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Friday, February 04, 2005

Tom King's CRM Plus

Tom King's CRM Plus

Some Thoughts About Programmatic Agreements
February 4, 2005

I’ve been asked to review a few draft Programmatic Agreements (PAs) lately, proposed for execution under Section 106 and 36 CFR 800.14. They’ve uniformly been pretty dreadful. In case anyone’s interested, I thought I’d share a few observations on one typical example, whose identity I’ve disguised to protect the innocent.

This particular PA was drafted by a State department of transportation (DOT), for signature by itself, FHWA, the SHPO, and an Indian tribe. Once I’d gone through it with a reasonably fine-toothed comb, I could see that it had two modest goals:

1. categorically exclude certain classes of action from standard Section 106 review; and
2. allow the State DOT to represent FHWA in Section 106 consultations with the tribe.

The first thing I want to say is that a PA wasn’t really necessary to achieve either of these goals. With respect to the first, the agency was really saying that it simply didn’t want to communicate in the usual way with the SHPO and tribe about a particular range of action types. This could have been done with some fairly simple exchanges of letters, or a very simple agreement, about how FHWA and the State DOT would initiate consultation under 36 CFR 800.3. By elevating the matter to the level of a PA, they got all balled up, and ironically ended up (as we’ll see) proposing to exclude from review a number of project types that had considerable potential for adverse effect – just not on resource types that the State DOT figured would be important to the tribe. As for the second goal, it could easily have been achieved (assuming the tribal government found it achievable) through an exchange of letters between FHWA and the tribal government.

But there seems to be a perception abroad in the land that the PA is the only way to structure and adjust relationships among parties in the 106 process, or to clarify how, in the eyes of those parties, the process can be made to work in particular contexts. So in this case as in others, the parties embarked on the PA road, and put their feet in a lot of nasty potholes and piles of poop.

For one thing, they started out by indicating that the agreement was about a lot more than just providing for some exclusions and delegating some responsibilities. It’s title announces that it’s about “IMPLEMENTATION OF THE FEDERAL-AID TRANSPORTATION PROGRAM IN (THE STATE).” The actual limited purposes of the document are never made clear, except by implication and the absence of stipulations dealing with anything else.

Perhaps in lieu of such stipulations, they stuffed the agreement full of gratuitous promises to obey the law. For example, in the “Whereas” clauses:

• “FHWA agrees to coordinate under a government-to-government relationship with federally recognized tribal governments.”

• “FHWA… wishes to conduct its programs in a manner consistent with 36 CFR 800” (particularly odd since the core purpose of any PA is to allow an agency to conduct a program in a manner inconsistent with the standard process set forth in 36 CFR 800).

And in stipulations:

• “If the discovery (of Native American cultural items) is located on federal or tribal land, the (State DOT) will submit to the tribe a signed, written Plan of Action in compliance with Sections 10.3 and 10.5(c) of NAGPRA’s regulations.”

Speaking of being gratuitous, they also burdened the document with a number of Statements of Noble Intent (SNI) – institutional chest-thumps – such as…

• “FHWA is committed to the design and construction of transportation systems that achieve a safe and efficient function….”

Quickly becoming, in the words of Benjamin Disraeli, “inebriated with the exuberance of (their) own verbosity,” the drafters blew the intent of their PA up to proportions far beyond its actual content:

• “Now, therefore, (the parties to the PA) aspire to engage in meaningful long term planning for the protection of historic and archaeological properties and, toward that end, desire to (1) develop a comprehensive and efficient process for all Section 106 undertakings; (2) simplify procedural requirements to the maximum extent possible; (3) eliminate unnecessary paperwork; (4) reduce the role of (the tribe’s THPO) to the minimum extent required; (5) devote a larger percentage of time and energies identifying relevant problems threatening historic and archaeological properties; and (6) create innovative programs to address those problems.”

In the face of all this verbiage, the actual two purposes of the agreement – to exclude certain types of action from what the parties understood to be normal 106 review and to delegate tribal consultation functions – were virtually buried, and could be ferreted out only with difficulty. At the same time, the high-flying language conveyed the impression that the PA set up a whole new approach to Section 106 review in the state, though it manifestly did not. This is dangerous, because it can mislead people into thinking that given the PA, they need not attend to the regulations, when in fact the regulatory process is hardly affected at all by the PA’s terms.

After two single-spaced pages of generally meaningless circumlocution and SNIs, the PA finally got to one of its major purposes. Oddly, the authors chose a “Whereas” clause to stipulate that:

• “(The parties) hereby agree that the transportation undertakings defined in Appendix A have been determined by all parties to have NO EFFECT on cultural resources/traditional cultural properties in (the State) pursuant to 36 CFR 800.”

Never mind what they meant by “cultural resources/traditional cultural properties,” or how these related to the historic properties whose consideration is the actual subject of 36 CFR 800. The main problem here is that the authors were trying to establish a material fact by executive fiat. It’s kind of like the United States formally declaring in Congress assembled that there are weapons of mass destruction in Iraq. Whether there were WMD in Iraq was a factual question, which could be answered only by on-the-ground study. Similarly, whether something will or will not have an effect on historic properties is a factual matter; one can’t make it one way or another by declaring it so. Under the regulations, determinations of “no historic properties affected” (which probably is what the drafters meant by “no effect”) are made based on an agency’s identification work, but in this PA they’re based on nothing at all.

