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Tuesday, April 27, 2010

Blowing Wind on Capitol Hill

I know I’m in a minority, but my guess is that when he makes his decision this week or next on the Cape Wind project, the Secretary of the Interior will say no. If this happens, it will almost certainly generate a great flurry of snorting, trumpeting and braying on Capitol Hill, with proposals to:

• Exempt wind (and probably solar and nuclear) projects from the requirements of NHPA (and maybe NEPA);

• Rein in the renegade Advisory Council on Historic Preservation by somehow constraining the range of things it can say in comments;

• Resurrect the tired old notion of having Section 106 apply only to formally registered properties; and even

• Undo Section 106 altogether.

The historic preservation community will predictably close ranks and defend the status quo.

Ho-hum. Business as usual. But is there any alternative? Any more creative way to react to the rhetorical gusts?

How about this? The real problem with Cape Wind, from the standpoint of Section 106 review, was that the Minerals Management Service (MMS), and hence the Cape Wind proponents, got lulled into thinking there was no big preservation issue involved; hence they ignored the real issues until it was too late to consult effectively and (perhaps) reach an agreeable compromise. This lulling resulted from two pieces of bad analysis:

1. The premise that the visual effects of the project on shore-side historic properties, being “only” visual, were “only” indirect impacts, and hence not that big a deal; and

2. The premise that the Sound, not being a “site” as ordinarily understood under National Register guidance, couldn’t be eligible for the National Register, and hence (disregarding all laws besides NHPA), didn’t have to be further considered as a cultural resource subject to impact.

Why did MMS get and pay attention to such dippy analyses? Well, there are probably lots of reasons having to do with the political situation at the time, the intelligence of the individuals involved, and so on, but I’d argue that a lot of it came about because we’ve all become so narrow-minded and compartmentalized in our thinking about environmental impacts. The CRM firm is hired to analyze impacts on “historic properties” or “cultural resources,” understood to mean archaeological sites, old buildings, and maybe landscapes. The environmental impact firm is hired to consider biological and social and maybe visual effects. One maybe provides input to the other’s report, or maybe the environmental guys just read the CRM report and put their own spin on it. Even if they are not subject to political or economic pressure to go light on the project’s impacts (and they probably are), they have neither the organizational structure nor much incentive to look at things in broad, interdisciplinary terms, to ferret out public concerns, and to explore alternatives as anything but window-dressing to make their reports look objective. So they don’t warn of impending train wrecks, and of course most of the time they get away with it, but every now and then, as in the Cape Wind case, the train really does go off the track.

The problem, in short, is that our system (sic) for environmental impact analysis has become unworkable and ineffective, especially where the cultural aspects of the environment are involved. That system needs a thorough overhaul. And it needs it not only to accommodate accelerated clean energy development, or homeland security, or whatever other development schemes float a particular congressperson’s boat, but to make the system work more efficiently, more effectively, less stupidly, and more in tune with the general public interest – including the interests of cultural resource management, broadly construed.

So I’d say to the historic preservation community (if it were listening; I don’t kid myself into thinking it is), don’t circle the wagons when the rampaging hordes come storming down the Hill. Welcome them, encourage them to sit down and reason together. Let’s have a study, let’s have a commission, let’s have hearings to examine not just how to get historic preservation out of the way of this year’s development fad, but how to make the whole environmental impact assessment process more sensible and responsible. I’m not so naïve as to think that this would necessarily have useful results – if just the usual suspects are involved (Interior, the ACHP, the National Trust, the Council on Environmental Quality), it probably won’t. But there’s just a chance that it would produce something useful, and it would beat spending another year or two at the barricades defending a status quo that probably, truth be told, isn’t worth the effort.

