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Saturday, November 22, 2014

The Hole in the Head: Lessons Learned and Lost

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

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

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

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

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

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

The Hole in the Head: 11/2/2014

Tuesday, November 18, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So I lost the contract.  Oh well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 17, 2014

Contract Archaeology versus Plumbing

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

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

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

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

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

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

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

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

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

Wednesday, November 12, 2014

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

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

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

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

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

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

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

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

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

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

Mr. Elliott --

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

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

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

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

Of course, I’ve received no response.


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

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

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

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

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

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

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

I responded:

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

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

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

On October 29 Freethinker lobbed back the following:

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

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

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

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

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

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

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

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

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

Thursday, October 09, 2014

The U.S. Army Corps of Engineers’ Regulatory Program and Section 106 of the National Historic Preservation Act

A client recently asked me to explain whether and how following Appendix C of its regulatory program regulations (33 CFR Part 325) places the U.S. Army Corps of Engineers in compliance with Section 106 of the National Historic Preservation Act (NHPA), and what authority the Corps had for issuing Appendix C in the first place.  He’s given me permission to generalize my memo to him as a blog posting.

I post this with the caveat that as readers know, I am not an attorney.  I base the following on my 40+ years of experience with Section 106, the Advisory Council on Historic Preservation (ACHP), its regulations (36 CFR Part 800) and the Corps.


Following is the statutory language of Section 106 – i.e. what Congress told the Corps and other agencies to do:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking (16 U.S. C. 470f).
At Section 211 of the law, Congress went on to say:

The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety
(16 U.S. C. 470s).

Elsewhere, “Council” is defined to mean the ACHP.  The ACHP is thus the rulemaking body for Section 106; it prescribes regulations that apply government-wide.

Shortly after NHPA’s enactment in 1966, the ACHP issued non-binding procedures laying out how agencies should comply with Section 106, and amended them following issuance of Executive Order 11593.  These procedures were incorporated into the Code of Federal Regulations at 36 CFR Part 800.  They were held to be binding on agencies by some courts of law as early as 1973-4, but the question of their authority was resolved in 1980 when Section 211 was added to the statute.  The ACHP amended its regulations further over the years, notably in 1985-6 when comprehensive amendments were issued.

I’ve outlined all the above to make two points:

1. Section 106, as you can see, says that agencies must take into account the effects of their actions on places "included in or eligible for inclusion" in the National Register.  "Included" places and "eligible" places are given equal consideration.  This has been the case since the early 1970s, when President Nixon made it so in Executive Order 11593 and Congress amended the statute to comport.

2. Congress gave the ACHP, not the Corps, the authority to issue regulations governing how Section 106 is to be complied with.  

Where Appendix C Came From

The government has had authority to regulate discharges into navigable waterways since 1899, when the Rivers and Harbors Act was enacted; the Corps has exercised this authority for many years.  Application of the Corps’ regulatory authority was greatly expanded by the 1972 Clean Water Act (CWA).  During the 1970s and 80s, the Corps substantially elaborated its regulatory program to discharge its expanded responsibilities. 

During the same period, the ACHP was establishing and overseeing implementation of its Section 106 regulations at 36 CFR Part 800.

It soon became apparent that the Corps faced problems in complying with 36 CFR Part 800 with respect to its regulatory program.  That program involves the issuance of thousands of permits for often rather small projects that result in the placement of fill in waterways and wetlands, and the work regulated is done by private parties, often landowners.  The Section 106 regulations were designed with federal agency projects in mind, and didn’t easily accommodate the complex, multi-party nature of the Corps’ program or the small scale of many of its specific projects. 

This was not a unique problem; other federal agencies that issue permits and provide assistance faced and still face similar issues.  The ACHP crafted a means of dealing with them, which was embedded in its regulations at least by 1978, and elaborated upon in 1986[1].  The regulations allowed and encouraged agencies to negotiate and adopt “Programmatic Memoranda of Agreement,” later called “Programmatic Agreements” or “PAs.”  A PA could adjust the Section 106 process to accommodate the agency’s special program needs.  As noted below, the 1986 iteration of the regulations also provided for “counterpart regulations” to serve similar purposes.

