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Saturday, November 29, 2014

Spinoff

My post on “Entitlement, Service, and Dreams” has gotten considerable response, particularly on Facebook, where I’ve been taken to task for allegedly hating archaeology.  I’m tempted to encourage my critics to learn to read English – I think I’ve been pretty clear about the fact that I like archaeology fine, and enjoy doing it.  My objection is to treating it as though it’s the be-all and end-all of culture.  More specifically, I object to duping the world – or at least those segments of it that pay for environmental impact assessment (EIA) and “cultural resource management” (CRM) into thinking that if the archaeological impacts of the Megazap Solar Energy Project or the Toxicleak Pipeline have been taken care of, impacts on the cultural environment are under control.   

This objection leads me to have little sympathy for schemes like the Registry of Professional Archaeologists, or for kids who want to get paid more than they now get for doing archaeology-masquerading-as-CRM (AMACRM).  They’re parts of the problem, and they distract us from seeking solutions.

Since the “Entitlement” post has attracted some attention, I thought I should refer readers to a paper I wrote several years ago about my own now-regretted role in creating archaeo-CRM in California – it’s most readily accessed at https://www.academia.edu/4377258/Mea_Culpa_for_Archaeobias_in_California.

And I think I should also acknowledge that my guilt is really bicoastal.

Around the time my co-conspirators and I wrote the guidelines that helped make archaeology the heart and soul of “cultural” impact assessment under the California Environmental Quality Act (CEQA), I also became involved as a co-plaintiff with the Dry Creek Band of Pomo in a fight to stop construction of Warm Springs Dam in the Russian River valley.  We failed, but I succeeded in making myself unemployable in California – even then, one simply did not sue the folks who paid the CRM bill.  Luckily for me, however, the late Marian White, one of the driving forces behind the New York Archaeological Council (NYAC) had engineered a grant to help NYAC coordinate the state’s academic institutions in their conduct of contract archaeology.  Marian and NYAC hired me to administer the program, and later brought in the late Gary Berg – a student, colleague, and friend of mine from California – to assist me.

And one of the main things we did in the exciting year we spent in New York State – Gary in Albany, me in Buffalo – was to sue the U.S. Environmental Protection Agency (EPA), eleven cities across the state, and the State Historic Preservation Officer (SHPO) for violating Section 106 of the National Historic Preservation Act.

EPA was issuing grants to local governments to build sanitary sewer projects.  These projects naturally had the potential to mess up archaeological sites.  But EPA was “complying” with Section 106 simply by seeking “SHPO clearance,” and the SHPO – an office dominated by architectural historians – was cheerfully granting it, since the projects didn’t involve knocking down old buildings.

So, in the memorable words of an attorney/bureaucrat known to many of us, we “sued their eyes out.”  Raised the money, found a willing lawyer, filed suit.  And in the end, after a great deal of sturm und drang, reached a settlement with each local government in which they agreed to conduct archaeological surveys.

So just as in California, in New York I was at least in part responsible for generating the notion that archaeological survey is what you pretty much have to do if you’re planning a construction project.  And where our California guidelines had affected practice under CEQA, the New York case (Known as NYAC v. Train, Russell Train then being the EPA Administrator) helped make practice under Section 106 of NHPA equally archaeobiased.

So I’m partly responsible for the practices I deplore, and I suppose I’ve been trying ever since, in my various classes, publications, and practice, to make up for it by insisting that archaeology is NOT all there is to the cultural environment subject to effect by government actions.  I’ve promoted what seems to me the self-evident point that “cultural resources” include historic and cultural places that don’t contain a shred of archaeological evidence, and that aren’t necessarily old buildings either – places that communities value for their association with traditional beliefs, practices, and values.  And I’ve tried to remind people that culture can give value to things that aren’t places at all – wild animals, for instance, and fish, and birds.  That it can imbue water, plants, wind patterns, sounds and smells with cultural significance.  That culture can place great value on a dance form, a musical tradition, an indigenous language.  That “intangible” belief systems and traditional ways of life are inherently cultural.  And most importantly, that all these types of “resources” may be affected by governmental and government-regulated projects, and hence ought to be considered in EIA. 


I’ve failed.  That’s obvious in the abysmal state of EIA across the nation and worldwide, and it’s perhaps even more obvious – and galling – in the way so many of my colleagues go on practicing AMACRM, and encouraging their students to do the same.  

I don’t expect things to get better, and I don’t expect things to be improved by paying people more to do AMACRM, or by registering archaeologists as proficient in its practice.

Friday, November 28, 2014

Entitlement, Service, and Dreams

Some students in a university “cultural resource management “ (CRM) program were upset about my November 17 posting entitled “Contract Archaeology versus Plumbing,” (http://crmplus.blogspot.com/2014/11/contract-archaeology-versus-plumbing.html).  In that post, I said that I didn’t see the registration of archaeologists, or increasing how well they’re paid, as a significant public policy issue.  The students invited me to visit their private chat page to explain myself, and I readily agreed. 

They asked me, in a nutshell, why I didn’t think “CRM” archaeologists ought to be registered like plumbers are, and make more money as a result.  Trying to be properly Socratic, I responded with a question.  What, I asked, is the social value of “CRM archaeology?”

I expected to get responses stressing how important it is to learn about the past, or take care of the environment, or control impacts on “cultural resources.”  These, I thought, might lead us into a fruitful discussion of just how these worthy interests are advanced by walking around on project sites looking for artifacts, digging holes, and in almost all cases assuring the world that proposed development projects won’t do any damage to those precious “resources.”  This, I figured, might lead on into a discussion of what “CRM” ought to be doing in order to advance such interests.

But the immediate responses I got were not at all what I expected.  Instead, they boiled down to: “The value of CRM archaeology is that it can (if if just will) pay me a good salary so I can support my family.”

Later on, I did get some rather more altruistic, less self-centered notes, but the opinion-setters in the group seemed to feel quite justified in saying that what they did was worth doing because it could, if they got paid well enough, make them comfortable.

I found this rather startling, and said so.  The reaction to this, on the whole, was not positive.  One fellow, who turned out to control access to the site and shortly excluded me from it, contributed to the discussion mostly by posting images of himself (I presume it was he) making ugly faces at me.  To this, higher education has evolved.

