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Saturday, March 24, 2012

Kick the Can: Do a Preservation Plan

Another segment for my forthcoming book, How to Destroy Historic Landmarks, wherein practical advice is offered to proponents of projects whose effects will include the destruction of historic buildings, archaeological sites, indigenous spiritual places, cultural landscapes, and other such impediments to economic development.


The Delights of Delay

Since you’re anxious to get your project under construction, when confronted with some sort of “cultural heritage” that has slimed its way into the path of your project, your tendency may be to seek the quickest way possible to get rid of it. In some cases, however, it may serve your interests – no, it definitely serves your interests – to opt for a strategy of delay.

Provided, of course, that what’s delayed is doing anything about that “heritage” – not your project.

The HPP by Whatever Name

The idea is to maneuver the NIMBYs or tribes or preservation nuts who are opposing your project into kicking the can of preservation down the road, without impeding decision making about your project. In the United States this is most often done by promising to develop an “Historic Preservation Plan” – or maybe an “Historic Resources Management Plan” or a “Cultural Resources Management Plan.” The name isn’t important, so let’s call it an HPP for short.

The Deal

Here’s how it works. You’ve had all the necessary surveys and studies done, and something’s been found. Let’s say it’s a landscape dotted with places where an indigenous group’s ancestors lived, buried their dead, hunted, gathered, reaped and sowed, and where that group’s descendants carries out religious practices to this day. Your project needs to go right in the middle of it.

Are you screwed? Not if you play the HPP card skillfully. It may well be that you can get everyone – or at least the federal agency responsible for your project, the State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP), and under U.S. law they’re the only ones who really count – to agree that it will be OK for your project to go forward, provided an HPP is prepared and implemented. They may not even require that it be implemented, as long as it’s written up. Agency people and SHPOs have gotten very used to this sort of thing; they'll very likely jump at the chance to develop an elaborate, many-paged, multi-claused memorandum of agreement that lays out, in more or less incomprehensible language, how the HPP will be put together, what it will contain, and how it will be reviewed and approved by all the necessary parties down the road. Everybody solemnly signs the agreement, and the law has been complied with; your overseeing agency has “taken into account” the effects of the project, and set up a plan for addressing them, supposedly, to everyone’s satisfaction. Now it can approve your project, and you’re good to go.

What You'll Have to Do

 
You’ll probably have to task your “CRM” contractor to write up the HPP, and that will cost you a few bucks, but that’s a small price to pay for getting your project over the “historic preservation” review hurdle. Your contractor can spend the next year or more writing the plan, earnestly discussing it with whoever’s interested, going through draft after draft after draft – and all the while you’re acquiring land, mobilizing your construction crews, and getting it on to build your project. By the time it dawns on anybody in a position to do anything about it (if any such body cares) that no plan on earth can “preserve” the place while your project goes forward, your project is a fait accompli, or at least so far advanced that there’s no realistic way to stop it any more.

Can People Really Be This Dumb?

Yes.  You may well ask why anybody would be stupid enough to accept this kind of “solution” to a conflict between heritage and development – but for heaven's sake, don't! Accept it, and try not to grin until you’re out of the room having a drink someplace where you won’t be noticed. Major agencies of the U.S. government have adopted the HPP strategy as their major approach to dealing with heritage/development conflicts. SHPOs and the ACHP have recognized it as a way to create the impression that sticky cases have been resolved, getting them off their desks and making them – the SHPOs and ACHP – look like they’re accomplishing things. Even some tribes and historic preservation advocates have been bamboozled into joining the kick-the-can game, because the proposal for a “plan” is couched in high-sounding language and promises lots of good stuff – though this usually really amounts only to more (and more and more) studies and meetings and discussions and consultations.  And besides, they’re assured by the responsible agencies, SHPOs and ACHP that this is the way things are done; this is the way the law’s complied with.

Kick That Can!

