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Thursday, December 17, 2009

A Listless Approach to Resource Management


Early this year I was asked to prepare some thoughts to share with a group that (to judge from the rather vague description I was given) was considering the future of various institutions within and around the U.S. National Park Service. The following is what I wrote. Not surprisingly, a glance at it was enough to cause my invitation to be withdrawn. So I'll post it here for whatever interest it may have to others.

Lists in Resource Management: First Step or Knee-Jerk?

Whenever a nation, national subdivision (state, province, city, etc.), or international organization sets out to manage resources – be they endangered species, historic places, or even such intangibilities as songs, stories, and ways of life – its almost invariable first step is to establish or promote establishment of a list. The U.S. National Historic Preservation Act calls on the National Park Service to expand and maintain a “National Register of Historic Places.” The World Heritage Convention creates the “World Heritage List.” The U.S. Endangered Species Act requires creation and maintenance of the “Endangered Species List.” The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage even directs each of its States Parties to draw up, in a manner geared to its own situation, “one or more inventories of the intangible cultural heritage present in its territory

Such lists tend to become the centerpieces of the management systems of which they form a part – or at least to be perceived as such. The U.S. National Register of Historic Places, for example, touts itself on its web site as “the official list of the Nation's historic places worthy of preservation .”

The lust to list is understandable in a simple minded kind of way – how can one manage that which one does not know about, and what more obvious way is there to know about something than to make a list of its examples or expressions? But the fact that listing is understandable does not mean that it is always the wisest first step – or even a necessary step at all – in managing resources. Nor does it mean that it lacks negative consequences that might be avoided if one adopted a listless – or if we must be sober-sided, a list-free or list-minimizing – approach.

Some Down-Sides to Listing

As one simplistic example of the dangers inherent in listing, consider the U.S. National Register’s smug self-description as “the official list of the Nation's historic places worthy of preservation.” “Worthy,” we should surely be allowed to ask, “to whom?” To the American people as a whole? To the government? To the National Park Service? The answer is not clear, but in practice the answer is: “Worthy to the Park Service professionals who run the National Register,” since it is they who decide what gets listed and what does not. Without meaning to impugn the integrity or intelligence of these hard-working government employees, should we not ask whether this means of measuring worth is quite appropriate? It is not uncommon for, say, a local community or a group of citizens to feel strongly that a place associated with their history or cultural practices is worthy of preservation, and for the National Register to decide that it is not eligible – in other words, by the Register’s self-definition, not worthy. Is this entirely democratic? Who elected these guys?

The National Register’s exercise in self-congratulation would be merely amusing if it didn’t have practical implications, but it does. Under Section 106 of the National Historic Preservation Act, federal government agencies have to consider the impacts of their proposed actions on places included in or eligible for the National Register. Implicitly, if a place is not in or eligible for the Register, they don’t have to consider impacts on it. So if a place of great cultural, historical, significance to, say, the people of the Barrio de Don Quijote de la Mancha is in danger of destruction by a federal project, and the National Register decides that this place does not meet the Register’s criteria, the federal agency need not even think about preserving it, as far as the National Historic Preservation Act is concerned. There are other laws that in theory require broader consideration of historic and cultural places – for instance, the National Environmental Policy Act, which deals with the whole “human environment” – but as most agencies interpret their legal responsibilities, if a historic or cultural place is not on or eligible for the National Register, it is not seriously considered under any law.

A related problem with lists is that we tend to become fixated with deciding what does and does not qualify for listing. In my forty-plus years of experience trying to resolve conflicts between development and preservation under the National Historic Preservation Act, I estimate that at least half of all controversies I’ve encountered have not been over whether or how to preserve something, but over whether things were or were not eligible for the National Register. Often these arguments are not as much substantive as they are procedural and technical. Has a particular criterion or standard been met? Has the boundary of the property been correctly defined? Does the place have “integrity” in the eyes of an architectural historian or archaeologist? We spend vast amounts of time and money evaluating things against National Register standards, delay projects for months and years, often for no purpose whatever but to satisfy National Park Service technical standards or the nitpickery of those who interpret them. And in the end, what we “preserve” – if anything – may be those aspects of a place that mean nothing to those who value it. We may, for instance, force the physical preservation of a building as part of a development project, but lose its traditional functions, the role it played in the cultural life of its community. This may be as it must be; perhaps there is no realistic way to maintain the building in its traditional role, but if this is the case, is it worth preserving it at all? And should we congratulate ourselves on having preserved something when what we have preserved, often at great cost, is only a stark and lifeless shell?

My experience with other lists is limited, but I know that similar problems are confronted in the management of state and local level historic property registers in the United States. The criteria employed in maintaining the Endangered Species List are held to be too rigid on the one hand, too open to political manipulation on the other. The various UNESCO groups that are convened from time to time to address World Heritage List issues seem to spend most of their time wringing hands about why more “mixed” natural and cultural places don’t get listed, and why “Third World” countries don’t add more of their places to the List. Perhaps these issues have something to do with actually preserving or managing the world’s heritage, but they appear -- to me at least -- to reflect preoccupation with listing itself, as though it were a self-evident good in its own right.

The United States has not yet ratified UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage, so we have no first-hand experience with its direction to compile inventories of intangibilities. My expectation is that if we ever attempt such a compilation, the complexities with which we trouble ourselves in historic property evaluation will pale by comparison. Are we really going to try to decide where this fiddle-playing tradition leaves off and another begins? Decide which traditional religious practice is legitimate enough to be listed and which is not? And what will we do when all the practitioners of a particular cultural practice – say, line dancing – inconveniently decide to take up something else? Or die?

I raise these last concerns, I hasten to add, as one who believes that “intangible heritage” is very much worthy of consideration in planning. In fact, it may be the only heritage worthy of consideration, since even the ambience of historic places and the research value of archaeological sites comprise “intangible” interactions between physical reality (whatever that is) and our brains. My question is not whether such aspects of heritage should be given fair consideration for preservation through wise, balanced planning. My question is whether giving lists a central place in the processes of preservation and planning is necessary or wise.

Being Listless

I am not suggesting that one could ban lists altogether and have a better, or even a possible, resource management system. There are many uses for lists, and for some aspects of resource management they’re undoubtedly necessary. If you’re distributing benefits – grants, for instance, or tax credits, you need to know who’s qualified to receive them, and that’s going to create a list. If you’re imposing draconian controls – thou shall not paint thy house green; thou shall not dig up a tree – you probably need a list of the things to which these controls apply. But most resource management is not about distributing benefits or imposing absolute controls; it’s about balancing interests in resources with interests in other things, like development. There are ways to do this kind of management without lists – or at least without permanent, high-powered lists that purport to be official rosters of what’s worth managing.

Listless management involves the use of processes designed to identify and resolve conflicts. We recognize a need – say, the need to generate electricity. We look for ways to meet that need, and identify a few – wind turbines on the hill, a hydropower dam on the river, a nuclear plant on the lakeshore. We determine who’s likely to be interested in, affected by, concerned about each of these alternatives, and we begin to talk with them about it. We do studies to figure out what impacts each alternative may have. We continue to consult with the groups that have interests and concerns, and through these processes of study, consultation, weighing and balancing alternatives, we eventually reach a conclusion about what to do. We may carry out these processes well or poorly, of course, but my point is that it is by such processes, if well done, that we can reach thoughtful, well-informed, consensual decisions about managing resources. We may make lists along the way – of resources affected by this, that, or the other alternative, of people concerned about each, and so on, but we don’t need a high-powered central list of what’s been officially deemed to be worth considering. If we have such a list, we’re almost inevitably going to undervalue some things in the eyes of people whose perceptions don’t happen to mesh with the “official” view of significance, and we’re likely to waste a lot of time and treasure figuring out what ought to go on the list and what ought not.

An excellent example of a list-free approach to management is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. The Akwé:Kon Guidelines – the term is from the Mohawk language, and means “everything in creation” – recommend the conduct of integrated “cultural, environmental, and social impact assessments” as part of land use and development planning. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. There is nothing in Akwé:Kon to suggest that resources or resource types important to other people – biologists, for instance, or archaeologists or national park services – should not also be considered, but such resources are not given “official” status, and there is no complicated bureaucratic system for deciding what does and doesn’t get attended to. If people are concerned about it, it’s an issue to be addressed. The focus of analysis and discussion is on figuring out what people are concerned about and how to resolve conflicts. If the processes of issue identification and resolution are pursued intelligently and with integrity, the results ought to be wise, balanced decisions – to which things like national or international registers of resources are irrelevant.

A cynic may say that such processes are never actually pursued with intelligence and integrity, but I don’t believe we can legitimately say that, because we’ve never really focused on them. We’ve spent our intellectual energy on the development and completion of lists, and figuring out what does and doesn’t fit on them. If we threw away the lists, and paid attention to the processes by which better decisions can be made, even a cynic might be gratified.


Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment 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. CBD Guidelines Series, Montreal,

Wednesday, December 02, 2009

Writing the Secretary of the Interior about Nantucket Sound

I'm trying to send the following to Secretary of the Interior Ken Salazar, but find that the Dept. of the Interior's website discourages such contacts. I suppose I'll have to do it in hard copy and let it get fried by the correspondence zappers that Homeland Security has foisted on all the agencies. In the meantime, I thought I'd share it with my faithful readers.