The notion that “X activity is good for society because it can (and should, dammit) make me comfortable” was so surprising to me that I began to wonder why my perceptions are so out of synch with those of the younger generation.  I try to resist geezer-talk (“Why, Sonny, back in my day…..”), but it had just never occurred to me to equate benefit for myself with benefit for society, and I had to think that this had something to do with the passage of generations.  “Back in my day” we distinguished between social benefit and personal gain, and rightly or wrongly took it for granted that (a) society didn’t owe us a living, but that (b) we owed society some kind of service.  As he often did, John F. Kennedy summed it up pithily: “Ask not what your country can do for you, but what you can do for your country.”  We might not all believe that our country was worth all that much devotion, but I think it used to be pretty widely believed that we had a responsibility to humanity, society, the world, the planet.  Conversely, I don’t think I ever used to hear or read anyone proposing that humanity, society, the world or the planet had any particular obligation to take care of us.

What, I wondered – and still wonder – has changed?  Is it rampant consumerism?  Or is it that we’ve become so fixated on civil rights that we’ve forgotten civil responsibilities?  Is it that every politician claims to be “fighting for YOU?” 

I don’t have an answer; I’m still puzzled, still mulling it over.  But the exchange with the students reminded me of one very specific policy decision, made back when I was a grad student, that I wondered about at the time, and still wonder about today.  That was the decision to end the draft.

Back in my day, sonny, it was understood that if nothing else, you (if you were male and reasonably fit) owed society, in the form of your country, a few years of service under arms.  Our country’s sad adventure in Southeast Asia made that understanding seem misguided, I suppose; whatever exactly the cause was, we gave up the draft in 1972. 

I wonder if throwing out the draft – perhaps combined with some of those other factors I alluded to earlier – led us toward thinking less and less about what we could/should/had to do for the country/society/the world.  Did this, in turn, lead us to flip the equation, conclude that – as my student interlocutors seem to believe – the world owes us a living?

I don’t know, but all this mulling made me particularly alert to an editorial in this morning’s Washington Post by David Ignatius about the “Franklin Project” at the Aspen Institute – see http://www.aspeninstitute.org/policy-work/franklin-project.  The Franklin Project, according to its website, would “improve citizenship by giving every young person in America the opportunity to do a service year.” “Sometime between the ages of 18 and 28,” it goes on, “the young person would do a fully paid, full-time year of service in one of an array of areas from conservation to education and everything in between.” 

It’s not the draft; the proposal seems carefully formulated to emphasize the voluntary character of the “service year” – and that in itself is a bit surprising.  Have we become so disenchanted with the idea of service that we have to make it crystal clear that gee, kids, you don’t have to do this?  I guess we have.

But still, it seems to me like it wouldn’t be a bad idea to start discussing service, and obligation, and who really owes who what. 

All this led me back to thinking about CRM, and the environmental impact assessment (EIA) system within which it’s embedded.  As assiduous readers of this blog know, I think that system has become fatally corrupted.  It occurred to me that one basis for this corruption, and for the puzzling fact that most people involved in the system seem to accept it as natural, is precisely the premise that something is a good thing if it allows you to make a living – that it need meet no other standard, no other criterion.

This, in turn, led me to wonder whether something like national service might provide the answer that I’m never able to come up with when someone asks: “OK, King, so the EIA system is corrupted, what do you want to DO about it?”  I find myself dreaming of some sort of EIA Service that would assess the impacts of proposed construction and land use projects in the public interest, rather than in the interests of those paying for and profiting from them.  Putting people like my student interlocutors to work not for the change agents, and not just to enrich themselves and the companies that employ them, but for the public, the environment, the future. 


Probably a dumb idea, or at least an idea whose time has gone before it could come.  We are probably way, way too far down the road toward self-satisfaction and comfort-seeking for anything like this – or even the seemingly rather filmy notions of the Franklin Project – to gain traction.  But dreaming of such things helps fend off the depression that's generated by experiences like my encounter with the students, and for such dreams I’m thankful.

Tuesday, November 25, 2014

Pity the Dugongs: U.S. DOD Says Court Has No Jurisdiction

By Tom King

Posted 11/25/2014 in the Huffington Post, http://www.huffingtonpost.com/tom-king/pity-the-dugongs-us-dod-s_b_6203790.html

