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Wednesday, December 26, 2007

Cumulative effects

I'm posting the following paper, presented back in '06, in the hope of garnering some critical comments. I'm thinking about reworking it into something with broader relevance both geographically and topically, and my doing so would benefit from colleagues' thoughts. If you're interested in doing so, please post comments here or send them to me at



The Cumulative Impacts of Transportation Projects
On Cultural Resources:
What Are They and How Can We Assess Them?
Paper presented at the Summer 2006 meeting of the
Archaeological and Historic Preservation in Transportation (ADC50) CommitteeTransportation Research Board of the National Academies July 23-26, 2006Williamsburg, Virginia

Thomas F. King
SWCA Environmental Consultants

What are cumulative impacts?

The regulations of the Council on Environmental Quality (CEQ), governing implementation of the procedural provisions of the National Environmental Policy Act, direct agencies preparing environmental assessments to consider whether the action they’re reviewing is related to other actions with … cumulatively significant impact. (40 CFR 1508.27(b)(7)).

The regulations of the Advisory Council on Historic Preservation, governing implementation of Section 106 of the National Historic Preservation Act, say that adverse effects on historic properties may include reasonably foreseeable effects…that may occur later in time, be farther removed in distance, or be cumulative (36 CFR 800.5(a)(1)).

What does this “cumulative impacts” stuff mean? And how does whatever it means relate to the historic places that most of us in this conference trouble ourselves about most of the time?

CEQ’s regulations define the term as:

…the impact on the environment which results from the incremental impact of the action (being reviewed) when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

They go on to note that:

Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time (40 CFR 1508.7)

But how minor is “minor?” And how long a “period of time” should we deal with? Neither CEQ nor ACHP is very helpful; CEQ’s guidance is a mass of circumlocutions and the ACHP’s is nonexistent. We’re pretty much on our own.

I’ve recently been involved in a transportation case here in Virginia that has given me some notion of how to address cumulative impacts on historic places in Section 106 review. I’d like to take this opportunity to share what I’ve learned.

The Broad Run Bridge and US 15/29

U.S. Routes 15 and 29 come together just northeast of Broad Run in Prince William County, Virginia, and continue together southwest across the stream and through the village of Buckland. The road crosses Broad Run on a pair of bridges built in 1953 and 1980, near but not on the site of an 1807 stone bridge rebuilt in 1823 by Claudius Crozet, Napoleon Bonaparte’s bridge engineer. The road today is four lanes wide, but back in the 1950s the Virginia Department of Transportation (VDOT) acquired right-of-way from Broad Run on to the southwest sufficient to allow widening the road to six or more lanes. A plan developed by the Northern Virginia Transportation Coordinating Council[1] and adopted by the Prince William County Board of Supervisors in 1999 -- the Northern Virginia 2020 Plan[2] – proposes expansion to six lanes by 2020.

The relationship between highways and suburban sprawl is pretty well established, and is nowhere better exemplified than in Northern Virginia. In simplest terms it’s a matter of “build it (the highway) and they (shopping malls, residential tracts) will come.” In reality the relationship is somewhat more complex and less linear – a swirl of positive feedback loops in which development begets highways which beget more development. At present in Prince William County, sprawl is chewing up the countryside on the northeast side of Broad Run. To consume the Buckland area, it needs more traffic lanes across the stream and on to the southwest.

More traffic lanes, that is, through Buckland, a remarkably well-preserved 18th-19th century mill village and its associated cultural landscape, where a group of dedicated property owners are putting together a plan to preserve the town and make it a center for historical studies and education. And through the Buckland Mills Battlefield, a relatively intact Civil War landscape where J.E.B. Stuart sent George Armstrong Custer fleeing in a battle sometimes called “Custer’s First Stand,” though Custer didn’t stand long.

The project currently under Section 106 review is the replacement of the deck on the 1953 bridge, which carries southbound traffic across Broad Run. The bridge is old and deficient, and there’s no argument over whether it needs fixing. It does. The controversy is over how to fix it.

VDOT originally proposed to replace the existing 33-foot wide bridge deck with a new one some 56 feet wide[3]. This near-doubling of the bridge’s width was handled as a categorical exclusion under NEPA and a Nationwide Permit under the Corps of Engineers’ Clean Water Act regulations, but it ran into major local opposition.

