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Sunday, November 15, 2015

Cultural Heritage, Environmental Impact Assessment, and People

 2015 Preface

After presenting this paper in Beijing in 2011, and seeing it handsomely published in 2013, I posted it on, where it's had a remarkably broad readership -- accessed by unsuspecting potential readers in countries ranging from Azerbaijan to Zimbabwe. I'm gratified by such widespread interest, but see no evidence that the paper's had any impact on practice or policy. Hope springing eternal, I thought I'd share it with readers of this blog as well.

Presented September, 2011
(Published in Cultural Heritage Research Volume 2 by the Chinese Academy of Social Sciences [CASS] (Proceedings of the World Archaeological Congress 2011 Beijing
Intercongress on Heritage Management in Asia), Science Press Beijing 2013.

Introduction:  Environmental Impact Assessment (EIA)

It is no secret that development projects of all kinds – housing and agricultural schemes, dams, highways, rail lines – do injury to the environment.  This has nothing to do with whether these projects are justified on economic, social, and even environmental grounds; they often if not always are.  One has to destroy in order to build; it is in the nature of the enterprise.  As long as we want economic growth, industrialization, the ability to defend our nations and provide sustenance and comfort to our people, we must do things that injure the environment.

To control such injury, since the early 1970s virtually every national government, and such nongovernmental organizations (NGOs) as the World Bank, have put in place procedures for “environmental impact assessment” (EIA) (c.f. Eccleston 2011). 

The reason for EIA procedures is summed up in the Confucian maxim roughly translated as: “If you do not consider the future, you will be in trouble when it comes near.”  If we do not consider what harm our proposed projects may do – however beneficial they may be – we will be in trouble in the future, when that harm materializes.  Or perhaps we will not be in trouble, but others will be – those directly affected, and perhaps our children and grandchildren.   Accordingly, governments and funding bodies have realized that they should consider what damage a project is likely to do before they decide whether and how to go forward with it. 

This is not to say that damaging projects should not be undertaken; often they must be.  It is only to say that if we know what damage is likely to occur, perhaps we can do things to keep it from happening, to reduce its severity, or make up for the damage somehow.   And sometimes, yes, we will realize that the impacts are so severe that the project is not worth pursuing.

EIA and Cultural Heritage

Of course, among the aspects of the environment that can be damaged by modern activities is what we call “cultural heritage.”  Readers of this book will probably agree readily that potential impacts on cultural heritage should be closely examined in the course of EIA, that alternatives to damaging activities should be considered, that steps should be taken to avoid or reduce the damage.  In general terms, the world’s people seem to agree; most communities react badly to actions they perceive as damaging their cultural heritage, and most governmental guidelines for EIA indicate that impacts on cultural heritage (defined in various ways) should be considered in planning. 

Often, however, when EIA is performed on proposed projects, not much attention is paid to cultural heritage, or at least not to anything but the most obvious, well-documented, officially –recognized, physical aspects of such heritage.  EIA analysts merely list historic monuments officially designated by government, or places inscribed in the World Heritage List.  They often assume, and assert, that these will be taken care of by following whatever standard procedures government has put in place.  Often the people and communities whose heritage is most at risk are poorly engaged in the process of EIA, their heritage values are poorly considered in planning, and the steps taken to mitigate impacts – decided on by project proponents and governments, if indeed any such steps are taken – are inadequate or even irrelevant to the people whose heritage is affected.

In my experience there are several common, interrelated reasons that cultural heritage is not addressed well in EIA.  In this paper I want to outline some of these problems, discuss a case study from my own country that exemplifies some of them, and suggest steps that we might take to solve them.

Case Study: The Luiseño Ancestral Origin Landscape and Liberty Quarry

The American Indian tribe long known by their Spanish colonial name, Luiseño,
have occupied a modest-sized territory in coastal southern California, U.S.A., since time immemorial.  Many Luiseño people now live on a reservation adjacent to the city of Temecula in Riverside County.  The city’s name is derived from ‘éxva Teméeku, an important place in a larger (about 4450 hectares) landscape in which many of the origin traditions of the Luiseño played out – the creation of the first people (Káamalam), the death (the first ever) and cremation of the hero Wuyóot, and the transformation of the Káamalam into the rock outcrops that even today dot the hills.  To the Luiseño, this landscape is of supreme historical, cultural, and spiritual significance.

It is, however, at this writing not listed on any official roster of cultural heritage – not on the World Heritage List, not on the U.S. National Register of Historic Places, not on California’s own register of historic places. Only within the last year did the Tribe place it on the list of “sacred sites” maintained by the state’s Native American Heritage Commission. 

There are excellent reasons for all this – besides the fact that getting a place listed is costly and time consuming.  For the last 500 years the federal and state governments (and their colonial predecessors) have carried out military actions against North America’s tribes, taken their land, placed them on reservations and until quite recently insisted that they give up their traditional religions and lifeways.  The Luiseños’ non-indigenous neighbors have at best regarded their traditions as quaint.  People have dug up their ancestors, defaced their rock art, and desecrated their sacred places.  Under such circumstances, why would any sensible indigenous group volunteer to register its traditional places on a government list?  Tribes simply have no reason to trust the government, and every reason not to share sensitive information with its representatives.  But absence from lists says nothing about the significance of a place to the Luiseño; they know what it is, and why it is important.