Dugongs?
The Okinawa Dugong (Dugong dugon) is a large, fleshy marine mammal related to the Manatee (Trichechus sp.). Its dwindling population lives in sheltered waters around the island of Okinawa in Japan, feeding on beds of seagrass. Traditionally, the dugong is a sacred animal on Okinawa, associated with the ancient origins of the Okinawan people and with their continuing welfare. As a result, the dugong is officially listed as a "Natural Monument" under Japan's "Law for the Protection of Cultural Properties" (LPCP).
The Henoko/Oura Bay Project
The U.S. Department of Defense (DOD), under pressure to reduce its military footprint on Okinawa , has proposed to consolidate operations at Camp Schwab, a Marine Corps base on Henoko and Oura Bays on the island's east coast. The proposal involves runway expansion over part of one of the few remaining seagrass beds available for the dugong. Per treaties with the U.S., the Japanese government supports the proposal.
Okinawa residents and Japanese environmentalists have fought the project, but have been thwarted by Japan's relatively weak and centralized environmental review laws, which give concerned citizens little opportunity to influence decision making. So the Japan Environmental Lawyers' Federation (JELF) and its allies turned to U.S. law. With the help of Earthjustice , in 2003 they found an obscure legal handle -- Section 402 of the U.S. National Historic Preservation Act (NHPA) .
Sections 106 and 402 of NHPA
The best-known section of the NHPA is Section 106, which requires U.S. government agencies to "take into account" the effects of their domestic activities -- such as highway construction, military base management, and energy development -- on historic places, which are defined as places included in or eligible for the National Register of Historic Places. Regulations of the Advisory Council on Historic Preservation (ACHP) spell out how this is to be done - it involves consultation with interested parties, studies to identify historic places and determine how they may be affected, and negotiation of agreements about how to deal with the effects.
Section 402 of the law is the international version of Section 106; it requires U.S. agencies to take into account the effects of their proposed actions on resources listed in any host nation's equivalent of the U.S. National Register. However, there are no regulations governing compliance with Section 402, so agencies tend to ignore it.
As did DOD in planning its expanded base at Henoko and Oura Bays.
The 2003 Litigation
On behalf of JELF and its allies, in 2003 Earthjustice filed suit in U.S. District Court in San Francisco, charging that DOD was in violation of NHPA Section 402. Obviously, they charged, destroying the habitat of the dugong would have serious impact on the animals, whose listing under Japan's LPCP brought them under NHPA's protection.
The U.S. government initially responded that Section 402 didn't apply, because Japan's LPCP wasn't "equivalent" to the U.S. NHPA. Why not? Well, because it didn't use quite the same words, and because it includes animals, like dugongs, while the U.S. National Register does not.
The plaintiffs pointed out that "equivalent" does not mean "identical," and showed that while the U.S. Register indeed doesn't list animals per se, it does list places made historically significant through association with animals, such as traditional fishing sites. The lists, they argued, and the laws that govern them, are functional equivalents.
The court agreed, and directed DOD to refrain from pursuing the project until it had complied with Section 402 - which meant, the court said, following the basic outline of Section 106 review in partnership with the Japanese government and "other relevant private organizations and individuals."
DOD's Response
On April 16 of this year, DOD informed the court that it had done its work and determined that the base expansion would have "no adverse effect" on the dugongs. But the procedures it employed to reach this determination seem to bear only rhetorical resemblance either to Section 106 review as conducted in the U.S., or to the direction of the court.
DOD says its determination is based on studies done by various professionals - but it refuses to release their reports, or even their full titles. I've personally made two requests for the key report, and been stiffed by DOD both times. They haven't even told me to seek it under the Freedom of Information Act -- the government's usually favored means of keeping the public in the dark while pretending "transparency."
DOD says it "consulted," but it did so only with Japanese government agencies and with its own selected groups and individuals. It consulted neither with any of any of the plaintiffs or other opposition groups or with the general Okinawan public - or even notify them as to what was going on. I've seen no evidence that they even consulted with the Advisory Council on Historic Preservation, whose Section 106 regulations lay out the processes that the court said DOD should emulate.
DOD relied on essentially uncontrolled secondary data and a questionable environmental study conducted by the Japanese government to conclude that dugongs really don't use Henoko or Oura Bays very much, and if they do, well, they won't be bothered much by the construction and operation of the base. And while it assures the court that the project will have no adverse effect on the dugongs, it promises a good many measures supposedly designed to mitigate the adverse effects it says won't happen. But unlike under Section 106 of NHPA, where binding agreements are executed on how mitigation will be done, DOD simply says "trust us."
Having now - to its own satisfaction if to no one else's -- "complied" with Section 402, DOD has petitioned the court to dismiss the plaintiffs' complaint.
And if the court isn't satisfied with the quality of DOD's "compliance?" Well, says DOD in its filings, that really doesn't matter, because the court has no jurisdiction anyway. The base consolidation/expansion is required for purposes of national defense and vital to our relationship with Japan, so under what DOD calls "a universal understanding ever since George Washington's administration," the court is barred from interfering in the executive branch's decisions.
Whither the Dugong?
The plaintiffs are not impressed; they have released their own studies, which criticize the inclusiveness and methodology of those relied on by DOD and predict that if the project proceeds, it will likely have disastrous consequences for the dugong. They have decried DOD's failure to consult or reach agreements in a manner parallel to ordinary practice under Section 106 of NHPA, and they have marshaled a considerable body of case law indicating that DOD is drastically overreaching in its interpretation of that so-called "universal understanding."
I'm told that arguments will be heard in court in San Francisco next week. What will become of the dugongs' case? Will the court find that whenever the U.S. Department of Defense decides that national security and international relations are involved, U.S. courts have no jurisdiction over how DOD planning considers environmental impacts and addresses the concerns of the affected public?
Stay tuned. The dugong -- reported to have good hearing and long memories -- doubtless will, as though their lives depended on it.


Saturday, November 22, 2014

The Hole in the Head: Lessons Learned and Lost

Posted yesterday (11/21/14 in the Huffington Post:  http://www.huffingtonpost.com/tom-king/the-hole-in-the-head-less_b_6198918.html )
On November 1st, I accompanied my sister, Prue Draper, to a dinner at the Sonoma County Museum in Santa Rosa, California, marking the opening of an exhibit on the Hole in the Head.
The what?
The Hole in the Head, now fifty years in place - from which emerged (with apologies to Rachel Carson, who also has a dog in the fight) the modern environmental movement, including the National Environmental Policy Act (NEPA).
The Head in question is Bodega Head , the headland forming the west side of Bodega Bay, probably most widely known as the scene of Alfred Hitchcock's "The Birds" (1963). A scenic out-jutting into the Pacific, where I camped and pothunted and fished salmon as a youth, off which we scattered my mother's ashes; a place I visit whenever I'm in the area, usually with Prue to get crabs sandwiches at the Spud Point crab shop.
And the Hole is where Pacific Gas and Electric Company (PG&E) tried, back in the late '50s and early '60s, to build a nuclear power plant - the "Bodega Bay Atomic Park." Assuring the Sonoma County Board of Supervisors and the Atomic Energy Commission that the San Andreas Fault (of 1906 San Francisco earthquake fame), which passes through and formed Bodega Bay, posed no risks at all to the plant, the local community, or the bay.
In those days there were no environmental laws to speak of, and the Board of Supervisors decided they didn't even need a public hearing; this was clean, limitless energy, after all, and economic development, and jobs! Full speed ahead said they - as did the minimally involved U.S. government.
The exhibit - you can read about it and the Museum at http://www.sonomacountymuseum.org/ -- is a triumph, especially for its prime creator, Curator Eric Stanley. And a triumph for what it commemorates - the successful fight, against all odds, by local citizens and the allies they recruited, to stop the project and save Bodega Head for posterity (It's now mostly part of the County parks system). The exhibit particularly honors Bill and Lucy Kortum, the pioneering northern California environmentalists, who spearheaded the fight and were at the dinner to receive our applause.
The next day, Prue, her son Bob and I drove out to the Head, got crab sandwiches and ate them overlooking the bay with our backs to the Hole - the foundation excavation for the reactor, abandoned when the opponents at last were able to enlist then-Secretary of the Interior Stuart Udall to have the U.S. Geological Survey do a study, which proved that - yes, folks, there really WAS an active earthquake fault running right through the Hole. Nowadays the Hole is full of water, a quiet stopping place for migratory waterfowl.
But about the Hole's place in history.
PG&E gave up the project in 1964. NEPA was enacted late in 1969, and most people credit Rachel Carson's 1962 Silent Spring with lighting off the movement from which NEPA was born. I mean no discredit to Carson or her book when I suggest that the Hole in the Head fight struck another match. Silent Spring, after all, was mostly about the disastrous environmental impacts of indiscriminate pesticide applications; it may be more safely credited with leading to the 1972 Clean Water Act (CWA) than to NEPA. CWA is a science-based law, authorizing the establishment of clear-cut pollution thresholds and forbidding polluters to cross them. NEPA is about process - requiring government agencies to look before they leap, and that, at base, is what the Kortums and their colleagues were fighting for around the Hole.