The Buckland Preservation Society, an organization of local property owners, is anxious to avoid letting their town be swallowed by sprawl. They have garnered support for a bypass around Buckland, which could allow the existing Rt. 15/29 to be reduced to a historically appropriate scale and permit the residents to implement a program of adaptive use and restoration that they hope would make Buckland into a center for the study and public appreciation of Virginia history and historic preservation. In their eyes, widening the Broad Run Bridge is a step in absolutely the wrong direction – toward implementing the Northern Virginia 2020 Plan and effectively giving their community to the developers. The Preservation Society has been joined in its opposition to the project by the American Battlefield Preservation Program of the National Park Service and by the National Trust for Historic Preservation, which has included Buckland in the “Journey Through Hallowed Ground,” a Trust-coordinated program to preserve and raise public awareness of the surviving historic resources along the Old Carolina Road between Gettysburg, PA and Monticello, VA[4].

In Section 106 terms, the immediate question has been whether the bridge reconstruction would or would not have adverse effects on Buckland and the battlefield. VDOT and FHWA have said no; the Preservation Society and its allies say yes. There are some other issues involved, but at the core of the argument are cumulative impacts.

The Buckland Preservation Society says the project is part and parcel of the Northern Virginia 2020 Plan. VDOT and FHWA say no, it’s a standalone bridge repair. The Virginia SHPO and Advisory Council on Historic Preservation have been unwilling to concur in FHWA’s “no adverse effect” determination, largely because of doubts about cumulative impacts.

What I’ve learned 1: discerning cumulative impacts

Honorable people can disagree about how to regard the bridge project, and I don’t intend to rehash the arguments we’ve been having. What I do want to discuss is what immersion in this case has taught me about analyzing cumulative impacts.

The main thing it has taught me is that with respect to soft and squishy environmental variables like historic preservation, cumulative impacts analysis may not be so complicated after all. I think that perhaps – quite likely, in fact – we confuse ourselves by worrying about things like how far into the past and future we have to look in order to characterize cumulative impacts. What we have to do, I think, is simply look for patterns.

Are there general patterns of change in the human environment (under NEPA), in the environment relevant to historic properties (under Section 106)? If so, how does the project under review relate to them?

That there is a pattern of suburban sprawl in Northern Virginia is a no-brainer. That highways contribute to sprawl is obvious. That the existing highway through Buckland and the battlefield has had adverse effects in the past is indisputable – it has resulted in demolition of contributing buildings and a whole lot of cars and trucks barreling through the landscape. That it is currently having impacts is plain to see if you drive the highway, and particularly if you try to turn on or off it, or cross it. That the Northern Virginia 2020 Plan provides for a wider highway along Rt. 15/29 is literally written down in black and white (and color). Widening the existing highway, letting more cars and trucks roar through, to service more houses and businesses, cannot help but have future adverse effects on Buckland and the battlefield. There is, in other words, a clear pattern of accumulating – that is, cumulative – adverse effects, beginning in the past and extending into the not-too-distant future. The extent to which the Broad Run Bridge reconstruction contributes to this pattern can certainly be debated. To me it seems, at the very least, to do nothing to undo the pattern, reverse the trend, and as we used to say back in the days of my misspent youth, if you’re not part of the solution you’re part of the problem. Some members of the Buckland Preservation Society see a more direct and contributive relationship – that the expanded deck could itself accommodate increased traffic, or be an incremental step toward the Northern Virginia 2020 six-lane configuration. Be this as it may, I think the pattern of cumulative impacts is clear. Our business is to analyze the bridge project’s contribution (if any) to that pattern. That I think, is really all that cumulative impacts analysis is about: define the patterns and consider whether and how our project relates to them. Sometimes this may require quantitative hair-splitting about how far into the past and future to carry our analysis, but quite often, I suspect, it does not.

What I’ve learned 2: avoiding discernment

The other thing I’ve learned is how easy it is to miss the forest of cumulative impact patterning while bumping into the trees that sprout from assumptions about standard criteria and methods. At various times during consultation on the effects of the Broad Run Bridge, my clients and I have run into the following contentions – all presented by authoritative participants in the consultation as FHWA policy, official guidance, well-established good practice, or logic. We have been told that FHWA and VDOT need not or even cannot consider cumulative impacts because:

This is a maintenance project.

So if the National Park Service used jackhammers to maintain the faces on Mount Rushmore, it wouldn’t need to consider the cumulative impacts of doing so? There’s nothing in the NEPA or Section 106 regulations that exempts maintenance projects.

This kind of project is categorically excluded from review under NEPA.