The Honorable Ken Salazar
Secretary of the Interior
Washington DC 20240

Dear Mr. Secretary:

In the current brouhaha over the Cape Wind project in Massachusetts, and the eligibility of Nantucket Sound for the National Register of Historic Places, you are confronted with what may appear – and what some of your advisors may portray – as an existential conflict among three important functions of your office. The administration of which you are a part, obviously and with justification, assigns high priority to developing clean, domestic sources of energy; Cape Wind Is arguably one means by which you may pursue this priority. But you are charged by the National Historic Preservation Act (NHPA) with being an advocate for the preservation of historic places, specifically including places of cultural and spiritual significance to Indian tribes. And quite apart from this responsibility, you are the point man in the federal government’s exercise of its trust responsibility toward tribes, charged with doing what you can to protect and advance their interests. In asserting that Nantucket Sound is a place of spiritual, cultural, and historical importance to them, the Wampanoag tribes have called on you to exercise your NHPA and trust responsibilities, perhaps at the expense of the Cape Wind project.

You are doubtless receiving a lot of advice about how to balance – or dodge, or finesse – these three bodies of responsibility. You are hearing – we’ve all read the words of the governor of Massachusetts to this effect – that the tribes’ assertion is “ridiculous” because we need wind energy. This, of course, is a non sequitur; our need for clean energy, windy or otherwise, no more makes the tribes’ spiritual values ridiculous than our need for peace in the Middle East vitiates the spiritual beliefs of Jews and Muslims. You are also hearing that the tribes are the bought and paid for creatures of rich yachties and homeowners. That’s theoretically possible, but even if it were true that the tribes are in league with non-Indian Cape Wind opponents, that wouldn’t automatically make their spiritual assertions illegitimate. As a former Senator you may have some familiarity with striking alliances to achieve or protect separate but overlapping or dovetailing interests.

You are also almost certainly hearing – quite likely, sadly, from your staff that oversees the National Register of Historic Places itself – that Nantucket Sound cannot be eligible for the Register because it is too big, or too wet, or too loosely bounded. But none of these variables are reflected in the National Register’s criteria of eligibility. It would be remarkable if they were; can government dictate that a place cannot be of historic and cultural value if it is bigger than – what? A breadbox? Does government know some secret relationship between moisture content and cultural significance? As for boundedness – well, the National Register’s staff is in love with boundaries as a matter of bureaucratic tidiness; it is nice to be able to plot things firmly on a map. But history and culture, and land management for that matter, are annoyingly disrespectful of boundaries. In the case of Nantucket Sound (as in many others) boundaries are irrelevant. Wherever the boundaries of Nantucket Sound might be set, it’s a safe bet that Horseshoe Shoals would be within them, and so would most of the effects of the Cape Wind project.

The Register staff may also be fretting about the need for more data, and asking for more studies. That’s standard operating procedure for the Register when confronted with a politically difficult call, but such studies seldom serve any purpose other than to generate costs and delays. There’s certainly no excuse for them in the Nantucket Sound case. The Wampanoag tribes have said that the Sound is culturally significant to its people, is it the place of the government’s history experts to study the matter for a few months or years and then perhaps say “no, it’s not?” Would one expect the tribes, in this event, to say “Oh, OK, Great White Father; poor dumb injuns make-um mistake?”

Finally, you are probably hearing that if you accept the eligibility of Nantucket Sound for the National Register, you are dooming Cape Wind. Perhaps Cape Wind deserves to be doomed; I don’t know. But I do know that nothing in law prevents you from approving a project that does violence to a National Register eligible property – provided your consultation with tribes and other interested parties in accordance with the law reveals no alternative you find worth pursuing, and you conclude that proceeding is in the public interest. On the other hand, your fiduciary responsibility to the tribes, and the requirements of statutes like the Religious Freedom Restoration Act (which says you can’t substantially burden anybody’s practice of religion without a compelling government interest in doing so) may preclude you from approving Cape Wind regardless of the Sound’s eligibility for the National Register.

What recognizing the Sound as eligible for the Register does do is open up an avenue through which you may be able to negotiate a mutually acceptable compromise; the process for doing so is laid out in the regulations for carrying out Section 106 of NHPA. NHPA was a product of Lyndon Johnson’s administration, and the Section 106 review process reflects the line from Isaiah 1:18 that President Johnson was so fond of quoting: “Come, let us reason together.” Under Section 106, when a project will impact a National Register eligible property, everyone involved is supposed to sit down and see if they can reason out a mutually agreeable solution – something that achieves the purposes of the project with as little damage as possible to the interests of those who care about the place. If such a solution can be found, it’s pursued; if it can’t be, then you, as the decision maker, get the recommendations of the Advisory Council on Historic Preservation and then make the final call. It may be a hard call, but that’s why we pay you the big bucks.

As someone who’s worked in and around the National Register and Section 106 for almost half a century, and as a supporter of clean domestic energy, and as a supporter of the administration you serve, I hope you will recognize the obvious fact that Nantucket Sound is eligible for the National Register, and get on with trying to negotiate a solution that respects the tribes’ spiritual and cultural values as well as the interests of local residents and the need for clean energy. It would have been a lot easier to find such a solution several years ago, when the tribes first advised the Minerals Management Service of their concerns, but the Service – doubtless based on what someone thought was impeccable logic – ignored those concerns and left them to fester. This complicates your task but doesn’t change it. The NHPA Section 106 review process – though sadly distorted and corrupted over the last decade – remains one of the federal government’s very few formal procedures for resolving environmental disputes outside the courts. You ought to seize the opportunity to use it to seek a solution to the Cape Wind controversy. But to do this, you need to accept the manifest truth of the Sound’s cultural significance to the Wampanoag tribes.

Thomas F. King

Thomas F. King, PhD
Writer, Consultant, Teacher in Cultural Resource Management
PO Box 14515
Silver Spring, MD 20911
Blog at
Publishers: Left Coast Press:
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Friday, October 23, 2009

Buying Thirteen Bones

Anyone interested in purchasing my new novel, Thirteen Bones, can do so directly from the publisher by going to Alternatively, it's available from Amazon, Barnes & Noble, and other booksellers. It's the fictionalized (but fact-based) story of the 1940 discovery of what were probably Amelia Earhart's remains on Nikumaroro in the Phoenix Islands, Republic of Kiribati.

Wednesday, September 16, 2009

Consultation Requirements Under Section 106: Can an Archaeological Opinion Make Them Go Away?

The other day (Sept. 12, 2009), I posted the following note on ACRA-L:

I'm confronted with a problem that's doubtless not uncommonly faced by CRM consultants, but it's not one I've encountered lately, and I'm wondering what others would do in my situation. Here are the facts:

1. At the mouth of a river, two archaeological sites were recorded in 1989, about 100 meters apart. Both are "Archaic" -- say, 2,000 years old. Both are recorded as distributions of flaked-stone tools and debitage, mostly in the plow zone. The area has been disturbed by various construction activities over the years. Both sites were regarded by their recorders, working for a major, reputable CRM firm, as not eligible for the National Register. The SHPO agreed.

2. Now a new construction project is planned that will be directly adjacent to and partly overlap one of the sites.

I see the two "sites" not as discrete entities, but as red flags, warning me that someone occupied this obviously attractive area (lots of game, fish, shellfish) 2000 years ago. I am skeptical of the notion that these people "lived" only within the areas where archaeologists found stuff in 1989.

I also observe that under current law and regulation (as opposed to what was in effect in 1989) there are today rather explicit requirements for agencies to consult with Indian tribes about effects on properties that may be culturally significant to them.

The SHPO, however, takes the position that since the archaeologists in 1989 didn't find anything that looked to them to be eligible for the National Register, and the SHPO continues to stand by the finding of non-eligibility, there is no need to consult with tribes. I should say that there are no federally recognized tribes in the state, though there are some in adjacent states with interests in the area, and there are several non-recognized tribes.

My client is the project proponent, and is used to depending on the SHPO's opinion. It will be less expensive and troublesome for my client to adopt the SHPO's position than to reconsider the matter and consult with tribes.

It seems to me, however, that following the SHPO's advice will put my client on thin ice legally (to say nothing of the SHPO's logic, which strikes me as faulty). I also fear an eleventh-hour confrontation with tribes, and/or a late discovery, that will be more expensive and time consuming than dealing with the matter now would be. If I recommend dealing with the matter now, however, I will doubtless be seen by my client as merely attempting to make more pricey work for myself.

Any recommendations? Let me assure you that this is NOT a trick question designed to collect ridiculous answers for use in my next book.

I got a number of recommendations, many of them helpful. A number of respondents commented that the situation I confronted was not an uncommon one. Several pointed out that in the 1980s, there was much less awareness than there is today of the potential for deeply buried archaeological sites in places like floodplains along rivers. Most archaeologists said that they would not accept the SHPO’s position on professional grounds, though several CRM practitioners said that if the client was determined to follow the SHPO’s advice, all one could do is warn of it’s possible consequences.

All of these comments were, I think, quite to the point and helpful. But it rather surprised me that no one pointed out the strangeness of the SHPO’s opinion that since the archaeologists back in 1989 hadn’t thought the sites were eligible, there was no need to consult with tribes about the matter in 2009.

