306114), you may not delegate these responsibilities. The regulations at 36 C.F.R. § 800.7(c)(4) delineate the requirements of the response.

These comments are also being provided to Secretary of Agriculture Tom Vilsack so that he may take them into account in developing his recommendation to you regarding whether or under what conditions the Bureau of Land Management (BLM) may release the APD from suspension.

In addition to our comments specific to this permit, our comments include recommendations for program improvements in the consideration of effects to historic properties in federal minerals leasing and in the coordination and transparency of federal roles in Section 106 review regarding such undertakings. The ACHP welcomes the opportunity to work with the Forest Service and BLM to implement these recommendations.

We look forward to your response.

Sincerely,

Milford Wayne Donaldson FAIA
Chairman


Comments of the Advisory Council on Historic Preservation
Regarding the Release from Suspension of the Permit to Drill by Solenex LLC
In Lewis and Clark National Forest, Montana

September 21, 2015

The Advisory Council on Historic Preservation (ACHP) provides the following comments regarding the currently suspended Solenex LLC Permit to Drill for a single exploratory oil and gas well in the Lewis and Clark National Forest, pursuant to Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. § 306108, and its implementing regulations at 36 C.F.R. Part 800 (Section 106).

The United States Forest Service (FS) has been conducting a Section 106 review regarding the proposed undertaking. On July 7, 2015, the Blackfeet Tribal Historic Preservation Officer, a required signatory to any Section 106 agreement, terminated the Section 106 consultation, having determined that further consultation to reach such an agreement was unlikely to be productive. The termination triggered the need for these comments in accordance with 36 C.F.R. § 800.7.

The ACHP chairman appointed a panel of five ACHP members to develop these comments on behalf of the ACHP. In preparing these comments, the panel received documentation compiled by the FS in the Section 106 review. On September 2, 2015, the panel conducted a public meeting in Choteau, Montana, and received oral testimony from public officials, organizations, and individuals, including the FS, the Bureau of Land Management (BLM), the Montana State Historic Preservation Office (SHPO), the Blackfeet Tribe of the Blackfeet Reservation of Montana, Solenex LLC, the Glacier County Commission, and the Glacier-Two Medicine Alliance. The panel also conducted government-to-government consultation with the Blackfeet Tribe at their headquarters in Browning, Montana. Finally, the ACHP received written comments from 104 public officials, organizations, and individuals regarding the proposed undertaking and its adverse effects to the Badger-Two Medicine Traditional Cultural District (TCD), a historic property determined eligible for the National Register of Historic Places (NRHP) and of religious and cultural significance to the Blackfeet Tribe. The TCD encompasses lands in the Lewis and Clark National Forest and the Blackfeet Reservation and is adjacent to the Scapegoat and Bob Marshall Wilderness Areas and Glacier National Park.

In recognition of the important role both the FS and BLM play in managing these lands and the resources beneath them, the ACHP is providing these comments to Secretary of Agriculture Tom Vilsack, who oversees the FS, and Secretary of the Interior Sally Jewell, who oversees the BLM. The well would be placed on FS lands. The FS has management responsibilities for above surface activities on its lands. The subsurface mineral rights at issue are held and managed by the BLM. In accordance with the Mineral Leasing Act, 30 U.S.C. § 181 et seq., and Onshore Oil and Gas Order No. 1, the FS has the lead responsibility for the environmental review of the permit for this action. However, the final decision on the permit rests with the BLM. The FS will provide its recommendation on the permit to the BLM, and then the BLM will make a final decision on the permit.

Because the Section 106 consultation process has been terminated, the Secretary of Agriculture must take into account the ACHP’s comments in making a final decision on the FS recommendation to the BLM.

Thereafter, since the final decision on the permit rests with the BLM, the Secretary of the Interior is also required to take into account these ACHP comments, and respond to them, prior to making her final decision on the permit. She must provide to the ACHP a summary of the decision that contains the rationale for the decision and evidence of consideration of the ACHP’s comments. She must also provide this to all of the Section 106 consulting parties and notify the public of its availability. Once this is completed, the Section 106 process for this undertaking will have concluded.

