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Saturday, December 28, 2013

Private Curatorship: An Answer to "The Curation Crisis?


I can’t now find the post, but someone this morning (28 December 2013) posted a link to an article in the Baton Rouge, Louisiana Advocate -- http://theadvocate.com/home/7777931-125/state-warehouse-seeks-funds-for
The article begins by describing the sorry situation at the Louisiana state facility charged with caring for the archaeological collection from El Nuevo Constante, a 1766 Spanish shipwreck excavated in 1979.  There is supposedly a federal-state fund earmarked to support the facility (which I take from the article to be a general state curation facility), but money from it is being siphoned off by the state legislature to be applied to other purposes.   The State Archaeologist is quoted as saying that he barely has money to pay a single staff member. 

The article then segues an archaeological project being carried out in advance of state medical center construction, which is producing lots and lots of artifacts – far too many to be accommodated by the state’s storage facility.  The conclusion, ascribed to the archaeologist in charge, is that “the collection will have to be culled.”

“Culled.”  On the chicken ranch where I grew up, that meant chopping the heads off the chickens we couldn’t market and consigning them to the stewpot.  As applied to archaeology, it means taking the artifacts and other material you can’t fit in your curatorial facility and –

Well, “and” what?  Probably dumping it back into your excavations and burying it, or consigning it to a landfill.  It almost certainly does not mean giving it away or – worse yet – selling it, because that would encourage private ownership of artifacts, and we all know – our professional organizations and professors beat it into our heads – that private ownership of artifacts is a sin.

The Advocate article describes a situation with which most archaeologists and archaeological curators are all too familiar -- it's been discussed from time to time in professional and government circles as "the curation crisis."  In a nutshell: we just have too much stuff, and not enough space and money to take care of it all.  

We complain about the curation crisis all the time; we wring our hands and bemoan the situation; we seek money for new and better and expanded curatorial facilities, and sometimes we get it.  But increasingly we don’t; governments have other priorities. 

So we adapt – by storing stuff under suboptimal conditions (in cardboard boxes under desks in offices, in musty attics and soggy basements), or by “culling” and dumping stuff, or by not collecting it in the first place, which raises questions about why those laws requiring attention to archaeological sites even exist.

Is there an alternative? 

Whenever I see an article like the Advocate piece dealing with a shipwreck, I refer it to my friend Greg Stemm, CEO of Odyssey Marine Exploration in Tampa, Florida – a firm that does (among other things) very good deep-ocean archaeology and very selectively markets some of what it recovers.  After reading the Advocate article, Greg commented dryly that he suspected it was just the tip of the iceberg – that many, many collections are being “culled” or just left to deteriorate, but that nobody in the archaeological and museum communities want to talk about it.  I think he’s right.

Greg also pointed out that he and International Law professor David Bederman of Emory University had published a paper in 2010 detailing the problem and proposing as a solution a program called “Private Curatorship.”  It’s at http://www.shipwreck.net/pdf/OMEPapers14-PrivateCurators.pdf, and probably hasn’t gotten much attention.  It was published by Odyssey, after all (which has also published a number of excellent reports on specific research projects), and it’s an article of faith among archaeologists that commercial salvage firms don’t publish their results, so when they do, they’re invariably ignored.

You probably won’t get cooties if you read it, though, and I’d really suggest that you take a look, trying to keep an open mind.  Called “Virtual Collections & Private Curators: a Model for the Museum of the Future,” the paper documents the fact that collections all over the world are languishing in substandard facilities, and that there simply isn’t enough public money or political will to take care of them all.  It goes on to propose a program under which a museum would “cull” its collections but not just dump them back in the ground or into a landfill; instead they would selectively sell the stuff with rigorous controls designed to ensure that the purchasers would care for what they purchased, keep it together, make it available for future research, and participate in creating a widely accessible web-based catalogue including extensive digital imagery.  Collectors of artifacts would become the allies of museums and archaeologists, rather than our enemies.

Acknowledging that a range of international and regional standards discourage even thinking about such an option, Stemm and Bederman argue persuasively that it is not in fact illegal, and based on Odyssey’s practical experience they think it would work.  Collections would be preserved, collectors and other members of the interested public would be engaged, and the museums would both free up space and gain some needed revenue.  And – they don’t say this, but I do – museums and archaeologists would come to look a bit more like reasonable citizens and less like arrogant, self-congratulatory dogs in the manger.

I have to say that I’m less sanguine than Stemm and Bederman are about how many collectors might want to become “private curators” under the terms they propose, but I’d be delighted to be proved wrong.  And Stemm's and Bederman's proposal is only an initial one -- there may be many variants on the theme that would be worth consideration.  One thing that’s certain is that we won’t find out what's workable if nobody tries it.  

So hey, you folks in Louisiana, or anyplace else that’s got a problem caring for all the stuff you’ve excavated or expect to excavate, take a look at http://www.shipwreck.net/pdf/OMEPapers14-PrivateCurators.pdf and consider how what Stemm and Bederman propose might apply to your situation. 

I know, I know, you fear hellfire and damnation, or at least being hounded out of the profession if you consider -- oh the horror of even saying it! – selling an artifact.  Better to avert your eyes, close your ears, and let your collections rot.  But you know, I don’t think there’s much empirical evidence that selling artifacts puts you on the down-elevator to hell; is there nobody out there who’s willing to give this a try? 

Tuesday, December 24, 2013

Mark Trail (Not Territory)


I can't help myself.  I'm a dedicated daily reader, over my morning coffee, of the Washington Post comic pages.  And not just the hip strips like "Doonsbury,"  or the ones like "Pickles" that speak to me personally, but even the likes of -- well, "Mark Trail."
 
"Mark Trail" is a -- umm -- well, it's pretty much straight out of the fifties.  Its eponymous protagonist, Trail (not Territory) is supposedly a nature journalist; he lives on some sort of private wildlife refuge with his wife -- Cherry! -- and.... well, never mind.  He has adventures contending with poachers and other such environmental evil-doers, though only rarely with, say, land developers and big government agencies.
 
Anyhow, right now he's fallen in with a really nice old man who lives in a cabin in the woods and has a fabulous collection of -- you guessed it, folks, Indian artifacts.  Which some bad guys are trying to steal.  Actually, they've stolen them and are trying to pin the theft on Trail (not Territory), but we can be sure that Mark will foil them in the end and all will be made right. 
 
"Right," of course, being that the nice old collector will get his collection back.  Which is what makes the strip worth more than a yawn over coffee.  There's not a hint, not a glimmer of a notion anywhere in this stretch of Trail (not Territory) that there could be anything wrong with the old man's collecting artifacts.
 
Now, nothing's been said or shown about how he collects them -- whether he digs or is just a surface collector -- and there've been no close-ups of the collection; my impression is that it's mostly projectile points (spear and arrowheads to you non-specialists), but I can't really say.  No obvious human bones.  But be this as it may, the point (sic) is that all the sound and fury that echoes around the hallowed halls of archaeology and in parts of Indian Country over the legality and propriety of private artifact ownership seems to have gone right past the composers of Mark Trail (not Territory).  It simply hasn't registered, isn't on their radar screens.
 