Critically, however, a PA was (and is), as its name indicates, an agreement.  The ACHP, as the Section 106 rulemaking body, had (and has) to agree that the PA’s terms meet the fundamental requirements of law laid down by Congress – notably that the PA provides a fair “taking into account” of potential effects on both National Register listed and eligible properties.  Issuance of counterpart regulations also required (and requires) the ACHP’s concurrence.

Throughout the late 1970s and 1980s, the ACHP and Corps wrestled with the problem of developing a PA or counterpart regulations for the regulatory program, with participation by the National Park Service (NPS), National Conference of State Historic Preservation Officers (NCSHPO), National Trust for Historic Preservation, and other parties (I do not recall that tribes were significantly involved).  Negotiations tended to founder on three major issues:

1.     The Corps’ desire to “take into account” only those effects that would occur within areas under its jurisdiction – which it variously defined to include only the affected waters into which fill would be discharged and a slightly larger area called the “permit area.”  The ACHP and others argued that this limitation was inconsistent with the explicit language of the law, which required consideration of effects wherever they might occur.

2.     The Corps’ desire to distinguish between places listed in the National Register and those eligible for it – i.e. those that meet the Register’s eligibility criteria at 36 CFR § 60.4.  The Corps routinely proposed considering only those places listed in the Register and perhaps those that someone else found eligible for listing.  The ACHP and others argued that this too was inconsistent with the statutory language, and placed unfair burdens on State Historic Preservation Officers (SHPOs) and others, who would be expected somehow to determine the eligibility of places they had no particular reason even to know about – using regulatory authorities that they didn’t and don’t have.

3.     The Corps’ desire to take a rather passive approach to its responsibilities, essentially relying on permit applicants, SHPOs, tribes, and the public to bring historic preservation issues to its attention.  While the ACHP and others sympathized with the problems the Corps faced in managing its workload, they were skeptical about relying entirely on others to surface issues.

The Corps’ attempts to draft PAs or counterpart regulations were also so convoluted that many of us doubted that anyone would be able to implement them – a doubt that has proved justified.

In 1980, the Corps attempted what amounts to an end run around the ACHP’s regulations by unilaterally issuing new regulatory program regulations that included, as “Appendix C,” an approach to Section 106 review reflecting the Corps’ preferred way of “meeting” – or ducking – its responsibilities.  The ACHP, National Park Service (NPS), National Trust, SHPOs and others commented negatively on the draft, which was not finalized.  However, in its processing of permits the Corps went ahead and followed its Appendix C in lieu of compliance with 36 CFR Part 800.

Ongoing History of Appendix C

In 1982, the Corps issued a permit in part based on the authority of Appendix C for a riprap project on the Colorado River in Southern California, requiring consideration only of the “permit area” along the riverbank.  The riprap was an essential part of a housing project that would develop a much larger area, and facilitate access to an even larger area of the California Desert by people who would reside in the houses built along the river.  The Colorado River Indian Tribes (CRIT) sought an injunction to halt the project, arguing that the Corps had violated both the National Environmental Policy Act (NEPA) and Section 106 of NHPA by failing to take into account the full effects of the project.  The court agreed, and enjoined the project (See attached analysis of CRIT v. Marsh from the ACHP’s worldwide web site).

The Corps did not appeal CRIT v. Marsh, so it remained a precedent only in the Southern District of California.  The Corps has dealt similarly with subsequent cases in which courts ruled against its use of Appendix C.  Meanwhile it continued using Appendix C whenever it could, complying reluctantly and often half-heartedly with 36 CFR Part 800 when SHPOs and the ACHP – or the courts – forced it to do so. 

In 1990, the Corps re-issued its regulatory program regulations, 33 CFR 325, including Appendix C, and managed to obtain approval from the Office of Management and Budget to finalize them despite the objections of the ACHP and others.  In 2005 and 2007, it announced to the world that it had discerned the need to revise Appendix C and issued “interim guidance” for its implementation that effectively only muddied the waters. 

