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Sunday, August 14, 2016

US Fish and Wildlife Service "Cultural Resource Management Policy"

I know, my critics will say I'm on a roll and just can't stop myself. But gee, the hits just keep on coming.

Below, a letter that went out today to the Secretary of the Interior about what her minions in the Fish and Wildlife Service are up to. I do not expect it to accomplish anything; I may (or may not) get a letter from some dweeb in the Secretary's office thanking me for my input and assuring me that the Secretary and the Obama administration are so, so interested in public input, and then they'll pass the letter to another dweeb in Fish and Wildlife to file and forget. But one has to do SOMETHING.

And I know it's the same old thing. That damned brick wall just keeps standing there, taunting the head.

August 15, 2016
The Honorable Sally Jewell
Secretary of the Interior
1849 C Street, N.W.
Washington DC 20240

Madam Secretary:

I am writing to object in the strongest terms to something purporting to be the “policy” of your Fish and Wildlife Service (FWS) regarding “cultural resources,” posted recently on the Worldwide Web at

I am perhaps suffering under a misapprehension, but I thought that the Administrative Procedures Act required interagency and public review of such documents before their issuance. I see no evidence that this “policy” was subjected to such review, and cannot believe that if it had been, it would have survived to appear in its present form. As it stands, it appears to be almost deliberately designed to lead FWS officials into noncompliance with at least the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). I presume, however, that no ill intent was involved; rather, I suspect that a group of inexperienced and ill-educated FWS employees came up with what they thought was a good idea, and somehow got their superiors to sign off on it.

Their superiors should seriously re-think their approvals.

The “policy” is so riven with errors and misleading statements that I cannot begin to take the time to identify them all, but let me just point out a few low points:

1.    Conflation of the NEPA term “cultural resource” with the NHPA term “historic resource.” “Cultural resources” are among the “unique characteristics” of a potentially affected area that the NEPA regulations at 40 CFR § 1508.27(b)(3) require an agency to consider in judging the significance of a proposed action’s potential effects. Since the term is not defined, one is left to assume that it means “resources” (useful things) whose value is somehow “cultural.” The term “historic resource” is also used without definition in 40 CFR § 1508.27(b)(3), apparently to mean “resources” that are somehow “historic” (i.e. old). The same term was defined more narrowly by Congress at Section 301(5) of the NHPA to mean places included in or eligible for the National Register of Historic Places maintained by your National Park Service (NPS).

The FWS “policy” conflates the terms, effectively saying that if something is not a NHPA historic resource – or an artifact or old document -- it is not a NEPA cultural resource, and therefore presumably need not be considered under either statute. Actual direction about how to recognize and deal with “cultural resources” is overwhelmingly oriented toward historic resources; after an initial mention, all other kinds of “cultural resources” are forgotten.

This defines rather substantial parts of the cultural environment out of existence. Apparently to whoever dreamed up the FWS “policy,” such cultural institutions as the hula in Hawai’i and the practice of decorating graves in the southeastern United States are not “cultural resources.” More directly relevant to the FWS mission, can one seriously say that bison are not cultural resources from the perspective of a Plains tribe? That salmon are not cultural resources for tribes of the Northwest? That wild horses and burros are not cultural resources despite Congress’ declaration in the Wild and Free-Ranging Horses and Burros Act of 1971 that they are “living symbols of the historic and pioneer spirit of the West?” That eagles are not cultural resources for a great many tribes, and indeed for the United States?

By essentially writing off any “cultural resource” that is not an “historic resource” (or maybe an artifact or document), your employees in FWS are excusing their agency from considering its impacts on cultural resources that are not pieces of real estate eligible for the National Register. I hope that you do not support such a narrow, crabbed interpretation of any Interior agency’s responsibilities.