Monday, April 26, 2010

A Tribal Resolution

I've been seeing more and more cases in which agencies are unnecessarily complicating their compliance with Section 106 of the National Historic Preservation Act, and disrespecting Indian tribes in the process, by getting all wrapped up in largely irrelevant nitpickery about the application of standards and procedures in whose development the tribes have had no part. And with all due respect for the tribes, I wonder why they're being so good-natured about this disrespect. If I were a tribe, I know I'd be sick to death of having federal and state officials decide whether and how places significant to me were (and were not) eligible for the National Register, and what kinds of data I'd be required to cough up in order to get the agencies to consider impacts on them. So I thought to myself, "OK, Self, if you were a tribe, what would you do?" And myself responded: "Assuming I'm a tribal government, I'd pass a resolution to send to all federal agencies and State Historic Preservation Officers, saying in essence: 'look, you arrogant dummies; WE are the only ones who can decide what's significant to us, and if you're going to pretend to respect our cultural values you'd bloody well better respect that.'"

So I tried to draft such a resolution, in proper resolution language, presented below. I have no pride of authorship, intend to retain no copyright, and invite any tribe that's interested to do with it as such tribe may desire.



WHEREAS the ___(Name of Tribe)___ (Tribe) is a sovereign American Indian tribe entitled to government-to-government relations with the government of the United States of America; and

WHEREAS the government of the United States of America, including all agencies thereof, has a trust responsibility to manage tribal lands and tribal cultural and natural resources, including tangible and intangible cultural resources valued by the Tribe wherever such resources may occur, in a manner responsive to the interests of the Tribe and its members; and

WHEREAS the cultural values and spiritual beliefs of the Tribe are intimately related to its ancestral lands, to natural places, and to the plants, animals, and spiritual qualities of such lands and places; and

WHEREAS the government of the United States of America has created a system for addressing the impacts of its actions on land-related cultural values that is built around the eligibility of culturally important lands, water bodies, and other places for the National Register of Historic Places; and

WHEREAS the regulations governing the National Register of Historic Places (36 CFR 60) were developed by the U.S. National Park Service without consultation with Indian tribes, and without evident consideration for tribal concerns; and

WHEREAS the Congress of the United States of America in 1992 added Sections 101(d)(6)(a) and (b) to the National Historic Preservation Act, reminding agencies of the United States government that places of religious and cultural importance to tribes could be eligible for the National Register of Historic Places and directing agencies to consult with tribes about the impacts of their actions and decisions on such places; and

WHEREAS under current regulations eligibility for the National Register is decided substantially by agencies of the U.S. government in consultation with State Historic Preservation Officers; and

WHEREAS it is fundamentally inconsistent with the principles of tribal sovereignty and the trust responsibility borne by agencies of the United States government toward Indian tribes for federal and state officials to decide on the eligibility of tribal places, and hence on the responsibility of agencies to consider the effects of their actions on such places;

NOW, THEREFORE, the _____(name of tribe)_____:

I. ASSERTS that all lands, water bodies, and other places it so identifies as historically, culturally, or spiritually important to the Tribe must, as a matter of the United States government’s trust responsibility toward the Tribe, be assumed by all federal agencies to be eligible for the National Register of Historic Places; and

II. INSISTS that all agencies of the United States government:

(a) Accept and respect the above assertion with reference to any land, water body, or other place identified by the Tribe as historically, culturally, or spiritually important;

(b) Respect tribal interests in and values ascribed by the Tribe and tribal members to such places;

(c) Consult in good faith with the Tribe to identify such places as may be affected by agency actions, approvals, and other decisions directly, indirectly, or as parts of a pattern of cumulative effects;

(d) Consult in good faith with the Tribe concerning potential impacts on such places as may arise from federal agency actions, approvals, or other decisions, seeking agreement with the Tribe about measures to avoid, reduce, compensate for, or otherwise mitigate any adverse effects on tribal cultural and spiritual values and interests; and

(e) Refrain from imposing regulatory or other standards and burdens on the identification and management of places important to the Tribe, or on consultation with the Tribe, to whose imposition the Tribe has not explicitly acceded, except where such standards or burdens are specifically enacted by the United States Congress.