PG&E had all the experts in hand, ready and willing to testify that the Atomic Park would be utterly benign, that no earthquake would trouble its operations, even that the power lines to be strung across Bodega Bay would be aesthetically pleasing. The company and its pliant public servants pooh-poohed the concerns of the local citizens - they, after all, were not experts.
Hence the logo for the Museum's exhibit, emblazoned on lapel buttons like the one shown below: Question the Experts




Which is what NEPA - in theory - provides for; the experts are to analyze a project's potential effects on the environment; everybody else gets to question them, and they have to answer.
But as I sat on the edge of the Hole the day after the dinner, watching families playing on the beach and crab fishermen plying their traps, it seemed to me that - for whatever reason - the lessons of Silent Spring have been learned and remembered - or at least translated more effectively into dogma - better than those of the Hole in the Head. Not that the world is free of the pollution that Carson decried - far from it - but at least there is widespread acceptance of the fact that pollution ought to be reduced, and that government can require its reduction. And the people who run the show under the CWA and other pollution control laws are the experts - scientists and environmental engineers, prescribing hard and fast standards and (we hope, at least) compelling adherence to them.

Under NEPA too, the focus of attention has come to be on the preparation of environmental assessments and impact statements by experts - usually by experts employed by project proponents, just like those hired by PG&E back in the '50s. Assessments and statements that are close to incomprehensible by ordinary educated citizens, whose comments on them are routinely dismissed by the project proponents' paid-for experts and their colleagues in the government review agencies.

What's been lost, I'm afraid - or really never quite realized in the construction of environmental impact assessment (EIA) systems under NEPA and similar laws - is the pivotal role of the public.
Almost fifteen years ago, in Citizens, Experts, and the Environment: the Politics of Local Knowledge (Duke U. Press), Frank Fischer provided a detailed analysis of how "expert" analysis of environmental impacts tends to be biased against the concerns of citizens. He looked hopefully toward reforms based on environmental justice and expanded/improved citizen participation.

Somehow though - maybe reflecting other things that happened around the turn of the century, like the election of George W. Bush as president, the general ascent of conservatives in the U.S. government, and the shocks of 2001, such reforms seem to have stalled, and today we have EIA systems that everyone seems to understand - and, oddly, accept - as reliant on "expert" analysis bought and paid for by development proponents. We have a multi-million - probably multi-billion - dollar EIA consulting industry to perform such analysis, employing practices that systematically exclude and denigrate the views, expertise, and concerns of citizens. We have government decision makers and media mavens who can and do blithely accept the notion that industry-prepared impact analyses - like the much-touted studies of the proposed XL Pipeline's supposedly minor impacts - are reliable bases for decision making. And we have a public that - though widely dissatisfied with the matter - doesn't know what to do about it.
We have, I reflected, returned to the 1950s; we've just complicated the processes by which the experts and their employers work their will. Enriching a lot of EIA analysts in the process, and by doing so, buying them - us, because I have to acknowledge that I'm part of the system - out.
Maybe, I thought, it's time for the environmental movement, and the government, to revisit the Hole in the Head, and think about the lessons it teaches us. A way to make that happen, I thought, might be to bring Eric Stanley's excellent exhibition to Washington, and make sure that members of Congress see it, maybe ponder it (I know, I do have a naïve streak).
So when I got back to DC, I asked a friend who's reasonably highly placed on the Senate staff what might be possible.
"I don't think so," he replied. "It's too obscure."


The Hole in the Head: 11/2/2014

Tuesday, November 18, 2014

No, Federal Agencies DON’T Have to Nominate All Historic Places to the National Register

The potential client – representing a U.S. government agency – had a simple request:

“We want to hire you to draft a nomination for the HappyDrone House (not its real name) to the National Register of Historic places.”

As a proper profit-seeking consultant, my response should have been: “Great!  Let’s talk about it!”  But as some readers know, I’m not very good at being a proper profit-seeking consultant.  So my actual response was:

“Why do you want to do a thing like that?”

The potential client – let’s call him PC – responded that the National Historic Preservation Act (NHPA) required his agency to nominate places under its jurisdiction and control.

“Ummm,” I said, still being difficult, “can you give me a citation for that requirement?”

“Sure,” he replied – more knowledgeably than most who call me about things like this.  “Section 110(a)(2) requires agencies to establish preservation programs, and those programs are to ensure – and I quote – ‘that historic properties under the jurisdiction or control of the agency are identified, evaluated, and nominated to the National Register.’”

Oh my, I thought.  Why do I bother to write all those books?  Section 110(a)(2) and its registration “requirement” are discussed in several of my tomes, most recently (I think) on pages 234-5 of the 4th edition of Cultural Resource Laws and Practice (Altamira Press 2013). 

But maybe I haven’t been straightforward enough, so let me try again.

As I explained to PC – finally, I think, talking him out of nominating the house, but maybe only persuading him to go to another consultant – you need to understand Section 110(a)(2) in its historical, political, context.  The subsection he quoted is derived from Executive Order 11593, issued by President Nixon in 1971[1].  In those days Section 106 of NHPA required attention only to places included in the National Register, which caused all kinds of wasteful nonsense.  The executive order told all executive branch agencies to do two things:

1.       Get busy and nominate everything under their jurisdiction and control to the Register – by July 1, 1973, no less; and

2.       Until everything was duly nominated and listed, address impacts on eligible places just as though such places were already listed.

Of course, the first requirement was absurd, and nobody (with the alleged, possibly apocryphal, exception of the Tea Tasting Commission[2]) carried it out.  Agencies focused on the order's second requirement -- to consider their impacts on eligible but unlisted places.   They did this with guidance from the National Park Service (NPS) and Advisory Council on Historic Preservation (ACHP); for better or worse this was the beginning of the modern “cultural resource management” (CRM) industry.