2.    Exclusion of land acquisition from NHPA Section 106 review. The “policy” “reminds” readers that “land acquisition is not an undertaking with the potential to affect historic properties” – meaning that it does not require review under Section 106 of the NHPA and its regulations (36 CFR Part 800). Has this conclusion been embodied somewhere in formal Department of the Interior policy, as the notion that one should be “reminded” of it suggests? If, for example, cattle ranching is a traditional land use of long standing in Wildherd County, Nevada, such that many working ranches there may be eligible for the National Register, and if FWS proposes to acquire such ranches for purposes of improved sage grouse habitat management, can you seriously contend that this acquisition has no potential effect on historic properties? If so, I suggest that someone needs to lay out the logic on which such a contention is based, and subject it to public and interagency review.

3.    Bias in favor of “experts” and against the public. The “policy” asserts that “only a subject matter expert may identify a property as historic.” Based on some fairly substantial experience, I am not aware of any law, regulation, or even general policy guideline (other than the one discussed here) that could serve as a basis for this assertion. Expert opinion is sometimes needed to determine what is historic, but anyone can nominate something to the National Register or propose that something is eligible for it. Particularly with respect to “traditional cultural places” – a category of “resource” explicitly listed in the “policy” – NPS guidance stresses that evaluation must be done in close consultation with those who value such places, who are not ordinarily “subject matter experts” as defined in the “policy” (i.e. professional archaeologists, historians, etc.). The NHPA Section 106 regulations, at 36 CFR § 811,4(c)(1), requires that agencies “acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.” The geniuses who put together the FWS “policy” apparently think that such expertise exists only among members of tribes and Hawaiian groups who are also archaeologists, historians, or architectural historians.

Seriously, Madam Secretary, you are presumably paying people to put out stuff like the FWS “policy;” you really ought to insist that they do their jobs, and not leave it to unpaid outside critics like me to call them on their mistakes.

Please have your people withdraw the “policy” and rework in in consultation with people who have some idea what they are talking about, including relevant other federal agencies and the public.


/s/ Thomas F. King

Saturday, August 13, 2016

Identifying Traditional Cultural Places

On several occasions recently, I've run into U.S. government agencies, construction project proponents, and their "cultural resource management" contractors who've complained that despite National Register Bulletin 38 ( and the literature associated with it (with which, almost universally, they do not seem to have acquainted themselves), they just can't figure out how to identify traditional cultural places (or properties). They never explain why.

A couple of days ago, though, somebody laid this rap on me in person, and I asked them what was so hard about it. WHY couldn't they figure it out?

"Well," was the response, "Bulletin 38 tells us all about how to EVALUATE TCPs, but it doesn't tell us how to RECOGNIZE them in the first place."


OK, as I told my interlocutor, and will repeat here for those who may share such puzzlement: YOU RECOGNIZE TCPS BY %$#@&* ASKING THE PEOPLE! You find out who may have interests in the area you're looking at, and you ASK THEM.

Got it? Is that so hard? TCPs aren't marked by stelae of significance, crumbs of culture. Their significance is lodged in the brains of people, the collective consciousness of communities, and it's those people and communities that can tell you whether a given district, site, building, structure, or object has it. They may not use archaeo-lingo or architect-speak, or recite National Register criteria, but if they value a place, they can probably tell you that they do, and then you can inquire about WHY they value it. If they say they value it because they want to sell it for a million bucks, that may suggest that it's not a TCP, but if they say things about their family's or tribe's or neighborhood's long-time connections to the place, then it probably IS a TCP, at least for those you're talking to. So then you consult with them and others to evaluate it per Bulletin 38.

I mean, seriously; you guys all have college educations; is this really so hard?

Wednesday, June 22, 2016

No, the Advisory Council’s Regulations are Not Just Advisory

So, I’ve heard from another hip-shooting federal agency official that his agency need not do what the regulations of the Advisory Council on Historic Preservation (36 CFR Part 800) say, because the Advisory Council is only Advisory.
Sigh. Read my lips, fool: the Council is advisory, but its regulations are not.
Section 211 of the National Historic Preservation Act (NHPA) says:
The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety.
“Regulation,” say dictionaries of law like the one at, when used as noun means:
…rules and administrative codes issued by governmental agencies at all levels, municipal, county, state and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes… (emphasis added).
Got that? The 36 CFR 800 regulations – federal regulations adopted in accordance with the Administrative Procedures Act after due interagency and public review and comment, under the authority of NHPA Section 211 – have the force of law. When they say that the agency official shall do something, they mean do it. They do not mean “we respectfully advise you pretty please to do it if you feel like it.”
There are parts of the regulations that are advisory; there, words like “should” or “may” are used. But when the regulations say “shall,” they bloody well mean shall.