This brings us to the most recent instance I know of in which the Corps has tried to explain its application of Appendix C; it’s in an email of September 18, 2014 from Corps Seattle District Cultural Resource Manager Chris Jenkins to Washington SHPO Allyson Brooks, and was copied to me.
Appendix C Today, as Represented by the Seattle District

Mr. Jenkins asserts that:

….the USACE Regulatory Program utilizes Appendix C, dated June 29, 1990, of its regulations at 33 CFR 325 and the Interim Guidance, dated April 25, 2005 and January 31, 2007, to comply with Section 106, case law, and applicable EOs.  

This is accurate as far as it goes, but I believe the ACHP and others (certainly including this writer) would disagree as to whether the Corps “complies” with Section 106 or anything else by “utilizing” Appendix C.

Mr. Jenkins goes on: 

Appendix C followed the rulemaking process and was approved by Office of Management and Budget.  The Appendix C regulations were properly promulgated as standalone regulations establishing the process by which the Corps fulfills the requirements of the National Historic Preservation Act. 

Whether Appendix C was “properly” promulgated is a matter of opinion.  Obviously the Corps thinks so, and in 1990 it prevailed upon the Office of Management and Budget to agree.  To the best of my knowledge the question has not been tested in court.  Note, however, that Section 211 of NHPA directs the ACHP to issue regulations by which agencies fulfill the requirements of NHPA Section 106.  NPS is the rulemaking authority for other parts of NHPA.  NHPA gives no authority to the Corps.

Mr. Jenkins then lapses into near fabrication, as follows:

The ACHP published regulations found at 36 CFR 800 governing compliance with Section 106 on January 11, 2001 and last revised them in 2004.  Although ACHP’s regulations contain a process for agencies to develop counterpart regulations and receive approval for their use by the ACHP, the regulations did not contain a provision to address other agencies’ regulations that had been established prior to the publication of 36 CFR 800.  As such, the USACE continues to legally operate under Appendix C and the interim guidance (emphasis added).

Mr. Jenkins would have us believe that the ACHP’s regulations date only to 2001, and that the Corps’ issuance of Appendix C thus pre-dates them.  Perhaps a true Millennial, he ignores the fact that there was a twentieth century, during which the ACHP issued its regulations and revised them several times.  The 1986 version of 36 CFR Part 800, at § 800.15, in fact “contained a process for agencies to develop counterpart regulations,” as follows:

In consultation with the Council, agencies may develop counterpart regulations to carry out the section 106 process. When concurred in by the Council, such counterpart regulations shall stand in place of these regulations for the purposes of the agency's compliance with section 106 (emphasis added).

Appendix C has not been concurred in by the Council.  Not to put too fine a point on it, the Corps is dissembling.

To its credit, the Corps has now and then recognized and acknowledged that there are problems with Appendix C, and has made rather hamhanded unilateral attempts to correct them.  Thus Mr. Jenkins says that:

In addition, the Interim Guidance dated April 25, 2005, directly links the Regulatory Section 106 process to the definitions and processes within 36 CFR 800.

“Links,” perhaps.  “Makes consistent,” no. 

The “Interim Guidance” simply asserts that the “definitions and processes within 36 CFR 800” apply to Appendix C, but the structure and language of Appendix C are such that those definitions and processes cannot be applied.  It’s equivalent to the so-called Islamic State saying that Christians are free to practice their religion in Mosul as long as it involves prostration to Allah five times per day and acknowledgement that The Prophet (PBUH) is the messenger of God.

Why Does It Matter?

As noted above, there are three major ways in which Appendix C is inconsistent with 36 CFR Part 800.  These discrepancies can have serious practical impacts on the ways in which historic properties are taken into account (or not) in what the Corps insists is Section 106 review of its regulatory actions:

1.     36 CFR Part 800 has agencies identify historic properties and consider effects within an area or areas of potential effects (APE), defined to include all those geographic areas in which an undertaking may have direct or indirect impacts on historic places.  Appendix C largely limits identification and effect consideration to a “permit area” that more or less represents only the area over which the Corps has jurisdiction.  I use words like “largely” and “more or less” advisedly – the appendix applies a number of intricate tests to establish what areas the Corps will and will not consider.  The bottom line, however, is that the Corps’ attention is almost exclusively focused on effects that will occur within the areas over which it exercises jurisdiction, not the (often more expansive) areas where direct and indirect effects are likely to occur. 