In 1976 Section 106 itself was amended to comport with reality; agencies were required to take effects into account both on listed places and on those that simply meet the National Register’s eligibility criteria (36 CFR 60.4).  This canonized and regularized by-then existing practice.  At the same time, though, Congress added the beginnings of Section 110 to the law, essentially picking up the executive order’s language and directing agencies – without a time limit – to nominate “all” eligible properties under their jurisdiction or control.

Getting rid of the deadline was an improvement, but the requirement was still a silly one.  It assumed that somehow or other agencies were going to spend the vast amounts of money necessary to (ostensibly) find everything under their jurisdictions that met objective standards of historical significance (whatever those might be) and prepare the ponderous documentation required to nominate them to the Register.  

And that parenthetical “ostensibly” is important.  History hasn’t stopped, so new things become “historic” every day.  Technology changes, too, so we’re able to find and interpret historic (and prehistoric) things today that we couldn’t find in the 1970s, or 90s.  And concepts of historic significance change as well; we do learn stuff, and change our minds about what’s important.  That’s not a bad thing, however inconvenient it may be for recordkeeping. 

Finally, historic places aren’t the only things that federal agencies need to keep track of, and the National Register is not the only, or necessarily the best, way to keep track of them.  In the 1980s, for example, agencies like the Forest Service and the Bureau of Land Management organized sophisticated geographic information systems (GIS), to map and plot and keep track of all kinds of environmental variables.  These systems didn’t (and still don’t) interface very well with the National Register, but they are far more efficient and effective management tools than the Register will ever think of being.

So nobody paid much attention to Section 110’s requirements – which was kind of too bad, because the requirements to identify things, and maybe to evaluate them, made a good deal of sense, even if the stuff about nominating them didn’t. 

So around 1990, when work began on what would become the 1992 amendments to NHPA, a few of us suggested that some amendments to Section 110 were in order.

I had recently quit my job at the ACHP – the proximate cause of my resignation was my objection to a settlement agreement in a court case involving National Register nominations in New Mexico – and was doing pro bono work on the proposed amendments.  I proposed to do away with the requirement to nominate all historic properties, leaving just the requirements to identify and evaluate, and then adding requirements about preferential use, management, consultation, agreements, and addressing the interests of tribes. 

NPS, of course, screamed bloody murder.  How could anyone propose that places shouldn’t be nominated to the all-holy National Register?  No right minded citizen, that was for sure – it was just that King guy, who – the Keeper of the Register still assures people of this – just hates the Register.

(For the record, I don’t hate the Register; I just think it’s a simpleminded institution whose time has come and gone, and that we’d have a better national historic preservation program if we shucked it.  But I digress)

As always in matters political (the current beliefs of some congresspeople notwithstanding), compromise was in order, and in the end the amendments wound up including language about consultation, agreements and such, but making only a small change to the bit about nomination: deleting the word “all.”

So yes, PC, agencies must have programs that provide for – among many other things (like consultation, agreements, etc.), identification, evaluation, and nomination of historic places to the Register, but they don’t have to nominate “all” such places. 

The result, if an agency wants to devote a little thought and creativity to the matter, is that an agency really has a lot of flexibility in how it keeps track of its historic places.  An agency’s program can, for example, provide for identifying historic properties (and/or the probability of such properties) as part of its overall GIS, evaluating them when there’s a need to – for instance, when some sort of conflict with their management is looming – and nominating them only when there’s some pragmatic reason for doing so. 

And there are – unfortunately, I think – some pragmatic reasons for nomination.  For example, if you’re transferring a building out of federal ownership and want to encourage a private party to rehabilitate it, nominating it can set the private recipient up for tax benefits if he or she rehabilitates it in accordance with preservation standards.  In such cases, sure, nomination may be worth the posterior discomfort inherent in its doing. 

But the bottom line is that the NHPA does not require agencies to nominate whatever they control, or really to nominate anything at all.  Agencies must have programs that provide for nomination – among many more useful activities.  My recommendation to PC was that he focus on those activities rather than wasting taxpayer dollars on nomination.

So I lost the contract.  Oh well.


The Albino Redwood: A Significant Non-Historic, Non-Traditional Cultural Place

Cotati’s Chimeric Albino Redwood, en route to its new home

In connection with updating National Register Bulletin 38 on traditional cultural places (TCPs), with which I’m helping the National Park Service (NPS), a couple of people have asked for examples of places that, while they may be eligible for the National Register of Historic Places (NRHP), are not TCPs.  Or that aren’t eligible for the NRHP regardless of their traditional cultural character.  Those of us working on the update have agreed that providing such examples would not be a good idea – that doing so would only provoke arguments and tempt misuse.

But as work on the update has progressed, I’ve become aware of a place – a source of community pride and controversy and the focus of what seems to be a mutually satisfactory piece of conflict resolution – that seems to me an irresistible example of a significant place that’s neither a TCP nor eligible for the NRHP. 

The “place” is a tree – a rare Chimeric Albino Redwood – hermaphroditic, with foliage shading from green to white – that’s grown quietly for many years in Cotati, California[1].  The tree was scheduled for removal to make way for track work in connection with construction of the “SMART[2] Train” – a light rail commuter service along the U.S. 101 corridor through Sonoma and Marin Counties.  The community rallied to its defense, and in the end it was saved by the SMART proponents, who carefully moved it to a safe location down the tracks.

My sister, Cotati historian Prue Draper, has been one of those spearheading preservation of the tree, and I hasten to say that I’m very glad for her success and applaud the SMART folks for their action.  But as Prue was working to rally support on the tree’s behalf, and despite the fact that I’m sure there must be federal money behind the SMART Train, thereby making it subject to review under Section 106 of the National Historic Preservation Act (NHPA), I refrained from suggesting that she allege the tree’s eligibility for the NRHP.  Because I just don’t think it’s eligible, and to raise the question – especially if the official answer came back as “no” – might complicate Prue’s efforts.

But why don’t I think the tree is eligible?  It’s old enough – it was planted some eighty years ago – and it arguably falls within the NRHP’s definition of an “object,” that is, “a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment” (36 CFR § 60.3(j)).  Its preservation clearly enjoyed and enjoys community support, and the SMART Train has invested a good deal of effort, money, and engineering/arboreal know-how in preserving it. 

