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Saturday, September 03, 2016

ENVIRONMENTAL PRACTICE Issue on "Cultural Resources"

The latest issue of Environmental Practice (18:3) – the journal of the National (U.S.) Association of Environmental Professionals – has just come out, focusing on “cultural resources” and with the dubious distinction of having me as its rather last-minute guest editor. It can be accessed at

Articles include:

Wild Horses Are Cultural Resources, by Kathleen Hayden

Assessing Archaeological Resources, by Michael J. Moratto

Non-Disruption and Non-Emissions as Cultural Resources, by Ned Kaufman

Integrating Cultural Impact Assessments into Environmental Analysis, by Claudia Nissley

Religious Resources and Environmental Management in Ghana, by Victor Selorme Gedzi,Yunus Dumbe & Gabriel Eshun

Heritage Dispatches from the American Approaches of Hell: Public Housing, Historic Preservation, and Environmental Impact Analysis, by Fred L. McGhee

Cultural Heritage, Community Engagement, and Environmental Impact Assessment in Australia, by Ian Lilley

Credible Cultural Assessment: Applied Social Science, by Patricia A. McCormack

Indigenous Traditional Cultural Places in Environmental Impact Assessment: The Case of the Ch'u'itnu Watershed, by Heather Kendall-Miller and me

Impacts on Maritime Cultural Resources: Assessing the Invisible, by Sean Kingsley

The National Park Service Visual Resource Inventory: Capturing the Historic and Cultural Values of Scenic Views, by Robert G. Sullivan & Mark E. Meyer

Addressing the Public Outreach Responsibilities of the National Historic Preservation Act: Argonne National Laboratory's Box Digital Display Platform, by Daniel J. O’Rourke, Cory C. Weber & Pamela D. Richmond, and

Cultural Resources in Environmental Impact Assessment, by me (an introductory piece that wound up near the end of the issue, but who am I to quibble?).

Friday, September 02, 2016

Some Lessons From Appalachian Traditional Cultural Places

I’ve posted a paper on entitled Traditional Cultural Places in Appalachian Virginia and The Mountain-Valley Pipeline. It’s at

I prepared the report at the request of the Greater Newport Rural Historic District Committee – whose National Register-listed district is one of several identified rural historic districts transected by the route of the proposed Mountain Valley Pipeline (MVP) across the Appalachians. My charge was specifically to see whether it looked like the districts involved are traditional cultural places” (or properties) – that is “TCPs” – per National Register Bulletin 38.

For those not directly affected by the proposed pipeline, the most interesting things about what I learned may be the following:

1.    I found the National Register nomination documentation to be largely unhelpful in figuring out whether the districts were TCPs;

2.    I also found it to be of little use in ascertaining whether the districts were “rural historic landscapes” per National Register Bulletin 30;

3.    In fact, I found the documentation to be unenlightening even about why the districts were viewed as districts; the documentation was overwhelmingly about the individual buildings, structures and sites within the districts, not about the districts as landscapes, or as the “concentrations” and “linkages” to which the Register’s definition of “district” refers.

4.    Luckily, some very interesting and helpful studies had been done quite outside the context of historic preservation, about the “cultural attachment” that people in the area feel for their landscapes. Applying the results of these studies to the districts, it became clear that they – or perhaps more likely a landscape embracing all or some of them – is indeed eligible for the National Register as a TCP.

Why does this matter, since most of the districts involved have either been listed on the National Register or authoritatively identified as eligible for it, hence entitling them to consideration under Section 106 of the National Historic Preservation Act? I think it matters in at least two ways:

First, when one looks at a “district” nomination and finds a list of specific buildings, structures and sites, with little or no treatment of the spaces around them, it’s pretty easy to design a new project – like a power line or pipeline – right through the district and think you’re having no adverse effect on it, because your project doesn’t knock down or dig up a “contributing” building, structure or site. You may give some consideration to things like visual effects, but only on those “contributing resources.” The whole idea of the “district” as an entity gets lost.

Second, when a district is characterized only with reference to its constituent buildings, structures and sites – with their significance defined, of course, by historians, architectural historians, and archaeologists – one has no basis for appreciating what makes the district important to the people who live there, work there, or otherwise experience the place. The significance of the district to the people who value it is effectively submerged. When a question arises about a planned project’s potential effects on the district, the concerns of those people can easily be denigrated, as long as one can assure the world that one is not going to muck with the architectural qualities of a building/structure, or the archaeological values of a site.