California-based Granite Construction has proposed to build a large aggregate quarry within the Luiseños’ valued landscape.  The story of the Luiseño effort to get government to respect their cultural heritage concerns about this proposal illustrates the problems I want to explore with cultural heritage in EIA.  I stress, however, that – sadly – this story is not unique or even unusual; similar conflicts play out the world over, and are poorly addressed in EIA and government planning.

Problem One:  What is Cultural Heritage?

Different people conceptualize cultural heritage in different ways, and this complicates its consideration in EIA.  In my own experience in the United States and the Pacific islands, and in reading the international literature, I find that ccultural heritage is variously defined to include – or exclude (among other things)

  • Monuments, archaeological sites, and cultural landmarks;
  • Traditional ways of using the land and its resources;
  • Culturally important plants and animals, water sources, and landscapes;
  • Culturally valued soundscapes and viewsheds;
  • Stories, songs, philosophy and language;
  • Traditional forms of subsistence;
  • Traditional ways of life;
  • Religious, spiritual and other cultural practices;
  • Objects of material culture (artifacts, antiquities);
  • Art forms, and
  • Books, manuscripts, and other literary products.

Each of us academic and professional practitioners specializes in one or more of the above types of heritage.  Most of us at the Intercongress that produced this volume, in fact, specialize in a subdivision of the first type shown on my list: archaeological sites, which may also be thought of as historic places and/or landmarks.  We understandably do not take responsibility for other kinds of cultural expression, other parts of the cultural environment.  But here is the problem: we also often fail to inform those who plan and carry out EIA that we are not authorities on all aspects of cultural heritage.  And we fail to recommend that they consult those who are authorities on cultural things other than archaeology, notably including the local people themselves.  We call ourselves things – like “cultural heritage specialist” and “cultural resource manager” – that obfuscate what we actually know and can advise about.  This results in assessments in which “cultural heritage” is equated entirely with monuments or archaeology, while the other elements of culture are given little consideration or even ignored entirely.  These aspects of the cultural environment may be just as worthy of protection as – even more worthy than – archaeological sites, and they may be much more the concern of local people, but if they are considered in EIA at all, it is often in spite of us rather than with our support.

Consider, for example, animals or plants that figure in a community’s self-identity.  I have been involved with the Okinawa dugong, significant in the beliefs of traditional Okinawans; the dugongs’ habitat is threatened by the proposed construction of a U.S. military base.  To those performing EIA on the project, the dugongs were animals of professional concern to biologists and natural resource managers.  To the local people, however, the dugong is literally a sacred animal.  Had it not been for litigation by Okinawan, Japanese, and U.S. environmental groups, and near-violent demonstrations on the project site by Okinawans, the cultural value of dugongs and their habitat to the people of Okinawa would have been ignored in the military’s EIA and its decision making about the project (c.f. King 2006).

In the case of the Luiseño Ancestral Origin Landscape, the Riverside County Planning Department performed EIA on the proposed Liberty Quarry, under the authority of the California Environmental Quality Act (CEQA).  The County Planning staff examined the Native American Heritage Commission’s list of “sacred sites” and found that none were listed within the project boundaries.  They also had an archaeological survey done that revealed no archaeological sites.  When challenged by the Pechanga Band of Luiseño Indians for failing to consider the Origin Landscape, they said that CEQA did not permit them to consider any place that archaeologists did not regard as significant.  Oddly, at the same time they contracted with an ethnographer to study the ethnohistorical record of the area; he advised that it probably represented a cultural landscape important to the Luiseño, and recommended more study. 

Rather than undertaking such study – which would inevitably have involved face-to-face consultation with the Luiseño – the County staff and the project proponent interpreted the ethnographer’s report to mean that no culturally significant places were present.  Their rationale for this interpretation, insofar as it can be found in their documentation, seems to have been that the ethnographer had not identified specific archaeologically observable cultural places within the proposed quarry site.  The notion that the landscape containing the quarry site could be culturally important, regardless of its archaeological visibility, seems to have escaped them.

Problem Two:  The Limitations of Traditional Thinking About Cultural Heritage

As in many other cases, part of the conflict over the Luiseño Ancestral Origin Landscape reflects deliberate twisting of expert opinion by the employees of project proponents and regulatory bodies who see advancing development as keys to their job security.  Much of what has happened, however, is less iniquitous; it is simply inherent in the ways people think when they work in cultural heritage management and EIA, and in the ways that cultural heritage and EIA systems interact.

EIA has developed as a part of governmental and non-governmental planning only in the last half-century.  The management of historic landmarks, monuments, and archaeological resources, of course, has a more venerable history, by some reckonings going back to the 10th century ACE and perhaps farther.  Organized government systems for heritage management were being put in place in Europe by the early 19th century, and spread across the world with colonialism.  So the ways archaeologists, architectural historians, and our colleagues think about our aspects of cultural heritage were well set in place before EIA ever came on the scene.  These ways of thinking feature the following more or less standard elements:

  • A narrow focus on specific, carefully defined places – usually buildings, other structures, monuments, and archaeological sites, and on portable antiquities;
  • Difficulties in conceptualizing broad landscapes and natural places as having cultural significance;
  • Compilation of official lists of heritage places, variously called registers, inventories, and schedules, among other things;
  • An expectation that listed heritage places should be preserved unchanged in perpetuity;
  • Little or no consideration given to places not on official lists, or not at least regarded as eligible for them;
  • Official governmental bodies that compile and maintain lists, and promote preservation;
  • Laws and regulations aimed at protecting listed places to varying degrees, or at least at reserving to government the right to destroy them.
  • More or less rigorous constraints on the private appropriation of heritage places, or of antiquities.