But still…..   I’d have a hard time arguing that the Albino Redwood was eligible for the NRHP.  I just can’t see that it meets any of the NRHP’s criteria (36 CFR § 60.4):

1.       It’s not associated with any significant historic events or patterns of events that I know of (per NRHP criterion “a” – 36 CFR § 60.4(a)).  It was planted and it grew; that’s about all there is to it. 

2.       Nor is it associated with any individual who figures prominently in the history of Cotati, Sonoma County, or California (per NRHP criterion “b” – 36 CFR § 60.4(b)).  The gentleman who planted it was apparently a perfectly honorable and contributory member of the community, but nobody has suggested that he had a pivotal role in local, state, or other history.  Now it’s become associated with Prue, and she’s certainly played such roles, but it would be a bit much even for her devoted baby brother to suggest that her recent effort to preserve the tree, in and of itself, made the redwood eligible for the NRHP.

3.       Per NRHP criterion “c” – does the tree “embody the distinctive characteristics of a type, period, or method of construction,” or “represent the work of a master, or “possess high artistic values?”  Well, only God can make a tree, so I suppose the “work of a master” subcriterion might apply, but I suspect that the Keeper of the NRHP would balk at an argument that could really apply to any tree or other work of creation – and there might be some church/state issues, too.  Criterion “c” also allows places to be eligible that “represent a significant and distinguishable entity whose components may lack individual distinction,” but I’m not sure that the distinguishable entity “redwood trees of Sonoma County” would be much easier to justify as historically significant than the Cotati redwood alone.

4.       What about the last of the NRHP criteria – Criterion “d”?  Has the tree yielded, or may it be likely to yield, “information important in prehistory or history?”  I don’t think so.  Its albino, chimeric, hermaphroditic character makes it quite a rare tree – maybe even unique – and it’s of interest to botanists and arborists, but standard NHPA practice suggests to me that Criterion “d,” even though it doesn’t say so, really justifies ascribing significance only to places that can produce information important in human history and prehistory.  While human history in Sonoma County has certainly featured a good deal of interaction with redwoods, I don’t know what information this redwood might supply about that interaction.  Rather little, I suspect.

But going back to Criterion “a,” could I not argue that the tree is a traditional cultural place (TCP)?  Does not the very demonstration of community support for the tree that Prue and others organized mean that it’s associated with significant historical events or patterns of events?  Was not its very preservation a significant event in Cotati’s history?

Well, maybe, and perhaps in fifty years or so people will look back and recognize it as such, but for now, I just don’t see it.  It would be otherwise if people in Cotati had worshipped the tree, or gotten married in its shade, or held picnics around it, or held climbing races up it, or written poems about its variegated foliage; then, I think, the TCP case might well be made.  But as far as I can tell, everyone just walked and drove past it and at most wondered what was wrong with that funny-looking redwood, until Tom Stapleton, a professional arborist, learned that it was in danger and alerted Prue and others to the fact.  The rest is history, but too recent history, I think, to make the tree eligible for the NRHP.

Thanks to the community’s mobilization and SMART’s consistency with its acronym, Cotati’s albino redwood is now safe, apparently thriving, and may well enjoy a long life as a place that becomes traditional in the city’s cultural life – and hence eligible for the NRHP.  For now, though, I think it’s a good example of a place that’s significant but neither traditional nor eligible.


Monday, November 17, 2014

Contract Archaeology versus Plumbing

The other day, I was asked for a phone interview about “the origins of CRM” – that is, “cultural resource management.”  Always happy to expound on such obscure topics, I readily agreed.  I assumed that the conversation would be about how “CRM” – an ill-defined set of practices ostensibly aimed at “managing cultural resources” (whatever those are) got started back in the 1970s. 

That was how the conversation started, but it soon became apparent that what my interlocutor was really interested in – indeed, seemingly, what he defined as CRM – was the practice of contract archaeology by for-profit private firms.  What did I know about how this now-prevalent practice got started, and what did I think of efforts to regulate its quality through the licensing of archaeologists by (now) the Registry of Professional Archaeologists (ROPA) and (formerly) the Society of Professional Archaeologists (SOPA)?

I couldn’t quite figure out what any of this had to do with the origins of CRM, but I could and did cooperate by providing some facts and opinions about how for-profit contract archaeology got started and about the origins and sad history of SOPA, in which I was involved. 

This led to a question of opinion – what did I think about the efforts of some practitioners – employees of some of the contract firms, apparently – to formalize and presumably improve the SOPA/ROPA-type registration systems, in order to improve wages and working conditions?

My answer, in the unlikely event anyone has paid attention, probably outraged those seeking to reform and strengthen the registration systems.  I said I really didn’t give a damn.  Granting that it’s important to those seeking or holding employment as shovelbums, I simply don’t see it as an interesting public policy issue.

Then came the inevitable rhetorical question:  if plumbers have to be certified, why don’t archaeologists?

Because, I said, society needs plumbers, and quality plumbers at that.  It does not particularly need quality contract archaeologists.

The interview ended at that point.  Had it gone on, I might have added the caveats that in my opinion society does need quality cultural resource managers – as I define that hypothetical field but not, apparently, as my interlocutor did.  Cultural resources, broadly defined, are important parts of the environment; they’re obviously meaningful to people.  Impacts on them ought to be carefully predicted and managed in the interests of equity and social harmony.  I might also have said that I don’t deny the social, cultural, and entertainment value of archaeology. 


But that’s as far as the caveats would have gone.  Contract archaeologists simply aren’t like contract plumbers.  Without good plumbing, people and communities would be seriously inconvenienced and in some cases endangered.  Without good, bad, or indifferent archaeology done by “CRM” firms in advance of development projects – well, I suspect we’d survive.

Wednesday, November 12, 2014

Still More (sort of) on "Representing an Indian Tribe."

Devoted readers of this blog (both of them) will recall that on June 25, 2014 I posted a piece about “representing” an Indian tribe.  The Seattle District Engineer of the U.S. Army Corps of Engineers had falsely alleged that I had – well, represented myself as representing the Lummi Nation, something I could not do, and had not done.  I believe that the District Engineer’s allegation was designed to turn the Lummi Nation – my client – against me, and I asked the Department of Defense’s Inspector General to look into the matter.  On June 28th I posted a further discussion of some of the issues raised by the District Engineer’s action.