Don't Do What We Did: A Small Critique of Cultural Resource Management in the United States


A couple of years ago, at the request of a colleague in Brasil, I drafted a quick paper for him to translate into Portugese for publication in his country. I sent it off and never heard of it again, in any language. A recent facebook posting by Trish Mitchell mentioning that her country (which?) is thirty years behind the U.S. in its development of CRM laws and programs, made me think that maybe it would be interesting to some people (Trish, anyhow) for me to post the paper, so here it is.

Cultural Resource Management
and Historic Properties
Learning from the Errors of the United States

Thomas F. King
April 15, 2008

Cultural Resource Management

Back in the 1970s, archaeologists in the United States faced a challenge. New laws had been enacted promoting the protection of “natural resources” on the one hand and “historic properties” on the other. Government agencies were being required to conduct environmental impact assessments of their actions, seeking ways to protect the environment. How could archaeologists be sure that the places they were concerned about – archaeological sites – were protected by these legal requirements?

Among other things they needed a term to describe such sites that seemed a little grander than the esoteric term “archaeological site.” It should be a term that related somehow to “natural resources,” but of course archaeological sites are not “natural,” they are cultural in origin. “Historic property” was the term that architectural historians used for the cultural places – old buildings and structures – that they were interested in, but that term didn’t describe archaeological sites very well – particularly prehistoric archaeological sites.

So archaeologists invented the term “cultural resources,” and called what they did – surveying to find archaeological sites and excavating them to “mitigate” the impacts of construction projects on them – “cultural resource management.”

These terms have gained broad acceptance in the United States, and are being used increasingly in other nations. This, I suggest, is most unfortunate.

Consider for a moment all the “resources” that a culture may think valuable. Consider, for example, an indigenous group living in a forest. Among the resources that it uses to sustain its culture, surely, are:

• The indigenous language;
• Place names;
• Stories and traditions;
• Songs;
• Rituals and religious practices;
• Religious beliefs;
• Subsistence practices;
• Animals and plants;
• The landscape in which the group lives, or that it uses;
• Water sources, and sources of other natural resources; and
• The group’s social organization and family structure.

Now imagine that some government-regulated project is proposed in the vicinity – say, a logging project – and either government or the project sponsor performs an environmental impact assessment (EIA). If it follows the model employed in the United States, production of this EIA will be supervised by environmental scientists of some kind, perhaps biologists. It will include an element dealing with “cultural resources,” but no one will define this term. Archaeologists will most likely be in charge of finding and assessing impacts on such resources.

Will the archaeologists consider the indigenous group’s social organization? Its religious practices? The plants and animals and water sources it values? Its subsistence practices? No, the archaeologists will consider impacts on archaeological sites. But in the U.S., they will say that they have performed a “cultural resource” analysis; that they have done “cultural resource management.” The biologist in charge of the EIA is likely to take the archaeologists at their word; after all, they are the experts. So the report on the EIA, in its “cultural resource” section, will talk about archaeological sites, and perhaps old buildings and structures. Most of the indigenous group’s cultural environment will be ignored, and impacts on its religious practices, social organization, plants and animals, and so on will simply not be analyzed.

It may be that some of these important cultural aspects of the environment will be addressed by others working on the EIA – perhaps those performing social impact assessment (SIA). But in the United State at least this often does not happen, because “social” impact assessment becomes equated with “socioeconomic impact assessment,” and focuses only on easily quantifiable economic factors. Religious practices, beliefs, social structures, the cultural significance of plants and animals, even many aspects of subsistence are ignored. So if the logging project goes forward, perhaps the archaeological sites get protected somehow, or are excavated before they are destroyed. But most of the “cultural resources” that matter most to the indigenous group are not considered, and are lost.