Following is what I ended up telling my client (whose identify, naturally, I have not revealed here):

(With regard to) the archaeological site that will be affected by the project, the SHPO took the position that since it was found not eligible for the National Register in 1989, it need not be considered further, and Indian tribes need not be consulted about it. I believe this position is ill-advised, to say the least. In the first place, it ignores the fact that since 1989:

A. Congress amended NHPA in 1992 to require explicitly that tribes be consulted about historic properties of cultural or religious concern to them, and to remind federal agencies and SHPOs that the cultural and religious concerns of tribes may make a property eligible for the National Register;

B. Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA), establishing a requirement to consult with tribes about cultural items in the ground that is wholly independent of NHPA;

C. Congress also enacted the Religious Freedom Restoration Act (RFRA), which has recently been used by a tribe in Oklahoma to close down Army construction at Fort Sill that intruded into the viewshed of a sacred site (cf. ;

D. President Clinton issued two executive orders dealing with tribal consultation: 13175 generally directing agencies to consult with tribes about matters of mutual concern, and 13007 directing agencies to give special attention to tribal “sacred sites” on federal land;

E. The ACHP has revised its Section 106 regulations and issued supplementary guidance emphasizing tribal consultation;

F. There has been extensive litigation not only surrounding the above specific statutory, executive, and regulatory authorities, but concerning the general responsibility of the federal government to consult with tribes on a government-to-government basis and exercise a fiduciary responsibility toward tribes. These responsibilities are embedded in treaties and in the U.S. constitution.

The SHPO would have the agency ignore all the above because an archaeologist in 1989 reached the conclusion that the site in question had lost integrity for purposes of research. Even if I thought that conclusion was correct (and as an archaeologist I do not), I would find the SHPO’s position antediluvian.

I also think the SHPO’s position raises questions about environmental justice. Executive Order 12898 directs federal agencies to avoid disproportionate adverse impacts on the environments of low income groups and minority populations, and to consult with such groups in appropriate ways to make sure that they have the opportunity to influence agency decisions. Tribes – both federally recognized and non-recognized – are by definition minority groups and very often have low incomes. Destroying a site created by their ancestors and not everyone else’s is arguably disproportionate. There is nothing in any law, anywhere, that allows a contract archaeologist or an SHPO to speak for a tribe in matters of environmental justice.

I believe that the agency has a clear responsibility to seek out interested tribes, and to consult with them about the National Register eligibility and general cultural significance (if any) of the site, as well as the likelihood that the kinds of items protected by NAGPRA exist there. Practically speaking, failure to initiate and pursue such consultation could expose the agency (but not, it should be noted, the SHPO) to litigation and resulting project delays. In a worst-case scenario, it could kill the project altogether; this happened not long ago to the Federal Highway Administration in Washington State, wasting tens of millions of dollars (cf. While such a drastic outcome is not likely in this case, project delays are certainly possible. While it is tempting to adopt the SHPO’s recommendation as a quick way of proceeding with minimal complications, in the long run it could have serious impacts – which, it is again worth noting, would fall on the agency, not the SHPO.

I posted this discussion on ACRA-L, too, and the response has mostly been deafening digital silence. I thought, though, that one respondent summed things up nicely by saying:

I naively continue to be surprised by how reluctant many who purport to value cultural and historic preservation (not just expect to make a living at it) consider it unnecessary and/or scary to consult with interested parties about those resources.

It can be scary, no question about it, and it also can be irritating, frustrating, time consuming, and generally a pain in the backside. This is particularly the case because those interested parties – whether they’re tribes or others – probably don’t speak our specialized language; they may not relate very well to the National Register Criteria or the Criteria of Adverse Effect. They may not split hairs the way we do, and they may split different hairs. But the fact remains – here I go on my soap box again – that Congress enacted NHPA and other such laws not for the convenience and enjoyment of CRM practitioners and government officials, but to ensure consideration for places that citizens – that is, taxpayers, voters – care about. And when, in the 1980s, we failed to pay proper attention to the concerns of tribes, the tribes prevailed on Congress to change the law and remind us of our duty. However inconvenient it may be, I don’t think we’re doing our jobs – whether we’re consultants, federal officials, or SHPOs – if we close our eyes to the law’s clear direction to consult with tribes and others. And in evaluating historic places, we can’t pretend that archaeologists speak for anybody but themselves, about what’s important to them. They certainly don’t speak for tribes unless the tribes authorize them to.

Monday, September 14, 2009

Flash! HUD Finds Herd Behavior Among Archaeological Sites! Scientists Stunned!

Back in May, the U.S. Department of Housing and Urban Development (HUD) put out a “fact sheet” on when to do archaeological surveys under Section 106 of the National Historic Preservation Act and related authorities. Here’s what it says:


HUD offers the following guidance on when to do professional archaeological field investigations. It is applicable to both Part 50 and Part 58 programs. It meets the “reasonable and good faith effort” requirement to identify historic properties, per 36 CFR § 800.4(b).

Archaeological field investigations and related work should be approved only when HUD or the Responsible Entity (RE) is persuaded by authoritative sources of information that there is a “likely” (§ 800.4(b)(1)) presence of National Register-eligible or -listed properties within the project site and that the project may affect National Register resources.

Authoritative sources of information include, but are not limited to, reports, studies, surveys, predictive models, National Register data, and/or tribal input. These data must demonstrate that the project site contains or is reasonably adjacent to archaeological sites that meet National Register criteria.

The SHPO/THPO and other qualified persons may provide such information. The information should indicate a close and direct relationship between such previously discovered sites and the project site. It should also indicate the likelihood that National Register resources will be affected. Archaeological field investigation in such cases would help determine the presence of resources on site and provide the basis for establishing their significance and the project effects on them.

For urban areas, it is reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site.

In the case of projects for new developments in areas not previously developed or disturbed, a somewhat more distant site or ring of sites may be considered as relevant to the project site. But still, in this scenario, HUD or the RE must be persuaded that documented archaeology sites outside the APE are reasonably close enough to the project site to establish a likely relationship and so warrant a professional field investigation on the project site.

HUD or the RE should generally not honor a request for a professional archaeological field investigation without specific justification or solely on grounds that previous surveys have never been conducted in the area. HUD or the RE may turn down such requests as an unjustifiable public expense, particularly where private or
non-federal lands are involved.

This guidance is supported further by the Advisory Council on Historic Preservation’s 2007 Policy Statement on Affordable Housing and Historic Preservation (72 FR 7387-7389), Implementation Principle #8, that limits archaeological field investigations in certain situations.

Implementation Principle #8:

“Archeological investigations should be avoided for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance”


Source: Office of Environment and Energy, Environmental Planning Division, CPD, May 2009

The fact sheet was an internal document, but it got out to some State Historic Preservation Officers (SHPOs) and one of them shared it with me. It took me awhile to get around to it, but I finally responded to it as follows:

I recently received a copy of your May 15, 2009 email distributing HUD fact sheet #6 entitled "when to do archaeological field investigations." Can you please explain the rationale for this "fact sheet," which appears to me to fly in the face of a fair number of facts? I am particularly struck by the premise that the likely presence of National Register eligible archaeological sites is somehow indicated only by "reasonable adjacency" to "archaeological sites that meet National Register criteria." Is it HUD's assumption that archaeological sites exhibit some sort of herd behavior that causes them to group together and never drift lonely out across the landscape? Is it also HUD's assumption that they somehow present evidence to passersby of their consistency with National Register criteria -- perhaps like Republican members of Congress waving their versions of health care legislation at the President? And are they also expected to self-demonstrate the danger that they will be affected by a project -- perhaps by quivering in fear?

I'm also interested in how HUD defines such terms as "other qualified persons" and "direct relationship between such previously discovered sites and the project site." Am I, for example, a "qualified person" based on 50 years of archaeological practice, or must one work for a government agency? What sort of "direct relationship" must an unevaluated site demonstrate to a previously documented site? Geographic? Cultural? Genetic? How close must this relationship be?

And why, "for urban areas," is it "reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site? What does such "reasonable adjacency" even mean, considering that urban sites (and rural ones, for that matter) often do not have well-defined boundaries?

To help me understand HUD's logic, perhaps you could relate the fact sheet's guidance to a well-known real world case like the African Burial Ground in New York City or the site of Tse-whit-zen in Port Angeles, Washington. As you doubtless know, in both these cases "archaeological" sites of considerable cultural significance (especially to African-Americans in the first case, Native Americans in the second) that had not been evaluated for National Register eligibility were discovered during construction and (among other impacts) unnecessarily cost federal and state agencies tens of millions of dollars. I should think that it would be among HUD's interests to avoid such impacts on taxpayers and recipients of HUD financial assistance, but I may be wrong.

Thank you for your attention to this request.

I sent this off to the person in HUD who had distributed the fact sheet, and immediately received an automated response, as follows:

Your message wasn't delivered because of security policies. Microsoft Exchange will not try to redeliver this message for you. Please provide the following diagnostic text to your system administrator.

Lacking a system administrator, I distributed my note to several listservs whose participants may be permitted through HUD’s portcullis. We’ll see what happens, if anything.

