California Shoots for the Moon

Faced with budget constraints that are forcing the imposition of furlough days and weeks on Office of Historic Preservation staff, and facing a surge of Recovery Act projects requiring Section 106 review, California’s Historic Resources Commission has taken bold action. On January 29 it added Tranquility Base to the state’s Register of Historic Resources.

That’s right, Tranquility Base, on the Moon, where on July 20 1969 Neil Armstrong uttered the famous words: “Houston, Tranquility Base here. The Eagle has landed.”

According to the Associated Press, quoting California State Historic Preservation Officer Wayne Donaldson, the Commission’s action is part of a five-state effort to promote designation of the site as a National Historic Landmark (NHL) under the Historic Sites Act of 1935. The other states involved, according to the AP, are Florida, Alabama, New Mexico and Texas. NHL designation is a National Park Service (NPS) responsibility.

Even if one doesn’t consider it a little hubristic for a state to extend its system of historic place designation to another heavenly body, even if one doesn’t think (as I, perhaps a minority of one, do) that historic place designation systems are inherently outmoded and counterproductive, even if one doesn’t think that Mr. Donaldson and his people might really be well advised to tend to the state’s business instead of launching outer space adventures, the move to designate Tranquility Base an NHL is ill-considered. I very much hope that other states – even California’s alleged co-conspirators – will think long and hard before supporting it.

Let’s stipulate that Tranquility Base is a highly significant place in the history of humankind’s exploration of space. Let’s stipulate that, as Mr. Donaldson is quoted as saying in justification of his commission’s action, it may eventually be threatened by thoughtless space tourists. Let’s stipulate that the public, that posterity, that life forms near and far would be well served by somehow protecting the site from such desecration. None of this makes NHL designation sensible or responsible.

Designation is the knee-jerk preservationist response to the intersection of historic significance and potential for change. The place is threatened? Put it on a list! Influenced by the long history of European landmark scheduling and local historic district ordinances, preservationists assume that if you put the place on a list it will be protected. Never mind that there’s no lunar historic district commission to impose design standards on touristic ventures in the Sea of Tranquility; it must be that making Tranquility Base an NHL will protect it from those rampaging space tourists, right?

Wrong, of course. Under Section 110(f) of the National Historic Preservation Act (NHPA), NHL designation would require U.S. government agencies to consider the effects of their actions on the site. But no one seems to expect the Corps of Engineers to initiate watershed improvements around the Sea of Tranquility; it’s unregulated space tourism that Mr. Donaldson and his colleagues fear. NHL designation won’t control that.

So why push designation? There actually is a reason, of sorts. In the U.S. system for proposing places for inclusion in the World Heritage List – a list of places ostensibly having international significance as natural or cultural resources, maintained by a sub-body of UNESCO – NHL designation is a necessary first step. The NPS authors of the rules for World Heritage List nominations in the U.S. sensibly assumed that if we weren’t willing to recognize a place as being significant enough to be an NHL, we ought not propose it for the international list. Placement on the World Heritage List would obligate nations party to the World Heritage Convention to give Tranquility Base some degree of consideration in their actions, presumably including whatever regulatory scheme a nation, a group of nations, or the international community might impose on space tourism. So World Heritage List designation makes a degree of sense, and if the U.S. wants to propose such a thing, via its existing designation system, NHL designation is a necessary step.

But that’s a big “if.” World Heritage listing isn’t necessarily the only or most straightforward way to achieve protection for something like Tranquility Base – which is, after all, hardly more a part of the world than it is a part of the U.S. or the state of California. And NHL designation generates some risks that at last report the Department of State – very sensibly, I think – did not favor incurring.

The 1967 Outer Space Treaty – technically the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” to which the U.S. is a party, specifies at Article II that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” In other words, neither the U.S. nor any other country can stake a claim to the moon or any part thereof. While we “cultural resource experts” in the U.S. know that designating something an NHL or putting it on the National Register does not constitute an “appropriation” by the U.S. government, this understanding is not very widely shared. If it were, we wouldn’t see private property owners getting as exercised as they sometimes do over proposals to list their houses, farms, fields and factories on the Register. We certainly cannot expect the other nations of the world, a few of which tend to look at U.S. intentions with a jaundiced eye, to recognize designation as a benign, non-political act. Accordingly, the last time I inquired into the matter the Department of State was dead set against giving Tranquility Base NHL status.

So what are California and its co-conspirators trying to do? Pressure the Secretary of the Interior into thumbing his nose at the Secretary of State? Create an international incident? Or are they just having fun? I don’t know, but I suspect they haven’t really thought the matter through very thoroughly.