These standard elements are embedded not only in the legal systems of most nations, but in such international instruments as the World Heritage List.  Even when we try to bend our minds around cultural things that are not archaeological sites and historic landmarks, we automatically apply our traditional ways of thinking.  The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, for example, directs that signatory nations compile lists of intangible cultural heritage, despite the inherent fluidity and evanescence of intangible culture.

When this list-based, hierarchical, bureaucratic and rather rigid system of thought intersects with EIA, it further narrows the scope of impact analysis.  Not only does EIA come to represent archaeological sites and landmarks as the only culturally significant aspects of an affected environment, it tends to recognize as significant only those sites and landmarks that government has officially declared and listed as such.  In the United States, for instance – to hold up only my own country as a sad example – if a local community fears that a place it holds dear may be destroyed by government action and wants it considered in EIA, it must show that the place is eligible for the National Register of Historic Places.  This requires the community to explain the place’s significance to government archaeologists, architectural historians, and others following technical regulations issued by the National Park Service and readily understood only by specialists.  In most EIA documents in the United States, if a place has not been found eligible for the National Register, it is assumed to be of no significance, and can be destroyed with impunity.  And cultural heritage that is not embodied in places – for example animals, plants, belief systems, traditional food – has almost no chance of being considered in EIA.  This strikes me, at least, as a strange way for a grandly self-proclaimed democracy to respect the cultural values of its people.

In the Luiseño case, much of the argument about the Tribe’s cultural landscape has centered on its eligibility for the California Register of Historic Resources, which derives its criteria for inclusion from the U.S. National Register of Historic Places.  After the Tribe forcefully rebutted the County staff’s assertion that only archaeological sites could be considered in the course of EIA, Granite Construction hired its own historic preservation expert to argue its case.  Her approach eschewed all contact with the Tribe and was based solely on the ethnographic literature and government regulations.  She began with a careful explanation of what she said were the U.S. government’s rules governing National Register eligibility.  These, she said, permitted recognizing a place as eligible only if it related to a well-articulated historical “theme.”  She generously allowed that Luiseño Origin traditions might constitute such themes, but then deconstructed them into multiple examples, each giving significance only to a limited part of the overall cultural landscape.  Each of these, strangely enough, happened not to include the quarry site.  She acknowledged that one could map much larger landscapes based on the traditions, and that some of these would include the quarry site, but she implied that these would be so big that the quarry’s effects on them would be miniscule.  She then prudently left town before the decision makers or the public could question her.

The consultant’s willingness to interpret government procedures in ways that undercut the interests of the Tribe strikes me as professionally reprehensible, but such things are probably inevitable in an EIA system like that in the U.S., where  project proponents either hire (and fire) those who analyze potential project impacts or strongly influence the regulatory agencies that engage such analysts.   But the Luiseño case also illustrates a more institutional problem with the interactions between EIA and cultural heritage.

Problem Three:  Attitudes and Assumptions

When people conducting EIA seek to consider the cultural aspects of the environment, they understandably turn for advice to the government’s cultural heritage authorities – ministries of culture, official archaeological surveys, agencies that maintain schedules or registers of cultural places and things.  In the Luiseño case, the State Historic Preservation Officer and Native American Heritage Commission were the government experts contacted.  EIA analysts reasonably assume that such authorities can advise them about – perhaps even provide them with lists of – significant cultural heritage that may be affected. 

The cultural heritage authorities often have little understanding of EIA, but they do know their own programs, regulations, policies, and specialties.  As far as they know, when they are asked to advise about cultural heritage, they are being asked to advise about what is on their lists, what they are officially responsible for, or what falls within the ambit of their professional expertise.  They advise about archaeological sites, scheduled monuments, registered buildings, listed sacred sites.  What they almost certainly do not advise about is how to interact with local people and,  communities, to find out what they think is important and what they think ought to be done about it.  That sort of engagement has never been part of the portfolio of most government heritage offices, and few of them are staffed, funded, trained or encouraged to promote such engagement.  In these days of fiscal belt-tightening and regulatory “streamlining” among government agencies everywhere, cultural heritage authorities are often barely able to process paperwork crossing their desks, and are most unlikely to assert themselves on behalf of people and communities they may not even know exist.  So they tell the EIA specialists what is on their lists, in their files, and little if anything more.  Or they ask that an archaeological or architectural survey be done, and its results subjected to professional review.

Having received the advice of the government experts, perhaps doing the requested professional studies, and believing that they now know what cultural heritage may be affected, the people conducting EIA duly report what they have learned and proceed to analyze environmental impacts without further consideration of culture.  If local people and other interest groups then object – perhaps violently – to what they think the project will do to their heritage, it often comes as a surprise to the project’s proponents and their EIA specialists (and sometimes to the cultural heritage authorities as well). 