So when your consultant starts talking HPP – or CRMP or HRMP or whatever – listen carefully and make sure that what he’s talking about is something that will be done after the project is approved, so it can have no influence on the go-no go decision. If that’s what he’s proposing (and it almost always is), then going for it may be a very effective way to move your project forward and leave the NIMBYs, tribes, and old-place huggers choking in the dust.

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)

Sunday, March 04, 2012

The Knee-Jerk Anti-Liberal

There is a great hue and cry echoing around American archaeology these days over two new TV shows – “American Digger” on Spike TV and “Diggers” on the National Geographic Channel. Both supposedly glorify and encourage metal detecting and digging up antiquities, so we are encouraged, vigorously, by our various professional and semi-professional societies to rise up in righteous wrath and smite their producers and sponsors with petitions, nasty letters, and other expressions of our fury.

I have demurred, suggesting that perhaps people are going a bit overboard. I’ve also expressed some bemusement with the fact that some of the people taking the greatest umbrage at the “Digger” shows are the very contract archaeologists who make their livings helping clients use archaeology to run roughshod over the interests of descendant communities.

One response I’ve received to my objections is from a much-respected Canadian colleague, who writes:

C'mon, Tom --kneejerk anti-liberal-kneejerk can get silly. The issue is that the U.S., in contrast to almost every other nation, does not protect its patrimony except on public domain, AND THE REASON IS THAT IT ISN'T "OUR" PATRIMONY, it's the patrimony of the conquered race. Granted, the outcries haven't recognized this, because it is far out of mainstream American archaeology. So how about raising the issue that racism has kept our land's heritage (not really PATRImony since only a few million citizens have paternal lineages including First Nations) largely in the possession of private persons with funds to purchase and maintain title to land.

So now I am anti-liberal; oh well, at other times I've been counter-conservative and even proto-progressive. If I work hard and apply myself, can I become the AntiChrist? The possibilities are endless. Seriously, is there no possibility of rising above labels here?

I also have to question my critic’s analysis of “the issue.” I really don’t think that the issue in the case of the Diggers shows has much to do with whether the U.S. or any other nation “protects” its patrimony on public domain lands or elsewhere. For one thing, the notion that others in fact “protect” their patrimony by imposing draconian prohibitions on its disturbance by unlicensed individuals is a pretty funny one, especially when lobbed southward by a Canadian. Archaeological sites (to consider only one kind of “patrimony”) overlying Alberta’s tar sands may be well “protected” from artifact collectors – I don’t know – but I’d be very surprised if they’re being spared the attentions of the fossil fuel industry. Here in the Lower 48, Canadian mining companies are among the most rapacious with which Indian Tribes (“First Nations,” I know, to you oh so respectful northerners) have to deal in trying to protect their cultural heritage. The whole equation of “protection” with reserving artifact ownership to the crown, or whatever a government is called, is questionable at best. Our neighbors to the south are famous for this: no messing with el patrimonio nacional, amigo, unless you happen to be the government or an industry with the government in your pocket.
And as Raimund Karl has shown in his fascinating article, “On the Highway to Hell” (See my review at http://crmplus.blogspot.com/2012/01/highway-to-hell-worth-reading.html), even in countries that ascribe ownership of antiquities to the government, people collect them, and keep them, and attempts to prohibit such collection and keeping tend to fail.

Turning to my critic’s broader argument, is it true that we in these Benighted States refrain from “protecting” our patrimony because it’s not that of the conquerors but of the conquered? Being Canadian, I suppose my critic can be forgiven for not knowing that the folks we call the Founding Fathers had more than a few reasons for writing a constitution that carefully protected rights to private ownership of property, and carefully circumscribed the powers of government. But they did. They’d just shaken off what they believed to be an oppressively controlling monarchy, and they were products of Enlightenment thinking with its emphasis on the rights and genius of the unfettered individual. I really doubt if the likes of Adams and Madison and Jefferson gave much if any thought to whether antiquities ought to be preserved. Private ownership of antiquities from lands other than the public domain was a minor and little-considered byproduct of the care with which the framers of the constitution sought to constrain the powers of government over the governed. So, no, I won’t “raise the issue that racism has kept our land's heritage… largely in the possession of private persons,” because I think that “issue” is a gross oversimplification.