I am not posting this to encourage people to go beat up on the cartoonists, like folks are berating National Geographic for its "Diggers" show.  Quite the contrary; I post it to suggest that we archaeologists are way, way, way out of touch with the American (and worldwide) mainstream when we indiscriminately slap labels like "looter" on everybody who ever picks up an artifact and doesn't turn it in to a museum.  The public is never going to buy the notion that a nice old guy in the woods who collects artifacts is in the same league with, say, somebody who digs up graves or pecks rock art off the walls of caves.  And I daresay a thoughtful public might even hesitate to castigate someone who does those latter things if, say, the graves are about to be bulldozed for a wind-generator array or the cave's about to be blown up for a mine.  I've said it before and always been ignored, but I'll say it again; we ought to take a more nuanced view of artifact collection and ownership, so as to build alliances with, rather than alienating, nice old men in the woods and their nature-writer chums.  When we insist that nobody should own artifacts except the fine academic institutions for which we happen to work, then rightly or wrongly we look a lot like we're just marking territory (not trail).

Monday, December 16, 2013

GAO and CRS Say: "Down with Public Participation"(?)


Leslie Barras has continued her string of thought-provoking reports for the National Trust for Historic Preservation with Honoring Our Nation's Veterans: Saving Their Places of Health Care and Healing (http://www.preservationnation.org/information-center/saving-a-place/va-hospital/NTHP-VA-Report-Exec-Summary-Rec.pdf).  The report is critical of how the Department of Veterans Affairs (VA) manages its substantial inventory of historic buildings and districts, though (speaking as a veteran and a contractor to VA) I find it refreshingly even-handed and sympathetic toward both VA's mission and the pressures exerted on it by Congress and the Office of Management and Budget (OMB).

One thing that Barras reveals -- which I guess doesn't surprise me because it supports my growing belief that everyone in Congress and the Obama administration has had their brains fed to zombies -- is this, on page 91.  After discussing a 1990s VA initiative to set up stakeholder advisory committees on medical facility closures, which she identifies as an example of the "Dialogue, Decide and Deliver" (DDD) model espoused by environmental justice groups, she reports that the Government Accountability (sic) Office (GAO) --

...criticized the VA’s inclusionary approach as inviting “protracted conflict” and “piecemeal” decision making because of the involvement of special-interest groups who would tend to “avoid difficult choices by focusing only on marginal changes to the status quo . . .”  The GAO then recommended an “independent” planning approach, which would consist of using VA planners or outside consultants to develop and analyze data upon which the VA would make ... decisions, followed by providing “sufficient information” to external stakeholders to “understand and support” decisions already made.  As opposed to the inclusive “DDD” public process, the GAO’s proposal is rooted in an antiquated and exclusionary public relations process called “DAD” (“Decide, Announce, and Defend”).  From the perspectives of several interviewees involved in past and current deliberations about possible realignments and closures of VHA facilities, ...  it appears that the GAO’s “DAD” approach has been followed by the VA.

Similarly, the Congressional Research Service (CRS) has identified “stakeholder conflict” as complicating federal agency disposal efforts, noting that there is no “government-wide real property guidance for addressing stakeholder conflicts”. Several bills have been filed in Congress that purport to “reform” public involvement in federal real property management. One example is the Civilian Property Realignment Act (CPRA) of 2012, which would shorten the statute of limitations for citizen suits brought for violations of NEPA during disposal of federal property from six years to 60 days (CPRA of 2012, § 18(a)(2)).

If Barras is to be believed – and I’ve always found her reports to be pretty much on-target – we have not only the perennial jokesters in the House of Representatives, but the ostensibly knowledgeable and objective GAO and CRS proposing to turn the clock back to the 1950s, when government decided what was best for its citizens (Dam those rivers!  Demolish those slums!) and hired PR flacks to persuade the flaccid public that it was the Right Thing To Do – instead of (horrors!) actually consulting with the unwashed multitudes.  Unfortunately – as detailed in the book that Claudia Nissley and I are publishing next year via Left Coast Press (http://www.lcoastpress.com/book.php?id=504), there’s every evidence that she’s right.

Barras comments:

The importance of public involvement in decisions regarding assets that are ultimately public assets, and public heritage, may not be a priority for auditors concerned with the numerical accounting required to prepare balance sheets and federal financial statements. However, the apparent resistance to public involvement noted in the examples above seems antithetical to basic concepts of fairness, rights to expression, and transparency in a democracy, not to mention current federal law.

I, for one, couldn’t agree more.

Friday, November 15, 2013

Consultation and Cultural Heritage: Let Us Reason Together

Left Coast Press will very shortly publish Consultation and Cultural Heritage: Let Us Reason Together, by Claudia Nissley and me (See http://www.lcoastpress.com/book.php?id=504).  The website says it will be available in March, 2014; we’re hoping it’ll be out a bit sooner than that.

Innumerable environmental and cultural resource/heritage laws, regulations, standards and guidelines, in the U.S. and throughout the world, call for “consultation,” but few say much about what it’s supposed to entail.  As a result, there’s a tendency to substitute things like formletters and public hearings for real consultation.



Our book’s subtitle – from Isaiah 1:18 – encapsulates our view that consultation is supposed to entail reasoning together, to seek a mutually agreeable outcome to some sort of actual or potential conflict or problem.  As the Advisory Council on Historic Preservation (ACHP) puts it:

Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them …. (36 CFR §800.16(f)).


Our book is built around the ACHP definition, discussing what each of those called-for actions – “seeking,” “discussing,” “considering” and “seeking agreement” – involves, suggesting effective ways of carrying out each such action, and flagging ways of “consulting” that are, to put it blandly, less then effective.  It’s based on our collective sixty-plus years of work in consultation under the National Historic Preservation Act and other U.S. laws, but it’s designed for use not only under U.S. law but wherever consultation about environmental and heritage matters takes place.  It would be nice to think that it may help improve the quality and effectiveness of consultation about such matters, but neither of us is holding breath.

And the cover art?  Rock art in Baja California, showing people throwing up their hands, what else?

Wednesday, September 04, 2013

Academia.edu


Encouraged by the participation of respected colleagues like Larry Zimmerman and Fred McGhee, I’ve lately begun posting stuff to Academia.edu.  Described in Wikipedia as “a social networking website for academics," Academia.edu has some three million registered users, and can, says Wikipedia, “be used to share papers, monitor their impact, and follow the research in a particular field.
They’ll probably boot me off eventually for being too non-academic, but for the moment I’m using it as an opportunity to breathe a little new life (last gasps?) into ancient papers delivered at conferences, submitted to journals but rejected or just never published, done for forgotten government agency programs, and published in now-defunct media.  On traditional cultural properties (TCPs), for instance, and National Archaeological Research Topics (NARTs), as well as some Ameliana.  Mostly my own stuff but some that’s co-authored, plus some documents prepared and distributed by an anonymous 1980s critic of the Reagan administration’s approach to historic preservation (which, sadly, isn’t much different from the Obama administration’s).  Take a look if you’re interested, and consider adding your own papers; it’s remarkably easy, and might stimulate some discussion.

Monday, August 26, 2013

Who Says It’s a Do-Nothing Congress?