Sheesh, that I should even have to explain this…

Sunday, June 05, 2016

The Corps of Engineers Wants Your Comments -- QUICK!

The U.S. Army Corps of Engineers is seeking comments on its proposal to renew and revise 50 “nationwide permits” for work in wetlands and other waters subject to the Corps’ regulation under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.  

Nationwide permits (commonly acronymed as “NWPs”) are issued by the Corps to provide blanket authorization for activities that are thought to be unlikely to have much environmental impact.

The Corps’ announcement can be found at I urge people concerned about environmental protection, historic preservation, and cultural heritage to review and comment, but the task of doing so will not be an easy one for several reasons.

1.      The announcement is 56 pages long – yes, 56 pages, three columns per page, about 10-point serif font. Lots of reading, pretty circumloquacious, and pretty turgid bureaucratic prose – though honestly, I’m finding it a bit more accessible than a lot of such notices. Maybe I’m getting soft-headed, though, and it would be easy to be misled.

2.      The announcement was published in the June 1, 2016, issue of the Federal Register, and the Corps will accept written comments only for a 60-day period that ends on August 1, 2016

3.      The announcement proposes to extend the terms of fifty (50) existing NWPs, but it never lists them all or tells us what the terms are of each. It does describe the changes it proposes in (by my count) 17 of the NWPs, but to really understand the proposed changes – or to consider what other changes might be appropriate – one would have to find each existing NWP, review it, and then figure out how the proposed change, as described, relates to its language. Pretty tedious, and I suspect that few will go to the trouble. I know I can’t, as a purely volunteer effort.

4.      The announcement also covers the issuance of two new NWPs – one for the removal of low-head hydro dams, the other for “living shorelines.” At first blush these appear pretty benign, but the announcement does not provide the details wherein the devil may lurk.

5.      The announcement also discusses standard conditions that apply to each NWP. Historic preservation and “cultural resource” people will be particularly interested in “Standard Condition 20,” discussed below, but there are many others worth a look, if one has the time and patience.

6.      On page 35189 of the announcement, we’re also told that the Corps has prepared an environmental assessment (EA) on each NWP it proposes to extend or issue anew. The Corps seeks our comments on these EAs, too, but to review them you’ve got to go to a different site-- (docket ID number COE–2015–0017), where ostensibly you’ll find them as “supporting Documents.”

7.      Rather buried in the announcement’s verbiage – on page 37187, we find that a key tool to be used in assessing the environmental effects of an action proposed under an NWP will be a “standard form” that the Corps is developing. The announcement promises a separate Federal Register notice seeking comment on this new form. Stay tuned for that one, folks.

8.      And to add one more twist, you’ll recall that the whole basis for the Corps to regulate activities affecting “waters of the United States” is that – well, they affect such waters, and the U.S. government is responsible for taking care of such waters (under the Constitution’s Commerce Clause). But what are “waters of the United States?” Well, on page 35190 the announcement reminds us that back in the June 29, 2015 edition of the Federal Register (80 FR 37054), the U.S. Environmental Protection Agency (EPA) amended the definition, triggering a host of objections and a court-ordered stay on the amendment’s application. So the Corps, reasonably enough, is seeking comments on how the amended definition might affect implementation of the NWPs. In this context, the Corps is “also seeking comments on changes to the NWPs, general conditions, and definitions that would help ensure that activities that result in no more than minimal individual and cumulative adverse environmental effects can continue to be authorized by the NWPs.” To provide a sensible comment, presumably the reader will need to brush up on the 2015 redefinition, and on the relevant case law.

So to comment really knowledgeably on the actions proposed in this announcement – by August 1st, remember! – one needs not only to read and understand what it says in all its complexity, but also to look at (a) the separate definitions of NWPs, (b) the EAs on the NWPs, (c) the EPA’s proposed definition, and (d) the case law and comments on the definition. And one has to sort of hold one’s breath awaiting issuance of the “standard form.”