Suppose, though, that they somehow succeed in their enterprise (sic), and get Tranquility Base registered as an NHL – perhaps even placed on the World Heritage List. What then do we do about the landing sites of Apollo 12, Apollo 14, and the others? What about the landers and rovers on Mars? What about the Voyager spacecraft when they circumnavigate the cosmos and come home? There is in fact an active and growing group of academic enthusiasts promoting the preservation of such sites and objects, and well there should be; they are undeniably historic. But are they all going to become NHLs, or be listed in the equivalent schedules of other nations, and/or be entered in the World Heritage List? Are we going to go through bureaucratic processes over each one, and replay the tired old arguments about how many of this and that kind of thing “belong” on the list? Will we invest money in preparing interplanetary historic context studies?

If the supporters of protection for off-planet historic places are serious, I suggest that the time and treasure they’re spending pushing for NHL designation would be better invested in an effort – perhaps through UNESCO, ICOMOS, and/or other international cultural bodies – to get the spacefaring nations to agree to a simple principle: that the physical evidence of the history of space exploration should be respected in the ongoing exploration, settlement, and use of outer space. Have a UNESCO convention on the subject, establish processes by which impacts on such evidence will be considered in planning future space ventures, including tourism – whether this evidence is found in a specific place like Tranquility Base or scattered around like the vehicles lost on entry into the Martian atmosphere, and whether they’re things we know about now or unexpected discoveries like big black slabs that hum. Cut to the chase, address the real issue, and do it in the proper international venue. Don’t waste time and tax dollars trying to warp (sic) state and federal historic property designation processes (silly enough when applied to earthly places) to serve purposes for which they were never intended.

The National Register of Historic Places: Being Eligible for it; Being Determined Eligible for it; Being Nominated to it

Thanks to the determination by the Keeper of the National Register of Historic Places that Nantucket Sound is eligible for the Register, I’ve spent some time today on the phone with reporters, and in email correspondence with colleagues, who are confused about some very basic points. At the risk of re-plowing what ought to be well-turned earth, let me try to clarify the differences among three terms that keep getting mixed up.

Eligibility for inclusion in the National Register. This means that a place or thing meets the criteria of eligibility published at 36 CFR 60.4. It is a factual category into which a place falls, like being a species of animal or a wet place in the woods. Places are eligible if they meet the criteria, regardless of whether anybody has ever recognized that they do. Nantucket Sound is eligible for the Register; it has been eligible for the Register for as long as the Wampanoag Tribes have ascribed cultural significance to it, because this ascription of significance means it's associated with significant patterns of history, and thus eligible under National Register Criterion “A.” It did not become eligible when it was determined to be so, any more than a species is hale and hearty until the Fish and Wildlife Service determines it to be endangered, or any more than a swamp is dry until the Corps of Engineers delineates it as a wetland.

Determined eligible for inclusion in the National Register. This means, obviously, that someone has given a place some attention and said “yup, it meets the National Register criteria.” Some like to reserve the term for instances in which the Keeper of the Register has made a formal determination, as has just happened with Nantucket Sound; others use the term more loosely to embrace the less formal determinations made by federal agencies and State or Tribal Historic Preservation Officers in the course of Section 106 reviews. Whichever way it’s used, it means that someone has actually determined, decided, concluded, that the National Register criteria are met by a place or a bunch of places, usually based on some body of data and analysis, though there is no hard and fast rule for how much of either is needed.

Nomination to the National Register. This is what happens when someone fills out all the paperwork that the National Register requires before it will consider actually listing something on the Register, and submits it for review, usually through a State or Tribal Historic Preservation Officer to the National Park Service. There is no requirement in law that anybody nominate anything to the National Register. Nantucket Sound has not been nominated, and I for one hope it won’t be; it would be a waste of time and effort.

Section 106 of the National Historic Preservation Act requires that federal agencies take into account the effects of their proposed actions on places included in (i.e. listed in) or eligible for the National Register. Not “determined eligible” for the Register, and not “nominated to” the Register, but simply eligible for the Register. In other words, an agency is responsible for considering impacts not only on places that someone has nominated, or that someone has determined eligible, but also on places that simply meet the criteria. The regulatory requirement to make a “reasonable and good faith effort” to identify eligible properties that may be subject to effect is the logical result of the statutory requirement to consider effects on eligible properties. Agencies – not tribes, states, or citizens – are responsible for making this effort, so that they, the agencies, can do what Congress told them to do: take effects into account. In the Nantucket Sound case, the Minerals Management Service failed in this responsibility by failing to listen to what the Wampanoag Tribes had to say about the Sound’s significance and appreciate that this significance probably made the place eligible for the Register. Nantucket Sound did not become eligible when the Keeper determined it so; it was eligible all along, and the Minerals Management Service should have had sense enough to realize that. It didn't, and that's why the issue has to be confronted now.

A Listless Approach to Resource Management

Introduction

Early this year I was asked to prepare some thoughts to share with a group that (to judge from the rather vague description I was given) was considering the future of various institutions within and around the U.S. National Park Service. The following is what I wrote. Not surprisingly, a glance at it was enough to cause my invitation to be withdrawn. So I'll post it here for whatever interest it may have to others.