This is simply a variant on the “maintenance project” theme. Under the NEPA regulations categorically excluded projects are supposed to be checked to make sure there are no “extraordinary circumstances” requiring further review, and if they are, they’re to get it. The fact that bridge reconstructions in general are categorically excluded doesn’t mean that this particular bridge reconstruction should be. And the fact that something is categorically excluded under NEPA doesn’t mean it’s categorically excluded from Section 106 review.
The project has independent utility and logical termini.
So would, say, a new twelve-lane highway up the Shenandoah Valley; would this mean we wouldn’t need to consider its contributions to cumulative impact on the valley? Independent utility and logical termini indicate that a project isn’t merely a segment of something bigger; they have nothing to do with whether the project contributes to cumulative impacts.
The purpose of and need for the project are public safety.
Yes, and? Purpose and need are things that an alternative must address in order to be viable; they don’t excuse an agency from doing any particular kind of impact analysis. Everyone wants the public to be safe, but NEPA and Section 106 suggest that we ought to try to make it so without destroying the environment. We can’t meet that requirement if we don’t analyze impacts.
The Northern Virginia 2020 Plan isn’t VDOT’s or FHWA’s plan, so we don’t need to (or can’t) consider it.

Nice try, but cumulative impacts are typically not all the products of the same change agent. Their multiple sources over time are among the things that makes them “cumulative.” Recall that the NEPA regulations direct us to consider past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

We don’t analyze speculative impacts, and a project is speculative until it’s funded. Widening U.S. 15/29 hasn’t been funded, so it doesn’t need to (or can’t) be considered as part of cumulative effects analysis.

This reminds me of an excuse I’ve tried with my wife from time to time. “Well, dear, I waited till now to tell you about next week’s business trip because I didn’t buy my ticket until today.” No, that really doesn’t fly. Waiting to consider the effects of a project until it’s funded not only would make cumulative impacts analysis impossible, it would stand the whole NEPA process on its head.

There’s no necessary link between widening Rts 15/29 and sprawl.

No, it’s certainly possible that a widened 15/29 will be used exclusively by tourists heading south for Charlottesville or the Blue Ridge, or by shoppers at boutiques that Buckland residents will put in along the roadside. It’s also possible that it will be used to guide flying pigs north to Capitol Hill porkbarrels. In a state whose recent gubernatorial contest turned substantially on issues of sprawl and transportation, it should be hard to keep a straight face while laying THAT proposition on the table.

Cumulative effect is the product of adding the direct and indirect effects of a project to the effects of all other past, present, and reasonably foreseeable future actions. Reconstructing the bridge deck has no measurable impact itself, so there can be no contribution to cumulative effect.

This argument at least doesn’t fail the laugh test, but I still think it’s wrong. Whether reconstructing the bridge could have direct effects by allowing increased traffic flow through Buckland and the Battlefield is debatable, but setting that debate aside, let’s assume for a moment that it will not, cannot allow any measurable increase in traffic flow. Does the project therefore make no contribution to cumulative effect?

First consider the word “measurable.” Does an effect have to be measurable, in quantitative terms, in order to be significant? I suspect that many in the transportation planning business would say “of course,” and I sympathize. How can something be real if you can’t measure it? But many things can’t be measured, at least in quantitative terms, and the ambience of a historic community or a cultural landscape is surely one of them. Most examples of cumulative impact analysis provided in books and agency guidelines deal with things like air and water quality: past actions have put X ppm of gunk into a medium; current actions are pumping in Y ppm, future projects by others are likely to contribute Z ppm, and this project will put in or take away N ppm, so the cumulative effect is X+Y+Z+/-N. We just can’t generate that kind of equation with historic properties and other cultural resources, but that doesn’t mean they’re not parts of the environment, or not subject to impacts, cumulative or otherwise.

But cars and trucks are measurable, countable, and if the reconstructed bridge won’t allow any more of them to rumble through Buckland than rumble through it now, doesn’t that mean it doesn’t contribute to cumulative impacts?

I’d say no, it doesn’t mean that. I come back to my old saw about being part of the problem or part of the solution. The traffic situation in Buckland right now is a very damaging one from the standpoint of those who value the village and the battlefield – there are just too many vehicles, moving too fast, and some percentage of those driving them would be willing to tolerate a bottleneck along their commuting route for a few years until somebody widens that damn bridge, and hence will buy homes or frequent businesses in or beyond Buckland and hence will contribute to sprawl. Maintaining the status quo is an adverse effect on Buckland and the battlefield, and keeping the bridge for another ten or twenty years, even at its present width, maintains that status quo.