Background

Federal Consideration of the Project

Solenex proposes a single exploratory oil and gas well including 5.7 miles of new road construction, 0.3 miles of road re-construction, a temporary bridge across the Two Medicine River, and a 4-acre drill pad. Combined, 14.18 to 22.91 acres would be disturbed by the road and drill pad. Once constructed, the well would require periodic access and maintenance. Should the well prove productive, it is reasonably foreseeable that the applicant/ leaseholder, Solenex LLC, may apply for a permit to extend its drilling and extraction within its 3,247-acre leasehold, a scenario known as full field development.

This project has a lengthy and complicated history. As part of its early 1980s initiative to develop mineral rights on undeveloped federal lands, the BLM leased the oil and gas development rights to Fina, the antecedent of Solenex, in 1982. This was one of 51 leases in the area issued at that time. The Application for Permit to Drill (APD) was initially approved by the BLM and FS in January 1985, but was suspended in October 1985 pending further environmental review and analysis under the National Environmental Policy Act (NEPA). One issue raised at that time was the Blackfeet Tribe’s objections to the project because of the effects to a property of religious and cultural significance to the tribe, now identified and determined eligible for the NRHP as the Badger-Two Medicine TCD. The FS and BLM issued a Draft Environmental Impact Statement in October 1989 and a Final Environmental Impact Statement in October 1990. In February 1991, the FS and BLM issued a joint Record of Decision (ROD) concluding the NEPA review and approving the Permit to Drill subject to certain environmental conditions. In January 1993, the BLM re-issued its ROD approving the Permit to Drill subject to the same environmental conditions. The 1991 and 1993 RODs considered the effects of the undertaking on archaeological sites. The 1993 ROD stated that “no traditional cultural properties were found in the project area,” but the Montana SHPO did not concur with such a finding. The following mitigation measures set out in the 1991 and 1993 RODs addressed the potential for effects to archaeological properties:

Cultural Resources

 Prior to any construction activity, Fina [now, Solenex] shall provide the Blackfeet Tribal Business Council and the Forest Service with a schedule of when work is to be performed. Fina [now, Solenex] shall provide this schedule to the Glacier Report and Great Fall Tribune in order to inform local individuals of proposed activities that may affect their legal, cultural, or religious interests.

Archaeological Resources

 Effects to NRHP [National Register of Historic Places] eligible or listed cultural resources shall be mitigated according to the regulations outlined in Section 106 of the National Historic Preservation Act and 36 C.F.R. [Part] 800.

 If an archaeological site is located during construction activities, work shall immediately stop and the Lewis and Clark National Forest Supervisor’s Office be notified. The Forest Archaeologist will examine the site and determine what course of action is necessary. Actions could include the following: 1) data recovery, 2) avoidance of the sites and/or project relocation, 3) protection on intact materials, such as with a gravel pad. (1993 ROD, p. 28)

Beginning in June 1993, the APD was suspended to consider legislation introduced to conserve and protect the Badger-Two Medicine area. In June 1996, the FS began a review of historic property eligibility and recommenced Section 106 consultation regarding the eligibility of historic properties and potential effects to them. This suspension continues in place.

In 1997, the FS and BLM decided not to authorize new lands for oil and gas leasing on the Lewis and Clark National Forest in the Rocky Mountain Division of the BLM, an area of 356,000 acres, including what would later come to be identified by the FS as the Badger-Two Medicine Traditional Cultural District, discussed in detail below. This decision did not affect the original 51 leases in the area granted in 1981-1982, including the Solenex lease. In the Tax Relief and Health Care Act of 2006, Congress withdrew lands from oil and gas leasing on the Rocky Mountain Division of the BLM, making the FS and BLM decision law. This law also provided tax incentives for leaseholders to transfer their oil and gas leases in the withdrawal area to the federal government or qualifying non-profit conservation organizations. As a result of these actions, the leaseholders of 33 of the leases transferred their leases to take advantage of the tax incentives. Only 18 of the original leases, including that of Solenex, remain in place and suspended currently.

