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Thursday, November 17, 2011

The ACHP on Reason and Good Faith: an Annotated Version

Introduction:  One of the core requirements of the regulations (36 CFR 800) implementing Section 106 of the National Historic Preservation Act (NHPA) is that agencies make a "reasonable and good faith effort" to identify historic properties subject to effect by their undertakings.  The Advisory Council on Historic Preservation (ACHP) has just issued guidelines for making such efforts, and they're to be congratulated for doing so.  The guidelines should be helpful, though they also contain some perhaps risky ambiguities, and they are not by any means all they could be. 

The squeaky-clean version of the guidance will presumably soon be posted at http://www.achp.gov/.  Below is the complete text with my annotations interspersed.

MEETING THE "REASONABLE AND GOOD FAITH" IDENTIFICATION STANDARD

IN SECTION 106 REVIEW

The regulations implementing Section 106 of the National Historic Preservation Act ("Protection of Historic Properties," 36 CFR Part 800) require federal agencies to identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings. Section 800.4(b)(1) of these regulations states that federal agency officials shall make a "reasonable and good faith effort" to identify historic properties.

The ACHP is regularly asked how to determine when an adequate identification effort has been made— that is, at what point a federal agency has made a reasonable and good faith effort to determine whether historic properties are located within an undertaking's APE, which is the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Answering this question requires an understanding of what the ACHP's regulations say regarding the identification of historic properties.

Prior to beginning the identification stage in the Section 106 process, the regulations (at 36 CFR § 800.4) require the federal agency to do the following:

• Determine and document the APE in order to define where the agency will look for historic properties that may be directly or indirectly affected by the undertaking;

• Review existing information on known and potential historic properties within the APE, so the agency will have current data on what can be expected, or may be encountered, within the APE;

• Seek information from others who may have knowledge of historic properties in the area. This includes the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO) and, as appropriate, Indian tribes or Native Hawaiian organizations who may have concerns about historic properties of religious and cultural significance to them within the APE.


Annotation:  The regulations actually require something else even earlier. At 36 CFR §§ 800.3(e) and (f) they require the federal agency to:


• Plan to involve the public, and


• Identify other consulting parties


The fact that these activities are supposed to be carried out BEFORE the agency undertakes the scoping actions listed at 36 CFR § 800.4 surely suggests that consulting parties should be involved in those scoping activities – otherwise why do them first? And of course, how can one “seek information from others” if one has not figured out who those “others” – quite likely consulting parties and/or members of the public – are?

This is not just a matter of word play. One of the continuing problems we face in Section 106 review is that agencies make unilateral decisions about APEs and identification methods without talking to anybody – except maybe the overburdened SHPO staff, who often have an understandable tendency to say “oh yeah, sure, whatever,” or “Follow our Handbook 1999-X57b.” Then by the time those publics and consulting parties who were supposed to be roped in back at 800.3(e) and (f) find out what’s happening, the agency’s set on its course and the SHPO, having gone along with it, may be disinclined to say “oops.”

Following these initial steps, the regulations (36 CFR § 800.4(b)(1)) set out several factors the agency must consider in determining what is a "reasonable and good faith effort" to identify historic properties. They call for the agency official to "take into account past planning, research and studies; the magnitude and nature of the undertaking and the degree of federal involvement; the nature and extent of potential effects on historic properties; and the likely nature and location of historic properties within the APE. The Secretary of the Interior's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, state, tribal, and local laws, standards, and guidelines. The regulations note that a reasonable and good faith effort may consist of or include "background research, consultation, oral history interviews, sample field investigation, and field survey."

Annotation: And I feel sure – or at least hope – that the ACHP would agree that the list given in the regulations is not an exhaustive one. It doesn’t preclude the use of LIDAR or other remote sensing methods, targeted studies to address particular questions (Is it REALLY likely that Jimmy Hoffa is entombed in the concrete pillars of this otherwise undistinguished parking garage?), ethnographic research, and even experimental techniques like the application of remote viewing. But deciding what to do requires consulting knowledgeable and thoughtful people about what the scope of the identification work should be. This is one reason that broad, multi-party consultation is so important to the scoping effort.

When asked to provide its advisory opinion (pursuant to 36 CFR § 800.2(b)(2)) on the adequacy of a specific identification effort, the ACHP will evaluate the agency's efforts in light of these factors and the following criteria.

1. The identification effort is reasonable when it is logically designed to identify eligible properties that may be affected by the undertaking, without being excessive or inadequate in light of the factors cited above. While it may be appropriate in some circumstances to identify all historic properties in the APE, it is important to note that the regulations do not require identification of all properties.