Suspecting that most readers of this blog won’t – indeed can’t – go to so much trouble, let’s take a look at Condition 20, which is likely to be of most interest to historic preservation/cultural resource people. Condition 20 is described on page 35209 of the announcement as follows:

(a)   In cases where the district engineer determines that the activity may affect properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied.
(b)   Federal permittees should follow their own procedures for complying with the requirements of section 106 of the National Historic Preservation Act. If pre-construction notification is required for the proposed NWP activity, Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with those requirements. The district engineer will verify that the appropriate documentation has been submitted. If the appropriate documentation is not submitted, then additional consultation under section 106 may be necessary. The respective federal agency is responsible for fulfilling its obligation to comply with section 106.
OK, that seems fairly consistent with the language of Section 106, and not wildly inconsistent with its regulations, but of course, the 10-ton elephant in the room is the question of how the district engineer is going to “determine” that such effects will occur. Another is the question of who’s going to satisfy the requirements of Section 106. The responsibility to do so rests with the Corps of Engineers, absent some more direct federal involvement, but the announcement’s use of passive voice leaves one to wonder who the Corps thinks will do the satisfying.
I can’t find anything in the announcement that tells us how Section 106 is to be complied with, but am left to assume that the promised “standard form” (See paragraph 7 above) will be the key tool the district engineer uses, at least in making the threshold “may affect properties” determination. Since the “standard form” is at present only a gleam in the Corps’ eye, this leaves us rather in the dark. I suggest that commenters give the Corps some advice about what the famous form should say.

You can comment – remember, do so by August 1 – via e-mail to: You can also use Federal eRulemaking portal at docket number COE-2015-0017. Again, the announcement is at

Sunday, May 22, 2016

Bombing Boise: Confusing Government’s Authority to Regulate with its Responsibility to Consider Environmental Impacts

Under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act of 1972 (33 U.S.C. 1344), the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill into water bodies defined as parts of the “waters of the United States.” Often the Corps’ Section 10/404 permit authority is the only federal “handle” that makes a privately funded project on non-federal land subject to review under such environmental impact assessment laws as the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA).  Often this “handle” is quite a small one in geographic terms vis-à-vis the overall project; in other words, the discharge of fill into a water body may be a small part of a large project whose effects otherwise are not subject to U.S. government regulation.

In consultations under the NHPA, and in litigation under both the NEPA and the NHPA, consulting parties and plaintiffs often argue that the Corps must consider the effects of the entire project on the environment (or in the case of the NHPA, on historic properties). The Corps typically responds that it can consider only what falls within its regulatory jurisdiction. Exactly how much this constrains the Corps’ review of impacts varies from case to case, depending on how the Corps in each case interprets the esoteric language of its regulatory program regulations, 33 CFR 320-338.  Generally speaking, however, the Corps position is that it can consider only effects that may occur within the “permit area” of a given proposed discharge or stream crossing, which more or less means the waters into which the fill will be discharged or which will be crossed by the project, plus certain appurtenant areas where things may be done that are pretty directly related to the discharge or crossing (access road construction, etc.).

Although the Corps' early history of success with this limited interpretation was spotty (c.f., in recent years courts have often agreed with the Corps’ view of its responsibilities.  For example, in Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015), the court held that the Corps was “not required to conduct NEPA analysis of the entirety of the … pipeline, including portions not subject to federal control or permitting.”

I think that the Corps, and the court, have confused the extent of a project's likely environmental effects with the extent of government regulatory authority. This confusion can be illustrated by reference to a hypothetical example that I refer to as “bombing Boise[1].” I am quite sure I outlined this hypothetical in some version of one of my ancient publications, but I can’t now locate it, and if I can’t, it’s a sure bet that no one else can, so here it is again.