As part of its effort to better evaluate the potential effects of the undertaking on the TCD, the FS, in consultation with the Blackfeet Tribe, undertook extensive ethnographic studies of the area to better define the nature of the TCD and its significance to the Blackfeet Tribe. The findings from these investigations resulted in the TCD being determined eligible for the NRHP by the FS and the Keeper of the NRHP (Keeper) in 2002 and the subsequent FS and Keeper decision to expand the boundary of the TCD. On December 4, 2014, the FS sent a letter to the ACHP, notifying it of the finding of adverse effect, requesting the ACHP’s review of that disputed finding, and inviting ACHP participation in the Section 106 review.

Federal Policy Developments

Since 1993, when the FS and tribal representatives began working together to fully identify and evaluate the Badger-Two Medicine TCD, there have been many policy developments not only with regard to historic properties of traditional religious and cultural significance to Indian tribes but also in federal-tribal relations. These developments have required the FS to assess the impact of the proposed undertaking in accordance with evolving and strengthening requirements for consulting with and considering the views of Indian tribes on this and other matters at each point where such reassessment was necessary.

In 1988, the NRHP published an important guide for evaluating properties such as the TCD, Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties. In 1992, the NHPA was amended to acknowledge formally that properties of religious and cultural significance to Indian tribes may be eligible for the NRHP and to better define the role of Indian tribes in the identification and evaluation of such properties. In response to the NHPA amendments, the ACHP promulgated revised Section 106 implementing regulations in 1999 that formalized the role of Indian tribes in the Section 106 process and recognized their special expertise in identifying and evaluating historic properties of religious and cultural significance to them. Executive Order (E.O.) 13007: Indian Sacred Sites was issued in 1996, requiring federal land managers to avoid adversely impacting the physical integrity of Indian sacred sites “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions.” There have also been interagency initiatives such as the 2012 Memorandum of Understanding among the Departments of Defense, Interior, Agriculture, Energy, and the ACHP regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites. Agency-specific initiatives include the Department of Agriculture Sacred Sites Final Report.

The government-to-government relationship between Indian tribes and the federal government has also been strengthened over time by executive orders such as E.O. 13175: Consultation and Coordination with Indian Tribal Governments (2000) and E.O. 13647: Establishing the White House Council on Native American Affairs (2013). E.O. 13647 charges the heads of 30 federal departments, including Interior and Agriculture, with protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures, among other responsibilities. In addition, most federal agencies have adopted or strengthened existing tribal policies. Since 2009, the White House has convened an annual Tribal Nations Conference inviting every tribal leader to meet with the President and Cabinet secretaries to discuss key issues facing Indian tribes.

Another significant demonstration of the commitment of the federal government to improving relationships with Indian tribes and working to protect their cultural heritage was President Obama’s decision in 2010 to support the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration includes numerous provisions calling for the protection of indigenous cultures, languages, traditional practices, and cultural sites.

Findings

The Badger-Two Medicine TCD is of premier importance to the Blackfeet Tribe in sustaining its religious and cultural traditions.

The proposed undertaking and the entire Solenex leasehold is located within the Badger-Two Medicine TCD, a historic property of religious and cultural significance to the Blackfeet Tribe. The TCD was determined eligible for the NRHP by the Keeper of the NRHP in 2002. In 2014, the Keeper considered additional documentation provided by the FS and expanded the boundary of the TCD, such that it included all of the Solenex leasehold and also included tribal lands outside of the National Forest. The TCD is eligible under Criterion A for its association with Blackfeet traditional religious and cultural practices. The TCD is eligible under Criterion B for its association with “culturally important spirits, heroes, and historic figures central to Blackfoot religion, traditional lifeways, and practices” (Determination of Eligibility 2002). The TCD is also eligible under Criterion D because the area includes significant archaeological features supporting both the time depth of the traditional use of the area and important information regarding tribal use and adaptation within the mountainous area. The Keeper summarized the significance of the TCD in stating that it “represents a unique forest-prairie adaptation that embodies Blackfeet tradition and identity, past and present.” According to the TCD documentation with which the Keeper concurred, key contributing characteristics include power, knowledge, holy area, plant/mineral/animal resources, and hunting.