In the Luiseño case, the County staff checked a records center maintained by the State Historic Preservation Officer, where they found that only one cluster of archaeological sites had been nominated to the National Register of Historic Places.  This cluster, though part of the Ancestral Origin Landscape, had been nominated by an archaeologist – this author, as a much younger man – who had failed to consult the Luiseño.  Its rather arbitrarily-drawn boundaries were some distance away from the Liberty Quarry project site.  They also contacted the State Native American Heritage Commission and checked its “sacred sites files,” but as noted above, the Pechanga Band had not at that time had occasion to list its landscape there.  To its credit, the Commission did suggest that the County consult the Band, but provided no detailed guidance, and the County’s consultative efforts were limited at best.  Following standard California state practice, the County also had an archaeological survey conducted of the project site, which produced no significant results.  The EIA report, when published, suggested that the project would have a less than significant effect on “cultural resources,” despite the Band’s by-now vociferous objections to the potential desecration of its cultural landscape. 

Government, Culture, and People

The Luiseño case is by no means unusual; comparable examples can be found in virtually every part of the United States and in every country world-wide.  The systems – if such they can be called – that permit and facilitate such abuses are fundamentally unfair and counter-democratic, and their operation undercuts our efforts to preserve cultural heritage.  Surely it is true that only the citizens of our countries, only the people, have the power to redirect and control destructive development, but our traditional ways of managing heritage disconnects us from the people.  By focusing attention only on the kinds of heritage that we archaeologists, architectural historians, and other “experts” understand and appreciate, we fail to engage the people.  By failing to respect them and the things they think are significant, by insisting instead that they respect our evaluations of heritage, our terminology and ways of viewing the universe, our ways of describing and discussing heritage, and our plans for its management, we cause ourselves to be seen as elitist and irrelevant to the people’s interests.  Not only does this break faith with the people in whose interests we presumably seek to manage heritage; it also leaves us in a relatively powerless position when contending with developments that destroy it.  We become, in essence, junior partners in such developments, and we are easily ignored by our senior partners in government and industry when conflicts arise. 
Ironically, failing to engage the people and address the heritage they value can also impede development projects.  I have personally seen important, highly justified projects held up for years, at very high cost, and sometimes abandoned altogether, because of last-minute controversies over locally valued cultural heritage.  In the Luiseño case, at this writing, the County Planning Commission has denied a permit for the Liberty Quarry, in part because of its impacts on the Luiseño ancestral origin landscape.  Appeals will doubtless be lodged, the final outcome remains in doubt, and the Commission’s action came only after an extraordinary effort by the Pechanga Band and its allies, who had to engage their own expensive “expert” consultants (like the author) to help rebut the conclusions of the project proponent’s consultants and the County staff.  Both sides spent a great deal of time and money that could have been saved, had a more thoughtful process of EIA been carried out.

Controversies like the one surrounding the proposed Liberty Quarry can often be  avoided or efficiently resolved if affected people and communities are  respectfully consulted, early in project planning.  Unfortunately, and quite inadvertently, our systems for considering cultural heritage in EIA do not routinely or even often provide for such consultation.  I suggest that it would be in everyone’s interests – the interests of governments, of archaeologists and other heritage professionals, of our institutions and agencies, of communities world-wide, and of the development community – to make EIA more sensitive to cultural heritage, broadly defined, and notably to the cultural values of local communities.  Interestingly, a way to do this has been offered – not by us cultural heritage experts, but by biologists.

The Akwé: Kon Guidelines

The Secretariat of the Convention on Biological Diversity – a convention to which China and other Asian countries are signatories, but my country, I am sorry to say, is not – has produced a sophisticated set of guidelines for considering cultural heritage in EIA (Secretariat of the Convention on Biological Diversity 2004).  These guidelines are called “Akwé: Kon”(“Ahgwégoh”) a term in the language of the North American Mohawk tribe meaning “everything in creation.”  They outline how to conduct social, cultural, and environmental impact assessments in concert with affected communities.  The guidelines are voluntary; the Secretariat has no regulatory authority.  Their lengthy subtitle indicates that their application is recommended only where “sacred sites” or “lands and waters traditionally occupied or used by indigenous and local communities” are involved.  Their unenforceable character does not detract from their quality as good advice, however, and it is hard to imagine a place on earth, other than the deep oceans and Antarctica, that has not been “traditionally occupied or used” by communities.

A government or NGO planning some form of land-use – a dam, a highway, an agricultural or urban revitalization scheme, or a power plant – that conscientiously followed Akwé: Kon would actively and creatively engage local communities in every aspect of planning.  It would work with such communities to identify who speaks for different cultural interests.  It would learn how to communicate with these groups, find out and record their concerns and negotiate ways to address them.  In doing so, it would make sure that affected groups have the financial and other resources necessary to participate fully in impact assessment and decision making.  It would negotiate and put in place agreements with the communities about how the impacts of the project would be identified and considered.  Following such agreements, it would conduct cultural impact studies addressing the project’s possible impacts on, for example:

…cultural heritage, religions, beliefs and sacred teachings, customary practices, forms of social organization, sys­tems of natural resource use, including patterns of land use, places of cul­tural significance, economic valuation of cultural resources, sacred sites, ceremonies, languages, customary law systems, and political structures, roles and customs.
                                                            (Secretariat of the CBD 2004:13)
The scope of such studies would take into account:
(a)      Possible impacts on continued customary use of biological resources;
(b)      Possible impacts on the respect, preservation, protection and mainte­nance of traditional knowledge, innovations and practices;
(c)      Protocols (negotiated with communities);
(d)      Possible impacts on sacred sites and associated ritual or ceremonial activities;
(e)      Respect for the need for cultural privacy; and
(f)       Possible impacts on the exercise of customary laws.
                                                                        (Secretariat of the CBD 2004:14)

The government or NGO would carry out environmental assessments coordinated with the cultural assessments.  These would “respect existing inherent land and treaty rights as well as legally established rights of indigenous and local communities” and “con­tribute to the protection of the rights of indigenous and local communities by recognizing (their) distinct activities, customs and beliefs…”  Such assessments would consider, among other more strictly eco-biological factors:

·          areas of particular economic significance (as hunting areas and trapping sites, fishing grounds, gathering areas, grazing lands, timber harvesting sites and other harvesting areas);
·          particularly significant physical features and other natural factors which provide for biodiversity and ecosystems (e.g. watercourses, springs, lakes, mines/quarries that supply local needs); and
·         sites of religious, spiritual, ceremonial and sacred significance (such as sacred groves and totemic sites).
 (Secretariat of the CBD 2004:16-17)

Coordinated social impact assessments would:

…. take into account gen­der and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications… and evaluate …. tangible benefits to such communities, such as non-hazardous job creation, viable revenue from the levying of appropriate fees from beneficiaries of such developments, access to markets and diversification of income opportunities.
(Secretariat of the CBD 2004: 18)

Economic assessments would recognize that:

changes to traditional practices for food production, or (that) involve the introduction of commercial cultivation and harvesting of a particular wild species (e.g. to supply market demands for particular herbs, spices, medicinal plants, fish, fur or leather) may lead to pressures to restructure traditional systems of land tenure or expropriate land, and to pressures on the sustainable use of biological diversity, in order to accommodate new scales of production. The ramifications of these kinds of changes can be far-reaching and need to be properly assessed, taking into account the value systems of indigenous and local communities. Likely impacts associated with the cultivation and/or commercial harvesting of wild species should also be assessed and addressed.
(Secretariat of the CBD 2004: 19-20)

The results of all these assessments would be brought back to the community and coordinated with its own planning, in a transparent, consultative manner, with provision made for the resolution of disputes (Secretariat of the CBD 2004:22-25).

Opting for Akwé: Kon

An EIA system based on Akwé: Kon would not discourage consideration of things like World Heritage sites and places or things listed in a national schedule or register, but it would recognize that those who are fixated on such places – that is, let us admit it, many of us – constitute only one set of cultural stakeholders, whose values are not privileged over those of others, notably including local people.  It would be significantly more democratic, more transparent, more inclusive than most existing systems.  It would also, I think, produce a higher degree of predictability for development project proponents than they currently enjoy.

Adopting an Akwé: Kon based system would require administrative, legislative, and policy actions of different kinds, depending on the nation or NGO involved.  In the U.S., unfortunately, it would require action by our legislative bodies, which is very unlikely to happen given their current composition.  In nations with less fossilized EIA and cultural heritage systems than ours, among NGOs and even perhaps among private-sector developers, there may be more hope.

I have no magic formula for replacing the world’s ineffective cultural heritage systems with something like Akwé: Kon.  My purpose in this paper has simply been to suggest that many of our existing systems for relating cultural heritage to EIA are self-defeating, and to suggest that we consider such creative alternatives as Akwé: Kon – alternatives that stress finding out what concerns living people and communities – not just governments and specialists – about impacts on cultural heritage as they define it, and addressing such concerns creatively and with responsibility.  I hope that the world’s environmental and cultural heritage organizations, and the smart young people who are rising to leadership in them, will undertake this consideration.


Convention on Biological Diversity: Secretariat of, 2004   Akwé: Kon – Voluntary Guidelines for the Conduct of Cultural, Environmental, and Social Impact Assessments 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.  Secretariat of the Convention on Biological Diversity, Montreal, available from, [23 September 2011].

Eccleston, Charles H., 2011   Environmental Impact Assessment: A Guide to Best Professional Practices.  CRC Press, New York.

King, Thomas F., 2006   Creatures and Culture: Some Implications of Dugong v. RumsfeldInternational Journal of Cultural Property 13, 235-40

Sunday, November 08, 2015

More on National Register Determinations as Diagnoses

My respected colleague Darby Stapp has sent in a comment on my post about National Register eligibility determinations being diagnoses, not canonizations. Because for some reason Blogspot wouldn’t register it as a comment, and because I think it’s worth detailed consideration, I’m publishing it below, followed by my response.