Archaeologists concerned about application of HUD’s remarkable – uh, is it a policy? A position? An opinion? Anyway, archaeologists concerned about it as it applies to specific cases may want not only to cite NHPA and the National Environmental Policy Act in arguing for surveys where they’re actually appropriate, but also the much-ignored Archaeological and Historic Preservation Act of 1974 (AHPA; See, which requires agencies, upon finding or being competently advised that their actions, or actions they assist or permit, may destroy historical, archaeological, or scientific data (Note: the law makes no reference to the National Register), to notify the Secretary of the Interior and then either recover the data or assist the Secretary in doing so. Most agencies and others have happily ignored this law, assuming that compliance with Section 106 of NHPA takes care of its intent. Since HUD is apparently now applying Section 106 only to archaeological sites that crowd together and loudly announce both their National Register eligibility and their endangerment, it may be necessary to dust off the AHPA. People (e.g. tribes, other descendent communities) concerned about archaeological sites for other than archaeological reasons will have to employ other strategies.

Friday, September 04, 2009

What Is the National Historic Preservation Act About? Part VI: TCPs, Tribes, and Plain Old People

I spent 1977-79 in Micronesia as “Consultant on Archaeology and Historic Preservation to the High Commissioner” – the High Commissioner being the boss of what was then the Trust Territory of the Pacific Islands. I learned a great deal in Micronesia about historic preservation, which is summarized in “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, 2006, ). What it came down to, though, was something I should have learned from my very first Section 106 case – at Tahquitz Canyon in Palm Springs, California, when the Advisory Council on Historic Preservation’s (ACHP’s) Bob Garvey was a lot more interested in what the Agua Caliente Tribe had to say than he was in my archaeological data. Preservation, Micronesia reminded me, is about people. We don’t seek to preserve old places and things for their own sake, but because they’re important to people – be those people Micronesian villagers, members of Indian tribes, residents of inner city neighborhoods, archaeologists, historians, or plain old taxpayers.

When I came back to the U.S. in 1979 and was hired by Garvey to oversee Section 106 review for the ACHP, I found that things in and around Section 106 had been evolving in a very different and – well, inhuman direction. Away from an interest in the concerns of people about historic places, and toward a sort of Cylon model (The original Battlestar Galactica had been my favorite TV show in Micronesia, the choices not being many). All mechanistic, automatic, and dominated by the interests, or disinterests, of professionals. Hire a properly qualified professional (archaeologist, architectural historian) and do a survey according to SHPO “standards.” Turn in report. Get approval. If you can meet the technical standards for “no adverse effect,” you’re done; if not, you negotiate a memorandum of agreement with the SHPO and THEN you’re done. If you’re a citizen who wants to save a threatened place, you’re out of luck unless you know how to sling around the jargon, play the regulatory game, or can afford to hire someone who did, or unless you have the social connections to get someone like the National Trust to help you out. OK, I’m exaggerating, but that’s the direction things were headed.

The 1980s were an interesting time to work for the ACHP, for several reasons. First, there were major amendments to NHPA in 1980, notably adding Section 110 to spell out a range of agency responsibilities beyond Section 106 (These didn’t accomplish much and were adjusted considerably through further amendments in 1992 and thereafter). Second, the Indian tribes and Native Hawaiians were beginning to get seriously, institutionally involved in using Section 106 to protect places they thought important; before the 1980s there were occasional tribal or Native Hawaiian cases, but only in the ‘80s did the tribes and organizations begin to look at the process as a whole, politically, and seek adjustments to make it work better for their kinds of places. Third, Ronald Reagan came to town.

I was from California, so Reagan was not an unknown quantity to me, and I knew that he was not necessarily going to run roughshod over cultural resources. In fact, as governor he had flat-out killed a major reservoir project (the High Dos Rios Dam) that a lot of environmentalists and a few of us archaeologists, organized by Cabrillo College’s Rob Edwards, opposed, and he did it after the tribes of the area went to Sacramento and told him how it would rip the guts out of their cultural landscape. In those days too, the Republican Party had not yet completed its self-inflicted lobotomy; there were Republicans who could be reasoned with, and who cared about the environment, history, and the welfare of regular people. It was tricky – because the administration, and especially Reagan’s Secretary of the Interior, James Watt – really didn’t like regulatory schemes like Section 106 and NEPA – but it proved possible to hold onto, and even improve a bit, on the Section 106 regulations. And to do a bit more; it was during the Reagan administration that Pat Parker of NPS and I wrote National Register Bulletin 38 about "Traditional Cultural Properties" (TCPs), stressing the fact that traditional cultural significance to a community of plain old people could make a place eligible for the National Register, regardless of what professionals thought of it. That was actually an attractive notion to some Reagan Republicans, because it flew in the face of the snotty eastern professional establishment. Bulletin 38 was initially conceived as an ACHP document, and was approved by an ACHP dominated and chaired by Reagan appointees. The National Register, which had been keeping its head very low for fear of getting it chopped off, then growled from its manger that the document really, after all, was about eligibility so it ought to be a Register Bulletin. That was OK, except that we had to put in some silly nitpickery about things like boundaries to make the Register people happy. The bulletin made the essential point: that historic/cultural significance is not something that only professionals can recognize and appreciate based on their fancy educations; it’s something that everybody defines in their own ways, that’s meaningful to everyone. Which, I believe, is what the founders of NHPA were trying to say when they emphasized – in With Heritage So Rich, for instance – that historic places define the characters of our communities, and are fundamental to their, and hence our, identities.

But Bulletin 38, while it has been troubling to a good many bureaucrats, particularly at the National Register and among the SHPOs, was only a small stumbling block on the path to Cylonization. On the whole, the historic preservation system has continued to evolve toward less and less connection with ordinary people and communities, and greater and greater fixation on technical issues with which only jargon-happy professionals are conversant. Even the Tribal Historic Preservation Officers, who came on the scene after the 1992 amendments to NHPA, have been pretty well absorbed into the system, forced by NPS to hire archaeologists to represent them, and dragooned into mind-numbing games of paper-exchange with project proponents in lieu of real, consultative Section 106 review.

Let me bring my part of this discussion to a close (I hope that others will contribute their perspectives), by returning to the charges made by my Amazon critic. He or she accuses me of two plots, perpetrated in two of my books:

1. In Places that Count, he or she says, I made “a drastic push on the concept of TCPs that ends up trying to redefine the very intent of NHPA and what kinds of places are supposed to be protected.” Of course, I don’t think this is true at all. In Places that Count, and in Bulletin 38, I sought (with my co-author in the latter case) to remind the government establishment that this is, after all, supposed to be a government of, by, and for the people, and its historic preservation institutions ought to seek the “protection” (that is, in the case of Section 106, ensure the consideration) of places that are important to the people, not just to archaeologists (or historians, architects, or the Keeper of the National Register). I think this is precisely what the founders of NHPA intended. It is narrow-minded practitioners of specific disciplines both inside and outside government – like, I surmise, my critic – who have over the years redefined what should be “protected” (meaning in my critic’s case, I suspect, dug up to my critic’s financial benefit), and made it mean just the places that professionals can appreciate.

2. In Saving Places that Matter, my critic says I’ve written “a lay person's manual on ‘how to use Section 106 to derail any development you happen to disagree with.’" I’ll plead guilty to this one, because I think that’s what Section 106 was and should be designed to do. Not that the lay person will always be successful, but in a democracy a citizen should have a fair crack at derailing government projects with which he or she disagrees, subject to the rule of law.

But my plots have not thus far worked very well. As my most recent book, Our Unprotected Heritage (Left Coast, 2009) bemoans, we still have – increasingly have – a system masquerading as Section 106 and NEPA review that “protects” only the kinds of things my Amazon critic seems to think important, and enriches people like my critic in the process.

What Is the National Historic Preservation Act About? Part V: Archaeologization and SHPOmination

Issuance of Executive Order 11593 in 1971, coupled with enactment of NEPA in 1969, generated the need to find out what sorts of historic properties federal agencies were responsible for, on lands under their control and in places potentially affected by their projects. Enactment of the Moss-Bennett Act in 1974 knocked the props out from under agency arguments that they lacked authority to fund work to find and deal with archaeological sites – though the act did contain a strange “one-percent-of-project-cost” rule that people argued about for some years.

So suddenly there was a market for people and groups to find and evaluate historic properties, and to a somewhat lesser extent to do things with whatever turned up. Who was going to do this work, and how was it to be done?

NHPA had set up a two-headed monster as the establisher of standards for preservation work. One head was the National Park Service (NPS), which had been detailed the sundry responsibilities of the Secretary of the Interior under not only NHPA but the Historic Sites Act, the Reservoir Salvage Act (as amended by Moss-Bennett), and the Antiquities Act. The other head was the Advisory Council on Historic Preservation (ACHP), whose duties were a tad ambiguous but included advising the president and congress on historic preservation matters and overseeing Section 106 review. The ACHP was initially staffed by NPS, but conflicts of interest rapidly became apparent, and the ACHP was made an independent agency in the mid-70s. There was naturally a degree of competition between NPS and ACHP as to just who would set standards and provide guidance to the federal establishment. The matter was complicated by the fact that NPS itself was (and is, though it likes to deny it) split between “in-house” and “out-house” functions – those relating to the National Park system and those relating to everything else in the world. Maintenance of the National Register, for instance, is an “out-house” function. Naturally, though, NPS favors its “in-house” duties; the parks are, after all, its main responsibility. This tended – and tends – to give the “out-house” functions short shrift, to deprive them of financial and (more importantly) intellectual resources. And there’s the expectation that the outhouse side of NPS will toe the lines established by and for the inhouse functions, which doesn’t always make much sense. It particularly makes little sense for an agency whose main missions are preservation and interpretation of the natural and cultural environment to set standards for agencies whose missions are different; you simply can’t expect NPS to understand the needs of an agency like the Army or HUD, or for those agencies to relate happily to standards established by NPS. But I digress, and editorialize.