Suppose that the owner of a tract of marshland in central Florida – call him Donald – has developed a visceral dislike for the city of Boise, Idaho. Donald, who has far more money than he knows what to do with, decides to wipe that city off the map. To achieve this goal, he arranges for the purchase of an intermediate range ballistic missile with a nuclear warhead (Remember, this is hypothetical). He plans to launch this missile toward Boise from his marshy ranch in central Florida. To do so, he must fill some 2.5 acres of marsh in order to create a stable launch pad. A law-abiding citizen, Donald applies for a permit from the Corps.

Here’s the question: in considering whether to issue Donald a permit for his project in Florida, must the Corps consider the likely effects of doing so on the environment of Boise, Idaho? Boise is a very long way from the waters of the U.S. into which Donald will discharge his fill. It is certainly well outside Donald’s “permit area” as defined in the Corps’ regulations. Donald may or may not be able to get his bird off the ground, and it may or may not be shot down by Boise’s missile defense system, but let’s set that aside. Should the Corps consider the effects of bombing Boise when it considers Donald’s permit application?

The court in Sierra Club seems to say “no,” because the Corps has no “regulatory control” over what the project in the marshes of central Florida may do to distant upland areas like Boise.

But is regulatory control over areas of impact actually relevant?

The NEPA, at Section 102(C), directs that federal agencies prepare statements analyzing environmental impacts of any federal action “significantly affecting the quality of the human environment.” The NHPA, at Section 106, says that federal agencies must take into account the effects of their undertakings “on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register (of Historic Places).” Neither statute says that agencies are to consider only effects that are subject to their “control,” regulatory or otherwise.

In the case of Donald’s project, arguably the Corps’ “regulatory control” extends only to the wetlands he proposes to fill, and the adjacent or nearby areas that will be impinged upon by roads, liquid oxygen lines, warhead containment facilities and the like. But the area in which environmental impacts may occur if the Corps gives him the permit is much larger, surely including Boise. Can the Corps ignore what Donald plans to do to the capital of Idaho? I don’t think so -- regardless of the ostensibly limited extent of the Corps' regulatory control.

And of course, the Corps does have regulatory control over Donald's proposed launch site. It can -- presumably -- say no to his project in order to protect Boise, even if filling Donald's 2.5 acres of wetlands will do no damage whatever to waters of the United States. If Donald were to build his pad on dry land where he didn't need a Corps permit, then of course the Corps would not have regulatory control; the Corps would not be a player in Donald's scheme, and Donald could bomb Boise to his heart's content. But since the Corps is a player, it seems to me that it has to consider the impacts of Donald's plans, wherever they may occur.

I think the confusion between “area of regulatory control” and “area(s) where environmental impacts may occur” that's reflected in the Sierra Club decision results from a misinterpretation of what the Sierra Club court referred to as "NEPA analysis" -- that is, the work that must be done to determine what a projects's environmental impacts may be and what to do about them. It is widely assumed that to perform such analysis, under the NEPA or under a more specific statute like the NHPA,  the responsible federal agency must require that detailed studies be done in order to determine what effects will occur – counting how many endangered owls live in the potentially affected area or how many ancestral indigenous graves may lie hidden in its soil. Doing these things costs money, and environmental consulting firms understandably assure agencies and regulated industries that they must be done in order to assess effects. Those who pay the bills for such work naturally seek relief, and the Corps has seized on its lack of “regulatory control” over areas of potential effect as the means of providing it.

“You can’t possibly require me to count endangered lizards and old buildings in Boise as a condition of my permit in Florida!” Donald thunders, and the Corps quickly moves to mollify him. “No sir, no sir, don’t you worry, sir. Boise isn’t even in our Division; we don’t have any – er – regulatory control over what your project does there.”

This is obviously nuts. The Corps should certainly consider what giving Donald his permit may do to Boise and its environment, and if it determines that the public interest demands saving the city at the expense of Donald’s right to use his Florida marshland as he sees fit, it should deny the permit. Exactly what processes the Corps may need to employ in giving the matter such consideration, and what studies may be necessary (if any) depend on the character of the case. In Donald's case, one doesn't need to find and evaluate every National Register eligible building in town to know that nuking them all will have adverse effects, or that other aspects of the city's environment (like the welfare of its resident lizards, owls, and human beings) will be drastically impacted.