The Blackfeet Tribal Business Council described the TCD in Resolution No. 260-2014 (2014) as “one of the most cultural and religiously significant areas to the Blackfeet People since time immemorial.” The tribal representatives communicated to the ACHP in the government-to-government meeting on September 2, 2015, and at the public meeting that in the tribal world view, there is no distinction between the natural and cultural values of the TCD. To them, biota health and water purity are synonymous with the well-being of the Blackfeet Tribe and Blackfeet individuals. At the public meeting, the ACHP heard directly from the current Blackfeet Tribal Business Council and from tribal members of their personal cultural and spiritual experiences in, and the healing power of, the TCD. The leadership of the tribe has consistently raised concerns regarding the exceptional importance of this area since the first joint FS and BLM approval of the APD in 1985. The current Blackfeet Tribal Business Council reaffirmed the significance of the TCD at the public meeting on September 2, 2015, in Choteau, Montana.

The ACHP also heard directly from members of the public of their support of the Blackfeet statement of significance of the TCD. Some stated that they had also experienced the healing power of the TCD, and Blackfeet members acknowledged that the power of the place was not exclusive to Blackfeet people.

The TCD retains integrity and is a landscape virtually unmarred by modern development and intrusions.

Solenex has argued that its leasehold is in a “disturbed area” and provided images showing a roadway, railroad, and utility lines on the boundary of the TCD. Documentation of the FS and the Keeper’s determinations of eligibility and additional aerial and ground-level images provided by the FS clearly demonstrate that the drill site and access area as well as the overall TCD are not “disturbed.” The nearly 259 square mile area included in the TCD is generally unspoiled by modern development and intrusions, and retains integrity as a historic property. In its 2014 documentation of the finding of adverse effect, the FS acknowledges that there are: Two electronic communication sites located on Mount Baldy and Half Dome Crag peaks in the eastern portion of the TCD. A Forest Service administrative site, Badger Cabin, is located roughly in the center of the TCD, and numerous Forest System trails are interspersed throughout the TCD. Various access routes were constructed within the TCD over many years, but these have been or are currently being closed and rehabilitated as a result of the 2009 Travel Management decision. (FS letter to ACHP, December 4, 2014, pp. 2-3)

The 2009 Badger-Two Medicine Travel Plan also prohibited the use of motorized vehicles in the TCD. In its March 2015 Forest Plan Revision Assessment of the Helena and Lewis & Clark National Forests, the FS describes the use of the area for “backcountry recreation that relies on traditional skills, solitude, and self reliance.” The TCD is adjacent to the Scapegoat and Bob Marshall Wilderness Areas and Glacier National Park. In the 2015 Forest Plan Revision Assessment, the FS states that these 1.5 million acres of wilderness are a critical component of the North Continental Divide Ecosystem. The current intermittent and light nature of public use in the area has ensured the preservation of sites contributing and key to defining features of the TCD.

The proposed gas exploration and development would introduce activities and intrusions incompatible with the TCD and its unique qualities.

The FS rigorously applied the Criteria for Adverse Effect (36 C.F.R. § 800.5(a)(1)) to the undertaking in its documentation dated December 3, 2014. This documentation was prepared taking into account Solenex’s comments and objections to a previous draft finding. The FS found that the undertaking may adversely affect the defining characteristics of the TCD by diminishing its integrity of setting, materials, feeling, and association.