Lists in Resource Management: First Step or Knee-Jerk?

Whenever a nation, national subdivision (state, province, city, etc.), or international organization sets out to manage resources – be they endangered species, historic places, or even such intangibilities as songs, stories, and ways of life – its almost invariable first step is to establish or promote establishment of a list. The U.S. National Historic Preservation Act calls on the National Park Service to expand and maintain a “National Register of Historic Places.” The World Heritage Convention creates the “World Heritage List.” The U.S. Endangered Species Act requires creation and maintenance of the “Endangered Species List.” The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage even directs each of its States Parties to draw up, in a manner geared to its own situation, “one or more inventories of the intangible cultural heritage present in its territory

Such lists tend to become the centerpieces of the management systems of which they form a part – or at least to be perceived as such. The U.S. National Register of Historic Places, for example, touts itself on its web site as “the official list of the Nation's historic places worthy of preservation .”

The lust to list is understandable in a simple minded kind of way – how can one manage that which one does not know about, and what more obvious way is there to know about something than to make a list of its examples or expressions? But the fact that listing is understandable does not mean that it is always the wisest first step – or even a necessary step at all – in managing resources. Nor does it mean that it lacks negative consequences that might be avoided if one adopted a listless – or if we must be sober-sided, a list-free or list-minimizing – approach.

Some Down-Sides to Listing

As one simplistic example of the dangers inherent in listing, consider the U.S. National Register’s smug self-description as “the official list of the Nation's historic places worthy of preservation.” “Worthy,” we should surely be allowed to ask, “to whom?” To the American people as a whole? To the government? To the National Park Service? The answer is not clear, but in practice the answer is: “Worthy to the Park Service professionals who run the National Register,” since it is they who decide what gets listed and what does not. Without meaning to impugn the integrity or intelligence of these hard-working government employees, should we not ask whether this means of measuring worth is quite appropriate? It is not uncommon for, say, a local community or a group of citizens to feel strongly that a place associated with their history or cultural practices is worthy of preservation, and for the National Register to decide that it is not eligible – in other words, by the Register’s self-definition, not worthy. Is this entirely democratic? Who elected these guys?

The National Register’s exercise in self-congratulation would be merely amusing if it didn’t have practical implications, but it does. Under Section 106 of the National Historic Preservation Act, federal government agencies have to consider the impacts of their proposed actions on places included in or eligible for the National Register. Implicitly, if a place is not in or eligible for the Register, they don’t have to consider impacts on it. So if a place of great cultural, historical, significance to, say, the people of the Barrio de Don Quijote de la Mancha is in danger of destruction by a federal project, and the National Register decides that this place does not meet the Register’s criteria, the federal agency need not even think about preserving it, as far as the National Historic Preservation Act is concerned. There are other laws that in theory require broader consideration of historic and cultural places – for instance, the National Environmental Policy Act, which deals with the whole “human environment” – but as most agencies interpret their legal responsibilities, if a historic or cultural place is not on or eligible for the National Register, it is not seriously considered under any law.

A related problem with lists is that we tend to become fixated with deciding what does and does not qualify for listing. In my forty-plus years of experience trying to resolve conflicts between development and preservation under the National Historic Preservation Act, I estimate that at least half of all controversies I’ve encountered have not been over whether or how to preserve something, but over whether things were or were not eligible for the National Register. Often these arguments are not as much substantive as they are procedural and technical. Has a particular criterion or standard been met? Has the boundary of the property been correctly defined? Does the place have “integrity” in the eyes of an architectural historian or archaeologist? We spend vast amounts of time and money evaluating things against National Register standards, delay projects for months and years, often for no purpose whatever but to satisfy National Park Service technical standards or the nitpickery of those who interpret them. And in the end, what we “preserve” – if anything – may be those aspects of a place that mean nothing to those who value it. We may, for instance, force the physical preservation of a building as part of a development project, but lose its traditional functions, the role it played in the cultural life of its community. This may be as it must be; perhaps there is no realistic way to maintain the building in its traditional role, but if this is the case, is it worth preserving it at all? And should we congratulate ourselves on having preserved something when what we have preserved, often at great cost, is only a stark and lifeless shell?

My experience with other lists is limited, but I know that similar problems are confronted in the management of state and local level historic property registers in the United States. The criteria employed in maintaining the Endangered Species List are held to be too rigid on the one hand, too open to political manipulation on the other. The various UNESCO groups that are convened from time to time to address World Heritage List issues seem to spend most of their time wringing hands about why more “mixed” natural and cultural places don’t get listed, and why “Third World” countries don’t add more of their places to the List. Perhaps these issues have something to do with actually preserving or managing the world’s heritage, but they appear -- to me at least -- to reflect preoccupation with listing itself, as though it were a self-evident good in its own right.