All we historic preservation fans can take delight in the fact that H.R. 2617 has been introduced in the House of Representatives.  As the national historic preservation program dribbles off to nothing, as communities and indigenous groups across the nation struggle to protect their historic neighborhoods and traditional cultural landscapes from the untrammeled forces of economic and energy development, H.R. 2617 has as its purpose – yes, ladies and gentlemen, it has as its purpose to create a national historic landmark (NHL) at Tranquility Base on the Moon.
I wrote about the idiocy of this proposition back in 2010 when the historic preservation authorities of several states began thumping their chests about it (See “California Shoots for the Moon,” http://crmplus.blogspot.com/2010/02/california-shoots-for-moon.html.)  I don’t propose to write more about it, but have asked for the opportunity to testify against it should the House take time off from voting down Obamacare to hold a hearing.

Friday, August 23, 2013

My Latest Publication

 
 
Sadly, I don't know what it says, either.  Probably something like "Proceedings of the 2011 World Archaeological Congress Intercongresss on Archaeological Heritage Management in Asia, Beijing 2011."  I'll let you know when I find out.  Published by the Chinese Academy of Social Sciences.  It includes my paper on "Cultural Heritage, Environmental Impact Assessment, and People," in English.  I have copies of the paper (not the book) that I can share if anyone's interested.
 

Thanks a Lot, Mr. Responsible SHPO


So, I’m trying to advise some federal agency officials about compliance with Section 106 of the National Historic Preservation Act (NHPA), and learn that one of them has written to a State Historic Preservation Officer (SHPO) saying:
“We’ve decided to demolish Building X (a late 19th century building, part of an institutional historic district).  Will you please tell us who our reviewing officer will be, so we can provide the proper paperwork?”

Urgh, I thought.  They’ve put their foot in it, I thought.
But maybe it’s a teachable moment, I thought.  When the SHPO writes back and tells them that it ain’t compliant with Section 106 to decide to demolish a historic building and then ask the SHPO what forms to submit, maybe I’ll have their attention and can gently explain what Section 106 and its regulations really require – and maybe even that there’s another legal requirement or two they ought to think about, like Section 111.

Then the SHPO responds: “Thanks a lot, your reviewer will be Joe Schlabotnik, and we look forward to working with you.”
Well done, SHPO; what a fine job you're doing of fulfilling your educational mission and representing your state’s interests in historic preservation.  And I wonder where you'll be found when and if somebody in the community sues the agency for violating Sections 106, maybe 110, and 111 of NHPA.

And plaudits to the National Park Service (NPS), which funds the SHPOs, and the Advisory Council on Historic Preservation (ACHP) which oversees Section 106 review, for keeping the SHPOs on their toes.
The mind boggles……

Monday, August 19, 2013

Theories of Significance

In starting work on the second edition of my 2003 book Places That Count (https://rowman.com/ISBN/9780759100718), I've come upon a section that I recall thinking to be rather insightful when I wrote it.  Since it's evoked no discussion that I know of, I suppose I was misleading myself, but I thought I'd post it here to see what responses (if any) it may evoke.

Theories of Significance in U.S. Historic Preservation

The National Register criteria were developed in the late 1960s and early 1970s, as one part of the “system” put in place by the National Park Service and Advisory Council to implement the newly enacted National Historic Preservation Act. This system is designed, in theory, to ensure the fair, systematic consideration—and, where feasible, the preservation and enhancement—of places regarded as historically significant. One thing that makes this system rather unsystematic, I think, is that it tries to accommodate at least six distinct “theories of significance”—that is, six quite different worldviews within which people evaluate the significance of old places. This is not necessarily a bad thing; indeed it reflects a hurly-burly sort of creative ferment. What is a problem is that most people adhere to one or two such theories only and have trouble understanding that there may be others or that other theories may be legitimate. This lack of understanding is exacerbated by the fact that the theories have never—except here—been explicitly categorized.

Perhaps the most venerable is the commemoration and illustration theory, which holds that places are historic when they commemorate or illustrate some important historical event, process, or theme. This theory undergirds the National Historic Landmark (NHL) program created by the National Park Service in response to the Historic Sites Act of 1935.  Within this theoretical frame, significance is judged based on the strength of a property’s association with an event (e.g., a battle), a significant historical process (e.g., industrialization), or a specific “theme” or interpretive construct (e.g., “Man in Space”), together with the importance of the event or theme itself and the property’s ability to “convey” this association to a viewer. The commemoration and illustration theory is pedagogical; it seeks to use historic places to inform the public about that which is worthy of being commemorated or illustrated.

Closely related to commemoration and illustration is the uniqueness-representativeness school, which espouses the seemingly contradictory notions that places are significant if they are either one-of-a-kind, last-ditch survivors, representatives of a type, or both. Uniqueness-representativeness practitioners are usually architectural historians, landscape historians, historians of engineering, or military historians. Their school of thought, like commemoration and illustration, was embedded in the nation’s perception of historic preservation by the 1935 Historic Sites Act. The 1935 act not only resulted in the NHL program with commemoration and illustration at its core; it also made permanent the Historic American Buildings Survey (HABS) and led to creation of the Historic American Engineering Record (HAER) and later the Historic American Landscapes Survey. These documentation programs are all about recording the unique and the representative among works of architecture, engineering, and landscape architecture.

Competing with commemoration and illustration and uniqueness-representativeness in the venerability department is the scholarly value school of thought, which holds that a place is significant if it can be studied to learn something important about the past. The scholarly value school arguably goes back to before the 1906 Antiquities Act, when the Smithsonian Institution’s Bureau of American Ethnology conducted government-sponsored archaeological research in the Mississippi Valley, the Southwest, and elsewhere.  Like commemoration and illustration, the scholarly value school seeks to inform, but where advocates of commemoration and illustration value what can inform the public of what it does not know but scholars do, scholarly value practitioners attribute significance to places that can inform scholars about what they do not know. Scholarly value also overlaps with uniqueness-representativeness, but where uniqueness-representativeness is usually the province of various history subdisciplines, scholarly value tends to be practiced by archaeologists—who in the United States are (or at least are supposed to be) anthropologists. Moreover, the scholarly value theory seeks to tease information out of places, while uniqueness-representativeness is often satisfied simply to record and preserve them.

A fourth and newer theoretical approach may be thought of as the ambience retention school. Ambience retention adherents recognize that certain places—often urban neighborhoods or commercial districts, but also rural landscapes, agricultural areas, and the like—convey a distinct and valuable sense of place that is recognizable and valued by most people—notably people who do not necessarily live in the places thus valued. Many historic districts have been established because of their ambience, and it is often a major challenge to retain that ambience in rehabilitating and adapting historic districts to a changing world.

A related but nonetheless distinct school of thought is the kitsch school, which holds that a place is significant if it reflects some perhaps obscure but interesting or amusing aspect of popular history and culture. Practitioners of the kitsch school value places like drive-ins and motels along old Route 66.

Finally, there is what I think can best be called the community value school, which sees a place as significant if it is valued by a living community. Such value may be ascribed to something because community members feel it contributes to the community’s sense of its identity, its cultural integrity, or its relationships with the biophysical—and sometimes spiritual—environment. TCPs are obviously significant primarily within this school of thought, which I believe found its legislative expression in 1966 in the National Historic Preservation Act.

Sunday, August 18, 2013

Eviction!

My long-time friend, colleague, and one-time business manager Ron Melander is being evicted – or more correctly, squeezed out – of his rented residence on a ridge overlooking Fort Ross in Sonoma County, California.  I think it’s a shame, and wish I could find him a place to live. 