The FS assessment of the adverse effects can be summarized with this statement from the finding:

Since the Hall Creek area of the TCD is associated with Blackfeet hunting, Blackfeet stories, Blackfeet power, and Blackfeet prayers/fasting/vision questing, anything that disrupts the visual
natural setting, interrupts meditation, or affects the feeling of power in the area will affect the associated current traditional uses of the area by the Blackfeet. This decreased ability for the Blackfeet to use this area for traditional cultural practices would also indirectly reduce the Blackfeet’s ability to identify themselves as Blackfeet. It would make the associated power of the area less suitable by decreasing its effectiveness and accessibility to traditional practitioners. Further, any negative effects to the associated power in this portion of the district would also indirectly affect the power of the entire district since it is all interconnected in the Blackfeet worldview.
(FS, December 3, 2014, p. 5)

In its letter to the FS dated January 9, 2015, responding to the request for the ACHP’s opinion regarding the finding of adverse effect that Solenex disputed, the ACHP concurred with the FS finding of adverse effect. The ACHP added that, because the undertaking is located primarily within the TCD, implementation of the undertaking may result in diminution of the TCD’s integrity of setting, materials, feeling, and association, even with the mitigation measures specified in the 1991 and 1993 RODs. While the data recovery of affected archaeological sites, as stipulated in the mitigation measures of the 1991 and 1993 RODs, was not considered an adverse effect at that time, the current (2004) Section 106 regulations consider data recovery to be an adverse effect (36 C.F.R. § 800.5(2)(i)). The ACHP also noted that, in the cumulative effects of the field production scenario described in the 1993 ROD, the undertaking may lead to the construction of multiple well sites and access roads and increased traffic on those access roads. Accordingly, the scale of the cumulative adverse effects would be greater than those described by the FS in its assessment of the adverse effects of the exploration well alone.

Since the lease was issued by the BLM, the FS was unable to consider alternatives to the undertaking that would avoid adverse effects.

The ACHP’s review of the documentation indicates that neither the BLM nor FS conducted a Section 106 review prior to the BLM 1982 lease. The 1982 lease provides Solenex with the right to develop federal oil and gas reserves within that leasehold, subject to surface access conditions. The ACHP has been advised by the BLM that the FS, in conducting its environmental review of the surface access to reach subsurface minerals, may recommend to the BLM that it not approve the APD, which could eventually result in the cancellation of the lease. The FS has indicated that, prior to the ACHP’s involvement in this case, it had not received such advice from the BLM, and so the Section 106 consultation had not addressed the possibility of prohibiting gas exploration. Further, when the ACHP raised the issue of avoidance in the April 2014 consultation meeting, Solenex was opposed to such a discussion because, in their view, it was infeasible.

Although Solenex has expressed willingness to commit to and implement mitigation measures, such measures would be wholly insufficient to resolve adverse effects to the qualifying characteristics of the TCD. Solenex has emphasized that the current APD is for one exploratory well, with a small footprint on the edge of a large historic property. It has rejected directional drilling and well pad relocation proposals on the basis of infeasibility. At the consultation meeting in April 2015, in which the ACHP participated, Solenex invited the parties to propose mitigation schemes for consideration. When the tribe offered to trade the Solenex leasehold for a lease of comparable value on the Blackfeet Reservation, Solenex rejected that offer. The tribe subsequently informed the ACHP that the offer is no longer on the table for discussion. The Blackfeet Tribe clearly stated that no mitigation could resolve the adverse effects to this historic property. While effects to natural environmental impacts or archaeological sites may in some circumstances be mitigated to meet modern standards, such mitigation will not address the diminution of qualifying characteristics of the TCD. The ACHP’s review of the documentation as well as consultation with stakeholders and public testimony has led to the ACHP’s conclusion that no mitigation measures would achieve an acceptable balance between historic preservation concerns and the undertaking.

Congress has shown its intent to avoid oil and gas development in the TCD, and the public at large is overwhelmingly in support of the preservation of the TCD. In the Tax Relief and Health Care Act of 2006, Congress withdrew lands from oil and gas leasing on the Rocky Mountain Division of the BLM, making new leases in the TCD impossible. This law also provided tax incentives for existing leaseholders to transfer their oil and gas leases in the withdrawal area to the federal government or qualifying non-profit conservation organizations. It is clear to the ACHP that Congress intended to protect the area from such future development.