The United States has not yet ratified UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage, so we have no first-hand experience with its direction to compile inventories of intangibilities. My expectation is that if we ever attempt such a compilation, the complexities with which we trouble ourselves in historic property evaluation will pale by comparison. Are we really going to try to decide where this fiddle-playing tradition leaves off and another begins? Decide which traditional religious practice is legitimate enough to be listed and which is not? And what will we do when all the practitioners of a particular cultural practice – say, line dancing – inconveniently decide to take up something else? Or die?

I raise these last concerns, I hasten to add, as one who believes that “intangible heritage” is very much worthy of consideration in planning. In fact, it may be the only heritage worthy of consideration, since even the ambience of historic places and the research value of archaeological sites comprise “intangible” interactions between physical reality (whatever that is) and our brains. My question is not whether such aspects of heritage should be given fair consideration for preservation through wise, balanced planning. My question is whether giving lists a central place in the processes of preservation and planning is necessary or wise.

Being Listless

I am not suggesting that one could ban lists altogether and have a better, or even a possible, resource management system. There are many uses for lists, and for some aspects of resource management they’re undoubtedly necessary. If you’re distributing benefits – grants, for instance, or tax credits, you need to know who’s qualified to receive them, and that’s going to create a list. If you’re imposing draconian controls – thou shall not paint thy house green; thou shall not dig up a tree – you probably need a list of the things to which these controls apply. But most resource management is not about distributing benefits or imposing absolute controls; it’s about balancing interests in resources with interests in other things, like development. There are ways to do this kind of management without lists – or at least without permanent, high-powered lists that purport to be official rosters of what’s worth managing.

Listless management involves the use of processes designed to identify and resolve conflicts. We recognize a need – say, the need to generate electricity. We look for ways to meet that need, and identify a few – wind turbines on the hill, a hydropower dam on the river, a nuclear plant on the lakeshore. We determine who’s likely to be interested in, affected by, concerned about each of these alternatives, and we begin to talk with them about it. We do studies to figure out what impacts each alternative may have. We continue to consult with the groups that have interests and concerns, and through these processes of study, consultation, weighing and balancing alternatives, we eventually reach a conclusion about what to do. We may carry out these processes well or poorly, of course, but my point is that it is by such processes, if well done, that we can reach thoughtful, well-informed, consensual decisions about managing resources. We may make lists along the way – of resources affected by this, that, or the other alternative, of people concerned about each, and so on, but we don’t need a high-powered central list of what’s been officially deemed to be worth considering. If we have such a list, we’re almost inevitably going to undervalue some things in the eyes of people whose perceptions don’t happen to mesh with the “official” view of significance, and we’re likely to waste a lot of time and treasure figuring out what ought to go on the list and what ought not.

An excellent example of a list-free approach to management is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. The Akwé:Kon Guidelines – the term is from the Mohawk language, and means “everything in creation” – recommend the conduct of integrated “cultural, environmental, and social impact assessments” as part of land use and development planning. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. There is nothing in Akwé:Kon to suggest that resources or resource types important to other people – biologists, for instance, or archaeologists or national park services – should not also be considered, but such resources are not given “official” status, and there is no complicated bureaucratic system for deciding what does and doesn’t get attended to. If people are concerned about it, it’s an issue to be addressed. The focus of analysis and discussion is on figuring out what people are concerned about and how to resolve conflicts. If the processes of issue identification and resolution are pursued intelligently and with integrity, the results ought to be wise, balanced decisions – to which things like national or international registers of resources are irrelevant.

A cynic may say that such processes are never actually pursued with intelligence and integrity, but I don’t believe we can legitimately say that, because we’ve never really focused on them. We’ve spent our intellectual energy on the development and completion of lists, and figuring out what does and doesn’t fit on them. If we threw away the lists, and paid attention to the processes by which better decisions can be made, even a cynic might be gratified.

Bibliography

Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. CBD Guidelines Series, Montreal, http://www.cbd.int/doc/publications/akwe-brochure-en.pdf

Writing the Secretary of the Interior about Nantucket Sound

I'm trying to send the following to Secretary of the Interior Ken Salazar, but find that the Dept. of the Interior's website discourages such contacts. I suppose I'll have to do it in hard copy and let it get fried by the correspondence zappers that Homeland Security has foisted on all the agencies. In the meantime, I thought I'd share it with my faithful readers.

The Honorable Ken Salazar
Secretary of the Interior
Washington DC 20240

Dear Mr. Secretary:

In the current brouhaha over the Cape Wind project in Massachusetts, and the eligibility of Nantucket Sound for the National Register of Historic Places, you are confronted with what may appear – and what some of your advisors may portray – as an existential conflict among three important functions of your office. The administration of which you are a part, obviously and with justification, assigns high priority to developing clean, domestic sources of energy; Cape Wind Is arguably one means by which you may pursue this priority. But you are charged by the National Historic Preservation Act (NHPA) with being an advocate for the preservation of historic places, specifically including places of cultural and spiritual significance to Indian tribes. And quite apart from this responsibility, you are the point man in the federal government’s exercise of its trust responsibility toward tribes, charged with doing what you can to protect and advance their interests. In asserting that Nantucket Sound is a place of spiritual, cultural, and historical importance to them, the Wampanoag tribes have called on you to exercise your NHPA and trust responsibilities, perhaps at the expense of the Cape Wind project.