So here is one lesson to learn from the mistakes the United States has made: say what you mean! If archaeological sites are the subject, call them archaeological sites; do not use some vague euphemism like “cultural resource.” On the other hand, if you say you will assess impacts on “cultural resources,” consider all such resources that are relevant to the area, the project, and the people and cultures involved.

Historic Properties

Another mistake the United States has made is to use its “National Register of Historic Places” as the centerpiece of its historic preservation system. The National Register is a list maintained by the U.S. National Park Service. The list includes “districts, sites, buildings, structures and objects” significant in U.S. history, prehistory, archaeology, architecture, engineering, and culture. Under U.S. law, those doing environmental impact assessment must consider impacts on places included in the Register and on those not yet included but eligible for the Register. If there are questions about whether a given place is eligible for the Register, they are resolved by the Register’s “Keeper,” a National Park Service official.

The major problem with this system is its anti-democratic character. Again consider our hypothetical indigenous group. Imagine that there is a place where the group collects plants used in a very important healing ritual. If the group wants this place to be considered in the EIA on the logging project, and the project is in the United States, the group is going to have to convince those doing the EIA that its plant-gathering area is eligible for the National Register. It will have to frame its argument for eligibility in terms that are meaningful to “professionals” – mostly architectural historians and archaeologists – in the National Park Service and the offices of the State Historic Preservation Officers. These people are likely to ask all kinds of strange questions – what are the boundaries of the place, how often do you use it, how long has it been used? And if they decide, for whatever reason, that the place is not eligible, then it receives little or no consideration in the EIA. Is this reasonable in a democracy? That government should consider its impacts only on things that government decides are important? Should not the people have some say in the matter, when the importance of a thing is theoretically based on their cultural values?

So another lesson to learn, I believe, is not to place too much emphasis on lists like the National Register. Lists can be important tools in bookkeeping; they are less useful in planning and environmental impact assessment, and if they assume the status of a national institution as the National Register has in the U.S., they can suppress the voice of the people in the protection of their cultural patrimony.

A Better Model

A better approach to dealing with cultural resources in EIA, I believe, is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. These remarkable guidelines recommend the conduct of integrated “cultural, environmental, and social impact assessments” when planning development. 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. If environmental impact assessments were done along the lines recommended by Akwé:Kon (a Mohawk Indian word meaning “everything in creation”) – assuming they were done responsibly and well – then we would actually be doing “cultural resource management” and we could largely dispense with esoteric national lists like the U.S. National Register of Historic Places.

In suggesting a democratic, consultative approach to “cultural resource management” that looks at all aspects of the cultural environment rather than just at archaeological sites and historic buildings or structures, I do not mean that such sites, buildings, and structures should be ignored. Of course, they should be considered in EIA in a way that is sensitive to their importance in archaeological research and architectural patrimony. But what we should not do is focus all our attention on archaeological and architectural matters to the exclusion of what matters most to local people whose cultural environments are affected by modern development. The United States has unfortunately allowed itself to fall into this elitist, antidemocratic trap; others, I suggest, would do well to try to avoid it.


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,

Saturday, April 03, 2010

Some Thoughts on the ACHP's Cape Wind Comments

On April 2, the Advisory Council on Historic Preservation (ACHP) fulfilled its duty under Section 106 of the National Historic Preservation Act by rendering comments on the proposed Cape Wind Project in Nantucket Sound. Without plowing through the background of this controversial case, or getting into the ACHP’s authority to issue such comments, or into what the Secretary of the Interior (who has authority over the project via the Minerals Management Service [MMS]), I’d like to offer a few comments on the ACHP’s comment.

The first page of the seven-page comment succinctly and – as far as I can tell – accurately outlines the background of the case. The second page briefly discusses the historic properties involved – not only the Sound per se but the historic places that surround it on land, and rather elegantly sums up what’s involved as follows:

As evidenced by the Keeper’s determination, the written record, and the public testimony, Nantucket Sound has been for thousands of years and remains still an area of prime national, regional, and local importance because of its substantial economic, recreational, social, cultural, and traditional cultural benefits and attributes.