I’m not saying the bridge should not be reconstructed, that we should let if fall down with a school bus or two on it. I’m simply saying that keeping it as it is contributes to the ongoing cumulative adverse effect of the highway on the historic properties. Building a bypass, or in some other way reducing the need for people to drive through Buckland, while reducing the two-bridges across Broad Run to one and the highway to one lane each way, would contribute to solving the problem. Keeping the bridge as is does not. There’s a continuing cumulative adverse effect, and we ought to consider it under NEPA and Section 106.


So to summarize, I’ve learned four big things from the case of the Broad Run Bridge:

Cumulative impacts are not necessarily hard to come to grips with; they are sometimes – perhaps often – portrayed in documents as readily available as the Northern Virginia 2020 Plan.
We make it hard to grapple with cumulative impacts by insisting that they be quantifiable, and by trying to establish standard rules for what will and will not be considered.
People believe in a number of rules about cumulative impacts analysis – mostly rules that let them not conduct such analyses – that upon examination make no sense.
Even a project that itself contributes nothing new to the accumulation of impacts can still be part of a cumulative impact pattern, which should be considered when making planning decisions.

And the approach I’d advocate to cumulative impacts analysis is a very simple one, which also has four parts:

Look for patterns in what’s happening to the area;
Figure out whether and how the project we’re examining relates to these patterns;
Decide whether the relationship is positive or negative, or both; and
Consider ways to accentuate the positive and eliminate the negative.

In working on that last part of the analysis – which really goes beyond analysis, into the stuff of impact mitigation – we need to think outside our usual box, in which mitigation measures are usually quite specific – excavate this, record that, avoid this other thing – and related to quite specifically defined impacts. In the Buckland case, for example, if we can agree that the general pattern of transportation-supported sprawl is a negative one in the environment under consideration, we can consider ways to reduce sprawl’s severity or even to keep it from happening – but the methods we find will not be obviously related in some linear fashion to any specific project we’re likely to review under Section 106. They’re going to be things like pursuing the bypass around Buckland, perhaps promoting new incentives for property owners to donate conservation easements, and seeking ways to undo VDOT’s half-century old acquisition of land for highway expansion through Buckland. Some of these mitigation vehicles are going to be things that FHWA and VDOT can’t do by themselves, or do at all; we’re going to have to bring in other agencies, local governments, members of the State legislature and the Congress. We’re going to have to actually do something “holistic” about land use planning and historic preservation, rather than just talking about it.

If we can’t stretch our imaginations sufficiently to do this sort of thing, there’s not much use talking about the cumulative effects of transportation decisions on phenomena like sprawl in places like Northern Virginia. Our analyses will serve no purpose, and our talk will be nothing but hot air.

[1] A consortium of Northern Virginia counties and cities. See
[2] See
[3] During consultation, the width was reduced to 48 feet and most recently to 36 feet….(revise based on next steps in consultation).
[4] See

Thursday, November 01, 2007

The Mob

Well, the mob is out in full cry, brandishing its pitchforks and cudgels, howling for the blood of heretics.

Or to be a bit less picturesque, the archaeological societies of the nation are joining together to expunge from the discipline all those who might be tempted to work with "traffickers" in artifacts. The latest convert, to judge from the Society for American Archaeology’s latest Archaeological Record (September 2007, p. 10), is the Register of Professional Archaeologists. I suppose RPA can't really help itself, since it's the creature of such mob leaders as the Archaeological Institute of America and the SAA. And the RPA's leader, Jeff Altschul, told me in a recent email that there is "overwhelming support" in his organization for a change in the RPA code of conduct to prohibit registrants from participating in commercial ventures. The new language goes like this:

An archaeologist shall not be involved in the recovery, buying or selling of archaeological artifacts for sale or other commercial activity, or be employed by or contract with a company whose stated purpose is to recover archaeological artifacts for sale or other commercial purposes.

No doubt RPA will join its constituent organizations in thundering against commercialism, and then pat itself on its corporate head for its ethical superiority. Maybe this is a good thing; it is at least consistent with the Register's primary purpose of making its registrants feel good about themselves. The fact that it will almost undoubtedly accelerate the destruction of archaeological sites is probably beside the point.

Prohibition is a blunt instrument, particularly when wielded by those with no power to enforce it. We all know what happened when the U.S. tried to prohibit the consumption of alcohol. Many of us have had first hand experience flaunting the continuing prohibition on the use of recreational drugs. These prohibitions have had the full force of the state behind them. I wonder what makes archaeologists think they -- with no power whatsoever -- can prohibit the commercial traffic in antiquities.

If forced to answer this question, I imagine an honest supporter of the RPA prohibition would say that it is not meant to prohibit commercial traffic, only to prohibit archaeologists from participating in it. But if that is so -- if it isn't designed to stop the practice that is actually destroying archaeological sites and data, but only to keep archaeologists from documenting those sites and data as they are destroyed, does this not suggest a degree of counterproductivity?