Annotation:  This is an extraordinarily important point that needs to be carefully noted, and that will probably be widely misinterpreted. First, it’s a recognition of reality. Nobody can ever be sure that they’ve identified all the historic properties in an area. There’s no telling what’s lurking under the playground pavement or inside the walls of the warehouse. Second, there’s often no need to identify all the properties. Suppose you’re looking at the visual impacts of a project, at some distance from the project site. There may be thousands of individual structures and landscapes subject to visual impact. Do you have to go out and evaluate each one? The National Register will probably pat you on the head if you do, but it’s really not necessary. What’s needed is to determine that you do or don’t probably have a bunch of historic buildings, landscapes, viewpoints, etc. up there on which – or rather, on the human use of which – the project may have visual effects. Maybe you need to document a sample of them; maybe you don’t. Maybe generalities will suffice.


Thinking that you’ve got to identify “all” the historic properties I an APE is one thing that drives agencies to define APEs too narrowly, to ignore whole ranges of effects. So it’s important to understand that this isn’t necessary. On the other hand, what the ACHP is NOT saying is that just identifying, say, what’s already on the Register is OK. You have to make a reasonable and good faith effort to identify not only registered places but eligible ones as well. Exactly how much identification you need to do is something to be worked out – with the consulting parties – during scoping.

A reasonable identification plan is one that includes the following:

• Documentation of the horizontal and vertical extent of the APE that accounts for direct and indirect effects;

• An explanation of how the factors cited above inform the content and intensity of the identification plan. This could include information on past work in the area, scope of federal involvement in the undertaking, and the undertaking's magnitude and anticipated effects on any historic properties that might exist in the APE;

• A review of existing information on historic properties within the APE, including information about possible historic properties not yet identified;

• A cognizance of applicable professional, state, tribal, and local laws, standards, and guidelines;

• A familiarity with methodologies used in other historic property surveys in the area that have been effective in terms of time and cost;

• A clear description of the steps that will be taken during field investigations, during the analysis of field results, and in the subsequent reporting and consultation, to determine the presence or absence of historic properties within the APE.

Annotation:  I think it’s unfortunate that the ACHP didn’t add that the plan should clearly reflect the results of consultation with those folks identified back in 800.3, and whose data were elicited under 800.4. I think it’s obvious that it should. What was all that identification and elicitation for if not to gain the benefit of their wisdom?


2. The identification effort is carried out in good faith when it is fully implemented by or on behalf of the federal agency.

Annotation:  I trust this direction will not be taken out of context, since it implies that any ID effort is ipso facto done in good faith if it’s done by or for a federal agency. The ACHP’s seeming faith in the reason and honor of its sister agencies may be touching and generous, but it is not, I think, very well advised. The ACHP would have been well advised to consider the rule set down by the Tenth Circuit Court of Appeals in Pueblo of Sandia v. United States, 50 F.3d 856, 1995 -- essentially, that lying to and withholding data from the SHPO (and implicitly from other consulting parties) is a clear indication of bad faith.

3. An identification plan that is appropriate to the nature and scale of the undertaking is carried out in good faith when it meets the following criteria:

• The plan is carried out in consultation with, as appropriate, the SHPO, THPO, and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE;

Annotation:  Here the ACHP seems to forget that there are other American citizens, and maybe even non-citizens, who ought to be consulted if an agency is to say it has made a reasonable or good faith effort that is appropriate to the nature of the undertaking. If the nature of the undertaking is, say, that it will demolish an ethnic Turkish-American neighborhood, would it be reasonable or in good faith just to consult with the SHPO and the Indian Tribe that once occupied the area?

• Is initiated in a timely manner that allows for appropriate analysis and reporting, with adequate time for review by the consulting parties;

• Is carried out by a qualified individual or individuals who meet the Secretary of the Interior's qualification standards and have a demonstrated familiarity with the range of potentially historic properties that may be encountered, and their characteristics;

Annotation:  I question the easy (dare I say simpleminded?) reliance on the SOI’s qualifications standards here. NHPA Section 112 (added in 1992) says that agencies must use people who meet such standards, but it also directed the SOI and the Office of Personnel Management to get together, in consultation with a wide range of interested parties, to develop the pertinent standards, and that has never happened. The existing qualifications standards were cooked up ad hoc by a bunch of wet-behind-the-ears NPS “professionals” (myself included) back in the early 1970s, and to treat them as mandatory today is ridiculous. Agencies, SHPOs, tribes and other consulting parties need the flexibility to experiment with different kinds of expertise, and to effect cross-fertilization between disciplines and areas. Demanding that an SOI-qualified person “carry out” each identification operation is a formula for intellectual stultification and rote performance.