       In the case that stimulated Mr. Jenkins to explain himself to Ms. Brooks – the so-called “coal train” project between the Powder River Basin and the Washington coast -- under 36 CFR Part 800 the project APE would include all those land and water areas where effects on historic properties might occur – for instance, offshore areas subject to impact by ship traffic, inland areas subject to the visual, auditory, and other effects of train traffic (and derailments, fires, and discharge of coal dust), and the landscape/seascape in which the coal terminal would be built at Cherry Point on the Washington coast. 

Under Appendix C at least the bulk of the Corps’ attention would focus on the “permit area,” which for all practical purposes comprises only the waters at Cherry Point and perhaps elsewhere into which the project would discharge fill.

2.     36 CFR Part 800, like Section 106 itself, gives equal consideration to places listed in the National Register and unlisted places that meet the National Register criteria (36 CFR § 60.4).  Part of the responsible federal agency’s fact-finding job is figuring out whether unevaluated places meet the criteria, in consultation with the SHPO, Indian tribes or Native Hawaiian organizations, and others. 

Under Appendix C, the Corps addresses what it calls “designated historic properties,” a term it made up seemingly to embrace listed places and places that the Corps and the SHPO agree meet the National Register criteria.  How it addresses them – if it does – depends on a rather complicated formula involving location relative to the permit area and the vigor with which the SHPO or the Keeper of the National Register (who is not ordinarily involved, but somehow Appendix C supposes will find out and intervene) asserts the significance of the place.  In practice, this means that the Corps focuses attention primarily on places already listed in the Register or determined eligible by someone other than the Corps.  The Corps is a passive participant; if nobody else is in a position to demonstrate the significance of a place, the Corps figures it can ignore it.

3.     Section 106 charges Federal agencies with implementing its requirements, and 36 CFR Part 800 does the same.  Appendix C takes a different approach.  The Corps publishes a notice that a permit application has been filed, and allows those interested to react.  In preparing the permit notice, the applicant is supposed to gather certain data, including data on the presence or absence of historic properties in the permit area.  Depending on how the applicant’s consultants’ interpret the intricacies of Appendix C, this can mean many different things.  Many consultants in my experience find Appendix C to be so vague and complicated that they ignore it and do their best to follow 36 CFR 800 instead.  This sometimes gets them in trouble with the Corps, but even if it doesn’t, the bottom line is that the Corps may exercise no initiative whatever to find out what impacts the proposed project will have; it simply receives information from others, and finds ways to react – or not.  This is particularly a problem with respect to consultation, with tribes and others.  Under 36 CFR Part 800 the Corps is responsible for consultation with tribes and other interested parties.  Under Appendix C the Corps will, in effect, consult only if forced to do so, and there is no real way that consultation relates to the intricacies of the Appendix C “process.” 

In summary, then, to the question “does following Appendix C place the Corps in compliance with NHPA Section 106,” I have to say no, because (a) Appendix C is not a legal counterpart regulation established per 36 CFR Part 800; and (b) Appendix C does not provide substantively for the Corps to take into account the effects of its permit actions on districts, sites, buildings, structures and objects included in or eligible for inclusion in the National Register.

As to what authority the Corps had for issuing Appendix C, the Corps had authority to issue its regulatory program regulations, and it tricked the Office of Management and Budget into thinking that this authorized it to issue Appendix C, but as far as I can tell it did not in fact have the authority to issue a Section 106 counterpart regulation without the concurrence of the ACHP.  

Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425 (C.D. Cal. 1985).

Plaintiffs, Indian tribes and an environmental organization, sought to enjoin the U.S. Army Corps of Engineers from issuing a permit to a developer for the placement of riprap along the western shore of the Colorado River in California. The purpose of the riprap was to stabilize the riverbank and establish a permanent boundary line for private property that the developer proposed to subdivide and develop into a residential and commercial community. The site of the development, known as the River City project, was directly across the river from the Colorado River Indian Reservation and directly south of additional portions of the reservation lying on the west side of the river. The land abutting the development site on the west was owned by the United States and administered by the Bureau of Land Management (BLM) of the Department of the Interior. The BLM land, an archeological district, included several significant cultural and archeological sites.