Most of the activities listed in Appendix A do look pretty benign, but one certainly can’t guarantee that they will never have any effect on historic properties. One example is “rest areas repair and maintenance.” Are there no rest areas in the state with, say, archaeological sites buried under their landscaping, that might be affected by landscape maintenance? Or how about “replacement of bridges on existing alignment, when the bridge to be replaced is less than 50 years old and is not exceptionally significant?” Does one never excavate to effect such replacement? And who decides about “exceptional significance?”

And once again, the authors couldn’t restrain themselves, and seem to have forgotten what they were doing. They proposed to exclude:

• “Streetscape improvements including benches, decorative lighting, textured crosswalks, transit shelters, and containerized plantings where the contract does not disturb existing subbase in original ground where soil horizons have been removed;”

• “Transit improvements, bus bays, bus pullouts, and Park and Ride facilities located in urban settings or previously developed areas.”

• “Rehabilitation of historic structures in accordance with the Secretary of the Interior’s STANDARDS FOR REHABILITATION and approved by the SHPO.”

These activities are supposed to have “no effect” on historic properties? Maybe they aren’t likely to affect places important to the tribe, but can a PA whose title indicates statewide and program-wide scope not apply to the whole state, and the whole Federal-aid transportation system in the state? Are the SHPO and tribe not being asked to agree to the wholesale exclusion from review of actions that may have profound effects on buildings, structures, and districts in urban areas? Are they not being asked to do this on behalf of the people in such areas, who value such properties? Without a shred of participation by such parties in the PA consultation? That’s certainly what the PA’s title, and the absence of statements of limitation, suggest. I wonder how any of the State’s cities would react if they found out.

The other apparent purpose of the PA – delegation of FHWA’s tribal consultation responsibility – is also buried in a “Whereas” clause. In fact, it’s a clause within a clause:

• “Whereas…. when a proposed project includes FHWA funding, the (State DOT) will initiate Section 106 Native American consultation as FHWA’s agent.”

That’s as explicit as it gets. Thereafter, there are simply references to the State DOT sending things to the THPO and the THPO responding. Then at the end, it’s the THPO who’s got a signature line – not the Chairman, President, or other representative of the tribal government. Can the THPO agree on behalf of a tribe that a Federal agency can delegate government-to-government consultation responsibilities to a state agency? Not in any tribe I’ve ever encountered. No wonder the tribe hasn’t signed off on this PA – particularly since, I was told, it had simply been sent to the THPO for signature, with no actual consultation at all.

It’s easy to make fun of this PA, but I’m afraid it represents something of a trend. With the Advisory Council’s effective withdrawal from participation in 106 review, and even more from intellectual engagement in the operation of the process, there’s no one to maintain quality control, and I’m seeing some truly amazing agreements being produced and solemnly executed by agencies, SHPOs, and THPOs. The result is likely to be vast confusion at best, severe erosion of the integrity of Section 106 review and real losses of historic properties at worst.

Another result – not prospective but actual, here and now – is a lot of time wasted negotiating agreements that amount to much ado about very, very little. The PA I reviewed, like lots of others I’ve seen, is mostly verbiage and puffery, camouflaging a few substantive if confusing and misleading stipulations. And I’ve seen people spend a lot of time arguing about verbiage and puffery.

Finally, as noted at the outset of this paper, there’s no real reason for FHWA or the State DOT to even develop such a PA. An agreement to allow FHWA to delegate its tribal consultation responsibilities to the State could be effected – if it can be effected at all – through an exchange of correspondence between FHWA and the tribal government (but probably not the THPO). If the tribe isn’t willing to respond positively to FHWA’s initiative when cast in the form of a letter, a phone call, a meeting, or some combination of the three, it’s not going to be willing to sign a PA. Though perhaps FHWA could con the THPO into signing it without realizing that he was exceeding his authority – a bit of chicanery that would be a credit to Andrew Jackson.

As for excluding some project types from review, some of the types listed in the exceptions appendix could arguably be excluded unilaterally by FHWA on the grounds that they have no realistic potential for effect on historic properties. Pavement repairs are an example, and re-striping lines. But it’s apparent that what FHWA was concerned about in this case was not Section 106 review in general, but the specific bureaucratic business of consultation with the SHPO and THPO. You don’t need a PA to exclude things from such consultation. Again, I think all it would take is an exchange of letters, or a simple bilateral agreement, about what FHWA and the State DOT would and would not do in initiating Section 106 review under 36 CFR 800.3.

In the hopes of forestalling some future nonsense PAs, I’ve attached, below, suggested drafts of three model letters designed to accomplish the two purposes of the PA reviewed above.