For some months a number of us have been trying to help him find a place, keeping it quiet out of respect for his privacy, but the situation has now escalated, and frustration drives me to go public.  Both for Ron’s sake and because his situation, sadly, is one that a lot of people practicing “shovel-bum” archaeology today ought to anticipate and prepare for.
Not that Ron was ever exactly a shovel-bum.  I met him at San Francisco State University decades ago when we were both anthropology students there.  He went on to manage the archaeology lab at U.C. Santa Barbara, where he was something of a mentor to archaeologists like Shelly Davis-King (no relation), Joe Tainter, Bob Hitchcock and Larry Spanne.  He quit as a matter of principle during the student revolt at UCSB against the Viet Nam War; Ron supported the students and wouldn’t continue as an employee of “the Man.” 

When we both wound up back in northern California and I organized a small consulting firm, Ron became my indispensable right-hand man, business manager, chief cook and bottle washer, guitarist and music composer.  He remained when I fled California for New York, DC, and points-elsewhere, working for the folks who inherited my company and then for others, and playing in various bands.  He went back to college and got into paleontology, doing a remarkable paleontological survey of Point Reyes National Park.  Eventually he retired to his ridge overlooking the Pacific, where he’s gotten by on Social Security and odd jobs – painting and grass cutting – until now.
The land on which Ron’s rental and several others stand is owned by the Soper-Wheeler Company, a large land and timber outfit.  A few months ago Soper-Wheeler advised all the tenants that their rentals were at an end, and gave them set times within which to make other arrangements and depart the premises.  Ron has vigorously searched for new digs; his daughter, son, and several of his old friends and colleagues have been trying to help.  On July 1 I sent the following letter to the president of Soper-Wheeler (Some particulars removed to protect privacy):

Dear Mr. Soper:

I am one of several colleagues and friends of Ron Melander who are trying to help him find a new place to live now that you are evicting him from the cabin off ______ that he has rented for the last several years.  Unsurprisingly given the value of land and housing in the area, neither he nor we have yet been successful.

I question neither your right to evict Mr. Melander nor your rationale for doing so; I am writing only to request that you be flexible about implementing your decision.  I visited him last week and found him packed up and resigned to departing, but as yet, despite our best collective efforts, he has no place to go.  Particularly considering the efforts he has made over the years to keep the premises clean and – especially importantly – to control the exuberant and flammable plant life (now growing rather alarmingly around both houses), it would seem an elementary act of kindness on your part to let him remain in the cabin for a few more months while we all help him seek new quarters.

Sincerely,

I received no response, and as of yesterday the water and power to Ron’s rental had been cut off.
I post this in the hope that someone in Sonoma County or its environs has a low-cost place that Ron might rent; if so, please contact me at tfking106@aol.com.  And I guess I post it too as a warning to youngsters in archaeology.  You too will, like Ron and me, grow old, and you need to have a thought for your future.  I offer this not as discouragement but as a caution; we live in unsympathetic times, and the decisions we take in our youth reverberate through our declining years.

Monday, August 12, 2013

National Register Bulletin 38 is Doomed

Twenty-three years ago, the National Register of Historic Places published National Register Bulletin 38, on the identification, evaluation, and documentation of “traditional cultural properties” (TCPs).  Patricia Parker and I had authored the bulletin a couple of years earlier; the story of its creation comprises Chapter Two of my 2003 Places That Count (https://rowman.com/ISBN/9780759100701). 
We wrote NRB 38 to counteract a trend then apparent in American historic preservation – the devaluation of places valued by communities in favor of those valued by professional elites (notably architectural historians and archaeologists).  Archaeological sites and buildings of architectural interest were being afforded all the (admittedly dubious) protections of federal law, while traditional neighborhoods and places of spiritual significance to tribes and Native Hawaiians were given short shrift.  NRB 38 has done some good in leveling the playing field; tribes have made particularly skillful use of it in litigation.
The National Register is now embarked on a campaign to do something to or with NRB 38.  If its people know what they want to do, or why they want to do it, they are not sharing this intelligence with the rest of us, but they are earnestly holding webinars at which they read Powerpoint slides and ask for input. 
Until recently I was more amused than concerned about the Register’s effort; it looked like simply a way for its people to look busy while they wait for retirement and I didn’t think it would amount to much.  After the latest webinar, though – into which I didn’t plug, but about which I’ve heard a good deal from outraged participants – I am much more pessimistic.
There are interests – notably among the extractive industries and in those industries’ traditional handmaidens, the Bureau of Land Management and Forest Service – who very much dislike NRB 38 and would like to clip its wings.  They’ve grown sufficiently used to archaeology, and co-opted enough archaeologists, to make the identification and handling of archaeological sites a fairly routine matter.  You find them, you draw lines around them, you evaluate them as insignificant if you can, and if any of them are so significant you can’t pretend they’re not, you dig them up.  It costs money sometimes, but it’s predictable; it seldom raises issues that can actually threaten your plans.   Old buildings are usually even easier to manage; find them, document their architecture, knock them down or move them away.  All this can usually be worked out with the State Historic Preservation Officer (SHPO), with minimum involvement by anyone less tractable. 
TCPs are different; they’re often quite large (whole mountains, lakes, landscapes, seascapes) and ill-bounded, and their values are perceived mostly by plain people, in more or less local communities.    These people tend not to want their special places to be screwed up, and they’re seldom as easy or cheap to buy off as are archaeologists or architectural historians, or as easy to flim-flam as is the average SHPO.  So it would be easier to put in mines, railroads, solar farms, wind farms, power plants and transmission lines if TCPs were not regarded as eligible for the National Register.  Failing that, it would benefit the industries and simplify the lives of agency bureaucrats and SHPOs if the rules for recognizing a TCP could be made more like those for recognizing an archaeological site.  If, for example, it were necessary to establish hard and fast boundaries, show that there are physical expressions of something “cultural” (artifacts, structures) on the ground, document that people have been using the place consistently for over fifty years for some professionally definable cultural purpose.
And this, I now fear, is what the National Registrars will do – not with any particular malice, but because they’re just too inexperienced, too gullible, too naïve to recognize what’s wrong with such notions.  They’ve made it very clear that they think it quite inappropriate, even impossible, to consider the real world implications of what they do.  Think about how a tweak here and a tinker there will play out in land use planning, or environmental review?  No, no, that’s for people like the Advisory Council on Historic Preservation (ACHP) to think about; what the National Register does is – well, register stuff. 
So what they’re likely to do is tweak and tinker with NRB 38 to make it more like some of their other bulletins, tightly oriented toward how to fill out nomination forms.  On page X, in block Y, select from the following three options: M, N, or O.  I can imagine, too, an effort to define words like “community” to exclude any group that isn’t or can’t be somehow formally recognized by officialdom.  So the Big Sky Historical Society can have TCPs but an informal group of cattle ranchers can’t; so a federally recognized tribe can but an unrecognized tribe can’t. 
The result will be to make it harder – if not impossible – for a community or tribe to get its special places recognized as Register-eligible, and hence deserving of consideration under Section 106 of the National Historic Preservation Act (NHPA).  This narrow-mindedness will inevitably bleed over into practice under the National Environmental Policy Act (NEPA) and other federal and state laws.  No matter that the place is of deep cultural importance to people on the ground; if you can’t fill out the nomination form the way the registrars want it filled out, and justify its importance in the esoteric language of history, archaeology, or maybe cultural anthropology, your place just doesn’t qualify.  This may generate business for certain specialized consultants, but it will do nothing for the places that tribes and other communities hold dear. 
Nor will it do anything for the National Register’s relevance to the real world, but I doubt if that’s important to the Register’s staff; they like irrelevance; it’s a safe condition.
Several commenters have told NPS what would actually be helpful.  Don’t focus on the clerical niceties of nomination; instead advise government agencies and other change agents about how to address TCPs in planning and decision making.  Take it as given that if a place is important to a community – including a self-defined community – it’s the obligation of a government that’s supposed to be by and for the people to give that place careful consideration before doing something to it.  Talk with the people who value it, deliberate with them about ways to protect its significance while realizing whatever public interest is served by the decisions that will affect it.  See what can be done to put such protections in place and make them work.
But that kind of thing, the registrars point out, isn’t their game; it’s supposedly the game of the ACHP.  Fair enough, though the ACHP has largely abandoned the field of play.  So maybe the registrars ought to talk with the ACHP, maybe share the effort.  Or maybe they should satisfy themselves with clarifying a few unfortunate word choices and dated assumptions in the Bulletin and leave any further guidance on the subject to the ACHP, the Council on Environmental Quality (CEQ) or some other entity that actually relates to reality.  I don’t expect them to exercise such broadmindedness or restraint, however.  They have convinced themselves that the National Register is the indispensable centerpiece of the nation’s historic preservation program, so only they can correct NRB 38’s deficiencies – whatever they are.