Nations and international organizations -- no more immune to hysteria than professional bodies -- have of course enacted laws and issued declarations against artifact trafficking, and based on their own statistics may be able to report a measure of success. A collection is intercepted in transit here; an artifact is repatriated there; a dealer or digger is prosecuted someplace else. But are these actions making a dent in the international antiquities market? Since we have no real data on that market, we cannot know, but to judge from what we see in the popular media, it appears not. We're told that antiquities looting is rife in Iraq and Afghanistan, in Peru and Chile; it certainly continues throughout North America. Those looters are not looting just for the fun of it; they have people to whom they sell the stuff, and there is -- must be -- a voracious cadre of collectors who make it worthwhile for such dealers to deal. Prohibition of antiquities trafficking, I suggest, has been no more effective than prohibition of alcohol consumption or the puffing of marijuana.

But who cares, really? What's important to a mob is not whether its cause makes rational sense, but how pursuit of the cause makes its members feel. In generating feelings of propriety, the imposition of ethics like that of the RPA are doubtless highly effective. Everyone can feel so good about themselves, so professional, and that's really far more important than the condition of the archaeological record, isn’t it?

When prohibition of alcohol consumption didn't work, governments re-legalized it and sought to control it through various forms of regulation. Some regulatory measures work pretty well; others don't; there's room for productive argument about how to tweak the rules and systems. The U.S. is gradually shuffling its way toward some kind of similar accommodation with regard to recreational drugs. Debate continues about how best to control access to firearms and regulate abortions. Why, I wonder, can't we try something similar with regard to the private ownership of and commerce in antiquities?

I have no way of verifying it, but I suspect that a substantial percentage of the people who collect antiquities would prefer to do so legally, and would more highly value an object with documented provenience than one without. If this is so -- and again I stress that neither I nor anyone else knows whether it is so -- then it ought to be possible, to some extent at least, to co-opt the commercial market, to dry up the market for illicit artifacts by creating one for those gathered using archaeological methods. But such a market could be created, of course, only if we actively engaged with the traffickers, rather than prohibiting such engagement.

Would engagement be a perfect or complete solution to the problem of looting? Of course not -- any more than engagement with those who traffic in booze is a perfect solution to alcohol abuse. But however shocking and saddening it may be to the moralists at the head of the mob, that's the way the world works. Even with things on whose prohibition there is broad popular agreement -- murder, rape, incest -- we find ourselves having to make nuanced distinctions in order to accommodate the shades of gray with which the real world presents us. Is it all right to kill in self-defense? In war? When is sex consensual and when is it not? How closely related can a given couple be, in a given society, and still be acceptable sexual partners? As ostensible social scientists, we ought to be able to work within such imperfect human systems to achieve our goals. But we are not; we are just as simple-minded as any other mob.

So the RPA will doubtless join its fellow acronymous archaeo-organizations --SAA, AIA, SHA, et al -- in prohibiting its members from dealing with commercial interests, and things will go on as they are. Except every now and then some poor dope who thinks he or she can relate to the real world and still be called an archaeologist will get pilloried. The rest of us, I suppose, will just have to call ourselves something else. Or maybe we can just drop the second “a.”

Sunday, June 03, 2007


Thomas F. King
June 1, 2007


On May 24, 2007, Janet Snyder Matthews, the Keeper of the National Register of Historic Places, sent a memorandum to the Acting Regional Director of the National Park Service’s (NPS) Northeast Region. The memo provided Ms. Matthews’ opinion on whether the “Dune Shacks of the Peaked Hill Bar Historic District, Barnstable County, Massachusetts” – a property formally determined eligible for the National Register some 18 years ago – is significant as a “traditional cultural property.” Ms. Matthews’ memorandum makes some peculiar statements that I think merit critical attention.

With Patricia L. Parker of NPS, I invented the term “traditional cultural property[1]” as it is used in historic preservation in the United States – where it is often referred to by its acronym “TCP.” Parker and I coined the term in National Register Bulletin 38, Guidelines for the Identification and Documentation of Traditional Cultural Properties, published by NPS in 1990. I’ve discussed the background of Bulletin 38 – why we wrote it, its intent, our choice of terminology, in several publications[2], and will not reiterate here. Ms. Matthews’ opinion in the dune shacks matter is of concern to me because it evidences a deep misunderstanding of the “TCP” concept, an unKeeperly unfamiliarity with National Register Bulletin 38, and an assumption of governmental omniscience that I find bothersome in an ostensible public servant.