You are doubtless receiving a lot of advice about how to balance – or dodge, or finesse – these three bodies of responsibility. You are hearing – we’ve all read the words of the governor of Massachusetts to this effect – that the tribes’ assertion is “ridiculous” because we need wind energy. This, of course, is a non sequitur; our need for clean energy, windy or otherwise, no more makes the tribes’ spiritual values ridiculous than our need for peace in the Middle East vitiates the spiritual beliefs of Jews and Muslims. You are also hearing that the tribes are the bought and paid for creatures of rich yachties and homeowners. That’s theoretically possible, but even if it were true that the tribes are in league with non-Indian Cape Wind opponents, that wouldn’t automatically make their spiritual assertions illegitimate. As a former Senator you may have some familiarity with striking alliances to achieve or protect separate but overlapping or dovetailing interests.

You are also almost certainly hearing – quite likely, sadly, from your staff that oversees the National Register of Historic Places itself – that Nantucket Sound cannot be eligible for the Register because it is too big, or too wet, or too loosely bounded. But none of these variables are reflected in the National Register’s criteria of eligibility. It would be remarkable if they were; can government dictate that a place cannot be of historic and cultural value if it is bigger than – what? A breadbox? Does government know some secret relationship between moisture content and cultural significance? As for boundedness – well, the National Register’s staff is in love with boundaries as a matter of bureaucratic tidiness; it is nice to be able to plot things firmly on a map. But history and culture, and land management for that matter, are annoyingly disrespectful of boundaries. In the case of Nantucket Sound (as in many others) boundaries are irrelevant. Wherever the boundaries of Nantucket Sound might be set, it’s a safe bet that Horseshoe Shoals would be within them, and so would most of the effects of the Cape Wind project.

The Register staff may also be fretting about the need for more data, and asking for more studies. That’s standard operating procedure for the Register when confronted with a politically difficult call, but such studies seldom serve any purpose other than to generate costs and delays. There’s certainly no excuse for them in the Nantucket Sound case. The Wampanoag tribes have said that the Sound is culturally significant to its people, is it the place of the government’s history experts to study the matter for a few months or years and then perhaps say “no, it’s not?” Would one expect the tribes, in this event, to say “Oh, OK, Great White Father; poor dumb injuns make-um mistake?”

Finally, you are probably hearing that if you accept the eligibility of Nantucket Sound for the National Register, you are dooming Cape Wind. Perhaps Cape Wind deserves to be doomed; I don’t know. But I do know that nothing in law prevents you from approving a project that does violence to a National Register eligible property – provided your consultation with tribes and other interested parties in accordance with the law reveals no alternative you find worth pursuing, and you conclude that proceeding is in the public interest. On the other hand, your fiduciary responsibility to the tribes, and the requirements of statutes like the Religious Freedom Restoration Act (which says you can’t substantially burden anybody’s practice of religion without a compelling government interest in doing so) may preclude you from approving Cape Wind regardless of the Sound’s eligibility for the National Register.

What recognizing the Sound as eligible for the Register does do is open up an avenue through which you may be able to negotiate a mutually acceptable compromise; the process for doing so is laid out in the regulations for carrying out Section 106 of NHPA. NHPA was a product of Lyndon Johnson’s administration, and the Section 106 review process reflects the line from Isaiah 1:18 that President Johnson was so fond of quoting: “Come, let us reason together.” Under Section 106, when a project will impact a National Register eligible property, everyone involved is supposed to sit down and see if they can reason out a mutually agreeable solution – something that achieves the purposes of the project with as little damage as possible to the interests of those who care about the place. If such a solution can be found, it’s pursued; if it can’t be, then you, as the decision maker, get the recommendations of the Advisory Council on Historic Preservation and then make the final call. It may be a hard call, but that’s why we pay you the big bucks.

As someone who’s worked in and around the National Register and Section 106 for almost half a century, and as a supporter of clean domestic energy, and as a supporter of the administration you serve, I hope you will recognize the obvious fact that Nantucket Sound is eligible for the National Register, and get on with trying to negotiate a solution that respects the tribes’ spiritual and cultural values as well as the interests of local residents and the need for clean energy. It would have been a lot easier to find such a solution several years ago, when the tribes first advised the Minerals Management Service of their concerns, but the Service – doubtless based on what someone thought was impeccable logic – ignored those concerns and left them to fester. This complicates your task but doesn’t change it. The NHPA Section 106 review process – though sadly distorted and corrupted over the last decade – remains one of the federal government’s very few formal procedures for resolving environmental disputes outside the courts. You ought to seize the opportunity to use it to seek a solution to the Cape Wind controversy. But to do this, you need to accept the manifest truth of the Sound’s cultural significance to the Wampanoag tribes.