Darby’s Comment:

This blog has given me much to think about.  First I was concerned that I was one of the guilty parties using the word “designate” in reference to a TCP (traditional cultural place) determination, but I could not find that I have ever used the word in any of my writings.  Nevertheless, I will admit to assigning a degree of permanence to such determinations.  At the Hanford Site in Washington State, a federal facility that at the time was 560 square miles in size before they turned half of it into a National Monument, we kept track of sites determined or not determined eligible and managed them accordingly. These efforts were in response to Section 110(a)(2) of NHPA, that requires agencies to develop programs for the identification, evaluation, and protection of historic properties.  As areas got surveyed for Section106 reviews and sites got identified and evaluated for National Register eligibility, we kept lists of sites determined eligible and put them into a monitoring program so we could monitor their condition. When new projects would be proposed in an area that already had been surveyed, we used existing determinations to develop regulatory paths forward.  If the site had already been determined eligible, we jumped to determination of adverse effect.  While new determinations could always be re-done, I can only recall a few instances when that ever happened, usually when it appeared that the original evaluation was suspect.  We rarely nominated sites for listing in the National Register because by this time, some CRM expert (I wish I could remember his name) had taught us all that it was stupid and a waste of time and money to actually nominate sites; we were told that determining a site eligible gave the agency all it needed to protect the site.

Now comes your blog where you indicate that a determination of eligibility is just a diagnosis, and apparently only good for the undertaking that required the Section 106 review in the first place.  You imply that any time a new undertaking comes along, any sites previous identified and evaluated should be re-evaluated.  Certainly one should be open to such a possibility, but to make it part of the process, boy oh boy, are you going to be popular with ACRA! There’s millions of dollars of new work for ACRA[1] contractors to do.

My main concern, however, is if this is in fact the case, then it is not true that getting a determination of eligibility is just as good as listing the site on the Register; at least not in the long term.  If this is the case, then I regret not making the effort to get important sites at Hanford listed on the National Register so that they would be protected in the future.  If indeed a determination of eligibility has little meaning beyond the specific Section106 review, then there are a lot of important sites out there that are at risk of being determined not eligible by future managers at Hanford and their contractors who might put projects ahead of heritage protection.  You know what it’s like out here, you wrote the book, Our Unprotected Heritage.  What you are saying is that agencies and their contractors can—should--go around and redo all of the determinations of eligibility every time they have a project involving site that has been previously been determined eligible or not eligible. While I like the part about re-evaluating sites determined not eligible, the fact of the matter is that the way things are today, not eligible will stay not eligible, and eligible will become not eligible; at least contractors will be pressured to make these recommendations.

Am I over-reacting?  Do you still say that it is not worth nominating sites to the Register?

My response

Yeah, you’re over-reacting, and yes, I still say that it is (usually) not worth nominating sites – or anything else – to the Register, at least if what you want to do is protect places from willy-nilly destruction by or by leave of federal agencies. But maybe I’ve not been clear, so let me try to clarify, using Hanford as a case study.

Again, my basic points are that we’re none of us omniscient, and times change. Ergo a “determination” made yesterday may be suspect or plain wrong today, or tomorrow, because whoever made it didn’t think everything through or because we’ve learned stuff in the intervening years that we ought to consider. If we didn’t reconsider authoritative determinations from time to time, we’d still insist that we live in a heliocentric universe.

So at Hanford, you all determined, back in the ‘90s I believe, that Laliik (Rattlesnake Mountain) was eligible for the National Register as a TCP. I don’t know what was determined not eligible around the same time, but let’s say that Borsatg (Bunches of rocks scattered across the grassland) was thus determined – that is, diagnosed. Now, let’s say, someone’s considering building a power line that may affect both Laliik and Borsatg. Should they just say “OK, back in the ‘90s this all got taken care of, and far be it from us to question the wisdom of our elders or the sanctity of a Register determination?”

Of course not – no more than a medical doctor examining me in 2015 for signs of dementia would rely on how someone (probably mistakenly) diagnosed my mental acuity back in 1996. They should ask: Is Laliik still significant and is Borsatg still not? And of course, they should ask themselves about all the places that are neither Laliik or Borsatg, too.

Does this require that they hire a bunch of ACRAlytes and ACRAnyms to go do a pricy study of each landscape? Of course not. As Mammy Yokum[2] wisely said, any fool can plainly see that Laliik has been, is, and continues to be eligible – unless, perhaps, in the intervening years all the tribes in the area, and all their members, have formally proclaimed that they were just kidding back in the ‘90s. Nobody needs to do a study; at most somebody needs to check off a box, or murmur “yep, still eligible.” But with Borsatg, whoever’s planning the project needs to ask: have we learned anything about bunches of rocks scattered across grasslands in the last thirty years? Do we have any reason to think differently about them than people did back in the ‘90s? And it just may be – given recent thinking about stuff like cultural landscapes – that the answer is “yes.” Whether this means there needs to be an ACRAmonious study is another matter; that depends on how obvious it is, or remains, that Borsatg is or is not culturally significant.

All I’m really saying is, for heaven’s sake people, use your heads instead of just dumbly relying on past authority. Modern thinkers about matters universal can’t ignore the existence of Copernicus, but thankfully they haven’t been bound by his assumptions. Neither should we or our heirs be bound by the conclusions of our elders or theirs about what meets or does not meet the National Register’s precious criteria.