The developer applied to the Corps for the riprap permit in April 1978. The following fall, the Corps prepared an environmental assessment under the National Environmental Policy Act (NEPA) and concluded that, because significant impact upon the environment would result from the developer's proposed project, an environmental impact statement (EIS) should be prepared. The draft EIS was prepared and published in September 1979. In January 1981, the Corps informed the developer that a thorough cultural resources survey of resources on and near the proposed development site was needed before the Corps could complete the final EIS.

In June 1981, however, before the survey was begun, the Corps retracted the draft EIS as a result of changes in Corps policy regarding its jurisdictional authority and announced that no EIS and no further cultural resource evaluation were required. The Corps' decision to retract the draft EIS was apparently made in conformity with its proposed cultural resource regulations published in 1980, regulations that had never been adopted in final form or incorporated into the Code of Federal Regulations.

Under the proposed regulations, the Corps was required to assess both direct and indirect effects of its permits on properties listed or officially determined eligible for listing in the National Register of Historic Places. This review requirement extended beyond the area in which the permit would have direct physical effects to the "affected area," that area within which direct and indirect effects could be reasonably expected to occur.

For properties that were not listed or officially determined eligible for listing in the Register, but that might be eligible for the Register, the proposed regulations limited the Corps' review to the area within the Corps' jurisdiction‹the "permit area," defined as that area which would be physically affected by the proposed work.

The Corps issued the riprap permit to the developer on May 21, 1982. Plaintiffs then filed this action, alleging that the Corps failed to comply with NEPA and the National Historic Preservation Act (NHPA).

After discussing the factors that must be present for a preliminary injunction to be granted, the court addressed the likelihood of plaintiffs' success on the merits of their case. Defendants first contended that no EIS was necessary under NEPA because Federal involvement in the River City project was minimal and "major Federal action" was therefore lacking. The court disagreed, finding that NEPA requires assessment of both direct and indirect effects of a proposed Federal action on both "on site" and "off site" locations. 605 F. Supp. At 1433. That there was minimal Federal involvement in the project did not excuse defendants from compliance with NEPA, for "it is not the degree of Federal involvement that influences the standard of living of our society, but is instead the potential and degree of impact from development that bears upon the overall welfare and enjoyment of our society." Id. at 1432. "Major Federal action" does not have a meaning under NEPA independent of "significantly affecting the quality of the human environment." Id. at 1431.

The Corps' limitation of the scope of its environmental assessment of the bank stabilization activities and its resulting conclusion that there would be no impact on cultural resources were improper and contrary to the mandate of NEPA. Id. at 1433.
The court next addressed plaintiff's claim that the Corps had violated NHPA by distinguishing between properties actually listed in or determined eligible for the National Register and properties that might be eligible for the Register and by affixing different historic review responsibilities to each. The court held that this distinction between properties and different scopes of responsibility was at odds with NHPA and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA. Id. at 1438. Using the Council's definition of "eligible property" in Section 800.2 of its regulations as encompassing all properties that meet the criteria for inclusion in the Register, the court concluded that, in enacting NHPA, Congress intended to protect all properties that are of inherent historic and cultural significance and not just those that have been "officially recognized" by the Secretary of the Interior. Id. The court cited Executive Order No. 11593 and Section 110(a) of NHPA as support, finding that Federal agencies must exercise caution to ensure the physical integrity of those properties that appear to qualify for inclusion in the National Register. Id. at 1435.

The Corps' action in assessing the effects on properties that might qualify for inclusion in the National Register solely within the "permit area" and its failure to survey and consider the effects on like properties in the broader "affected area" was a breach of its responsibilities under NHPA. Id. at 1438.

Finally, the Court granted a preliminary injunction, finding that irreparable harm to cultural and archeological resources as a result of the development was possible. Id. at 1434-39. 

[1] At that time I was in charge of overseeing Section 106 review for the ACHP, and was among the staff members substantially responsible for negotiating and drafting the regulations.