I will not discuss the character of the dune shacks here, other than to note that they comprise a collection of cottages mostly constructed by and used in the past and currently by artists, poets, writers, and other members of the arts community. This community has considerable time depth in the area. The shacks and the people who value them have been discussed in detail by ethnographer Robert Wolfe in a 2005 evaluation[3], and by Wolfe and T.J. Ferguson in a 2006 report[4]. The Peaked Hills Historic District, including the dune shacks, was determined eligible for the National Register in 1989 under National Register Criteria A, B, and C.

The question of the shacks’ traditional cultural significance came up a few years ago as NPS undertook to evict some of the shacks’ residents. Since the residents maintain the shacks, and since the district was determined eligible for the Register at least partly because of its significant association with its residents and their artistic endeavors, questions arose over the propriety of these actions. In undertaking them, as far as I have determined, NPS did not bother to comply with Section 106 of the National Historic Preservation Act. Apparently, however – and I am rather reading between the lines here – NPS then was persuaded that it had Section 106 responsibilities with regard to the shacks, and that if the shacks were eligible as a TCP, the residents would have more power in the Section 106 consultation process than would be the case otherwise. The State Historic Preservation Officer opined that the shacks did in fact comprise a TCP. Unable to bring itself simply to respect the community and its traditional associations, NPS contracted for a study, performed by Dr. Wolfe. Dr. Wolfe concluded that the dune shacks were indeed significant as a TCP. Unwilling to accept this conclusion without vetting, NPS had Dr. T.J. Ferguson examine Dr. Wolfe’s work; the result was the Wolfe-Ferguson report, concluding that the dune shacks were eligible for the National Register as a TCP. The residents and various local governments offered supporting opinions. But NPS was still unsure, so it requested the “determination” of the Keeper – an NPS employee, but we are not to imagine that this might have made any difference. The Keeper, in simple terms, said no.

The Meaning of the Keeper’s Opinion

For a government action that has caused such sturm und drang, the Keeper’s opinion is curiously meaningless. Meaningless, that is, in real world terms; what meaning it may have in the world where the Keeper and her associates live can only be guessed.

Let’s be clear about what the category “TCP” means. TCP is not a National Register criterion, separate and apart from the formal criteria A, B, C, and D[5]. It is really a descriptive term, like “cottage,” or “archaeological site,” or “big gray rock.” When we wrote Bulletin 38, Parker and I needed a term to embrace a range of place-types that were being given short shrift by government despite their significance to real people – Native American spiritual places, traditional neighborhoods, culturally valued landscapes and landforms, and so on. No term was sufficiently embracing, so we invented one – traditional cultural property. It’s simply a semantic box, or envelope, within which various types of place can be kept.

So, who is authorized to decide whether something is or isn’t a TCP? Well, who is authorized to decide whether something is a cottage, or an archaeological site, or a big gray rock? It depends, of course; if you’re a geologist and I’m not, your opinion about the big gray rock is probably better than mine. But archaeologists can argue over what is and isn’t an archaeological site, and one person’s cottage may be another’s palace and another’s hovel. In any event, cottageness, siteness, and rockness are more or less matters of opinion, on which people can honestly reach divergent conclusions, and – here’s the important point – no government agency has the authority to decide the matter.

In just the same way, no government agency has the authority to decide whether something is or is not a TCP. The Keeper has the authority to decide whether a given TCP (or non-TCP) is eligible for the National Register, but she has no more official role in deciding whether something is a TCP than she has in deciding whether something is a rock, a boat, or a fig tree.

Who can determine whether something is a TCP? According to National Register Bulletin 38:

“It is vital to evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them”[6]

In other words, traditional cultural significance is defined and determined by the people who know and care about a place. The bulletin goes on to acknowledge that a group’s assertions about a place can and should be “subjected to critical analysis,” but the bottom line is the obvious truism that only I can say what’s important to me, and only you can say what’s important to you. Neither of us needs the Keeper to instruct us in the matter.

So the Keeper’s opinion is simply an opinion. It’s also an opinion without practical consequence. The district remains eligible for the National Register, under criteria A, B, and C. The dune shacks contribute to the district; their use by artists and their colleagues is understood to be part of the district’s significance. Any eviction or demolition action by NPS would obviously require review under Section 106[7]. The dune dwellers would be entitled to be consulting parties in any such review, based on their interests in the district[8].