A number of people have asked me what they can do about the Register’s threatened fixes – besides filing eloquent comments, as many have done, and waiting for them to be misunderstood, ignored, or both.  The only recommendation I’ve been able to come up with is to take the matter up with higher levels in the Department of the Interior food chain.  I don’t know that this is a particularly hopeful option – the Obama administration has done little but disappoint in matters like this – but it is just possible that if the Secretary of the Interior were made aware of what is being done in her name by her minions at the National Register, her people would give the registrars a little adult oversight.  Of course, the Secretary is under orders from our keen-minded president to “greenlight” energy projects on the public lands, and hang the environmental laws, so expecting responsibility from her for the cultural environment is probably a fruitless enterprise.  What’s sad is that there’s not necessarily a conflict between energy development and taking care of the places that matter to people.  What creates conflict are government policies that encourage change agents to ignore the impacts of their actions on anything their own experts can’t weigh and measure using finely calibrated professional (or other) procedures – regardless of what those affected think is important.  People who value places that professional practitioners can't appreciate or registrars assign easly to pigeonholes are left with nothing to do but fume, demonstrate, and litigate.  NRB 38 was designed to help create conditions in which such conflicts could be identified early and resolved by consensus; what the registrars seem to be about will, I fear, have the opposite effect. 

Tuesday, July 30, 2013

The New East Utalina State Historic Preservation Officer

Memo to the Staff, East Utalina SHPO

As you know, yesterday I accepted Governor Christineger’s appointment as East Utalina’s State Historic Preservation Officer (SHPO).  I am honored and humbled by this appointment, and look forward to working with all of you.
In accepting the Governor’s appointment, I also accepted – and strongly support – his direction to make a 25% cut in the cost of SHPO operations and to simplify administrative processes.  The major purpose of this memorandum is to explain how I intend to implement this direction.

By way of background, I believe strongly that the central purpose of the National Historic Preservation Act (NHPA) and the East Utalina Historic Resources Act (EUHRA) is to protect and advance the public interest with respect to historic preservation.   NHPA and EUHRA were not intended to place the interests of historic preservation above all other interests, and the office of SHPO, created and described in the statutes, is not intended to be an unfailing advocate for historic preservation regardless of other interests.  Nor, I believe, is it the purpose of the SHPO to serve largely as an information repository, a collector of information, or a bookkeeper.
The core responsibility of the SHPO, I believe, is to do whatever is feasible to ensure that the public has every opportunity to influence decision-making relating to the management of historic properties, including the management of impacts on such properties.  This is implicit in the language of the regulations implementing Section 106 of NHPA, wherein the SHPO is said to “reflect the interests of the State and its citizens in the preservation of their cultural heritage” (36 CFR § 800.2(c)(1)(i)).  No individual or office can in fact reflect such a range of interests as those represented by the State and all its citizens, so what we must do is to ensure that citizens can readily participate in what we do, and to influence our decisions and those of others.  In many ways, NHPA and EUHRA are intended to protect the interests of the public from the plans and projects of government and those it assists or licenses.  This is the function I intend to emphasize.

Much of our staff time – and hence our budget – is given over to (a) encouraging, receiving, reviewing and processing nominations to the National and State Registers of Historic Places (carried out by the Office of Registration) and (b) participation in federal project review under Section 106 of NHPA  and Section 601 of EUHRA (carried out by the Office of Consultation).  The following measures are designed to simplify these functions, substantially achieving the 25% cost reduction ordered by the Governor while improving our responsiveness to the public interest.
1.       Effective immediately, the Office of Registration is abolished.  Registration, including listing properties on the State and National Registers, is a recordkeeping function that we must downgrade.

a.       To the extent registration continues, it will be carried out by the Office Librarian.

b.      SHPO sponsorship of surveys and nominations to the State and National Registers will be wound down in an orderly manner; by the end of this fiscal year, investment in such operations should approximate zero.

c.       Nominations prepared by others will be received and reviewed as time permits, with priority given to properties whose registration relates in some demonstrable way to land-use planning, development project review, and/or the receipt of grants to support preservation, with the explicit recognition that neither NHPA nor EUHRA require placement on the National or State Register to trigger the review of impacts on properties; eligibility for either register is sufficient.

d.      Employees whose positions are terminated by this action will receive priority consideration for jobs that become available elsewhere in the office, and will be counseled regarding employment options in other state agencies, local governments, with Indian tribes, and in the private sector.

2.       The Chief, Office of Consultation will within thirty (30) days deliver to me a plan of action to achieve the following objectives:

a.       Finalize guidelines for all federal and state agencies regarding initiation of NHPA Section 106 review in accordance with 36 CFR § 800.3, and for the conduct of review under 36 CFR §§ 800.4 and 800.5.  These guidelines are to emphasize agency outreach to the interested public, and ongoing consultation with interested parties, so as to ensure that such parties are given every opportunity to participate in and influence the project review process.   The guidelines should provide for monitoring by this office to promote agency compliance, and for intervention by this office in response to public concerns.

b.      Simplify or eliminate routine review by this office of agency determinations under  36 CFR §§ 800.4 and 800.5 and the equivalent sections of the EUHRA Section 601 procedures, provided the agency whose project is subject to review conducts itself in accordance with our guidelines and there are no objections from the public, local governments, or Indian tribes.  This office should concur in determinations that no historic properties are affected by a project, or that there will be no adverse effect, provided the responsible agency demonstrates that it has followed our guidelines and has the substantial agreement of Indian tribes, local governments, property owners, historic preservation interests, and other consulting parties.