Thomas F. King


Thomas F. King, PhD
Writer, Consultant, Teacher in Cultural Resource Management
PO Box 14515
Silver Spring, MD 20911
240-475-0595
tfking106@aol.com
Blog at http://crmplus.blogspot.com/
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Buying Thirteen Bones

Anyone interested in purchasing my new novel, Thirteen Bones, can do so directly from the publisher by going to www.tomfking.com. Alternatively, it's available from Amazon, Barnes & Noble, and other booksellers. It's the fictionalized (but fact-based) story of the 1940 discovery of what were probably Amelia Earhart's remains on Nikumaroro in the Phoenix Islands, Republic of Kiribati.

Consultation Requirements Under Section 106: Can an Archaeological Opinion Make Them Go Away?

The other day (Sept. 12, 2009), I posted the following note on ACRA-L:

I'm confronted with a problem that's doubtless not uncommonly faced by CRM consultants, but it's not one I've encountered lately, and I'm wondering what others would do in my situation. Here are the facts:

1. At the mouth of a river, two archaeological sites were recorded in 1989, about 100 meters apart. Both are "Archaic" -- say, 2,000 years old. Both are recorded as distributions of flaked-stone tools and debitage, mostly in the plow zone. The area has been disturbed by various construction activities over the years. Both sites were regarded by their recorders, working for a major, reputable CRM firm, as not eligible for the National Register. The SHPO agreed.

2. Now a new construction project is planned that will be directly adjacent to and partly overlap one of the sites.

I see the two "sites" not as discrete entities, but as red flags, warning me that someone occupied this obviously attractive area (lots of game, fish, shellfish) 2000 years ago. I am skeptical of the notion that these people "lived" only within the areas where archaeologists found stuff in 1989.

I also observe that under current law and regulation (as opposed to what was in effect in 1989) there are today rather explicit requirements for agencies to consult with Indian tribes about effects on properties that may be culturally significant to them.

The SHPO, however, takes the position that since the archaeologists in 1989 didn't find anything that looked to them to be eligible for the National Register, and the SHPO continues to stand by the finding of non-eligibility, there is no need to consult with tribes. I should say that there are no federally recognized tribes in the state, though there are some in adjacent states with interests in the area, and there are several non-recognized tribes.

My client is the project proponent, and is used to depending on the SHPO's opinion. It will be less expensive and troublesome for my client to adopt the SHPO's position than to reconsider the matter and consult with tribes.

It seems to me, however, that following the SHPO's advice will put my client on thin ice legally (to say nothing of the SHPO's logic, which strikes me as faulty). I also fear an eleventh-hour confrontation with tribes, and/or a late discovery, that will be more expensive and time consuming than dealing with the matter now would be. If I recommend dealing with the matter now, however, I will doubtless be seen by my client as merely attempting to make more pricey work for myself.

Any recommendations? Let me assure you that this is NOT a trick question designed to collect ridiculous answers for use in my next book.

I got a number of recommendations, many of them helpful. A number of respondents commented that the situation I confronted was not an uncommon one. Several pointed out that in the 1980s, there was much less awareness than there is today of the potential for deeply buried archaeological sites in places like floodplains along rivers. Most archaeologists said that they would not accept the SHPO’s position on professional grounds, though several CRM practitioners said that if the client was determined to follow the SHPO’s advice, all one could do is warn of it’s possible consequences.

All of these comments were, I think, quite to the point and helpful. But it rather surprised me that no one pointed out the strangeness of the SHPO’s opinion that since the archaeologists back in 1989 hadn’t thought the sites were eligible, there was no need to consult with tribes about the matter in 2009.

Following is what I ended up telling my client (whose identify, naturally, I have not revealed here):

(With regard to) the archaeological site that will be affected by the project, the SHPO took the position that since it was found not eligible for the National Register in 1989, it need not be considered further, and Indian tribes need not be consulted about it. I believe this position is ill-advised, to say the least. In the first place, it ignores the fact that since 1989:

A. Congress amended NHPA in 1992 to require explicitly that tribes be consulted about historic properties of cultural or religious concern to them, and to remind federal agencies and SHPOs that the cultural and religious concerns of tribes may make a property eligible for the National Register;

B. Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA), establishing a requirement to consult with tribes about cultural items in the ground that is wholly independent of NHPA;

C. Congress also enacted the Religious Freedom Restoration Act (RFRA), which has recently been used by a tribe in Oklahoma to close down Army construction at Fort Sill that intruded into the viewshed of a sacred site (cf. http://turtletalk.wordpress.com/2008/08/20/comanche-nation-v-us-tro-on-federal-construction-at-fort-sill/) ;

D. President Clinton issued two executive orders dealing with tribal consultation: 13175 generally directing agencies to consult with tribes about matters of mutual concern, and 13007 directing agencies to give special attention to tribal “sacred sites” on federal land;

E. The ACHP has revised its Section 106 regulations and issued supplementary guidance emphasizing tribal consultation;

F. There has been extensive litigation not only surrounding the above specific statutory, executive, and regulatory authorities, but concerning the general responsibility of the federal government to consult with tribes on a government-to-government basis and exercise a fiduciary responsibility toward tribes. These responsibilities are embedded in treaties and in the U.S. constitution.