So what did the Keeper’s opinion mean? Only that in the Keeper’s opinion, the shacks are not significant as a TCP. This opinion must have deep meaning to the Keeper, but in real world terms it is simply one ostensible specialist’s conclusion, to be compared and contrasted with those of the residents, Wolfe, Ferguson, the SHPO, and others in future evaluations of the place.

If the Keeper’s opinion has marginal relevance to the dune shacks themselves, it has rather chilling implications for other TCP cases. We may, and should, wonder what will happen when other properties of traditional cultural significance, not already on or determined eligible for the Register, are brought to the Keeper for determinations of eligibility or as nominations. To judge from Ms. Matthews’ memorandum, the prospects for official recognition of such significance are not good. The Keeper appears to be unfamiliar with the National Register’s own guidance on the evaluation of TCPs, and to have some strange notions about what makes such properties significant.

The Keeper’s Understanding of National Register Bulletin 38

Ms. Matthews’ memorandum includes what purports to be a summary of what Bulletin 38 says about TCP evaluation, reproduced below.

Traditional Cultural Properties

National Register Bulletins provide guidance and technical information regarding the evaluation of cultural resources. National Register Bulletin #38 provides flexible guidance regarding the evaluation and documentation of TCPs. In general, as discussed more fully in the Bulletin, a TCP has the following characteristics:

A living, traditional group or community;
The group/community must have existed historically and the same group/community continues to the present;
The group/community must share cultural practices, customs, or beliefs that are rooted in the group/community’s history;
These shared cultural practices, customs, or beliefs must continue to be held or practiced today;
These shared cultural practices, customs, or beliefs must be important in maintaining the continuing cultural identity and values of the group/community;
The group must transmit or pass down these shared cultural practices, customs, or beliefs through the generations, usually orally or through practice; and
These shared cultural practices, customs, or beliefs must be associated with a tangible place, and the place must be directly associated with the identified cultural practices.

Most of the bulleted sentences and sentence fragments are accurate enough glosses on what Bulletin 38 actually says. The second bullet, however – “The group/community must have existed historically and the same group/community continues to the present” – is not found in Bulletin 38 in any form I can discern upon rereading the publication. The Keeper appears simply to have made it up. She goes on, in explaining “why the dune shacks… does (sic) not have significance as a TCP,” to lean entirely on this putatively “most important characteristic of a TCP” as her basis for concluding that the dune shacks don’t comprise one. This suggests to me that Ms. Matthews is unfamiliar with the actual language of the bulletin, and/or that over the years since its publication her staff have begun to read into the bulletin a standard that its authors never intended to include – and moreover, to elevate this standard to “most important” status. This, as we’ll see, is a problem.

The Keeper’s use of the “historical existence/continuation to the present” standard

Why is there a problem with employing the standard that Ms. Matthews and her people have invented? It seems intuitively obvious that a group ascribing “traditional” significance to a place must have existed long enough to have traditions, and must exist today in order to honor them. The problem with this standard, however, is rooted in the question of who defines traditional significance. If, in the bulletin’s words, we are to “evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them,” is it legitimate for someone standing outside the group – most notably a government official – to evaluate the legitimacy of the group’s perceptions? If – as the bulletin details – it is inappropriate for us to question whether an Indian tribe’s ancestors “really” emerged from a lower world at the beginning of time, is it legitimate for us to deny the beliefs of the Cape Cod dune dwellers about their history, and indeed their very existence as a group?

If the dune dwellers had dragged their shacks into the dunes last year, it might not be problematic to apply the “historical existence/continuation to the present” (HE/CP) standard, though I think the wisdom of doing so would still be questionable. But the dune dwellers did not arrive yesterday; they’ve been around for quite awhile, so the Keeper has to develop a convoluted rationale for denying them legitimacy. The fact that she is willing and able to do this, in the face of massive contrary evidence, bodes ill for future human-based TCP evaluations.

Ms. Matthews’ argument – to the extent I can extract its essence from her prose – goes like this:

The community (she would probably put the word in quotes) of dune dwellers is made up of several groups, including long-term and short-term occupants, visitors, and so on.
These groups are “fluid, evolving, and different from one year to the next.”
Wolfe’s and Ferguson’s reports focused on the long-term occupants.
Many of those offering opinions about the dune shacks emphasized the relevance of groups that do not comprise long-term occupants.
Some comments suggest that the groups using the shacks are so fluid that no “cultural focus” can be discerned[9].
Therefore, “the District should not be identified for its significance as a TCP.”