The comment then turns to the potential effects of the Cape Wind Project, which it summarizes as direct and indirect, unavoidable, and not subject to satisfactory mitigation. In general I find little to quibble with in this section of the comment, but there are a couple of peculiarities.

First, on page 3 the ACHP notes, with reference to a National Park Service study of the project’s impacts on two affected National Historic Landmarks (the Nantucket Historic District and the Kennedy Compound), that:

In its comments on the effects of the Project on the two NHLs, the National Park Service (NPS) concluded that the adverse effect of the undertaking would be indirect, because the adverse effects are visual only, limited in overall scope, and do not diminish the core significance of either NHL.

The ACHP does not analyze the NPS conclusion, but it seems wrongheaded to me. In what way is an effect indirect because it is “visual only” or of “limited scope?” Indirect impacts are defined in regulation as impacts that take place at a greater remove in time and space than direct effects do – a fuzzy definition, to be sure, but one that has nothing to do with whether an effect is visual as opposed to something else, or to its “scope.” One of the ACHP’s very first Section 106 comments, back in 1968 on the Easton Nuclear Plant, proposed for construction in the viewshed of Saratoga Battlefield, was entirely about visual impacts and made no bones about their being quite direct. The project was abandoned. As to the “core values” of the NHLs – well, this is the problem with things like NHLs. Whose “core values” is the analyst to be concerned about? The values of the Secretary of the Interior, who designates NHLs? The values of the professionals at NPS who prepare the oh-so-scholarly analyses upon which designations are based? Or perhaps the values of the people who look out at the world from the properties, or at the properties from elsewhere? I doubt if it’s the people, and if it’s only the Secretary and his or her employees, should impacts on such “core values,” or an alleged lack thereof, really be at the center of anyone’s analysis? The ACHP drops a hint on page 4, suggesting that it is concerned about this question:

The Project’s effects on this broad range of properties should not be viewed in isolation or labeled only as indirect or direct. Rather, because of their concentration and interrelation, they must also be considered together. In their totality, these effects are significant, adverse, and cannot be adequately mitigated.

The comment gives a fair amount of space to the project’s alleged potential impacts on submerged archaeological resources. I can’t help feeling that this is a bit of a red herring. Yes, there may be archaeological sites within the parts of the Sound that the project would physically disturb. Yes, these may be quite significant sites – whether they’re very early ancestral Wampanoag sites or traces of Viking visitors. But the evidence that such sites exist is pretty thin, and a case could be made that the public interest lies in revealing and studying them (if they exist) rather than leaving them alone. I can’t see that the potential for impact on such speculative resources deserves quite the attention it has gotten, in the ACHP comments and elsewhere. Focusing on this potential seems to me to get the discussion off track. The big impacts of Cape Wind – and the ones that are hard or impossible to mitigate – are visual, and in the case of the Wampanoag, spiritual.

The comment next – with remarkable straightforwardness – eviscerates the federal agencies responsible for overseeing the project. MMS has not carried out its stewardship responsibilities under the National Historic Preservation Act and Executive Order 13287. The Corps of Engineers initiated Section 106 review too late, and initially focused its attention only on already-designated historic properties, ignoring the tribes’ concerns about impacts on undesignated traditional cultural places (notably the Sound). MMS was slow to improve on the Corps’ shoddy performance, and its consultation with tribes was “tentative, inconsistent, and late.” The ACHP credits Secretary Salazar with getting the relevant issues “properly resolved,” but the ACHP is, I think, just being polite. The Secretary’s intervention has brought the Section 106 process to a conclusion that’s more or less consistent with the letter of the regulations, but nothing can correct the mistakes made early on by the Corps and MMS, and it’s a mystery to me how any final resolution based on fundamentally flawed early planning and rotten consultation can be called “proper.”