In addition, in the oral and written comments of the public received by the ACHP, the vast majority of respondents voiced their strong opposition to the proposed gas exploration. Many non-tribal commenters specifically identified the religious and cultural importance of the area to the Blackfeet and the tribe’s earnest interest in continuing to practice their religious and cultural traditions in the area as the basis for their opposition to the project. Two Montana State Representatives and the Glacier County Council expressed their support of the recognition and protection of this area. The ACHP was also provided with a copy of a letter dated May14, 2015, from the Governor of Montana to the Chairman of the Blackfeet Tribe stating support for the protection of the area. This consistent and overwhelming opposition to the project provides compelling evidence that the public respects the cultural importance of this area to the tribe.

Recommendations

Project-Specific

The ACHP recommends that the Departments of Agriculture and Interior revoke the suspended Permit to Drill, cancel the lease, and ensure that future mineral development does not occur.

If implemented, the Solenex exploratory well along with the reasonably foreseeable full field development would be so damaging to the TCD that the Blackfeet Tribe’s ability to practice their religious and cultural traditions in this area as a living part of their community life and development would be lost. The cumulative effects of full field development, even with the mitigation measures proposed by Solenex, would result in serious and irreparable degradation of the historic values of the TCD that sustain the tribe. If necessary, the Secretary of the Interior, in coordination with the Secretary of Agriculture, should seek authorizations from Congress to withdraw or cancel the Solenex lease.

The ACHP further recommends that the Secretary of the Interior, working with the Secretary of Agriculture, take the steps necessary to terminate the remaining leases in the TCD, in a manner consistent with addressing the Solenex lease.

General

National forests and other federal land managers should seek to replicate the collaborative effort to conduct meaningful consultation with and to identify and evaluate properties of religious and cultural significance to Indian tribes.  It has taken much time and effort by the FS and tribal representatives to fully identify and evaluate the historic property, during which time federal recognition and protocols for documentation of this property type have evolved. In addition to informing the Section 106 review of this undertaking, the collaborative effort made by the FS and the tribe has greatly strengthened working relationships and improved opportunities for historic preservation in the Lewis and Clark National Forest and should be considered a model for national forests and other federal land managers.

The FS and BLM should work together to identify and implement opportunities to consult with Indian tribes and other Section 106 stakeholders prior to the issuance of federal mineral leases on FS and BLM lands.

Section 106 of the NHPA requires that an agency’s consideration of the effects to historic properties occur “prior to the issuance of any license” (54 U.S.C. § 306108). The regulations further clarify that the agency “shall ensure that the Section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking” (36 C.F.R. 800.1(c)). For the Section 106 process to work effectively, the agency’s consideration of a “broad range of alternatives” must include avoidance alternatives, if they exist.

For this reason, the ACHP urges agencies to develop policies and procedures that require the initiation of Section 106 consultation prior to leasing decisions. Consultation during the FS national planning efforts, which may identify zones within a specific National Forest for such leases, for instance, could help the parties to identify potential historic properties of concern that could present unreasonable challenges in the permitting process. The BLM should also consider opportunities for consultation in broad scale planning efforts to identify areas suitable for oil and gas leasing. The BLM should look for models in the consultation efforts made for the recent West-wide Energy Corridor Study and, especially, the Western Solar Plan. Starting Section 106 compliance prior to the issuance of oil and gas leases could very well avoid the delays encountered in this process.
The FS and BLM, in coordination with the ACHP, should work together to improve inter-departmental communications and transparency in Section 106 reviews of oil and gas development undertakings.

Even once a lease is granted and an APD is filed, the BLM should participate in Section 106 review with the FS in cases where the head of the BLM retains final decision-making authority in regard to whether or under what conditions a Permit to Drill is authorized. This arrangement would ensure that such Section 106 consultations were informed by a full understanding of the interests, authorities, and limitations of each agency as they relate to such decisions. It would also make the federal responsibilities and decision making more transparent for the Section 106 consulting parties and the public.