In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:
You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.
You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.
You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.
But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.
“Oh,” you say, looking at your lawyer, and she nods.
“So what’s to study?”
“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”
“Cultural resources – that means historic landmarks, archaeological sites, things like that.”
You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.
“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”
And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.
OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…
Is It REALLY Historic?
Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.
Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.
Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.
Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.
If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)
It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.
And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.
So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”
Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.
True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”
We turned to the Air Force: “Any problem with that?”
“No,” the Air Force responded, “but we still don’t think they’re eligible.”
In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.
It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.
The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.
One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't. This is flatly not true. The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade. What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest. Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate. You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.