On page 5, the ACHP begins to offer its recommendations to the Secretary, commenting:

The development of renewable energy projects is not inherently incompatible with protection of historic resources, so long as full consideration is given to historic properties early in the identification of potential locations. The ACHP believes that wind energy production on the OCS in the vicinity of the current project area could proceed in a manner that would be consistent with protecting Nantucket Sound and the surrounding historic properties. It appears that the selection of nearby alternatives might result in far fewer adverse effects to historic properties, and holds the possibility that those effects could be acceptably minimized or mitigated.

This is certainly the heart of the matter, and it carries an important message for the wind energy industry – and the solar, nuclear, geothermal, and other ostensibly green energy industries. Just because you’re wearing white hats these days, don’t assume your projects have no potential for deleterious effects, or that you can or should ride roughshod over other public interests. Like any other industry, you need to look before you leap, consider alternatives, and consult with affected people, before you start investing megabucks in your particular pet project. If you do it right – if you really consider alternatives, really consult, really be considerate – you can probably get your project done. If you don’t, it’s a crapshoot at best.

The ACHP then gets specific. Interior needs to improve its tribal consultation procedures – something the Department is spending a good deal of time on at the moment, though I see little evidence that anyone is getting beyond mouthing the usual platitudes. The Interior-sponsored tribal consultations I have been involved in recently have not been encouraging. The ACHP also advises MMS to improve the way it integrates historic preservation into site selection and alternative analysis, and it offers a number of fairly concrete suggestions for joint actions by Interior and the ACHP itself (along with the Council on Environmental Quality and others) to improve the way impacts on historic properties are addressed in energy development planning. Two of these suggestions merit special attention, I think:

The ACHP and the NPS should develop guidance to assist federal agencies in determining and addressing the effects of energy projects, especially wind and solar projects, on historic properties that comprise large areas with indefinite boundaries. Particular attention should be given to properties of religious and cultural importance to tribes and cultural landscapes. This effort should draw on the experience of other nations in addressing this subject.

Having tried to supply such guidance for many years as a mere unwashed non-governmental consultant and book-writer, and having gotten used to being ignored, I welcome maybe getting some help from an official body -- and it's nice to see the ACHP recognize that other nations might have something to teach us. I fear, though, that it will be very, very hard for the vested interests in NPS at least to open their minds sufficiently to do much good, particularly since considering such “large areas with indefinite boundaries” challenges notions that are deeply embedded in the brains of many National Register employees.

The ACHP and the NPS should assist agencies and applicants by sharing information on innovative and cost-effective strategies and techniques to identify all types of historic properties potentially affected by energy projects, not just standing structures and archaeological sites.

Indeed – but this, too, is going to require some fundamental paradigm shifts, not only on the part of agencies like Interior but notably among the staffs of NPS, the ACHP, and particularly the State Historic Preservation Officers (SHPOs).

Unfortunately, the ACHP comment ends on a truly stupid note:

The Department should revive the proposal of the 2006 Preserve America Summit that was endorsed by the ACHP to develop a comprehensive and accessible national inventory of historic properties to assist in the identification of historic properties during the federal project planning process. Priority should be given to those areas under federal jurisdiction or control that have high potential for both traditional and alternative energy development.

Uhh…. guys, that was what people thought they were creating in 1966 when NHPA directed the Secretary to expand and maintain a National Register. It was a dumb idea then, and it obviously hasn’t worked – that’s why the Corps’ concentration on “designated” properties early in the review of Cape Wind was a mistake. There’s a fair amount of literature (not all of it created by me) bearing on why such an “inventory” is a silly idea, and particularly why some of the most sensitive kinds of properties – like Nantucket Sound – don’t and can’t be captured by such “inventory” efforts. Holding on to this ridiculous recommendation undercuts the intellectual integrity of an otherwise excellent comment.