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Friday, June 06, 2008

The Keeper Forgets History

Those who cannot remember the past are condemned to repeat it
George Santayana, 1905

When the National Historic Preservation Act (NHPA) was enacted in 1966, its section 106 required federal agencies to take into account the effects of their undertakings on places included in the National Register of Historic Places. It soon became apparent that this requirement was unworkable, because it left agencies free to destroy historic places to their hearts’ content unless and until somebody else came along and got them listed on the National Register. In those days, nominating something to the Register wasn’t very hard, but it still didn’t make sense to lay the responsibility for finding and evaluating places on those who wanted to save them, rather than on those who wanted to benefit from destroying them.

So in 1971, President Nixon issued Executive Order 11593, directing agencies to treat places that were eligible for the Register but not yet listed just like those that were already on it. This provision was absorbed into NHPA itself a few years later; section 106 was amended to require agencies to consider the effects of their undertakings on places included in or eligible for the Register.

These presidential and congressional actions placed the burden of determining what significant places a project might affect where it rightfully belonged – on the project proponent or oversight agency. The obvious downside of this shift, though, was that the proponent had no motivation whatever to find anything eligible, and every motivation to find things not eligible. In theory, the State Historic Preservation Officer (SHPO), with whom agencies had to consult about eligibility, was supposed to provide a check on the natural tendency to give one’s own project a clean bill of health. But SHPOs are political creatures, and overworked to boot, and certainly not omniscient. By the mid-1980s a number of instances had arisen in which SHPOs and agencies had agreed on the ineligibility of manifestly eligible places, depriving these places, and hence the interested public, of the fragile protections of section 106.

To check the tendency toward such dealmaking, when the Advisory Council on Historic Preservation (ACHP) revised its regulations in 1985, it provided that agencies and SHPOs could determine eligibility by consensus, but if either the ACHP or the Keeper of the National Register so requested[1], the agency had to seek a formal determination of eligibility/ineligibility from the Keeper. This didn’t allow just anybody to trigger a formal determination for any old frivolous reason, but it did set up a system through which concerned citizens, if they had a good enough case, could get the ACHP or Keeper to require such a determination.

What constitutes a good enough case? The regulations don’t say, but a recent case provides an example. A year or so ago the Department of Energy (DOE) was discovered digging a backhoe trench in the middle of a dump created by the Manhattan Project on the Hanford Nuclear Reservation in Washington State. Archaeologists from the Umatilla Tribe objected, and notified a number of historical archaeologists and archaeological organizations, who did the same, claiming that DOE was violating section 106. DOE said nonsense, dumps aren’t eligible for the National Register. Unaccountably, the SHPO agreed. The archaeologists appealed to the ACHP, pointing out that dumps are pretty much what archaeologists study, and that the Manhattan Project was a rather significant historical phenomenon whose domestic leavings might very well produce significant information. The ACHP found these arguments convincing, and required DOE to seek a formal determination. DOE grudgingly did, and the Keeper found the dump eligible.

A fairly straightforward system: you don’t like what an agency and SHPO have agreed to, you write the ACHP or Keeper and lay out your counter-argument, and if one of them finds it worthy they can require the agency to give the matter more study, more documentation, and send that documentation to the Keeper for a determination. Importantly, the responsibility to do the documentation, to make the studies and hence to fund them, remains with the agency, and hence with the project proponent – the guy with the money, who expects to benefit from mucking up the putatively historic place.

I’m looking at a letter recently sent out by the National Park Service on behalf of the Keeper, in response to a citizen request that the Keeper ask an agency to seek a formal determination. The facts of the case don’t matter – though I’ll frankly acknowledge that I drafted the request, and thought we’d made a passably good case for the probable eligibility of the place involved. What does matter are the reasons the Keeper turned down our request.

First, the Keeper seems not to have understood what she was being asked to do. The letter says the Keeper’s office is “unable to adequately determine if the area…meets the National Register Criteria…” But no one was asking them to do that. What they were being asked to do was think about whether the area was likely enough to meet the criteria to justify insisting that the federal agency involved in the case get the information needed to determine eligibility. It’s almost as if the Keeper doesn’t understand the Advisory Council’s regulations, but of course that’s unthinkable.

Now, why couldn’t the Keeper determine if the area meets the criteria? According to the letter, because the citizens didn’t provide:

A careful delineation of boundaries;
A comprehensive inventory of features;
Conclusive evidence that an eligible (property) exists;
Answers to questions that occurred to the Keeper about integrity;
Documentation describing component resources and defining relationships;
Contextual information;
Photographs of component sites and features;
A map depicting the property in detail.

All these demands will be familiar to anyone who has nominated something to the National Register – they outline the requirements for such a nomination. In other words, the Keeper was insisting on a nomination before she could consider a citizen appeal of a determination of ineligibility. “Without conclusive evidence that an eligible (property) exists,” the Keeper said, “we do not think it appropriate to ask the (agency) to request a formal determination of eligibility” (emphasis added).

This effectively takes us back to the condition in which we existed before President Nixon issued Executive Order 11593. If we think an agency is ignoring a significant place, the Keeper is telling us, we have to provide “conclusive evidence” of its eligibility – for all practical purposes, we have to nominate it. If you haven’t prepared a nomination, this may not seem like a big deal, but if you have, you know it takes a great deal of research, writing, mapping, photography, and other documentary work, typically costing several thousand dollars. Executive Order 11593 shifted this burden from the public to the agency proposing to destroy a place; the Keeper is now shifting it back.

If you’re inclined, you can accuse me of sour grapes – I’m just irritated because my effort to demonstrate the significance of the place failed. But I actually never much expected to prevail; the case was a highly political one, and we were lined up against some very powerful interests. And however I feel about this particular case, I think there's something for everyone to be concerned about when an agency like the National Park Service forgets – or decides to ignore – the principle that the would-be destroyer of a resource, not the affected public, should bear the cost of evaluating and dealing with its significance.

[1] Or, of course, if the agency and SHPO didn’t agree.

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