But my main objection to the brandishing of firebrands and torches in which my colleagues are engaging is the same one I offered here back on November 1, 2007 in my post entitled “The Mob” – now available in Chapter 6 of CRMudgeoneity (http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4), from which, with the reader’s indulgence, I’ll here insert an extended quote. “The Mob” was about a prohibition on what it called “commercial activity” that the Register of Professional Archaeologists (RPA) was at the time preparing to insert into its Code of Ethics. In other words – Registered Professional Archaeologists are to have no truck with the buying and selling of antiquities. Happily the RPA Code does not apply to me, but I still thought such prohibition a dumb idea, and said:

Prohibition is a blunt instrument, particularly when wielded by those with no power to enforce it. We all know what happened when the U.S. tried to prohibit the consumption of alcohol. Many of us have had first hand experience flaunting the continuing prohibition on the use of recreational drugs. These prohibitions have had the full force of the state behind them. I wonder what makes archaeologists think they -- with no power whatsoever -- can prohibit the commercial traffic in antiquities.

If forced to answer this question, I imagine an honest supporter of the RPA prohibition would say that it is not meant to prohibit commercial traffic, only to prohibit archaeologists from participating in it. But if that is so -- if it isn't designed to stop the practice that is actually destroying archaeological sites and data, but only to keep archaeologists from documenting those sites and data as they are destroyed, does this not suggest a degree of counterproductivity?

Nations and international organizations -- no more immune to hysteria than professional bodies -- have of course enacted laws and issued declarations against artifact trafficking, and based on their own statistics may be able to report a measure of success. A collection is intercepted in transit here; an artifact is repatriated there; a dealer or digger is prosecuted someplace else. But are these actions making a dent in the international antiquities market? Since we have no real data on that market, we cannot know, but to judge from what we see in the popular media, it appears not. We're told that antiquities looting is rife in Iraq and Afghanistan, in Peru and Chile; it certainly continues throughout North America. Those looters are not looting just for the fun of it; they have people to whom they sell the stuff, and there is -- must be -- a voracious cadre of collectors who make it worthwhile for such dealers to deal. Prohibition of antiquities trafficking, I suggest, has been no more effective than prohibition of alcohol consumption or marijuana puffing.

But who cares, really? What's important to a mob is not whether its cause makes rational sense, but how pursuit of the cause makes its members feel. In generating feelings of propriety, the imposition of ethics like that of the RPA are doubtless highly effective. Everyone can feel so good about themselves, so professional, and that's really far more important than the condition of the archaeological record, isn’t it?

When prohibition of alcohol consumption didn't work, governments re-legalized it and sought to control it through various forms of regulation. Some regulatory measures work pretty well; others don't; there's room for productive argument about how to tweak the rules and systems. The U.S. is gradually shuffling its way toward some kind of similar accommodation with regard to recreational drugs. Debate continues about how best to control access to firearms and regulate abortions. Why, I wonder, can't we try something similar with regard to the private ownership of and commerce in antiquities?


I have no way of verifying it, but I suspect that a substantial percentage of the people who collect antiquities would prefer to do so legally, and would more highly value an object with documented provenience than one without. If this is so -- and again I stress that neither I nor anyone else knows whether it is so -- then it ought to be possible, to some extent at least, to co-opt the commercial market, to dry up the market for illicit artifacts by creating one for those gathered using archaeological methods. But such a market could be created, of course, only if we actively engaged with the traffickers, rather than prohibiting such engagement.