c.       Establish that it is the role of this office to (1) promote responsible, thoughtful attention by federal and state agencies to the effects of their actions on the cultural environment, including but not limited to historic properties, and to (2) mediate and facilitate negotiation among such agencies and other interested parties to resolve the adverse effects of such actions under 36 CFR §§ 800.6, the equivalent provisions of the EUHRA Section 601 procedures, and other pertinent laws, regulations, and executive orders.

d.      Establish that this office will not invest substantial staff time or budget in promoting review processes for their own sake, or in promoting the preservation of properties in which Indian tribes, local governments, historical, architectural, or archaeological interests, and the public, having had a full opportunity to express interest, have not done so. 
I realize that some of these directions fly in the face of long-standing policies and procedures articulated by the National Park Service (NPS), an important source of funding for our operations.  NPS policies and procedures are not engraved in stone, however, and I am hopeful that NPS will recognize that the time has come to explore alternatives that may be more responsive both to the public interest and to fiscal reality.  I look forward to vigorous discussion of this matter with NPS and my colleagues in the National Conference of SHPOs.
Fred Noonan
State Historic Preservation Officer

Saturday, July 27, 2013

Sidestepping Consultation: Part Three


Third and last in a series on how project sponsors and government agencies can avoid or minimize the impacts of having to consult with Indian tribes, property owners, and citizens when "complying" with U.S. historic preservation and environmental laws and regulations.

 
Ignore Alternatives

Particularly if you’ve been successful in establishing presumptions favorable to your plans (See previous discussion), you should be able to ignore a lot of alternatives that your opponents might like to see considered.  Actually, you should be able to keep them even from knowing about such alternatives, so they won’t even be able to start arguing for them.  After all, they’re probably not specialists in mining or energy production or whatever it is you’re doing, so they have no way to know what options are being kicked around among the experts.  The last thing you want to do is let them in on the secret.

So if the DeepDark Mine is intended to produce Dilithium crystals for use in matter/antimatter energy production, and there’s research underway into formulating Dilithium from sewage, you don’t want to reveal this alternative until and unless you’re forced to by a regulatory agency or by public exposure.  Neither of these is particularly likely to happen if you’ve been successful in establishing favorable presumptions.  If somebody does raise the possibility of processing sewage instead of digging the mine, you should be able to give the idea short shrift because it’s inconsistent with the agreed-upon presumptions.

Expand Alternatives

On the other hand, it’s sometimes helpful to expand the range of alternatives thrown on the table – not for extensive, expensive consideration, but just for discussion – so those that might actually work get lost in the noise generated by impossibilities. 

Outside the cultural resources and environmental arenas, the National Rifle Association in the United States has recently given us a fine example of alternative expansion.  Faced by massive popular revulsion at gun violence in the wake of the massacre at Newtown, Connecticut, the NRA vigorously espoused improved mental health as the solution.  It’s hardly debatable that improved mental health would reduce the number of nutcases with guns (or with rubber bands or chewing gum, for that matter), but fixing the nation’s mental health is a big, complicated job.  By shifting the focus from the feasible alternative of reducing the number of guns available to the mentally ill to the near-impossible task of curing them, the NRA skillfully muddied the water and thus far has once again preserved its members’ ostensible right to deploy whatever kinds of weaponry suit their fancy.

You can learn from the NRA.  Propose, say, a study of how to mine Dilithium under aquifers without polluting them, or a documentary video on the bridges of West Easterly County.  Or maybe suggest development of a web site on big blue oaks, or a tell-all book on people who’ve made out on the Kissing Bridge.  Anything to divert attention from the straightforward question of whether putting in the mine, taking down the tree, or replacing the bridge is a good idea.  Some ideas may get rejected out of hand, but some may get traction, and in any event, offering them will make you look responsive to people’s concerns while actually confusing the consultation.

Pre-draft an Agreement

In my consulting practice I strongly recommend against drafting an agreement document before you start consulting, but that’s for people negotiating in good faith.  This paper is for people negotiating in bad faith, so I can say that for you, pre-drafting an agreement is a good idea.  Make it say what you want it to say, with a few cosmetic elements designed to make it look responsible, and promote it as the obvious, reasonable solution to the conflicts posed by your project (which, of course, you don’t acknowledge as real conflicts).  This is easiest to do if you represent the government agency responsible for overseeing the consultation; if you represent a non-governmental project proponent you may need to persuade the overseeing agency to buy into your document before presenting it to the other consulting parties.  This is usually easy to arrange, because having an agreement document to work with can be presented as an efficiency-builder, something that will make the government’s life easier.  Since the in-boxes of overseeing agency bureaucrats are often just as overflowing as are those of tribal and state officials, those bureaucrats tend to welcome such efficiencies.

Runaway Agreements

Even if you can’t pre-draft an agreement document, you can minimize the damage it can do to your interests.  Of course, you can negotiate aggressively and with care – that’s only fair.  But beyond what’s fair, you can try to make the agreement as ambiguous as possible, as unclear as possible about who is supposed to do what, and as complicated as possible for anyone to try to enforce.

One simple ploy is to make the document long, with many clauses and subclauses, with special emphasis on clauses that don’t commit anyone (or at least, don’t commit you or your client) to doing anything.  In writing NHPA Section 106 memoranda of agreement (MOAs), it’s become very common to devote page after page to “whereas” clauses –  for instance: “Whereas the DeepDark Mine Company proposes to construct the DeepDark Mine.”  As that example illustrates, “whereas” clauses are supposed to state the facts, and sometimes to recite the events that have led up to the terms agreed upon.  “Stipulations” then specify what’s actually going to be done (“The Company will employ the non-ground-disturbing methodology described in Utazona Division of Mines Technical Paper 17, dated April 1 2024, to avoid intruding upon the PaleAle Aquifer”).  People can get very fixated on “whereas” clauses, both because they represent what everybody is agreeing represents the reality of the case and because they’re a place to get licks in, to make oneself look good (“Whereas the U.S. Bureau of Minerals is deeply and righteously concerned about the welfare of the Kawako Tribe.”).  Negotiators from what Edward Hall (1977) and others call “high context” societies (including most indigenous groups) may understandably want to use agreements to say things that, in essence, play well with the folks back home (“Whereas the Tribal Tribe has endured centuries of suffering as the result of U.S. government actions.”), but anybody can play the game.  You may be able to get the consulting parties so wrapped up in arguing about historical minutiae and statements of principle that by the time they get to the real meat of the document – the stipulations – they’re exhausted and have lost interest; then you can make the stipulations say whatever you want them to say.

What do you want them to say?  That depends on the real-world circumstances with which you’re dealing, of course, but you probably want them to commit you, your agency, or your client to doing as little as possible, in the most untimely possible ways.  Some commonly used strategies include:

Using passive voice.  Don’t let the document say “the DeepDark Mining Company will do X, Y, and Z;” make it say “X, Y, and Z will be done.”  This way there’s no real telling who’s going to do X, Y, and Z; nobody really has the responsibility.  You may be able to slither out of it altogether, or fob it off on somebody else; at the very least you can make compliance with the agreement’s terms hard to enforce.

Employing abstractions.  Abstract terms like “best practices,” “high scientific standards,” “due diligence,” and “culturally sensitive” can mean almost anything, and probably do mean different things to the different consulting parties. 