NPS set out to issue various standards and guidelines – hence the various “Secretary’s Standards” for this and that, the “National Register Bulletins,” and so on. The ACHP did likewise to some extent, though NPS would growl from its manger whenever the ACHP got too close to what it perceived to be its turf. But meanwhile, another source of expertise had emerged, to which both NPS and the ACHP could pass the buck.

NHPA had set up a program of grants to states to support historic preservation activities. To access these grants, states had to establish “State Liaison Officers” to administer them. By the 1970s virtually all states had established such entities, which had come to be called “State Historic Preservation Officers” (SHPOs). NPS set standards for the SHPOs (since it controlled their federal purse-strings). Among the first standards it established was that SHPOs had to have “review boards” to vet their National Register nominations (Nomination was, of course, perceived by NPS to be one of the SHPO’s most important functions). These boards were to include professionals in the disciplines determined by NPS to be central to historic preservation – history, architecture/architectural history/historical architecture, and archaeology. And as SHPO grants increased (They hit a high point under Jimmy Carter), and SHPOs staffed up, NPS insisted that the “core disciplines” be represented on their staffs. So very soon there came to be fifty-plus entities scattered across the country with ostensible expertise in the disciplines thought to confer expertise relevant to historic preservation. It was only natural for both NPS and the ACHP then, when asked by an agency whether it needed to identify historic properties, or how to do so, or what kinds of expertise it needed, to say “Go ask the SHPO,” and that’s what they did.

This quickly created the impression among federal agencies – an impression that’s still widely held, though no less wrong today than it was in the ‘70s – that what Section 106 requires is getting SHPO sign-off on your project. It also quickly swamped the SHPOs with requests for “clearance,” often supported by little or no information on which the SHPO could base a judgment. And of course, it exposed the SHPOs to intense political pressure by everyone who wanted projects “cleared” and had access to the state’s political machinery. To protect themselves, SHPOs established their own standards: “In order to get our blessing for your project, you need to present us with information of X, Y, and Z type, acquired using A, B, and C kinds of methods.” Hence the various “SHPO requirements” that agencies, regulated industries, and consultants to this day think they have to meet – though neither law nor regulation says they have to.

Meanwhile, a private consulting industry was being put together in Topsy-fashion by architecture and engineering (A&E) firms, environmental professionals of various kinds, and – archaeologists. Why archaeologists? Well, consider: most of the big federal and federally assisted projects were of two kinds. There was urban renewal, but by the 1970s this monstrously destructive program was winding down and being replaced by a complicated set of more specialized grant programs to the cities. And then there was the construction of infrastructure in the suburbs (e.g. sewer systems) and the countryside (highways, reservoirs, pipelines, etc.). The urban programs generated the need for architectural-historical and historic architectural expertise, but there were lots of A&E firms that had that – or thought they did. The more suburban/rural projects, most of them involving digging in the ground, were another matter. The environmental impact assessment (EIA) firms that were budding off and popping up to do NEPA-based work were mostly put together by biologists, foresters, hydrologists, and land-use planners of various kinds. Confronted by, say, an SHPO’s demand for a “historic properties inventory” of a project, what kinds of expertise were these firms likely to seek? Expertise involving what’s in the ground – ergo archaeology. And since the academic job market for archaeologists had collapsed at about the same time, there were plenty of archaeologists waving their – our – hands saying “Here we are!”

Personal example: in 1974, having worn out my welcome in California, I was rescued by the late Marian White of SUNY Buffalo and given a job with the New York Archaeological Council, promoting archaeological survey, salvage, and preservation throughout the state. We soon learned that the U.S. Environmental Protection Agency (EPA) was giving good-sized grants to local governments all over the state to build and upgrade sewage treatment facilities. The cities were going to the SHPO (Ironically, the late Fred Rath, of San Francisco Mint fame) and saying “duh, please clear our projects.” The SHPO, if there were no National Register listed properties or buildings with plaques on them in the way, was saying “OK.” So we sued both EPA and the SHPO, the first for violating Section 106 and executive order 11593 by failing to “take into account” effects on undiscovered archaeological sites that might be eligible for the National Register, and the latter for aiding and abetting EPA in its malfeasance. NYAC v. Train (Russell Train, who had pushed Executive Order 11593, was then the head of EPA) never came to trial -- all the cities settled by sponsoring archaeological surveys -- but it made a point: under the executive order, undiscovered eligible properties had to be discovered and evaluated, and since the most obvious unknown properties (to coin an oxymoron) were archaeological, you pretty much had to hire archaeologists to do surveys. All across the country the same point was being made by archaeologists and archaeological organizations, sometimes with the support or at least acquiescence of SHPOs, other times over their heads or behind their backs.

And of course, many of the agencies had been sweet-talked by the Three Executeers into putting archaeologists on their planning and NEPA staffs, and these newly minted agency archaeologists made more or less the same point: doing NEPA and Section 106 requires doing archaeological surveys.

So by about 1977 – when I fled the country for Micronesia – a sort of system was in place that had agencies, regulated industries, and their consultants doing archaeological surveys to SHPO standards and getting SHPOs to sign off on their work. This, with bows to historic buildings, structures, and districts where these were obviously at issue, had become what most people did most of the time under the rubric of “Section 106 review.”

But – getting back to the concerns of my Amazon critic – this system had nothing to do with what either the law or the regulations required. It was, and to a considerable extent still is, simply standard practice.

In my next (and, I devoutly hope, final) segment I’ll consider whether this practice is really consistent with the law and regulations – and hope that others will offer their thoughts.

Tuesday, September 01, 2009

What Is the National Historic Preservation Act About? Part IV: Two Legacies of CRM

Charles Robert McGimsey III, he of the fortuitous initials, was in the late 1960s the director of the Arkansas Archaeological Survey. He like others was dismayed at the rampant destruction of archaeological sites, particularly in the Mississippi Alluvial Valley, where federally assisted agricultural land leveling was doing exactly that to a fantastic array of burial mounds, temple mounds, village sites, and the like. Unlike others, Bob wasn’t willing just to wring his hands; he tried to do something about it.

Bob is writing and publishing his memoirs, which speak for themselves. For those who want to follow the twists and turns of the course Bob and his colleagues pursued in promoting passage of the “Moss-Bennett Act,” that’s where to look. Suffice to say that Bob and many others in the archaeological community decided that what was needed was an amendment to the Reservoir Salvage Act of 1960. This amendment would require all agencies to be alert to archaeological data their projects – including those they assisted or licensed – might destroy, and either to recover those data or finance NPS to do so. It took about five years of difficult, foot-slogging legislative work, but the “Moss-Bennett Act” (named for its sponsors in the House and Senate) was finally enacted in 1975.

Note that work on Moss-Bennett began some years after the enactment of NHPA, and more or less coincided with issuance of Executive Order 11593. Some people – notably, I recall, Larry Aten in NPS – suggested pretty strongly that archaeologists would do better to work on relating themselves to NHPA than to promote a separate piece of legislation, but the archaeological community was not to be deterred, and went its more or less separate way.

I say “more or less,” because there was a lot of communication between the NPS historians and architectural historians working on NHPA implementation and the archaeologists working on Moss-Bennett. NPS even funded conferences to bring the parties together, and at one point offered McGimsey the Departmental Consulting Archaeologist’s job. McGimsey declined, as I recall, because he was not promised sufficient autonomy; archaeology would be expected, in theory, to lie down with history, architectural history and the like in the meadow of a coordinated historic preservation program on which the sacred cow of the National Register would graze.

McGimsey and his colleagues were also reaching out to agencies to encourage them to be more responsive to archaeological concerns, in anticipation of the enactment of Moss-Bennett. Notable among these was the Corps of Engineers, which had been sensitized to environmental and archaeological concerns by a series of court cases and high-profile public controversies. The Corps was setting up a NEPA program, and had hired Richard Leverty, a tough-talking but thoughtful environmental scientist, to organize things at its headquarters. Leverty and McGimsey got along well, in a Nixon-and-Kissinger sort of way, and began to bring other agencies into the discussion. Leverty was another bridge to the NPS historic preservation program, since (though he didn’t much like to) he had to interact with that program as well.

Meanwhile, the Three Executeers – Aten, Young, and Reeves – detailed by NPS to proselytize the agencies to comply with Executive Order 11593, were spreading their message of “hire archaeologists in your NEPA programs,” with a considerable degree of success. The Forest Service began bringing archaeologists on board, first in its regional offices, then on the Forests and in Headquarters. The Bureau of Land Management (BLM) reluctantly followed suit, as did Fish and Wildlife, the Bureau of Reclamation, and others. And as agencies began to contract for environmental studies under NEPA, the nascent environmental impact assessment companies with which they contracted often included archaeologists in the ostensibly “interdisciplinary” teams assembled to do the work.