The SHPO would have the agency ignore all the above because an archaeologist in 1989 reached the conclusion that the site in question had lost integrity for purposes of research. Even if I thought that conclusion was correct (and as an archaeologist I do not), I would find the SHPO’s position antediluvian.

I also think the SHPO’s position raises questions about environmental justice. Executive Order 12898 directs federal agencies to avoid disproportionate adverse impacts on the environments of low income groups and minority populations, and to consult with such groups in appropriate ways to make sure that they have the opportunity to influence agency decisions. Tribes – both federally recognized and non-recognized – are by definition minority groups and very often have low incomes. Destroying a site created by their ancestors and not everyone else’s is arguably disproportionate. There is nothing in any law, anywhere, that allows a contract archaeologist or an SHPO to speak for a tribe in matters of environmental justice.

I believe that the agency has a clear responsibility to seek out interested tribes, and to consult with them about the National Register eligibility and general cultural significance (if any) of the site, as well as the likelihood that the kinds of items protected by NAGPRA exist there. Practically speaking, failure to initiate and pursue such consultation could expose the agency (but not, it should be noted, the SHPO) to litigation and resulting project delays. In a worst-case scenario, it could kill the project altogether; this happened not long ago to the Federal Highway Administration in Washington State, wasting tens of millions of dollars (cf. http://www.wsdot.wa.gov/Accountability/hcbgravingdock/default.htm). While such a drastic outcome is not likely in this case, project delays are certainly possible. While it is tempting to adopt the SHPO’s recommendation as a quick way of proceeding with minimal complications, in the long run it could have serious impacts – which, it is again worth noting, would fall on the agency, not the SHPO.

I posted this discussion on ACRA-L, too, and the response has mostly been deafening digital silence. I thought, though, that one respondent summed things up nicely by saying:

I naively continue to be surprised by how reluctant many who purport to value cultural and historic preservation (not just expect to make a living at it) consider it unnecessary and/or scary to consult with interested parties about those resources.

It can be scary, no question about it, and it also can be irritating, frustrating, time consuming, and generally a pain in the backside. This is particularly the case because those interested parties – whether they’re tribes or others – probably don’t speak our specialized language; they may not relate very well to the National Register Criteria or the Criteria of Adverse Effect. They may not split hairs the way we do, and they may split different hairs. But the fact remains – here I go on my soap box again – that Congress enacted NHPA and other such laws not for the convenience and enjoyment of CRM practitioners and government officials, but to ensure consideration for places that citizens – that is, taxpayers, voters – care about. And when, in the 1980s, we failed to pay proper attention to the concerns of tribes, the tribes prevailed on Congress to change the law and remind us of our duty. However inconvenient it may be, I don’t think we’re doing our jobs – whether we’re consultants, federal officials, or SHPOs – if we close our eyes to the law’s clear direction to consult with tribes and others. And in evaluating historic places, we can’t pretend that archaeologists speak for anybody but themselves, about what’s important to them. They certainly don’t speak for tribes unless the tribes authorize them to.

Flash! HUD Finds Herd Behavior Among Archaeological Sites! Scientists Stunned!

Back in May, the U.S. Department of Housing and Urban Development (HUD) put out a “fact sheet” on when to do archaeological surveys under Section 106 of the National Historic Preservation Act and related authorities. Here’s what it says:

HP FACT SHEET #6:
WHEN TO DO ARCHAEOLOGICAL FIELD INVESTIGATIONS
HUD offers the following guidance on when to do professional archaeological field investigations. It is applicable to both Part 50 and Part 58 programs. It meets the “reasonable and good faith effort” requirement to identify historic properties, per 36 CFR § 800.4(b).

Archaeological field investigations and related work should be approved only when HUD or the Responsible Entity (RE) is persuaded by authoritative sources of information that there is a “likely” (§ 800.4(b)(1)) presence of National Register-eligible or -listed properties within the project site and that the project may affect National Register resources.

Authoritative sources of information include, but are not limited to, reports, studies, surveys, predictive models, National Register data, and/or tribal input. These data must demonstrate that the project site contains or is reasonably adjacent to archaeological sites that meet National Register criteria.

