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Sunday, May 22, 2016

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

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

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

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

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

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

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

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

But is regulatory control over areas of impact actually relevant?

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

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

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

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

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

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

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

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

Monday, May 16, 2016

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

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

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

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

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

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

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

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

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

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

Saturday, April 09, 2016

Why I WANT to Vote for Bernie Sanders

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

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

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

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

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

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

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

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

Monday, April 04, 2016

Yes, Virginia, We Still Have a National Historic Preservation Act

There’ve been wild reports lately that the National Historic Preservation Act (NHPA) has been repealed.  Like reports of Mark Twain’s death, these stories have been greatly exaggerated. I’ve consulted a knowledgeable legal authority or two, and here’s what I’ve been given to understand:

1.       After its enactment in 1966, the NHPA was originally codified – that is embedded in the United States Code (USC) under Title 16

2.       Very technically speaking, the law as codified under that title was repealed - on 12/19/2014, by the National Park Service and Related Programs Act -- a housekeeping bill designed to impose better order on parts of the USC related to NPS..

3.       But it was immediately re-codified in Title 54 of the USC.

4.       So while it’s apparently technically correct to say that the NHPA was repealed, it was not really, substantively repealed; it’s in full force.

5.       And it’s still perfectly appropriate to refer to its various sections by their original designations (Section 106, Section 110, etc.). Those designations were not parts of the USC; they were section designators in the original bill as enacted by Congress. And none of the regulations have changed; Section 106 is still to be complied with per 36 CFR Part 800.

Clear as mud? Hey, this is Washington. Anyhow, the thing to know is that the law’s not gone away; it’s just got a new address.

Friday, April 01, 2016

Why I Don’t Want to Vote for Hillary Clinton

I’m a life-long Democrat – what my father (who was one too) used to call a “yellow dog Democrat,” meaning I’d vote for a yellow dog before I’d vote for a Republican. I worked in Jack Kennedy’s campaign (being then too young to vote), voted for Johnson, Humphrey, McGovern, Carter, Mondale, Dukakis, and – though rather dubious of his “New Democrat” realpolitik – Bill Clinton, as well as Gore and Obama.

I was working as a contractor for the U.S. General Services Administration in Washington DC when Bill’s First Lady, Hillary, undertook her laudable efforts to reform the nation’s health care system. It happened that I’d had occasion to become familiar with the Federal Advisory Commissions Act (FACA), for which GSA is the rulemaking authority.

As news reports began to appear about the First Lady’s efforts, it became apparent that the health care task force she headed comprised a hand-picked group that operated pretty much behind closed doors. It may very well have been an excellent hand-picked group, and health care certainly needed (and still needs) reforming, but I couldn’t help thinking that what she was doing violated the FACA – which requires that outside advisory committees be formed and managed in accordance with specific procedures designed to ensure openness, transparency, and the like. I asked a FACA specialist or two about it, and they kind of rolled their eyes.

Eventually the matter was litigated, and the White House narrowly prevailed, but it certainly left the impression – with me, at least – that Ms. Clinton was rather scornful of laws like FACA and felt that she and her cronies, by damn, could decide what was Right For The Country. Whatever its legality, her approach turned out to have been politically naïve; she and her husband got hammered by conservatives (among others) and her program went nowhere – until Barack Obama picked it up, reworked it, and got it into law as the Affordable Care Act.

So I was left thinking of Ms. Clinton as a pretty smart person – I’d enjoyed the jokes about how much more qualified for the presidency she was then her husband – who suffered from something of a political tin ear and an overdose of self-confidence.

Years went by in which I had no occasion to think much about Ms. Clinton, other than to be sad about her husband’s peccadillos and to wonder why she put up with them. Then in 2012 TIGHAR, the little non-profit with which I indulge in the archaeology of Amelia Earhart, found itself in conversations with the U.S. State Department; Ms. Clinton was then Secretary of State. The result was a sort of moral support by the Department for a deep-water search for Earhart’s plane on the reef at Nikumaroro Atoll in Kiribati ( – announced at a press conference to which I was honored with an invitation.

And there was Ms. Clinton up at the podium, telling us what an inspiration Earhart had been to her in her youth, and how TIGHAR’s search for her exemplified what was great about America, and how her support for the 2012 search represented part of President Obama’s “pivot to the Pacific” – putting the complexities of the Middle East behind him and focusing on the Orient. And I couldn’t help thinking: “What a crock!”

Now, I don’t doubt that Earhart was an inspiration to Ms. Clinton; Earhart was and continues to be an inspiration to lots of young and not-so-young women – and men, including me. And while I thought it was a bit over the top to say that TIGHAR represented what’s wonderful about America – hey, we need all the support we can get, and who’s going to reject the helping hand of the U.S. Government? But part of the pivot to the Pacific? I kept looking at Tessie Lambourne, Kiribati Secretary of Foreign Affairs, who was also up on stage, holding what I thought was a rather forced smile. I couldn’t help imagining what must be going through her head. Here is her country, damn near destitute and going underwater as climate change drives the sea to flood its low-lying islands (They’re all low-lying), and what does the U.S. Secretary of State want to publicize and support and represent as a piece of U.S. foreign policy? A bunch of Americans going out to Kiribati to look for one of their own. I felt mildly sick, despite the State Department’s excellent hors d’oeuvres.

I know, Washington does this sort of thing all the time, and it was a very little thing, and certainly the Secretary’s support was appreciated. And maybe it would have been fine if she hadn’t done the “pivot” business. But having her represent the Earhart search as somehow relevant to U.S. foreign policy struck me as very, very strange. It left me wondering just how she even defined foreign policy.

So, we arrive at the 2016 primary elections and caucuses, pitting Ms. Clinton as the darling of the Democratic establishment against the insurgent Bernie Sanders.  I support Mr. Sanders for a number of reasons having little or nothing to do with Ms. Clinton – notably that I think the country is due and overdue for some fundamental rethinking of its social, political, and economic priorities, and I can imagine Mr. Sanders, with a lot of help, making some of that happen.

But a lot of my Democratic friends want me to pledge to support Ms. Clinton if she becomes the party’s nominee, and I just can’t bring myself to do that. I look at the reports of her quarter-million-dollar speaking engagements whose transcripts she won’t release, and I’m reminded of her closed-door health care deliberations. I can’t help but think, “did she learn nothing from that experience?” And, of course, “what DID she say to those oil company executives?” I see her manifest irritation at Mr. Sanders’ unwillingness to get out of the way and let her be coronated, and I see the same sense of entitlement that permitted her to set up the health care task force without much evident respect for the law, and to mix up the desirability of solving the Earhart mystery with U.S. international policy. I read of her seemingly peculiar handling of official emails and again see evidence of arrogance and a sense of entitlement. I can’t think that she’d make a strong candidate, or a very good president.

Of course, it’s the Republicans who seem intent on running a yellow dog…

Thursday, December 31, 2015

California’s Awful Bill 52

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What could possibly go wrong?

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

Where Did We Go Wrong?

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

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

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

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

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

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

  • Exercise the thin powers of petty despots; and

  • Pass money back and forth to one another.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 17, 2015


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

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

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

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

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

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

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