Prior to the 1970s, there had been a mere handful of private companies doing archaeological contract work; there simply wasn’t any market. With the enactment of NEPA and issuance of Executive Order 11593 – which the Three Executeers and a few of us outside government loudly insisted required the conduct of archaeological surveys to find and consider places eligible for the National Register – the market grew exponentially. It also helped that states – notably California with its California Environmental Quality act (CEQA) -- were enacting “little NEPAs” that required environmental impact analyses of many non-federal actions. A number of university and museum archaeological programs jumped into contracting, but the need quickly exceeded their capacities, and contract work (as interpreted by the agencies and regulated industries) tended to impose strictures with which academics found it hard to live. At the same time, firms devoted solely to environmental impact work were developing, either as stand-alone entities or as branches of architecture and engineering firms – and they began hiring archaeologists.

By about 1973-74 there was a near-critical mass of archaeologists doing impact assessment work, and some of us began to cast about for something to call ourselves. Although archaeology was very much what most of us wanted and intended to do, as we worked under NEPA and the Executive Order we were forced – at times – to think about old buildings and such, so “archaeology” seemed an insufficiently embracing term. No one wanted to be said to be doing "historic preservation," because (a) most of us were prehistorians, (b) we didn't preserve much -- we just dug it up; and (c) "historic preservation" was something that blue-haired ladies in Boston did. Indy Jones hadn’t whipped into view yet, but we were already immersed in the stereotype. At the same time, “natural resource management” was getting a good deal of new funding in the agencies (thanks mostly to NEPA), while there were still questions about whether agencies were authorized to fund archaeology. A term paralleling “natural resource management” seemed in order.

There is uncertainty about where the term “cultural resource management” came from. Lou Wall, later head of the ACHP’s Denver office but in the early ‘70s working in NPS with the National Register, says he invented it to describe places that were eligible for the Register but not yet on it. My own impression is that it was dreamed up by archaeologists in the American Southwest; the term first appears (to my knowledge) in a few unpublished reports out of Arizona and New Mexico in 1973-74, and then burst on the scene with publication of the Proceedings of the 1974 Cultural Resource Management Conference, Federal Center, Denver, Colorado, edited by Bill Lipe and Lex Lindsay and published by the Museum of Northern Arizona. I was at the 1974 conference, which was extended at the airport by a blinding snowstorm that snarled traffic for some days. I celebrated the event with a bit of doggerel (with apologies to Robert Service):

A bunch of the boys were whooping it up
In the Denver Airport bar,
While the snow piled high, and the planes wouldn’t fly
In the winter of Seventy-Four.
The talk turned ‘round, as it often did then,
To the new thing they called “preservation.”
But like the relations of our excavations,
Some of us had reservations.
“Old ladies in tennis,” we grumbled and grumped.
“Don’t want to be likened to THEM!”
Then one of us brightened; he said “Don’t be frightened!”
“We’ll call what we do CRM!”

Calling archaeology-under-the-environmental laws “cultural resource management” neatly made the equation with natural resource management, and it avoided the implication that we were a bunch of brandy-sipping elitists saving old houses in New England. The fact that equating “cultural resource” with “archaeological site” left most of culture out in the cold concerned no one – except, after a bit of reflection, me.

So “cultural resource management” – CRM – burst on the scene in about 1973-74. And in 1974 the other CRM – McGimsey -- achieved his goal as the Moss-Bennett Act was passed. In the next segment we'll look at how all this led to the archaeologization of Section 106 review, and the misunderstanding of NHPA’s central purpose.

Monday, August 31, 2009

What Is the National Historic Preservation Act About? Part III: Thank Richard Nixon for Cultural Resource Management as We Know It.

I actually lied at the end of the last segment. The big thing I said happened in 1972 actually happened in 1971, when President Richard Nixon issued Executive Order 11593, “Protection and Enhancement of the Cultural Environment.” It was in 1972 that it began to be seriously implemented. I think it’s fair to say that this executive order set the stage for cultural resource management as we know it today, and inadvertently brought about the ascendance of archaeology in the field.

I’m very hazy on just what led to the executive order; what I can report here is based on my recollections of the time, and of conversations with Bob Garvey and Jack MacDermott, another early NPS/ACHP official, and particularly on recent correspondence with the imminent retired NPS historian and Deputy Executive Director of the ACHP, Bob Utley. When the order was issued, I was deeply involved in my dissertation research in the Sierra Nevada foothills, in organizing the Society for California Archaeology’s (unsuccessful) effort to push statewide archaeological legislation, and in trying to keep body and soul together as an archaeological consultant – a very new and chancy status in those days.

As I’ve mentioned, a number of archaeologists had begun to agitate for improved federal archaeological laws, but most of us thought little of the NHPA. Part of the problem was that we were all so completely focused on salvage archaeology as the solution to all conflicts between archaeology and development, which really didn’t fit well with the “preservation and re-use in place” philosophy behind NHPA. Another part of the problem was Section 106, which didn’t kick in until a property was actually listed in the National Register. This put a terrible burden on anyone trying to – if you will – derail a project he or she didn’t like; it was necessary to nominate the property and get it listed before the agency responsible for its impending destruction had to do anything about it. Though nomination was much less burdensome then than it is today, it was still something that took time and money, and often involved literally sneaking onto an agency’s jobsite to find stuff to nominate. So those of us who DID pay some attention to NHPA wanted the law fixed to require agencies to identify places for review under Section 106.

Our focus, however, remained on amending the Reservoir Salvage Act to cover all federal actions and to require agencies themselves to fund salvage, as opposed to leaving it to NPS. NPS took advice on archaeological matters from a “Committee on the Recovery of Archaeological Remains” (CRAR), which represented the mainstream universities and archaeological organizations, and kept constant pressure on NPS to support an expansion of the Reservoir Salvage Act. NPS, trying to struggle with the intricacies of implementing NHPA – not an entirely happy fit itself with NPS’s in-house park-oriented functions – wasn’t terribly interested. But every bureaucracy responds to pressure.

Meanwhile, Congress had enacted one of the last pieces of Lyndon Johnson’s Great Society in the form of NEPA – the National Environmental Policy Act – and President Nixon found himself with a Council on Environmental Quality attached to the Executive Office of the President. CEQ was headed by Russell Train, a notable environmentalist (In those days there WERE Republican environmentalists), who went on to become the administrator of the Environmental Protection Agency. Train, or people on his staff, were acquainted with folks at NPS and the budding ACHP, including Garvey and his associate MacDermott.

It is not uncommon for agencies to pay little attention to laws enacted by Congress until they are (a) forced to by litigation or (b) told very directly to do so by their boss, the president. In the late ‘60s and early ‘70s, NPS and the ACHP perceived that this was a problem with Section 106. Agencies just weren’t paying attention. How to fix this? An executive order was an obvious strategy, but with President Johnson preoccupied with the growing disaster in Viet Nam, it wasn’t until the happy coincidence of a new president – Nixon – and a new vehicle for lobbying him – CEQ – that an opportunity presented itself.

Nixon, I should mention, was by no means an anti-environmental president, and he was particularly sympathetic to Native American interests. He was, for instance, intimately involved in returning the sacred Blue Lake to Taos Pueblo – as neat an act of governmental preservation of a traditional cultural property as there has ever been.

So Nixon, thanks to Garvey, McDermott, and Russell Train’s aide William Reilly (subsequently himself head of EPA as well as the World Wildlife Fund and other conservation organizations), issued Executive Order 11593 on May 13, 1971. The order (See ) told federal agencies to exercise leadership in preserving the nation’s historic and cultural environment, and then provided some specific directions. The major ones were:

1. By July 1, 1973, all agencies were to find all the places under their jurisdiction that might qualify for the National Register, and nominate them thereto.

2. In the interim until everything was on the Register, agencies were to treat places that were eligible for the Register as though they were already listed.

3. The Secretary of the Interior – meaning NPS – was to issue guidance about how to determine whether something was eligible.

The “nominate everything by 7/1/73” business was impossible, of course – though the quaint notion of “completing the National Register” persists even today, even in pronouncements by the ACHP, which should know better. Everyone knew that the “interim” was going to be a very long time. NPS got right to work on issuing guidance for eligibility determination, which would ultimately become the now very strange and anachronistic 36 CFR Part 63. These regulations put great stress on consultation between agencies and the “State Liaison Officers” that NHPA had created – who by now were coming to call themselves “State Historic Preservation Officers” and developing a voice of their own through their National Conference. Oddly, the regulations provided that while every determination of ELIGIBILTY had to be made by the Keeper (based on agency and SHPO recommendations) if an agency and SHPO decided that a place was NOT eligible for the National Register, that was that; it was entitled to no further consideration. Unless a “question” existed about eligibility, and a “question” existed when an agency determined that one did. Incidentally, as a newly employed archaeologist at NPS in Washington, I objected strenuously to this language, but Interior’s solicitors were shocked, just shocked, to think I could suspect that a federal agency would ever misuse this decision making authority. The Forest Service on the San Francisco Peaks in Arizona very soon proved me right, but the attorneys never apologized, and the regulation, though widely ignored and now contradicted by the ACHP’s Section 106 regulations, still survives.

The more important and determinative thing that NPS did in response to the executive order was to designate three of its employees – Larry Aten, Roy Reeves, and Jon Young – to be “Executive Order Consultants.” These three were to be the apostles to the heathen; they were to go out and beat on agency doors, wave the law and executive order in their faces, and “help” them comply. And they did, very effectively.

