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Monday, March 05, 2012

Try the Avoidance Angle

Another segment of my book-in-progress: How to Destroy Historic Landmarks. The first piece was posted May 1, 2011, and manuscripts to date appear in Chapter 16 of CRMudgeneity (http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4)

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One of the amusing ironies of cultural resource management (CRM) is that often the cheapest and most efficient way to destroy a historic place is to avoid it.

Here’s how it works. You’re planning a project that has some flex to its design – maybe a road, or a fiber-optic line, or an array of wind-power turbines. You have your CRM contractor do a survey and he finds something of putative historic or cultural significance – let’s say a place where somebody lived a century or a millennium ago and left artifacts lying around. You have enough flex in your project that you can shift it a bit to miss whatever your contractor has defined as the “site,” or “resource,” or “historic property,” or whatever he calls it. You then propose to whoever’s regulating your project that you’ve “avoided” the place.

Under U.S. law, this can have several kinds of felicitous result, depending on how friendly and/or inattentive your regulators are.

They may agree that by “avoiding” the place, you’ve taken it out of the game altogether; it may wind up in a sort of regulatory never-never land. If the “avoided” place is the only putative historic property you’re dealing with, you may get agreement that there are “no historic properties subject to effect” by your project, and you’re good to go.

If there are other properties that you can’t avoid, then your contractor or your regulator can usually write up an agreement focusing only on those places, with a dismissive introductory clause saying that “those sites (or resources, or whatever) that cannot be avoided will be….” (excavated by archaeologists, painted puce, etc.), and saying nothing further about the “avoided” places. And since “avoidance” seems like such a good, positive thing to do, the regulators often won’t even ask by how far you’re avoiding the things – half a mile? Three feet? – or how you’re going to make sure the “avoidance” occurs.

Since archaeologists in particular tend toward quivering paranoia about releasing information on the locations of sites they find, for fear they’ll be ravaged by the hordes of slavering looters they think are lurking behind every rock and cactus, the chances are pretty good that you won’t even be expected to document where the places are that you’re avoiding, or to mark them in any way to promote their avoidance. Then once the regulatory process is done and your project’s underway, you can have your way with them. “Accidentally” grade them out of existence, or just ignore them and let time, traffic, and maybe even those awful looters take care of them for you.

If your regulators are a bit more alert, they may insist on some kind of plan or program to ensure that “avoidance” happens – perhaps through the erection of fences and/or hiring “monitors” to watch the construction and (supposedly) make sure it doesn’t damage the “avoided” place. This can cost a little money and sometimes be a bit of a pain in the behind, but it’s pretty cheap and it usually doesn’t last long. Once your project’s in, the monitors go away and you can carry on. And there’s a lot of variability among monitors; some won’t notice much if they’re properly engaged doing something else – if you catch my drift.

One quibble that almost no one raises is that the pertinent laws and regulations in the U.S. – NHPA and NEPA – aren’t really about places and things, but about effects on places and things. So if you’re physically avoiding, say, a place where Indian tribal practitioners pray to the spirit world, you may still have a considerable effect on the way the tribe uses the place, and under the law you and the regulators ought to be considering such effects. But as I say, this is a quibble that’s seldom raised, and is particularly easy to avoid if you keep the tribe – or whoever else might use the place or value it for cultural reasons – in the dark. This is usually pretty easy to do (See my forthcoming chapter on writing letters to elicit no response)

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