Do a plan.  I very commonly see agreement documents stipulating that Party X will construct a plan (or “a plan will be constructed”) to accomplish something, perhaps according to detailed standards, and perhaps subject it to detailed review by other parties – but then fails to stipulate that the plan will be implemented once it’s been constructed.  So the plan may be developed – probably taking years, and all the while your project’s going forward – and then put on the shelf to gather dust.

Kick the can.  One of the beauties of agreeing to do a plan is that usually it means the parties are agreeing that your project can go forward, subject to doing (and maybe implementing) your plan down the road someplace.  “Kick-the-can” agreements are terrible from the standpoint of the good-faith negotiator, but from a bad-faith perspective, they’re great.

Control the Agreement Document

It’s important to maintain as much control of the agreement document as you can, to either do the drafting yourself or strongly influence those who do it.  Having an impressive, aggressive lawyer at your side can be a big help here; she can sneer (even through a smile) at all the poor stupid non-lawyers struggling with a legal document, and make it clear that only she is really competent to do the drafting.  She can flummox them with what Justice Scalia has memorably called “legalistic argle-bargle”[1].  Once she’s beaten the opposition into submission, you can make the document say what you want it to say.  It’s useful, too, to have a stock of laws, regulations, and policies to draw upon as authorities for what can and cannot be done (whether they’re really relevant or not).  It’s remarkable what people will accept as authoritative, controlling, procedures.  Just the other day, I was told by a government official that the “Code of Federal Regulations” required production of certain documents.  The Code, of course, is a vast corpus of direction; when I asked for a specific citation laying out the requirement she was insisting be complied with, the official couldn’t provided it – probably because it doesn’t exist.  But it was a brave ploy, and probably works with a lot of people.

I’m sure there are lots of other ways to sidestep consultation, and I’d welcome suggestions – which can be anonymous if you wish.  Send them to me at tfking106@aol.com.

Tuesday, July 23, 2013

How to Sidestep Consultation: Part 2

Second in a series on how project sponsors and government agencies can avoid consulting with Indian tribes, property owners, citizens groups, and other concerned parties under the U.S. cultural resource management (CRM) and environmental impact assessment (EIA) laws.

Discouraging Dissent

If you can’t get away with Three-I (inform, get input, and ignore) – if you actually have to sit down and talk with people, give them the opportunity, in theory, to influence your thinking through face-to-face discussion and/or extended correspondence – there are still plenty of ways to limit your risk of actually having to pay attention.  Here are a few possibilities:

Establish and Maintain Presumptions

One of the first things to do is to establish the presumptions that will structure and control anything that resembles consultation.  You need to control the conceptual environment within which discussions will take place.  In National Environmental Policy Act (NEPA) terms, you need to define the purpose of and need for your project in such a way as to minimize the range of alternatives that are open for discussion. 

Say, for instance, that you’re proposing to put in a solar energy project that will use thousands of acres of public land and have visual impacts on thousands more.  What’s the purpose of this project, and why’s it needed?  Well, you might think that the purpose is to generate a lot of electricity in a relatively clean way.  You might think that the need is to reduce dependence on fossil fuels.  But if you let purpose and need be defined that way, there are quite a few alternatives that might be considered – distributed solar panels on rooftops, solar over canals, solar in highway medians, maybe wind energy, tidal energy, and geothermal.  If it turns out that the site you want to use is a tribe’s spiritual landscape, or the local community’s favorite place to commune with nature, or the home of a lot of endangered squirrels and sand-fleas, you may find a constituency developing for such alternatives, and you’re going to spend a lot of time and money analyzing them.

But wait!  You can argue that the federal action here – the thing that requires review under NEPA and the National Historic Preservation Act (NHPA) in the U.S. system – isn’t the generation of energy!  No, it’s the issuance of a right-of-way by the federal land managing agency to allow you to put in the facility.  So the need is for the agency either to issue the right-of-way or not to; the purpose is to satisfy the agency’s regulatory requirements.  That means that the only relevant alternatives are to issue the right-of-way or not to, or maybe to issue it with a tweak here and an adjustment there.  Once you have this established, then the presumption that all the consulting parties – the serious ones, anyhow – must share is that your project either (a) will go in and produce the public benefits you claim, or (b) won’t go in and the public will be deprived of those benefits.  Your opponents are now arguing against the public interest in affordable, clean energy and reducing greenhouse gas emissions; they’re going to destroy the planet just to protect their esthetic values or crazy religious beliefs or hangup with fuzzy critters.  Needless to say, this will put them at a disadvantage.

Bury Them in Paper

This is a very popular and effective strategy in the U.S., particularly with Indian tribes since the 1990s when statutory changes and executive orders increased the level of official rhetoric calling for tribal consultation.  It’s pretty simple; you “consult” your potential opposition about everything, by sending them letters – preferably OCLs (See “The Obscure ‘Consultation’ Letter,” above) – about every project you consider, at each and every step in your planning, or about each and every subdivision of your plan.  Particularly if you’re communicating with an official body like a tribal council or tribal or local historic preservation officer, they’re probably getting similar letters from dozens of other agencies and project proponents; their in-boxes are overflowing.  Add to the pile!  And be sure to ask – ever so politely – that they respond to you by a date certain, so you can show that, gee, you tried, but they missed the deadline and you just had to move forward.

Of course, in this day and age it doesn't have to be paper per se.  Save trees; bury them in digital media.  My colleague David Rotenstein refers to what he calls "the two-ton PDF" -- massive e-documents made available via websites or as attachments to email, or maybe on CDs.  Some people won't be able to open them at all; others will just get lost trying to work through them.  You can put a lot of garbage into a two-ton PDF (or compilation of PDFs, MS Word documents, spreadsheets, digital imagery, and so on) at very low cost.  You look like you're sharing freely with concerned citizens, when really what you're doing is swamping them.  If you were consulting in good faith you'd organize the stuff carefully to facilitate its use, but you're not, so don't.

Invite to “Cooperate” or “Collaborate”

One way to confuse and discourage a potentially adversarial consulting party is to invite them to “cooperate” or “collaborate” in your project review.  This can be useful language to use in your OCL or public notice.  The recipient or reader doesn’t want to cooperate with you, or be a collaborator (Maybe she’s old enough to remember what that word meant in Europe during World War II, or knows how it’s still used in some countries with oppressive governments).  She wants to stop your project, or change it in some way.  By inviting her to cooperate or collaborate, you may actually discourage her participation.  Conveniently, in project review under NEPA, about the only way someone can actually be consulted about the project – and then only if they’re a government agency – is to be recognized as a “cooperating agency” (40 CFR §1501.6). 

Divide and Conquer

Easy as it is to be scornful of those who oppose or dislike your project, you’ll benefit by recognizing that they’re complex human beings, each with a range of concerns, values, and priorities.  Why?  Because you can exploit their differences. 