Aten, Reeves, and Young were and are all archaeologists. Why this was so, I don’t know, but I suspect that NPS’s architectural historians and historians just weren’t all that interested, and didn’t have much experience dealing with agencies. The NPS archaeological salvage program, however, had worked with the Corps of Engineers for years, and to some extent with other agencies, so that program’s people, now headed by a “Departmental Consulting Archaeologist,” were a natural choice.

The EO Consultants naturally targeted the agencies whose activities had lots of archaeological impacts. They didn’t ignore HUD or EPA, but their big foci were the Corps, Bureau of Reclamation, Bureau of Land Management, Forest Service. And the message they conveyed to these agencies – notably to the people who were organizing environmental impact assessment programs under NEPA – was that they needed to staff up with specialists. Specialists in what? Well, archaeology, naturally.

You can see where this is going. In the next segment we’ll explore another parallel set of events that contributed to the widely held notion that NHPA is about archaeology.

Friday, August 28, 2009

What is the National Historic Preservation About, Part II: Archaeology and Section 106 in the '60s and Early '70s

Archaeology in the Federal Government

When the National Park Service was created in 1916, it soon found itself managing a variety of archaeological sites, so over the years it built up a degree of competence in the field, and employed a number of people -- some professionally credentialed, others not -- as archaeologists. Besides managing archaeological sites in parks, it exercised the Secretary of the Interior's general coordinative and standard-setting responsibilities under the Antiquities Act of 1906.

In the 1930s, some of the programs developed to pull the U.S. out of the Great Depression involved archaeology. Labor-intensive excavations of sites scheduled for annihilation behind Tennessee Valley Authority dams were mostly justified as ways to put people to work, but they gave birth to the vague notion that government should do something to salvage archaeological data (or artifacts) from reservoir projects.

After World War II, when the Corps of Engineers was authorized to begin damming up the Missouri River, archaeologists at NPS and the Smithsonian launched the Missouri River Basin Project, doing salvage archaeology in Corps project areas with the (probably grudging) acquiescence of the Corps. The program soon became too much like the real world for the Smithsonian, and it backed out, leaving the field to NPS. In 1960, NPS was successful in getting passage of the Reservoir Salvage Act, authorizing annual appropriations to NPS to support its archaeological work on Corps projects.

NPS archaeology had two foci of attention: managing sites in parks whose missions involved interpretation of such sites, and salvage in Corps reservoirs. An archaeologist (for many years J.O. Brew) also sat on the advisory board that vetted potential National Historic Landmarks, but that was about the closest archaeologists came to the historic preservation programs that NPS was cooking up with the National Trust during the Kennedy-Johnson years.

Outside government, there was growing concern among archaeologists about site-destruction caused by federal government programs that were NOT under Corps of Engineer jurisdiction. That is, there was growing concern about such destruction going on without the conduct of salvage excavations. The Federal Highway Administration allowed state highway departments to fund salvage excavations (but not analyze the results), but most other agencies had neither the responsibility nor, they argued, the legal authority to pay the slightest attention to archaeology. None of the agency archaeological programs we know and love today -- in BLM, the Forest Service, the Corps -- existed.

Archaeologists and the Implementation of NHPA

In the late 1960s Archaeologists – including me, but Bob McGimsey of Arkansas was the major mover and shaker, along with his comrade-in-arms Hester Davis, Carl Chapman of Missouri, and Ray Thompson of Arizona – began to agitate for an expansion of the Reservoir Salvage Act to address all kinds of federal construction projects, and to authorize/direct the causative agencies themselves to fund salvage of the stuff they were destroying. Most of us were blissfully unaware of the parallel movement underway among historic preservationists, which had by then led to the enactment of NHPA, whose implementation NPS was putting into train.

A colleague who has written in response to my ACRA-L posting recalls reading the minutes of a Society for American Archaeology (SAA) meeting in 1967 or 68, where NPS representatives made a pitch for archaeological participation in the development of its programs under the newly minted NHPA. The minutes suggest, he says, that the members listened politely and said thanks, but expressed little interest. My own pertinent recollection is from an SAA meeting in about 1968, where there was a session dealing with NHPA and the great threat it posed to the integrity of archaeological site records. The perception was that the historic preservation people had gone sneaking around behind our backs and gotten Congress to create this “national register” thing, and these squirrely state liaison officers (later called state historic preservation officers), who would capture all the site records maintained by academic institutions and open them up to the pothunters.

In a nutshell, as the 70s got underway, there was very, very little engagement between the archaeological community and the developing NHPA programs in NPS. This was to change rather dramatically, however, if messily.

Section 106

Let’s leave archaeology for a bit and look at how practice under Section 106 developed after NHPA’s enactment in 1966. Recall that my Amazon critic (quoted in the first segment of this discussion) accused me of having written “a lay person's manual on ‘how to use Section 106 to derail any development you happen to disagree with’” – implying that such “derailment” is not a proper use of Section 106, or perhaps that the interests of “lay persons” should not be given countenance. I beg to differ -- not only based on my own preferences, but on the history of the Section 106 process.

Section 106, as enacted in 1966, said that agencies were to “take into account” the effects of their actions on places included in the National Register, and give the Advisory Council on Historic Preservation (ACHP) a “reasonable opportunity to comment” on such actions. The newly-minted ACHP staff – essentially made up of executive director Robert Garvey and NPS historians Glennie Murray, Lou Wall, and Ben Levy – were confronted with the problem of figuring out what “taking into account” meant, and persuading agencies to do it.

One of the first cases to come to the ACHP under Section 106 was that of the old U.S. Mint in San Francisco, a National Historic Landmark (and therefore “grandfathered” into the National Register) which the General Services Administration (GSA) wished to expunge from the federal estate. The Mint is a fine old building, and had lots of defenders in San Francisco. According to Garvey – as I recall a conversation we had exploring the development of 106 practice – it was in the context of the Mint case that he came up with the idea of consultation with concerned parties as a core element in an agency’s “taking into account.” The late Fred Rath, who as the National Trust’s representative also took part in the case, once assured me that it was he, not Garvey, who came up with the idea. Maybe so, but my slight experience with Rath, who I found to be rather elitist, and my intensive acquaintance with the very populist Garvey, makes me lean toward the latter as the one who experienced the epiphany.

A pretty obvious epiphany, you may say. You got a problem among people, you sit ‘em down and talk about it, and try to reach agreement. Utterly obvious, certainly, but to this day agencies resist the idea of such negotiations, particularly with “lay people.” And the Mint case took place long before the bookstores started filling up with books about conflict resolution like Getting to Yes and Getting Past No. But nonetheless, a reliance on consultation was a pretty obvious, down-home kind of idea, which is one reason I think it was likely Bob Garvey’s idea; he was that kind of guy.

The Mint was saved, and the idea was born that consultation should be an important part of an agency’s account-taking.

The ACHP at this point did not have “rulemaking authority” – it couldn’t issue binding regulations. But it could issue guidance, and it was in this form that “the Section 106 process” first saw the light of day. By now it was 1972, and the ACHP had added an important weapon to its arsenal in the person of Ken Tapman, a Department of the Interior solicitor who became the ACHP’s General Counsel. Ken set about making the ACHP’s guidelines just as regulatory as he could possibly make them without the actual authority to do so; they were issued in the Federal Register, with a Code of Federal Regulations designator – 36 CFR 800 – even though they were technically not binding on anyone. There is another whole story to be told about how the regs became regs, but suffice to say that agencies began to get the idea – through the ACHP’s jawboning and through litigation – that “taking into account” the effects of their actions on historic properties meant consulting with concerned parties and trying to reach binding agreements. An agreement duly executed per the procedures would demonstrate both that the agency had taken effects into account and that it had given the ACHP its opportunity to comment; only in the absence of an agreement would the Council itself – a rather unwieldy body of presidential appointees, agency heads, and others named in the statute – actually “comment.”

It was at this point, incidentally, that I began to get involved in Section 106 work, in concert with a couple of California Indian tribes. As an archaeologist working for the Agua Caliente Cahuilla Tribe in Palm Springs, trying to derail a Corps of Engineers dam in Tahquitz Canyon, from which the tribe’s ancestors emerged from a lower world at the beginning of time, I was astounded when Garvey expressed a lot more interest in the Tribe’s oral traditions and beliefs than in my archaeological data. As a co-plaintiff with Pomo groups in Warm Springs Dam Task Force v. Gribble (378 F.Supp. 240 (N.D.Cal.1974)), I happily conspired with Tapman to use the ACHP’s procedures in an attempt to derail a dam in the Russian River basin, helping to cause the Corps to sit up and take notice of the procedures. We won at Tahquitz Canyon, lost at Warm Springs, but in losing prevailed on the Corps to pay a great deal more attention than it had to both archaeology and tribal concerns like the preservation of traditional plant resources.

Something else happened in 1972 that greatly influenced the development of Section 106 practice and the participation by archaeologists in that practice. I’ll turn to that in the next segment. My point, for the moment, is simply that consultation with concerned parties has been at the core of the Section 106 process from its beginning, and so have citizen efforts to “derail” projects they “happen to disagree with” -- like demolishing the San Francisco Mint and damming up Tahquitz Canyon. It seems to me that the very purpose of Section 106 review is to give citizens the right to say “wait a minute” to federal agencies whose proposed actions may damage something they, the citizens, care about. Not that the derailment need be successful, but the ability to threaten derailment, and to actually derail if one has a strong enough crowbar, is necessary if federal agencies are to be kept from running roughshod over citizens’ cultural concerns.