If the reader’s response to this argument is “huh?” I am not surprised; that’s my response, too. Granting the accuracy of points 1 through 5, it is utterly unclear, at least to me, how Ms. Matthews jumps to point 6 (which actually is the lead-in to her discussion). How does inclusion of multiple subgroups, fluidity, a tendency to evolve, year-to-year differences in composition, the existence of groups other than the long-term occupants, and questions about “cultural focus” (whatever that is) translate into non-TCP status? Presumably it has something to do with the newly-minted HE/CP standard, but even if one accepts that standard, the intellectual leap Ms. Matthews has made is difficult (impossible, for me) to follow. Apparently Ms. Matthews would not deny that the long-term occupants as a group have “historical existence,” and it is pretty evident that this group “continues to the present.” If this is true, then presumably Ms. Matthews would regard the dune shacks as comprising a TCP if there were no one there but the long-term occupants. But by having the temerity to die or move away from time to time and be replaced by others, the long-term dune dwellers have compromised their historical/cultural legitimacy in Ms. Matthews’ eyes.

Apparently to the Keeper, if the community that ascribes significance to a property has been so gauche as to change over time, its claim to “community” status has been lost, and it doesn’t really value the places it thinks it values. But historians, anthropologists, and sociologists have pretty thoroughly documented the fact that all human societies change, evolve; all have more or less fluid boundaries. If there is one immutable principle of human existence, it is mutability. By Ms. Matthews logic, then, no living community can have a TCP. And of course, no dead one can either, since it has not “continued to the present.”

Let’s imagine the HE/CP principle and Ms. Matthews’ logic applied to a more “traditional” sort of TCP than the dune shacks. Suppose an Indian tribe asserts that a hill somewhere in its traditional territory (or elsewhere) is an important spiritual place, and is misled into nominating it to the National Register[10]. In evaluating the nomination, the Register will have to ask whether the tribe’s composition and boundaries have changed and evolved over time. It would be a rare tribe for which the answer to this question would not be “yes.” The Keeper might be satisfied that the tribe “existed historically,” as evidenced by historical accounts, archaeology, perhaps oral history, perhaps treaties, but has it “continued to the present?” Well, the Keeper might say, maybe it has and maybe it hasn’t; it all depends on how fluid the group’s boundaries are. So – assuming the tribe has patience with this kind of effrontery – the tribe submits its tribal rolls for the last century or two. And – what do you know? – they document a considerable fluidity. Not only have tribal members been born and died, but people have come into the group through marriage, perhaps through adoption, while others have left or been thrown out. Some tribal members come and go; a couple live in Switzerland, one member has been elected to the House of Representatives and lives in suburban Virginia. Oh dear, can this really be seen as a community? Guess not, so its place can’t be a TCP.

If this hypothetical seems absurd, I will only say that I don’t think it any more absurd than the Keeper’s opinion about the dune shacks. Since the Keeper’s decision in this matter was pretty obviously a politically motivated one, we can hope that it will not be replicated in cases where the National Park Service is not the agency questioning a place’s traditional cultural significance, but I have my doubts. The Keeper certainly engaged in convoluted, unsubstantiated logic (broadly defined) to reach the conclusion desired by her agency, but the fact that such logic apparently makes sense to her and her colleagues – that they can put it out in public with straight faces – cannot make one very hopeful about the quality of likely future decisions.

[1] Also taken to mean “traditional cultural place,” which amounts to the same thing; we used “property” in order to parallel “historic property,” a term used in the National Historic Preservation Act.
[2] See, for instance, Chapter 15, “Stupid TCP Tricks,” in Thinking About Cultural Resource Management: Essays from the Edge; AltaMira Press 2002; Chapters 1 and 2 in Places That Count: Traditional Cultural Properties in Cultural Resource Management, AltaMira Press 2003; and “How Micronesia Changed the U.S. Historic Preservation Program and the Importance of Keeping it from Changing Back,” Micronesian Journal of the Humanities and Social Sciences 5:1/2:505-516,
[3] Dwelling in the Dunes: Traditional Use of the Peaked Hills Bar Historic District, submitted to the National Park Service 2005.
[4] Traditional Cultural Property Assessment, Dune Shacks of the Peaked Hills Bar Historic District, Cape Cod National Seashore, submitted to the National Park Service 2006.
[5] As set forth in regulation at 36 CFR 60.4
[6] National Register Bulletin 38:4, emphasis added.
[7] This is not, however, to say that NPS will subject its decisions in such matters to such review; it is required to, after all, only by federal law.
[8] 36 CFR 800.2(c)(5)
[9] The Keeper does not define this somewhat ambiguous term.
[10] For the record, I recommend NEVER nominating TCPs, or anything else, to the National Register unless there is a very good practical reason for doing so.