Eventually – as expected, because why should the Inspector General trouble himself with what is merely the dishonest and abusive action of a DOD official visited upon a taxpayer and veteran small business owner, potentially depriving a federally recognized Indian tribe of expert advice? – the IG sent me a brief letter saying, in effect, “tough shit,” but he did refer the matter to the Corps’ own IG.

From whose office, in the person of Kevin Elliott, Chief of the Assistance and Investigations Division, I received the following Email on September 9:

The US Army Corps of Engineers IG (EIG) received this case from DAIG where it was referred to from DoD IG.  I have read your statement and have spoken to COL Estok concerning your allegations.  While COL Estok may have said that you "represented" the Lummi Nation, the context in which it was used did not mean that you were a "representative of" the Lummi Nation.  The Lummi Nation gave you permission to call the Corps and speak to them concerning the boundaries of the Xwe'chi'eXen landscape and as such COL Estok said that you were "representing" the Lummi Nation.  In a subsequent letter from the Lummi Nation, Mr. Timothy Ballew II, Chairman and Business Council; dated June 3, 2014 stated that they investigated and that they learned "conclusively that [you] did not make that assertion; rather [you] said [you] were "working with" them.  Since the Lummi Nation has stated their view and fully know that you did not say that you "represented" them you should have no concern to the impact on you business.  It is the EIG opinion that COL Estok may have used the wrong word but it was not done in a defamatory manner nor was it vindictive and intentional to interfere in your business activities.

As for your impression that the Seattle District's approach to the proposed Gateway Pacific Coal Terminal project has been and continues to be disingenuous and prejudicial to Lummi interests, there are processes that are statutorily mandated with regard to this matter.  The Corps of Engineers is currently considering issuing a Clean Water Act (CWA) permit for the proposed Gateway Pacific Coal Terminal at Cherry Point near Bellingham, WA and it is currently being studied and an Environmental Impact Statement (EIS) is being prepared to better aid the Corps in making a final decision.  Additionally, you and the Lummi Nation have had and continue to have opportunities to voice your concerns and opinions in this matter.  It is inappropriate for the IG to insert itself into these processes at this time.

Finally, if you believe the Xwe'chi'eXen is eligible for the National Register of Historic Places (NRHP) then the process to have it designated should be followed to have it approved and listed.  Until this has been done, it cannot be treated or considered as such.

There is nothing appropriate for the IG at this time and no further action will be taken.


In other words, the Colonel really didn’t mean to do it, and it didn’t matter anyway, and – well, it was the last paragraph (highlighted above) that rather raised my eyebrow, since it suggested that the IG didn’t understand the relevant law. 

So for what it’s worth (precious little, I imagine) I replied:

Mr. Elliott --

Without addressing the rest of your email just received, let me suggest to you that your understanding of federal agency responsibilities under Section 106 of the National Historic Preservation Act is a bit dated.

You say:  "Finally, if you believe the Xwe'chi'eXen is eligible for the National Register of Historic Places (NRHP) then the process to have it designated should be followed to have it approved and listed.  Until this has been done, it cannot be treated or considered as such."

That suggests that you have the impression that a place must be "designated" -- that is, included in the National Register of Historic Places -- in order to be considered by a federal agency in its compliance with Section 106 of the National Historic Preservation Act (NHPA).  If you will trouble yourself to check, I think you will find that this has not been true since 1972, when President Nixon in Executive Order 11593 directed all federal agencies to treat places that were eligible for the Register as though they were listed therein.  A few years later Congress underscored this requirement by amending the NHPA to expressly extend consideration under Section 106 to eligible properties.  The pertinent regulations of the Advisory Council on Historic Preservation and National Park Service have reflected this requirement of law ever since; the whole matter is discussed in some detail in several of my textbooks, notably Cultural Resource Laws and Practice (4th edition; Altamira Press 2013: 21-22, 238-9).  The pertinent regulatory requirements to identify and evaluate the eligibility of properties as part of Section 106 review have been upheld by courts on innumerable occasions.

If you are advising the Corps that it need not -- or even, as you suggest, "CANNOT" consider places like Xwe'chi'eXen under Section 106 until and unless someone else goes through the process to have them "designated," you are giving your clients very seriously erroneous advice.  This will lead not only to the destruction of historic properties but to endless litigation and delays to the projects with whose environmental review the Corps is charged.  I encourage you to improve your understanding of the law.  The Advisory Council and the National Preservation Institute, among others, provide training from which you might benefit.

Of course, I’ve received no response.


INTO THE PAST WITH FREETHINKER

On October 9th, 2014 I posted a discussion of Appendix C to the Corps of Engineers’ 33 CFR 325, the regulations governing permitting under Section 404 of the Clean Water Act.  Appendix C purports to be the process by which the Corps takes the effects of permit actions on historic places into account under Section 106 of the National Historic Preservation Act (NHPA).  I reminded readers that Appendix C has never been accepted by the Advisory Council on Historic Preservation as an alternative to its own regulations (36 CFR Part 800), and opined that the Corps had essentially hoodwinked the Office of Management and Budget (OMB) into allowing it to finalize regulations containing the appendix – which is inconsistent with the plain language of Section 106 and to which the ACHP, among others, continues to object.

On October 23 I received the following email from someone calling him-or-herself “Freethinker.”

Saw your blog - thought you might be interested in these historical documents. 

The second part of the first attachment is an ACHP letter to the SHPOs in 1979 supporting the Corps' concept of permit area and recognizing the Corps' limits, etc. back when the 800 regulations actually gave each agency specific authority to promulgate counterpart regulations (800.11 in 1979 then 800.15 in 1986 - attached as well). 

Everyone keeps stating that Appendix C is invalid because it was never approved by ACHP.  I'd be curious as to what constitutes approval.  Is this 1979 letter approval?  The 800 regulations never say either.  Seems like rulemaking under the APA requires OMB approval.  Everyone knows OMB coordinates extensively with other federal agencies and interest groups before approving any rule.  ACHP would have easily been involved in that process.  Not sure the last time an agency "tricked" OMB either.

Your argument would be strengthened if you could reference a letter from ACHP specifically objecting to Appendix C during rulemaking or rescinding their 1979 support.  If you find such a letter, please feel free to share it. 