Oh -- and about regarding something as eligible being good only for Section 106 purposes -- as I recall it, back in the 1980s when we at the ACHP came up with that language for the Section 106 regulations, I wanted it to read that properties could be regarded as eligible based on agency/SHPO agreement, period. Then general counsel, now executive director John Fowler very correctly pointed out that if we said that, the National Park Service would have a cow, since National Register eligibility determinations are firmly lodged in the NPS manger. We had to stay strictly within the sideboards of Section 106 review. In a rational universe, a conclusion reached under Section 106 ought to have some influence on how things are viewed under Section 110, but where we actually live, that's all up for grabs.

[1] American Cultural Resources Association: see

Saturday, November 07, 2015

Why Are Tribal Historic Preservation People Such Wimps?

So, once again I’ve been asked by a tribal historic preservation person – I don’t know his or her exact title or tribe – about how to nominate a tribal traditional cultural place (TCP) to the National Register of Historic Places (NRHP). The place is apparently a largish landscape with diverse property owners. I spun my broken record (scratched CD) and asked why in the world the tribe wanted to nominate it.

“So federal agencies will have to consider it in planning and permitting,” was the response.

Wearily cranking my disc around again, I asked why the tribe didn’t simply document why the landscape was significant and tell the agencies to regard it as eligible for the NRHP, as the Section 106 regulations allow.

“Then it won’t be in the State inventory,” was the response, “and if it’s not in the State inventory they ignore it.”

Well, gee, tribes, let’s by all means accept that. 

Never mind that the law doesn’t say to take into account only places included in the NRHP, or that happen to be in the State inventory. Never mind that if an agency isn’t addressing impacts on ELIGIBLE places it’s breaking the law. Never mind that it’s undoing almost fifty years of hard-won education in preservation planning principles. That’s the way the Great White Father wants to do business, so we just gotta say "yessir" and get busy doing the agency’s work for it.

Look, if you don’t insist that agencies do what the law requires, you’re accessories in their malfeasance, and in the destruction of your heritage. You’re supposed to be sovereign governments; why don’t you try acting like you are?

Saturday, October 24, 2015

More on the Struggle Against Arboricide

Back in April we had a lively discussion on this page about the predilection of State Historic Preservation Officers (SHPOs) to insist on receiving all correspondence and reports as paper documents (See SHPOs Kill Trees, Don't They? -- Since then I've dealt with several more SHPOs who simply demand paper without bothering even to explain themselves ("Do NOT submit electronic documents," one orders, to which I am tempted to respond [electronically], 'F**k you, you autocratic twerp.").

When I've asked SHPOs or their defenders about this, the response is always: "Well, gee, if we just had some more MONEY..."

Which is understandable, but BS, I think. Since April I've been digitizing all my old files -- granted I'm not an SHPO, but 60 years of practice has left me with a LOT of paperwork -- and I've learned two things:

1. It's not all that expensive, or difficult; and
2. Once it's done, it's a whole lot easier and cheaper to maintain and access my files.

And if one isn't digitizing a bunch of old stuff, but simply accepting and e-filing new stuff, the cost drops pretty much to zero.

I realize that an SHPO has to handle a whole lot more documents than I do, but I simply do not believe that it would be more costly to do it electronically than to pay people to open and sort and file and retrieve and manage paper documents.

When my scanblitz is complete, I'll post some data on what it's cost me to digitize my ton or so of old paperwork, but in the meantime -- for those who may want to start digitizing, and with thanks to my lawyer son Josh who put me onto it (after making his office paper-free), let me recommend the Fujitsu ScanSnap ix500 ( A small, inexpensive, little machine that goes through amazing volumes of paper in minutes, capturing color images of both sides of each sheet. With the part-time help of three students (to whom I'm profoundly grateful), I've reduced roughly 60 bankers' boxes of paper to about 1/4 of a 2 terabyte hard drive just a little bigger than my cellphone (and yes, I'm backing it up on another one). If I can do it, anyone can -- even an SHPO.

Friday, October 23, 2015

Determining Eligibility is a DIAGNOSIS, Not a Canonization

I’m seeing more and more documents in which federal agencies, consultants, and other participants in Section 106 review – even ostensible experts like State Historic Preservation Officers (SHPOs) – refer to finding something eligible for the National Register of Historic Places (NRHP) as a “designation.” Apparently they think that the eligibility determination process – and even the more flexible process of considering something eligible under 36 CFR §800.4(c)(2)[1], involves somebody formally designating something as something. I’ve even seen “designation” used in the context of recognizing a place as a traditional cultural place (TCP).

This is nuts.

Why? Well, for one thing it’s not consistent with the regulations. But if that’s too bureaucratic or legalistic for you, there’s this: it confers some sort of god-like status on whoever’s supposed to do the “designating” – usually a federal agency, an SHPO, or the Keeper of the NRHP. They don’t just figure out that a place is eligible, they make it so.

Why is that a problem? Well, if you’re a tribe or a local group that values a place, you might just have reason to object to some fancy-pants government agency having such power over how your special place is regarded. But more practically, there’s this:

If an agency or SHPO or Keeper of the NRHP has the discretion to make a place eligible, they also have the discretion to make it not so. Apply enough political pressure to the SHPO or the agency official or the Keeper and that place that’s in the way of your project can simply stop being historic.

Why an SHPO would want to expose himself or herself to this kind of pressure is more than I can imagine, but that’s what they’re asking for when they teach people that an eligibility determination is a “designation” for which they’re responsible.