• Acknowledges the special expertise possessed by Indian tribes and Native Hawaiian organizations in assessing the eligibility of historic properties that may possess religious and cultural significance to them (regardless of whether or not such tribes and organizations meet the Secretary's qualification standards);

• Is fully supported by adequate funding and other necessary resources, and

• Is not compromised by lack of integrity or omission, such as manipulating or ignoring evidence.

Note that the regulations require that a reasonable and good faith effort to identify historic properties include some level of effort—at a minimum, a review of existing information on historic properties that are located or may be located within the APE (36 CFR § 800.4(a)(2)). Such an effort may consist of one or more methodologies and should be designed so that the federal agency can ensure that it produces enough information, in enough detail, to determine what the undertaking's effects will likely be on historic properties.

Annotation:  That, I think, is the key rule: has the agency collected enough information, of the right kinds, to permit it to determine effects (and move toward resolving them)? That, after all, is what the exercise is all about.


It is also important to keep in mind what a reasonable and good faith identification effort does not require:

• The "approval" of a SHPO/THiP0 or other consulting party. The ACHP, SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.

Annotation:  Very true, and very important. Conversely, though, an identification effort that ignores what the ACHP, SHPO, THPO, and other acronyms (or real people) recommend could be taken to be arbitrary and capricious.

• Identification of every historic property within the APE. One of the reasons the ACHP's regulations contain a post-review discovery provision (36 CFR § 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.

Annotation:  Yes, but that’s not an excuse for saying “oh, we’ll skip identification now and just monitor construction.” Section 106 is a planning law, not a post-hoc pick-up-the-pieces law. The agency needs to identify enough to make reasonable judgments about effects, and the wise agency will try to do a good enough job to minimize the potential for expensive late discoveries.

• Investigations outside of, or below, a properly documented APE. The Section 106 process does not require that the agency search for all historic properties in a given area. Because the APE defines the geographic limits of federal agency responsibility for purposes of Section 106 review, identification efforts are carried out within its boundaries.

Annotation:  First, note the term “properly documented,” which I presume means justified in some manner other than “duh, it’s the construction boundary,” or “duh, it’s were we drew the line.” Second, it needs to be remembered that there can be multiple APEs, their boundaries may be quite justifiably softly defined, and they may evolve as the project plans evolve. Third, some kinds of historic properties may extend far beyond an APE’s boundaries, and even entirely embrace the APE and its surroundings. This doesn’t justify doing detailed studies to characterize such properties, but it doesn’t justify ignoring them either, just because they extend beyond the APE. I invented the term APE back in 1984-85, and it seemed like a good idea at the time. Now I regret it. Often the APE can’t be defined very well, and it may be unnecessary.


• Ground verification of the entire APE. In many cases, areas can be considered to have a certain probability of containing historic properties based on current knowledge. This or similar characterizations can be used to justify where within the APE most identification efforts will or should be targeted. Predictive models that have been tested and found to be reasonably efficient can also assist federal agencies to meet the "reasonable and good faith" identification standard.

Annotation: "Ground verification,” I presume, means walking or driving or crawling over the whole APE. This is a very good point; you don’t need to do this if you can adequately characterize what’s out there, and what may be affected, without doing so. If the ground’s covered with asphalt, for heaven’s sake don’t have archaeologists walk across it at 5 meter intervals scratching the macadam with their Marshalltowns. Think creatively – consider predictions based on history, oral history, and/or environmental reconstructions (even if they HAVEN’T been tested; maybe this is an opportunity to test them. Consider LIDAR and other forms of remote sensing. Bring in a well-qualified geoarchaeologist. Talk to collectors about what artifacts they’ve found there. And generally, talk to the people.

In sum, the Section 106 regulations require federal agencies to make a "reasonable and good faith effort" to identify historic properties that may be affected by their undertakings. The regulations set out several factors that need to be considered in making the effort both reasonable in terms of intensity and scale, and carried out in good faith through its development and execution. The ACHP's online archaeology guidance provides further detailed discussion on how these factors can be applied to archaeological sites to ensure Section 106 identification plans are adequate and appropriate to a given situation (http://www.achp.gov/archguide/). The ACHP's professional staff is also available to assist agencies, SHPOs/THPOs, consultants, and contractors in interpreting the reasonable and good faith standard when questions or disputes arise.

2 comments:

SecretBadgeofHonor said...

Do you still believe agencies and departments shouldn't require SOI qualified individuals in their Firectives or Instructions?

Tom King said...

That's not what I said, SecretBadge; I questioned the simpleminded reliance on ostensibly standards-meeting "professionals" to make everything right. I continue to think that the Standards, and other similar standards, are vastly overrated.