Would engagement be a perfect or complete solution to the problem of looting? Of course not -- any more than engagement with those who traffic in booze is a perfect solution to alcohol abuse. But however shocking and saddening it may be to the moralists at the head of the mob, that's the way the world works. Even with things on whose prohibition there is broad popular agreement -- murder, rape, incest -- we find ourselves having to make nuanced distinctions in order to accommodate the shades of gray with which the real world presents us. Is it all right to kill in self-defense? In war? When is sex consensual and when is it not? How closely related can a given couple be, in a given society, and still be acceptable sexual partners? As ostensible social scientists, we ought to be able to work within such imperfect human systems to achieve our goals. But we are not; we are just as simple-minded as any other mob.

Others and I will be discussing the Diggers shows with Joe Schuldrenrein on his VoiceAmerica show this coming Wednesday, March 7 at 6 pm Eastern.  You can tune in at http://www.voiceamerica.com/show/1975/indiana-jones-myth-reality-and-21st-century-archaeology

"Historic Properties" and "Cultural Resources" -- Take 17

I would’ve thought this issue would have been long since resolved, but just the other day I got the following from a much-respected colleague in the west:


I keep running into situations where NEPA documents are produced that deal with cultural and historic resources as synonymous with “Historic property.” I can’t find anywhere that says cultural and historic resources under NEPA are or should be confined to places that qualify for the National Register. Yet, time after time, EAs/EISs include chapters on “Cultural Resources” that only talk about identification and evaluation efforts in terms of looking for National Register eligible places. And everything that doesn’t qualify gets dropped from any further consideration.

Have I misinterpreted the scope and breadth of what NEPA should be concerned with? Shouldn’t cultural and historic resources under NEPA include not just eligible places, but practices, and other intangible qualities and values that are considered culturally important to and by folks and groups who may be affected by a project? If there’s a plant gathering location out there in a project area that’s been used for a couple years to gather materials for important medicinal or ceremonial purposes, shouldn’t that qualify as a cultural resource worthy of consideration under NEPA regardless of that place’s historicity? Is NEPA really constrained by the National Register, or has the rest of the world just chosen to overlook the distinction?

I was able to give my interlocutor copies of several publications in which I’ve written about this problem, and point him toward such things as 40 CFR 1508.27, where “historic” and “cultural” resources are laid out as two separate things to consider under NEPA, but I doubt if it will do much good. Anybody who’s so bone-stupid as to use “cultural resource” as a synonym for “historic property” is probably beyond being educated.

But just in case there’s somebody out there who does “CRM” and “EIA” and who’s both willing and able to think about the matter, here we go again – VERY briefly:

1. “Historic property” or “historic resource” is defined in the National Historic Preservation Act as a place that’s included in or eligible for the National Register.

2. “Cultural resource” is not defined in statute or in government-wide regulation, so we’re left with dictionary definitions:

a. “Cultural,” says the free online dictionary, means “of or relating to a culture or civilization.”

b. “Resource,” says the same source, means “something that can be used for support or help.

3. So a “cultural resource” is something relating to a culture or civilization that can be used for support or help, presumably by someone wishing to participate in that culture or civilization.

4. Such “resources” might include languages, modes of discourse, story telling, songs and dances. They might include ways of using plants, animals, water, and other aspects of the environment. They might include oral and written history.

5. They might, in short, include one hell of a lot more than places included in or eligible for the National Register

6. NEPA analyses are supposed to address impacts on the “quality of the human environment.” That environment obviously includes “cultural resources” as defined above.

7. If you equate “cultural resources” with “historic properties” – or even with places that might be historic properties but haven’t yet been evaluated, as some self-defined “experts” do – you’re very systematically not addressing most of the cultural resources actually affected by whatever it is whose impacts you’re analyzing. That’s not consistent with the requirements of NEPA.

8. So you’re breaking the law, and you ought to stop it. Or others ought to sue you silly.

I’m well aware that some federal agencies have put language in their own regulations and guidelines that define “cultural resource” in some more narrow way than as “resource pertaining to culture,” but I’m not persuaded that this gives the practice any legitimacy. Saying something stupid in official jargon, or in chorus, does not make it smart, or right.