Look, a determination of eligibility is like a medical doctor’s diagnosis. When a doctor diagnoses you with gonorrhea, she’s not giving you gonorrhea, she’s saying that your symptoms meet the criteria that she’s learned indicate that you have the disease. In just the same way, when an agency official or SHPO or the Keeper “determines eligibility,” they don’t make the property eligible; they say that its characteristics – vis-à-vis the NRHP Criteria at 36 CFR §60.4 – persuade them that it is eligible.

And just as the doctor can’t cure you of the clap just by saying you don’t have it, neither can the SHPO or agency or Keeper make your place not eligible just by un-determining it. They have to be able to show that the place really doesn’t meet the Criteria after all. That’s an important protection both for historic places and for those who make determinations.

On the other hand, the eligibility determination process is realistically flexible; it’s for use in the real world where things do change. So while a real “designation” – such as that involved in actually listing something in the NRHP – is pretty much forever, what we diagnose as eligible today may be diagnosed as not eligible in ten years, or vice versa. There are very good reasons for this flexibility; as the Section 106 regulations put it at 36 CFR §800.4(c)(1):

The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible.

Again, it’s like a diagnosis. Last year you were in good health; this year you’re not. Last year you were sick; this year you’ve gotten well. Last year we didn’t know how to recognize bilateral whatsamalady, now we can and boy, you’ve really got it. In the same way, last year it hadn’t occurred to anyone that traditional cultural marigolds might be eligible for the NRHP, but now we’re convinced that they meet Criterion C. That’s life; change happens.

So for heaven’s sake – or for the sake of historic properties, or that of your own job security – please stop mixing eligibility determinations up with “designation.” Something’s designated when it’s placed on the NRHP or some equivalent formal list; when it’s determined eligible it’s simply found to meet one or more of the NRHP criteria.

[1] If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes.”

Tuesday, September 22, 2015

What's Happened to the Update of National Register Bulletin 38?

I've been getting questions about the status of the National Park Service's update of National Register Bulletin 38, the "Guidelines for the Identification and Documentation of Traditional Cultural Properties" that the late Pat Parker and I authored back in the late 1980s (published 1990, See I'm asked both because I'm sort of identified with "TCPs," have written a good bit about them, and have been working with the National Park Service (NPS) on the update -- which I know seems to many to have vanished into a black hole.

For the official word on the Bulletin's status, you'll have to ask NPS, but here's what I can tell you:

1. The decision to update the bulletin was taken by NPS leadership several years ago, allegedly in response to complaints from federal agencies and State Historic Preservation Officers (SHPOs) about its supposed ambiguities and inconsistency with other National Register guidance. NPS solicited public comments and held several public meetings around the country about the Bulletin; it also consulted specifically with Indian tribes and Native Hawaiian groups, and sought comments from agencies and SHPOs. It got a LOT of comments -- though strangely, very few from SHPOs and agencies. Many were from tribes and other indigenous groups. Many said not to change the Bulletin; others offered general and sometimes quite specific recommendations.

2. NPS contracted with me to assist in analyzing the comments and drafting an update. It soon became apparent both to NPS's review personnel and to me that although the Bulletin certainly needed updating (We've learned a bit in the last 25 years), most of the comments didn't relate to the language of the Bulletin per se. Instead, they related to how it's used, particularly in the context of project review under Section 106 of the National Historic Preservation Act (NHPA). Though many of the comments seemed very much on-point, they couldn't be addressed in the Bulletin as such, or within NPS's legal authorities.

3. So we proposed to the Advisory Council on Historic Preservation (ACHP) that it collaborate with us in producing a companion set of "frequently asked questions" (FAQs) about TCPs and how they should be addressed under Section 106 and related planning authorities. The ACHP agreed, and for several months we consulted quite comfortably. We didn't always agree -- quite the contrary -- but we always worked things out and arrived at language that most of those consulting at NPS and ACHP, seemingly, could live with -- as could I. 

4. This consultation produced complete drafts of both the Bulletin and the FAQs, which went from me to NPS and ACHP for final review last year about this time, preparatory to going out for comment.

5. Whereupon the ACHP staff took it upon itself, without telling me or, as far as I know, anyone at NPS, to redraft the FAQs. The changes reduced their clarity, dropped out a number of things, reduced the FAQ's intelligibility, and made them far more bureaucratic and weasel-wordy than they had been as drafted. To add insult to injury, the ACHP staff refused to say who had made the changes and why, and refused to sit down with NPS and me -- or at least with me -- to consult about the matter. They would negotiate henceforth only based on their draft.

6. Efforts by NPS -- and I give great credit here to Paul Louther, who is patiently overseeing the rework effort -- to bring the ACHP staff to the table on a more reasonable, colllegial basis were unavailing. Efforts by the ACHP's own Chairman, Wayne Donaldson, to resolve the issue similarly went nowhere.

So, for the last year the rework of Bulletin 38 has been stalled, and as of today it remains so. I encourage those who want to see the Bulletin brought up to date, and who would appreciate clarification about how TCPs can be addressed under Section 106 (and related authorities), to contact the ACHP ( ) and encourage its staff to return to the table to work on and from the draft they were presented last year, and to behave like adult professionals rather than childish tyrants.