Tom King
Silver Spring, Maryland
February 5, 2005
Attachment 1: Letter: FHWA to head of tribal government

Dear (Chairman/President) ______________

The Federal Highway Administration (FHWA) is seeking ways to simplify its government-to-government consultation with Indian tribes regarding transportation projects in (State), specifically with respect to potential impacts on historic properties under Section 106 of the National Historic Preservation Act.

Such projects are invariably planned and carried out by the (State) Transportation Department (STD). Since you have established your (Name of Office or Department performing THPO function) as your Tribal Historic Preservation Officer (THPO), we believe it would be most efficient for us to authorize the STD to consult directly with your THPO on our behalf regarding all such projects that do not actually affect the fee or trust lands of your tribe. Of course, FHWA will always be available to consult with you on a government-to-government basis upon your request, and will continue to so consult in this manner with respect to projects affecting the fee or trust land of your tribe.

If this arrangement is acceptable to you and your tribal government, I hope you will so advise me by letter. If you would like to meet about this matter, or discuss it on the telephone, I would be happy to do so at your convenience. Please contact me at (phone number) to discuss it or arrange a meeting.


cc: THPO (Note: THPO should already have been consulted about this so it’s not a surprise)

Attachment 2: Letter State Transportation Department to THPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date), at which we identified certain types of transportation project in (State) that are so unlikely to affect historic properties of interest to your tribe that there is no need for us to consult with you under Section 106 of the National Historic Preservation Act. The project types we identified are listed in the attachment to this letter (Attachment A: “Project Types on Which Section 106 Consultation With the ______ Tribe Will Not Be Routinely Undertaken”).

If you agree, when we consider initiating the Section 106 review process on a project falling into one of the identified categories under 36 CFR 800.3(e) and (f), we will not routinely contact you and request your participation. We will, however, notify you of any such project that will affect the fee or trust lands of your tribe, and of any project that our internal review suggests may be of interest to you. As you requested in our meeting, we will also advise you of any project that is planned to be conducted in the month of _______ within any of the areas identified on the attached map (Attachment B: “Areas of Special Cultural Importance to the _________ Tribe”), and seek your assistance in ensuring that such projects do not adversely affect your tribe’s cultural interests. We will also consult with you about any project at your request.

We propose to review the effectiveness of this arrangement with you on an annual basis, and make adjustments to the arrangement as needed.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).



Attachment 3: Letter FHWA to SHPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date). As you will recall, that meeting was aimed at clarifying what the (State) Department of Transportation (DOT) will do when it initiates review of certain routine project types on our behalf under 36 CFR 800.3, and on what your office, the DOT, and we agree constitutes a “reasonable and good faith effort” to identify historic properties with respect to such project types under 36 CFR 800.4. The authority for this agreement is found at 36 CFR 800.3(g).

The project types we collectively identified are listed in the attachment to this letter (Attachment A: “Project Types on Which Section 106 Consultation With the ______ State Historic Preservation Officer Will Not Be Routinely Undertaken”). They are all types of project that have very limited potential for adverse effect on historic properties, and whose mild potential for such effects can, we agreed, be handled by the (State) DOT without your advice and assistance.

We agreed that with respect to the property types listed in Attachment A, we will regard our responsibility to consult with you under 36 CFR 800.3(c) to be fulfilled by the programmatic consultation whose results are documented in this letter, and by the annual consultation proposed below, except in circumstances where the (State) DOT’s internal review and our compliance with the National Environmental Policy Act (NEPA) suggest to us or the (State) DOT that further consultation with your office is appropriate, whereupon the (State) DOT will undertake such consultation in accordance with 36 CFR 800.3(c).

We also agreed under 36 CFR 800.3(e) that with respect to the project types listed in Attachment A, there is no need for public involvement in individual project review beyond that routinely carried out by the (State) DOT as part of its planning and NEPA compliance processes, except that in interacting with the public and with local governments about such projects, the (State) DOT will routinely distribute the handout attached (Attachment B: “If You Have Concerns About Impacts on Historic Places”), which advises the public about how to make any historic preservation concerns known to the (State) DOT, FHWA, and your office. Should any such concerns be raised, or should the (State) DOT otherwise think it necessary, the (State) DOT will provide for further public involvement, in consultation with your office.

We also addressed the requirement of 36 CFR 800.4(b)(1) that a “reasonable and good faith effort” be made to identify historic properties subject to effect by a project. We agreed that with respect to the project types listed in Attachment A, the (State) DOT’s routine planning and NEPA compliance processes comprise such a reasonable and good faith effort in the vast preponderance of cases, and that no field survey to identify archaeological sites or other historic properties will ordinarily be carried out. We also agreed, however, that the (State) DOT will consult with your office in any case in which they are uncertain about the need for such a survey, and in any case in which a local government, an Indian tribe, or some other interested party requests such a survey. The (State) DOT pledged that such a survey will be carried out if your office advises that it is needed.

Finally, we agreed to review the effectiveness of this arrangement on an annual basis, and make adjustments as needed.

As we discussed, we are contacting all Tribal Historic Preservation Officers (THPOs) and Indian Tribes with interests in your State to seek similar arrangements. Nothing in this letter affects our obligations with respect to such tribes and THPOs.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).