So – the lesson I take away from this experience, and that I suggest to others, is: if you’re interested in preserving a place that’s important to you, and are encouraged to nominate it to the National Register or offer some representation about its eligibility, think carefully about what you call the place. If you call it a “rural historic district,” you may wind up with something that doesn’t help you much in terms of ensuring that the values you ascribe to the place are given due attention. If you call it a rural historic (or cultural) landscape or TCP you’re probably better off, but even then, pay careful attention to how whoever compiles the documentation describes the place. “Preservation professionals” may automatically slip into architectural and archaeological modes of thought when assigned to describe the historic and cultural qualities of a place. If you use such professionals, somebody needs to be looking over their shoulders to remind them to attend to the spaces around the buildings, structures, and sites, and particularly to listen to the people.

And if you’re a preservation professional (or non-professional) responsible for writing up a place with reference to its National Register eligibility, get familiar with the “cultural attachment” literature – which has mostly been produced with little or no (or ill-advised) reference to historic preservation, but is very, very relevant. Several key sources are cited in my paper, which, again, can be found at

Thursday, September 01, 2016

A Traditional Cultural Place for All U.S. Citizens?

Traditional cultural places (TCPs – see are ordinarily found eligible for the National Register of Historic Places because of their association with the traditional cultural values and believed histories of local communities, Indian tribes, Native Hawaiian groups, and other relatively localized groups. But the other day, someone asked me, more or less out of the clear blue sky, if I could imagine a place that would be a TCP for all citizens of these United States. I was frankly flummoxed. In a nation as diverse, even fragmented, as the U.S., could there be such a place?

Then I was privileged to attend a meeting of the National Mall Coalition (See and – a group that’s struggling to keep the National Mall in Washington DC as a place for use and enjoyment by all people, and to address its many management problems. And of course, I realized, with a smack to the head, that the National Mall is, precisely, a national TCP. Stretching from Capitol Hill past the Washington Monument to the Lincoln Memorial, and from the White House to the Jefferson, studded with monuments and memorials to great and not-so-great people and events in the nation’s shared history, home to multiple museums, including the National Museum of the American Indian ( and now the National Museum of African-American History and Culture (, the National Mall is, precisely – to paraphrase National Register Bulletin 38 – a place whose “significance (is) derived from the role the property plays in (the national) community's historically rooted beliefs, customs, and practices.” In all their chaotic, creative diversity.

And I learned, too, that the National Mall suffers from many of the same sorts of conflicts that – sometimes inevitably, sometimes outlandishly – trouble other TCPs, especially largish landscapes. Just as at, say, the confluence of the Colorado and Little Colorado in the (National Register-eligible TCP) Grand Canyon (c.f., there are conflicts between public use and quiet contemplation. Just as at innumerable TCPs administered by federal agencies across the country, the Mall is managed by an agency that can’t seem to get its arms around the fact that the public in all its diversity ought to have anything to say about its administration. The Mall’s open space is administered mostly by the National Park Service (NPS), which has apparently decided that keeping its grass green is the highest priority. This justifies NPS in giving the boot to events like the Library of Congress’s annual Book Festival (, which used to attract (horrors!) shoe-clad readers to tromp on the tender shoots. Will the Smithsonian Folklife Festival ( be next? Only time and NPS will tell.

It also turns out that the National Mall, like other TCPs, suffers from being the subject of a National Register nomination whose documentation doesn’t attend to its traditional cultural significance. Indeed, the nomination apparently doesn't even give much consideration to the Mall’s organization as the “significant concentration, linkage, or continuity” that in theory makes it qualify as a historic district. (See Allegedly, NPS doesn't even regard the L’Enfant and McMillan Plans that defined the Mall’s development in the 19th and early 20th centuries ( as crucial contributing elements to its current Register significance, and hence worthy of consideration in decision making.

And as usual with TCPs – and historic places generally – management of the National Mall seems to have little patience for real consultation with those who ascribe cultural value to it. Meetings, yes, letters full of nice words, sure, but actually sit down and hammer out compromises between, say, active public use and keeping the grass green? No. This was obviously a source of considerable frustration for Coalition members, whose expressions echoed those I’ve heard from Indian tribes, Native Hawaiian organizations, and citizens’ groups across the nation and around the world with reference to their own TCPs.

Finally, the National Mall – like other TCPs and despite lying right under the noses of Congress and the President – has serious unaddressed management problems, notably tour bus parking, vehicular congestion, and the danger of flooding -- not only by the Potomac River but, even more devastating, as was seen in 2006, by stormwater runoff from higher elevations into low-lying Constitution Avenue museums and public buildings. The Coalition has an intriguing plan for dealing with all three problems (; we can hope that someone in authority will give this plan the attention it deserves, but I’m told that only the Corps of Engineers – rightfully alert to such issues but powerless to do anything without a local request or congressional direction – has shown any leadership. At least it’s nice to be able to say something nice about the Corps for a change.

I’m told that NPS is considering a revised National Register nomination for the National Mall. Although I’m always dubious of the utility of such nominations, in this case it might be an opportunity to get serious attention to the Mall’s traditional cultural qualities, as a basis for its more rational management.

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