In my practice, I often deal with cases in which proposed projects will destroy what archaeologists call archaeological sites, and what Indian tribes or local communities think of as spiritually powerful ancestor places – where ancestors’ bones were sent on to the next world, or where the elders communicated with the spirits, and maybe still do.  Neither tribal people nor archaeologists may want the places destroyed, but they’re likely to be suspicious of one another, and not readily inclined to cooperate as parts of an organized, strategic opposition.  Or maybe the Sierra Club’s hydrologists say that anything over .2 parts per million of gunk in the PaleAle Aquifer would be a problem, while to the local tribe anything above zero parts per million would be intolerable, and they just can’t talk about it in terms of how much is too much.  If you have a situation like this – not necessarily Indians and archaeologists, or Indians and water quality experts but any case where potential consulting parties are antagonistic toward one another, suspicious of one another, or have conflicting world views – you can make good use of their differences.  Subtly encourage them, build on them, and play them up with other parties, particularly those with real power, like regulatory agencies.  There’s nothing wrong with your project; you’re just caught in the middle between opposing interests.  You may not be able to escape consultation altogether, but you should be able to keep the opposition disorganized, preventing anyone from developing enough power to mount a serious challenge.

Keep the Focus Narrow

You can usually minimize participation – though you’ll probably infuriate some consulting parties – by keeping the focus of the consultation as narrow as possible.  Insist on paying attention only to the specific subject of whatever law or regulation is driving the consultation, and define that subject as narrowly, rigidly, and arbitrarily as you can.  Or use some regulatory bureaucrat to do so.  If you’re consulting under NHPA Section 106, you can try to make sure the agenda of each meeting is organized around things like exactly what makes places eligible for the National Register of Historic Places, using lots of shorthand references like “Criterion C” and “contributing element.”  If NEPA is your authority you can debate the fine points of impact significance with reference to the definitions at 40 CFR 1508.27.  When somebody starts emoting about how important the Big Blue Oak or the Old Kissing Bridge is to the people of West Easterly, you (or your consultants) can patiently explain that you really can’t talk about these places unless and until they’ve been determined eligible for the National Register of Historic Places.  That’s not true under either NEPA or NHPA, but how are the West Easterlians to know?  And if they want to worry about the fish that swim under the Old Kissing Bridge or the birds that squawk in the branches of the Big Blue Oak – well, that’s a job for the professional biologists, and the fish and birds really don’t matter (you can say) unless they’re on a threatened or endangered species list.  And the PaleAle Aquifer?  Well, it’s surely much too big and ill-bounded to be eligible for the National Register, so we really can’t deal with it under NHPA – however culturally significant its water may be to the tribe – and the water quality issues will be taken care of by the water quality experts, so really, it’s off the table as a subject for consultation. 

 You can pretty certainly count on official experts like – in the U.S. – State Historic Preservation Officers (SHPOs), the National Park Service (NPS) and environmental protection agencies to support you in keeping the focus tight and bureaucratically defined.  Such experts are usually comfortable picking professional and procedural nits, and they're unlikely to feel invested in addressing stuff that’s just important to citizens.  They’re also often pretty easy to dupe; I run into a lot of SHPO and agency experts who may be perfectly competent architectural historians, archaeologists or wildlife biologists, but whose understanding of the relevant laws and regulations is, to be charitable, very limited. 

After a meeting or two at which the professionals slice and dice esoteric technicalities while everyone else sits and fumes, people will often throw up their hands and go away.  They may write a nasty letter or two, but you can respond to these with meaningless rhetoric (See OCL above).

 Keep Secrets

This is particularly fun to do with Indian tribes and Native Hawaiian groups in the U.S.  You have archaeological surveys done, or maybe even ethnographic studies asking tribal members to cough up information on what they value in the environment, and then you decline to share the resulting data with them, their lawyers, or their allies (like environmental groups) because – you say solemnly – releasing the data might endanger the sites and special places that have been recorded.  Someone might go out and dig them up, or do other terrible things to them.  This naturally limits the opposition’s ability to frame arguments against you, or at least requires them to generate their own data, which you can usually discredit or just ignore (See below).

In the U.S. there are legal grounds for keeping data on historic places confidential[1] – not very good legal grounds, but substantial enough to confuse people.  You can count on archaeologists and regulators to be supportive; they tend to be dogs in the manger when it comes to information on their own special places, and keeping cultural places secret is a knee-jerk response among Indian tribes.

 If you’re not dealing with archaeological and historic sites, or you’re not in the U.S., there may be other ways to hide data that could be troubling.  Maybe you can say it’s proprietary, or needs to be kept confidential in the interests of national security.  If you’re representing a government agency you may have the authority to keep almost anything secret.  And of course, you can always just lie.

Maintain Professional and Bureaucratic Standards

Reliance on standards has become a popular way for some land management agencies in the U.S. to avoid considering impacts on aspects of the environment that don’t fit neatly into pre-defined bureaucratic pigeonholes.  Even if it’s not as big a head-scratcher as whether the PaleAle Aquifer is a historic property – even if, say, the local tribe says it’s the 10,000 square mile landscape overlying the aquifer that’s culturally important -- you can rub your corporate or bureaucratic chin and say “Hmm, we’re not sure how to relate anything that big and ill-bounded to the regulations and guidelines on eligibility for the National Register of Historic Places; we’ll have to study that.”  Then keep assuring the world that you’re studying the matter very earnestly, while in fact you're doing no such thing, and in the meantime ignore the landscape and plan to take care only of the “archaeological sites” that the proponent’s paid-for contractors have oh-so-carefully defined in such a way as to be easily “avoided” by the mine pits, haul roads and spoil heaps.  Somebody may point out that what you're saying is that your information on cultural landscapes is incomplete, and according to the NEPA regulations if there’s “incomplete or unavailable information” that’s relevant to determining environmental impacts, you’re supposed either to get the information or explain why you can’t (40 CFR 1502.22).  To judge from recent cases I’ve seen, however, this seems to be a pretty easy reminder to dodge.

Shift the Burden of Proof

Under U.S. laws like NEPA and NHPA Section 106, it’s the responsible federal agency – or the project proponent at the agency’s direction and with agency oversight – that’s supposed to collect, organize, and analyze data on a project’s likely impacts.  Often, though, it’s possible to shift this burden onto the shoulders of the opposition.  The tribe and environmental group think the mine will pollute the aquifer?  Well, they haven’t presented any studies proving this to be the case.  The people of West Easterly think the Old Kissing Bridge is eligible for the National Register?  Well, they haven’t proved that it is; why don’t they prepare a nomination form and see if they can get it listed?  If they buy this argument – and many will, knowing no better – then they’ll have to go out and spend the money to gather and organize and analyze the relevant data.  They’ll have to gather comparative data on aquifers and mines, collect and organize historical data, beat up tribal elders to get them to share their spiritual secrets and traditional ecological knowledge.  Best of all, they’ll have to present the data on your terms, or on the terms of the oversight agencies – maybe even having to do things like nominating places to the National Register, using the strange, utterly counterintuitive forms on which NPS insists.  By doing so, they’ll take upon themselves the burden of proving the case, in the foreign – to them – language of science and bureaucracy.  They’ll probably fail, and waste a lot of time and money in the process.  Meanwhile you can proceed with your planning and ultimately with your project, while assuring everyone that you’re waiting ever so respectfully for the tribe or the environmentalists or the West Easterlians to make their case.  If they never do, or never do it to the satisfaction of the SHPO or the NPS or the environmental regulators, well shucks, that’s not your fault.

Forthcoming in Part Three:  Ignoring and Expanding Alternatives, and Manipulating Agreement Documents


[1] Section 9 of the Archaeological Resources Protection Act (ARPA) and Section 301 of NHPA.