The SHPO/THPO and other qualified persons may provide such information. The information should indicate a close and direct relationship between such previously discovered sites and the project site. It should also indicate the likelihood that National Register resources will be affected. Archaeological field investigation in such cases would help determine the presence of resources on site and provide the basis for establishing their significance and the project effects on them.

For urban areas, it is reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site.

In the case of projects for new developments in areas not previously developed or disturbed, a somewhat more distant site or ring of sites may be considered as relevant to the project site. But still, in this scenario, HUD or the RE must be persuaded that documented archaeology sites outside the APE are reasonably close enough to the project site to establish a likely relationship and so warrant a professional field investigation on the project site.

HUD or the RE should generally not honor a request for a professional archaeological field investigation without specific justification or solely on grounds that previous surveys have never been conducted in the area. HUD or the RE may turn down such requests as an unjustifiable public expense, particularly where private or
non-federal lands are involved.

This guidance is supported further by the Advisory Council on Historic Preservation’s 2007 Policy Statement on Affordable Housing and Historic Preservation (72 FR 7387-7389), Implementation Principle #8, that limits archaeological field investigations in certain situations.

Implementation Principle #8:

“Archeological investigations should be avoided for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance”

NEED ADDITIONAL HELP? CONTACT YOUR LOCAL HUD ENVIRONMENTAL OFFICER.

Source: Office of Environment and Energy, Environmental Planning Division, CPD, May 2009

The fact sheet was an internal document, but it got out to some State Historic Preservation Officers (SHPOs) and one of them shared it with me. It took me awhile to get around to it, but I finally responded to it as follows:

I recently received a copy of your May 15, 2009 email distributing HUD fact sheet #6 entitled "when to do archaeological field investigations." Can you please explain the rationale for this "fact sheet," which appears to me to fly in the face of a fair number of facts? I am particularly struck by the premise that the likely presence of National Register eligible archaeological sites is somehow indicated only by "reasonable adjacency" to "archaeological sites that meet National Register criteria." Is it HUD's assumption that archaeological sites exhibit some sort of herd behavior that causes them to group together and never drift lonely out across the landscape? Is it also HUD's assumption that they somehow present evidence to passersby of their consistency with National Register criteria -- perhaps like Republican members of Congress waving their versions of health care legislation at the President? And are they also expected to self-demonstrate the danger that they will be affected by a project -- perhaps by quivering in fear?

I'm also interested in how HUD defines such terms as "other qualified persons" and "direct relationship between such previously discovered sites and the project site." Am I, for example, a "qualified person" based on 50 years of archaeological practice, or must one work for a government agency? What sort of "direct relationship" must an unevaluated site demonstrate to a previously documented site? Geographic? Cultural? Genetic? How close must this relationship be?

And why, "for urban areas," is it "reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site? What does such "reasonable adjacency" even mean, considering that urban sites (and rural ones, for that matter) often do not have well-defined boundaries?

To help me understand HUD's logic, perhaps you could relate the fact sheet's guidance to a well-known real world case like the African Burial Ground in New York City or the site of Tse-whit-zen in Port Angeles, Washington. As you doubtless know, in both these cases "archaeological" sites of considerable cultural significance (especially to African-Americans in the first case, Native Americans in the second) that had not been evaluated for National Register eligibility were discovered during construction and (among other impacts) unnecessarily cost federal and state agencies tens of millions of dollars. I should think that it would be among HUD's interests to avoid such impacts on taxpayers and recipients of HUD financial assistance, but I may be wrong.

Thank you for your attention to this request.

I sent this off to the person in HUD who had distributed the fact sheet, and immediately received an automated response, as follows:

Your message wasn't delivered because of security policies. Microsoft Exchange will not try to redeliver this message for you. Please provide the following diagnostic text to your system administrator.

Lacking a system administrator, I distributed my note to several listservs whose participants may be permitted through HUD’s portcullis. We’ll see what happens, if anything.

Archaeologists concerned about application of HUD’s remarkable – uh, is it a policy? A position? An opinion? Anyway, archaeologists concerned about it as it applies to specific cases may want not only to cite NHPA and the National Environmental Policy Act in arguing for surveys where they’re actually appropriate, but also the much-ignored Archaeological and Historic Preservation Act of 1974 (AHPA; See http://www.thecre.com/fedlaw/legal13/archpreserv.htm), which requires agencies, upon finding or being competently advised that their actions, or actions they assist or permit, may destroy historical, archaeological, or scientific data (Note: the law makes no reference to the National Register), to notify the Secretary of the Interior and then either recover the data or assist the Secretary in doing so. Most agencies and others have happily ignored this law, assuming that compliance with Section 106 of NHPA takes care of its intent. Since HUD is apparently now applying Section 106 only to archaeological sites that crowd together and loudly announce both their National Register eligibility and their endangerment, it may be necessary to dust off the AHPA. People (e.g. tribes, other descendent communities) concerned about archaeological sites for other than archaeological reasons will have to employ other strategies.