Turning to a real-life case, consider the Dakota Access Pipeline (, a proposed almost 1200-mile oil pipeline between northwestern North Dakota and southern Illinois. Its construction will require the Corps to issue over 200 permits for water-crossings; without these crossings the project cannot be built. Should the Corps look at the impacts of the whole project – as affected Indian tribes and the Advisory Council on Historic Preservation, among others, propose? Or should it spend its time on 200+ individual permit actions and ignore the project’s overall effects? The Corps, I’m told – citing Sierra Club – says it can do only the latter. This strikes me as no more justified – or consistent with the intent of the NEPA and the NHPA – than letting Donald bomb Boise without first inquiring into the impacts of doing so. The Corps should stop playing semantic games with its regulatory language and sit down with the tribes and others concerned to determine how to address the project's overall potential effects.

[1] Oddly enough, the city of Boise, Oklahoma (not Idaho) WAS bombed during World War II; see

Monday, May 16, 2016

National Register Bulletin 38: The Unauthorized Update -- And -- Unauthorized Answers to Frequently Asked Questions About Traditional Cultural Places

In 1990, the National Register of Historic Places, a division of the U.S. National Park Service, published National Register Bulletin 38, “Guidelines for Identifying and Evaluating Traditional Cultural Properties,” authored by Patricia Parker and me.  Chapter 2 of my 2003 book, Places That Count (, recounts how Bulletin 38 came to be, and the early reaction to it.

Bulletin 38 has been used – sometimes to good effect – by American Indian Tribes and a few other communities to ensure that places of traditional cultural value to them are considered by federal agencies whose actions may destroy or damage them. As a result, such agencies, and some of the industries they regulate, have been pretty unhappy with it. So have some State Historic Preservation Officers (SHPOs) and cultural resource management consultants who prefer to acknowledge the cultural value only of places that professional historians and archaeologists can define and evaluate.

In response to complaints from those who find Bulletin 38 altogether too populist, in 2012 NPS launched an effort to rewrite it. This effort first involved a widespread effort to solicit comments from all concerned, which resulted in receipt of a large corpus of written comments plus notes on a series of public meetings and meetings with tribes and intertribal groups.

As is its wont, NPS then dithered, regularly assuring the world that it was thinking about the comments, but doing nothing. I – among others – became concerned that (a) its people would end up writing something unfortunate or that (b) by being forever under review, Bulletin 38 would come to be regarded by practitioners as less authoritative than other National Register direction. So in early 2014 I proposed to NPS that it contract with me to digest the comments and prepare a revised draft. Rather to my surprise, NPS responded favorably to my proposal. The contract was let, the comments and notes were shared with me, and I went to work. As an NPS executive with her own fish to fry (left to rot by NPS after her death in December of 2014, but that’s another story), Parker did not participate in the effort.

It soon became apparent that the great bulk of the comments NPS had received dealt not with Bulletin 38 itself, but with how traditional cultural places are dealt with by agencies and others in planning and impact assessment under the National Historic Preservation Act (NHPA), and to some extent under the National Environmental Policy Act (NEPA). As a result, NPS officials and I agreed that we should draft not only a new version of Bulletin 38 but also a set of “frequently asked questions” (FAQs) – and answers – about how such places should be considered and addressed, particularly under Section 106 of the NHPA. Since the Advisory Council on Historic Preservation (ACHP) oversees Section 106 review, NPS invited the ACHP staff to participate in developing the FAQs, and they agreed to do so. A series of quite congenial meetings and draft reviews ensued, leading to my submission of complete drafts of the Bulletin and FAQs in August/September 2014.

Some time passed, and then the ACHP staff returned a very substantially rewritten “draft” of the FAQs, which they made clear they expected to become the basis for any further discussions. They declined to explain the rationale for their changed approach, or to negotiate with both my draft and theirs on the table. They declined, in fact, even to identify the individuals responsible for the new draft, or to share mark-ups of working documents. My review of the ACHP draft, however, made it apparent to me that its main thrust was to muddle and obfuscate, wherever possible substituting lengthy paragraphs full of weasel words for straightforward declarative statements, and in some cases (for example, in treatment of confidentiality under Section 304 of the NHPA) to insist on interpretations  of law and language that are simply (in my reasonably well informed opinion) simply wrong. And again, this revised draft was presented as a non-negotiable fait accompli.