Thursday, August 27, 2009

What Is the National Historic Preservation Act About? Part 1 in a Series

A reviewer on the other day said:

"I...would like to voice my concern regarding the direction that King and a few others are driving the Section 106 process. Several of King's other recent publications give me grave concern.... particularly "Places that Count" and "Saving Places that Matter." The former includes what I feel is a drastic push on the concept of TCPs that ends up trying to redefine the very intent of NHPA and what kinds of places are supposed to be protected. The second volume comes across mostly as a lay person's manual on "how to use Section 106 to derail any development you happen to disagree with." Both directions have serious ramifications for those of us involved in the protection and understanding of the archaeological record. I sincerely hope that anyone purchasing this book, Especially teachers considering this as a course manual, take this perspective into consideration, as it is very relevant to Cultural Resource Management and archaeology in general. "

I was naturally curious as to what the (anonymous) reviewer was upset about, and wondered if others were similarly concerned, so I reprinted his/her comment on the ACRA-L Listserv (ACRA standing for American Cultural Resources Association) and invited him/her and others to elaborate. What’s resulted so far is a series of queries and comments, some on-list, some off. I thought it might be useful, or at least mildly entertaining, to reprint them here and respond to them. Unless the author explicitly authorized me to reveal their identity, I’ll keep the notes anonymous. Here’s the first one:

“I know you were very active in the development of this process. I'd be interested in hearing what the ideas were at the very start when the 106 process was being created. Beyond the usual understanding of the need for protection, who came up with the idea and just how did NHPA get started? I've always wondered but never really found anything that explains it very well. Usually it is just snippets of information and I would like to understand the thought processes of the founders, so to speak.”

Let me start with a couple of clarifications. First, the writer treats “NHPA” (the National Historic Preservation Act) and its Section 106 process as though they’re the same thing. They’re not. There’s a lot more to NHPA than Section 106, and the Section 106 process is not in the law itself; it’s in regulations issued by the Advisory Council on Historic Preservation (ACHP) that direct agencies in how to implement Section 106. Second, I wasn’t at all active in the development of NHPA; as an undergraduate anthropology student at San Francisco State College (now University), I learned about NHPA around the time it was enacted. I learned about it from Eric Barnes, a remarkable fellow student who, unlike us starry-eyed “New Archaeologists,” was interested in the actual application of federal laws; I learned a great deal from Eric. The only archaeologist who was significantly involved in the development of NHPA – and this is, of course, germane to the Amazon reviewer’s point – was the late J.O. Brew of Harvard. As for the Section 106 process, I’ve been involved in its evolution, but it, too, was created before I became significantly involved in the federal system.

I should also mention at the outset that Wikipedia has a pretty good discussion of NHPA’s origins and development; see

Now: the thought processes of NHPA’s founders. The central idea behind NHPA was the general perception of social value in old things – particularly old buildings and neighborhoods, and famous battlefields. This idea that had been developing in the U.S. since the late 19th century, and had taken hold rather earlier in Europe, notably in Revolutionary France. The U.S. had taken a stab at giving this perception statutory form in the Historic Sites Act of 1935 – John Sprinkle at NPS is writing a series of papers about this statute and what it produced, to which I recommend the reader’s attention.

The New Deal, World War II, and the post-war establishment of programs like the interstate highway system and urban renewal seriously altered the relationships between the U.S. government and the citizenry. Notably, the federal government became involved in clearing “slums” to “renew” the cities, in building hydroelectric and flood control dams and reservoirs, and in building high-speed highways through the countryside. While most of these programs were welcomed by most people, it came pretty quickly to be recognized that they had their destructive sides. This was the other idea behind NHPA – that the destructive side of federal government activities ought to be controlled somehow.

NHPA itself was the creature of a task force set up largely by the National Park Service and the National Trust for Historic Preservation, with support from the U.S. Conference of Mayors, and generally sponsored by Lady Bird Johnson as part of her highly effective effort to beautify the U.S. and build up protections for its environment. This in turn was part of President Johnson’s “Great Society” program. There was a White House conference, a study tour of Europe to see how its nations were handling their historic (mostly architectural) heritage in the wake of World War II, and a modest coffee-table book called With Heritage So Rich – which is well worth reading even today. WHSR, toward its end, outlined a piece of legislation that became NHPA. The book was published in 1965; the bill was enacted in 1966. Those were the days.

The “founders” – the authors of WHSR and the legislation – were mostly historians, architects, and community-based historic preservationists. Archaeology got rather passing mention. The founders were, however, pretty convinced of the social and cultural importance of preservation. They bemoaned the destruction of old neighborhoods by highways and urban development – not just because it meant the loss of fine architecture but because it destroyed the ambience, the character, the soul of the community. I quote some of the founders about this sort of thing in some of the books my Amazon reviewer finds offensive.

What the founders were about in enacting NHPA was really two things. First, they wanted to create a system by which historic places – defined from the very beginning as “districts, sites, buildings, structures, and objects” significant in “American history, architecture, archaeology, and culture” (“engineering” was added later) could be recognized and given consideration in planning at all levels of government. The vehicle they selected to effect this purpose was a national register of historic places. There had been a list of “National Historic Landmarks” since the 1930s, but these were the Great Places, the places of putative “national significance.” The new National Register was to be more populist; it was to include places important at the national, state, and local levels. Nobody, I should acknowledge, was thinking about tribes, and the tribes weren’t making themselves known to historic preservationists.

The second thing the founders sought to do was to force federal agencies not to destroy historic places willy-nilly; this led them to include Section 106. Section 106 originally said that agencies were to take into account (i.e. consider, think about) the effects of their actions on places included in the National Register, and give the ACHP – also created by the law – an opportunity to comment on such actions. Later, the law was amended to apply to properties eligible for the Register but not yet listed.

There was some discussion in congress as to where the new historic preservation program should be lodged – in the National Park Service (NPS) or the Department of Housing and Urban Development (HUD). The fact that HUD was a strong contender of course reflects the importance the founders ascribed to the recognition and protection of historic urban neighborhoods, and to urban and regional planning. It is interesting to consider what might have happened had the program wound up in HUD, but it didn’t; it went to NPS, where it was overseen by three important men – arguably the real “founders” of the NHPA program. Earnest A. Connally was a professor of architectural history from the University of Illinois; he became the head of the Office of Archaeology and Historic Preservation. William Murtagh (the only one of the Big Three still alive and well [I hope] today) was a historian and Vice President of the National Trust; he became the first Keeper of the National Register. Robert R. Garvey, Jr. also came from the National Trust, where he had been its Executive Secretary. He had no academic credentials; he had been a Marine Corps fighter pilot in World War II (Guadalcanal), developed a thriving popcorn vending business in North Carolina, and run Old Salem, a collection of relocated historic buildings in the same state. Garvey became Executive Director of the ACHP, and in the mid-70s led it out of NPS into independent status – another whole story.

Bill Murtagh is a great guy, and I had lots of respect for Earnest Connally, but I think the architectural, professional, academic stamp they put on the program was unfortunate. I also think that lodging the program in NPS was regrettable, though probably unavoidable; it automatically imposed a sort of educational, interpretive character on the whole operation. Had the program wound up in HUD it might have become much more community-based, with a more sophisticated take on planning. But it went to NPS, and the rest, like they say, is history.

Let’s stop for now with a reflection back on my reviewer’s concern about “the protection and understanding of the archaeological record.” That concern, while deeply important to him or her, and to me, for that matter, was not central to the interests of NHPA’s founders. Some of the founders were concerned mostly about architecture, some about grand themes in American history. Some – perhaps most – were concerned about holding onto the character of American communities, as expressed in their buildings and neighborhoods. In one of my books – Places That Count – I argue that the founders were substantially concerned about protecting what decades later we would come to call “traditional cultural properties,” that is, places important for the roles they play in maintaining community identity. My reviewer apparently finds this premise disturbing.

In the next segment, I’ll look at how archaeology came into the mix of disciplines dealt with under NHPA, and how it achieved its rather dominant role in modern Section 106 practice.

Wednesday, August 26, 2009

Look Out for "Thirteen Bones"

A bit of Spam for myself here, particularly for anyone who wonders what happened to Amelia Earhart (and her navigator, Fred Noonan) when they disappeared over the Pacific in 1937. My novel, Thirteen Bones, will published in October/November by Dog Ear Press (yes, an on-demand self-publishing outfit; I got sick of being rejected by the "legitimate" houses). It tells the story of the discovery of Earhart's bones on Nikumaroro in the Phoenix Islands in 1940 by colonists from Kiribati and Tuvalu. The skeleton of the story (as it were) is factual; what I've done is to weave a tale around the historical and archaeological data.

Earhart, I should say, makes only a cameo appearance; the story is told mostly from the viewpoint of an I-Kiribati (Tunguru, "Gilbertese") boy who discovers the first of the bones, and partly from that of Gerald B. Gallagher, the administrator of the Phoenix Islands Settlement Scheme. The data upon which the story is based are, of course, from the ongoing work of The International Group for Historic Aircraft Recovery (TIGHAR; see Profits from publication (if and when they develop) will be shared with TIGHAR and with the Phoenix Islands Protected Area (PIPA), the Kiribati government program that seeks to protect the island group of which Nikumaroro is a part.