Freethinker attached copies of the ACHP’s regulations as they existed in the 1980s, and a 1979 letter from the ACHP to the SHPOs introducing an early version of Appendix C on which it was then negotiating with the Corps – and indeed expressing acceptance of it.

I responded:

Thank you, Free -- whoever you are.  I thought at first that you'd caught me in a serious senior moment.  But what you've missed, I believe, is that the Corps regulation with the Appendix C in which the ACHP concurred was a draft, and it was not finalized in either quite that form or in the regulatory context that at the time justified it.  

As I recall -- I arrived at the ACHP about the time the draft was published -- we got a lot of negative reaction to our memo on the draft and continued to negotiate, while the Corps continued to tinker with the overall 325 regulation.  Meanwhile the NHPA was amended in 1980, and then we all plunged into the adventures of the Reagan administration.  During that interesting time there was the widespread expectation that the 106 process would go away altogether.  That didn't happen, of course, but the regs did change significantly, notably including provisions that resolved -- or should have resolved -- the eligibility issues that justified the Corps in its original desire for adjustments to the process.  But rather than work creatively with the revised 106 regs, the Corps decided on its own to brush off and further tinker with its old draft, then -- in my view -- indeed tricking OMB into letting them issue a final.  I rather suspect that OMB gets tricked more often than its denizens, in their self-defined omniscience, would like to think. In any event, I think the "final" Appendix C is not exactly the one in which we concurred, and it was applied to an environment that was a good deal different from the one that existed in those early days. 

Anyway, thanks much for clarifying the early history of this conflict.  Perhaps it'll be helpful in encouraging its resolution. Someday.

On October 29 Freethinker lobbed back the following:

Thank you for your insight, Mr. King.  The history of the NHPA, 800 regs, and Appendix C are truly fascinating (and perhaps even disturbing).

It leaves me wondering why ACHP has not raised what appear to be valid concerns to Dept of Justice and OMB for a ruling, similar to how ACHP's own existing/proposed regulations were determined invalid by DOJ in 1983.  Seems like an easy enough resolution of the issue could be possible and end the debate.  Do you know why the matter has not been elevated?  Or why the matter has not been explicitely addressed in a court case?

Fortunately – because I fear I don’t keep all these ancient events as fresh in my memory as Freethinker apparently does – I had just been corresponding with Maryland SHPO Rodney Little about the fairly exciting piece of our collective past into which Freethinker was dredging, and Rodney had shared a key historical document.  So I was able to respond to Freethinker as follows;

And thank you for yours, Free.  I've had many questions over the years about the ACHP's unwillingness to take Section 106-related bulls by the horns, and can't offer an answer to your query.  With regard to the 1983 DOJ "determination," I think it needs to be recalled that the result was rather vigorous Congressional support for the ACHP's regulations (See attached), which seemingly led DOJ and OMB to cool their jets.

The attachment was a letter dated March 27, 1985 to then OMB Director David Stockman, signed by James McClure (Chairman, Senate Committee on Energy and Natural Resources), Malcolm Wallop (Chairman, Senate Subcommittee on Public Lands and reserved Water), Morris Udall (Chairman, House Committee on Interior and Insular Affairs) and John Seiberling (Chairman, House Subcommittee on Public Lands and National Parks).  After expressing the committee’s “increasing concern” about the course of the ACHP’s ongoing efforts to update its regulations, including the opinion of the Department of Justice – which said, in effect, that the ACHP had exceeded its authority by saying that in seeking its comments on undertakings an agency needed to establish what the effects of such undertakings might be, in consultation with others – and reminding Stockman that the committees had looked into the matter and issued two reports supportive of the ACHP’s approach – the chairmen said:

We now find ourselves compelled to go through the redundant exercise of specifically amending the Council’s regulatory authority to “legitimize” regulations that we are satisfied fall within the Council’s existing powers.  Nevertheless, it is clear that nothing less will sway the Justice Department from its stubborn, though mistaken, position.

Legislation will be introduced shortly and as chairmen of respective committees and subcommittees we are committed to prompt action to correct the perceived deficiency.  Until tht effort is complete, we request that you defer any action on revised Section 106 regulations.  It would be most unfortunate for the preservation of our national heritage to dismantle a system that has proved its worth for the past two decades as an effective method of balancing the needs of contemporary society with the conservation of historic properties.  It would be the height of folly to dismember that system on specious legal grounds while the Congress was in the process of legislatively resolving the question once and for all.

I realize that for most readers – if any have gotten this far – all this stuff has marginal interest; it’s just history, after all.  But as we approach the 50th anniversary of NHPA, I think it may be useful to remember that there was a time – about halfway back to the time of NHPA’s Big Bang – when a president and his Department of Justice (with, it should be noted, help from his craven and power-hungry National Park Service) took a serious run at gutting the Section 106 regulations.  The Justice Department and OMB, in effect, directed the ACHP to remove from the regulations all that stuff about consulting people, identifying and evaluating historic properties, and determining and resolving adverse effects.  The ACHP, they said, should bloody well just comment on whatever other agencies told it about their proposed undertakings.

And it’s useful to remember – if rather wistfully – that at the time there was a Congress whose members were willing to stand up to the White House and say – as I remember Rodney putting it at the time – “If you’re feeling froggy, hop on over.”  In other words, if you want a fight we’ll give you one, and you may not be happy with the results.  You just may find yourselves with a nastier law than the one you have now.
In the event, the White House backed down.  Never saying so, of course; presidential DNA isn’t programmed for such admissions.  But they backed down, and the regulations that we DID revise and issue during the 1980s retained and elaborated on such matters as consultation, identification, evaluation and effect determination and resolution (with, I think in retrospect, some unfortunate unintended consequences).  And Congress DID enact amendments to NHPA, in 1992, that clarified the ACHP’s rulemaking authority and added Section 110(a)(2)(E), designed to make it clear that consultation, identification, evaluation, and the negotiation of agreements on resolving adverse effects were fundamental to “taking effects into account.”  Section 110(a)(2)(E) says: 
Each Federal agency shall establish…, in consultation with the Secretary (of the Interior), a preservation program….  Such program shall ensure …. that the agency's procedures for compliance with section 106 of this Act … are consistent with regulations issued by the Council pursuant to section 211 of this Act (and) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered.
Over twenty years on, the Corps has yet to establish such a program; instead it continues to rely on Appendix C.