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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. http://turtletalk.wordpress.com/2008/08/20/comanche-nation-v-us-tro-on-federal-construction-at-fort-sill/) ;

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. http://www.wsdot.wa.gov/Accountability/hcbgravingdock/default.htm). 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:

HP FACT SHEET #6:
WHEN TO DO ARCHAEOLOGICAL FIELD INVESTIGATIONS

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”

NEED ADDITIONAL HELP? CONTACT YOUR LOCAL HUD ENVIRONMENTAL OFFICER.

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 http://www.thecre.com/fedlaw/legal13/archpreserv.htm), 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, http://marshall.csu.edu.au/MJHSS/ ). 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.