Needless to say, I objected vigorously, and both NPS and ACHP Chairman Wayne Donaldson did what they could to promote a meeting of the minds. These efforts failed; the ACHP staff was simply not willing to come to the table unless their draft formed the basis for consultation. By this time (early 2015), my contract had run out, I had performed all the work it called for, and I was coping with Parker’s untimely demise, so NPS paid me off and went its way. Its representatives have, however, kept me more or less informed of progress, or lack thereof. Early this year I was given the opportunity to comment on another draft of the FAQs, which usefully contained images and examples, but remained, in my opinion, both obfuscatory and unhelpful.

I have come to the conclusion that in all probability an updated Bulletin 38 and related FAQs will never see the official light of day, so in order to allow interested people to have something to consider, I've posted -- on at -- the drafts I submitted back in 2014 . These of course have no official imprimatur at all, but they do represent what one somewhat experienced practitioner, in consultation (he thought) with NPS and ACHP staff, was able to offer. I suggest that they be considered an informed though unofficial representation of good practice with respect to traditional cultural places.

UPDATE 5/26/2015: At the request of NPS, I have removed the Unauthorized Update from

Saturday, April 09, 2016

Why I WANT to Vote for Bernie Sanders

I’ve explained why I don’t want to vote for Hillary Clinton, so please indulge me a bit further and let me say why I DO want to vote for Bernie Sanders.

I’ve spent the last 50 years working in and around environmental impact assessment – which is based on the simple principle that before government makes a decision, it ought to look at what the likely effects of that decision will be, and factor what it learns into its thinking. And importantly too, the principle that government should do that looking and thinking and factoring in consultation with the governed – particularly those likely to be affected by the decision.

Over those years, I’ve seen these simple principles complexified, bureaucratized, tweaked and diddled and reinterpreted in myriad ways, often by well-intentioned people (myself included, in some cases) and often enough by the self-interested.

Interested, that is, in protecting financial interests and aspirations, elite status, the ability to have one’s ways with the environment and the communities that live in it. And interested in making a quick buck by telling project proponents what they want to hear, and creating the appearance of compliance with law. Time and time again, I’ve seen Indian tribes, Native Hawaiian communities, Micronesians and Samoans, the urban poor, rural communities, people of color and just plain communities and neighborhoods in the US and other countries lose their treasured environments because what passed for impact assessment was either a flat-out whitewash or so complex and tortuous that no one but those paid to do so – usually by project proponents – could figure out what was being said and decided. I published a book about this back in 2009 (, and in 2012 a short-form version (, calling for urgent remediation. Both fell on deaf ears.

I wasn’t silly enough to think that any U.S. congress or executive was going to put reforming environmental impact assessment very high on its agenda, but I thought that maybe, just maybe, such reform might happen as part of a larger effort to make government responsive to the people and not just to corporations. I’d come to see my little problem of corrupted impact assessment as part of a much bigger problem: the corruption of government operations in general. Not necessarily purposeful corruption, but corruption through the operation of bureaucratic systems that have taken on lives of their own, whose effect is to make government unaccountable to, and indeed impenetrable by, the public.

But perhaps because those systems are so impenetrable, and have come to be taken so much for granted, I’ve been pretty routinely disappointed in my hopes for reform, even by leaders like Barack Obama.

I’ve concluded that the problem of an impenetrable, unaccountable government that’s in bed with corporations is such a big one, so deeply embedded in the guts of government operations, that it can’t be undone without what amounts to a revolution. Until now – at least since the days of Jack Kennedy, and in his own way Jimmie Carter – I’ve not had anyone to vote for who promises even to try for revolutionary change.

In Bernie Sanders I’ve found such a candidate, and I’ll vote for him – already have in the primary, but hope to do so in the general. I’m sick of voting for the lesser of two weevils.