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Friday, August 23, 2013

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……

7 comments:

Anonymous said...

SHPOs enjoy a "no fault" free ride through the NHPA process. They only give opinions, and so they are never accountable for anything they say or do. It ain't a bad "gig" really, being SHPO. The pay ain't so hot, they tell me. But since all you have to do is hand out worthless opinions all day, you can say whatever you want, never have to answer for it, the job is steady, and you get a fancy title. What's not to like ? I think you're just
jealous.

Tom King said...

You're probably right; jealousy burns in my stomach. Many many years ago I did help the New York Archaeological Council sue the NY SHPO (as well as a federal agency and a dozen or so grant recipients) for violating Section 106; it was a very rewarding experience, and oh my, was the SHPO in a high dudgeon!

Mark Franco said...

Tom, once again you have hit the nail on the head and hopefully the folks who do this sort of bass-akwards consultation with wake up and see the potential for better preservation for the future generations. Thank you for keeping folks honest and for your continued presence in NHPA process!!

Matthew said...

Having worked as DSHPO for archaeology in Utah from 2006-2008 (Dr. Matthew T. Seddon), I find the outrage in this blog and the comments difficult to understand. Please allow me, heartless, brainless, and lacking in courage as I may have been, provide some context from the perspective of someone who worked in a SHPO office. On the face of it, the agency person asked for a contact person in a letter, and, in a letter the SHPO office provided said contact person. Yes, the initial letter is riddled with problems, but, having been DSHPO I can tell you that this is not the most problematic letter ever received. Heck, on the scale of tough letters (with 10 being the worst), this is about a 6.5. Indeed, this person is, albeit awkwardly and no doubt having been poorly trained, asking for help before doing anything drastic. Wow, that's ahead of a lot of letters I would get. SO, step one, and this was my Rule #1 as DSHPO – KEEP THE CONVERSATION GOING. As long as you're talking, nothing is destroyed yet. So, you send the letter, please contact person X. Then, who knows what the SHPO staff member did. If it was me, though I was but brainless, and heartless, and lacking in courage and a flunky for developers (as noted on the Facebook comments on this blog), I would probably call said person, maybe drive out and visit, see how much time we had, see how problematic this would be, do some teaching, bring them along. I could, I suppose, if I were not brainless, and heartless, and lacking in a spine, and not just a staff hire of a political flunky, fire off a really nasty letter telling them how awful and stupid they were. That would be fun, and very satisfying, and were I not brainless, and heartless, and spineless would be something I would dream about doing often, perhaps even do once or twice. But see, since you don't know what's really going on behind such a letter, since you don't at that point really know the full story which was, in my experience, often rather complex, you are operating a bit in the dark and you have no idea what reaction you will get. So, just perhaps, you play along, work with the person, do some teaching yourself, because Dr. King, after all, can't be everywhere. Myself, I figured I could get a lot more done if I had a long-term relationship with someone, even someone who was poorly trained, or confused, or just crying out for help, than someone who was mad because they got whacked for something they didn't understand to begin with.

Yes, they should have read all of Dr. King's books.

As I had.

But, you know, the quality of mercy is not strained.

But that's just me, a former brainless, heartless, spineless, hire of a political flunky who did the bidding of developers. Just call them developers up and ask 'em how much they liked me. Such a cushy job, the SHPO, everyone loves you. You never have a day when you get yelled at by A. A developer (in steel toed boots outside your office), B. A high level federal agency manager, C. Someone higher up than you in the state who just discovered you exist and wonders why that is, and D. A member of the public who is outraged that you haven't stopped a project you haven't heard of yet, only to go home, fire up good ol' Facebook and discover that you are brainless, heartless, and spineless. I sure miss it.

Tom King said...

Oh Matt, cool your jets. Nothing personal meant; I used to know quite a few responsible, thoughtful, hard-working and even wise SHPO staffers, yourself for a time included. But such people, I find, are becoming thin, oh so thin on the ground. We're into at least the 4th or 5th generation of SHPO staffs, and I fear they've steadily devolved. Partly due to economics; SHPOs can't afford to hire quality staff, so they don't, and partly -- very largely -- because the ostensible leaders of the program (NPS and ACHP) have thoroughly lost track of what it's about, and provide no useful guidance. So we have poorly trained SHPO staff, getting no serious direction, with scant understanding of the regulations, just sorta playing it by ear. And their default response to agencies is simply to insist that nobody move without their permission, and as long as you submit to their overlordship you can pretty much do what you want.

Does everybody do it that way? No, but more and more do, and there's nothing in the system to discourage them, so for what (almost nothing) it's worth, I'll try.

What should the reviewer in this case done? Maybe given some thought to the possibility that there were people inside the agency trying to make the system work (The reviewer in this case should have known this) and said "Gee, thanks for contacting us, but you're really a bit late in the game and I'm afraid you may have put your foot in it. Here's what you're supposed to do according to the regulations (explain) and I'd recommend that you seek some help from (identify FPO). Please contact me at (phone or email) and let's discuss." Would that have been soo hard?

Matthew said...

Point well taken, Tom. I was angered by the casual tossing about of some strong and hurtful terms: "brainless, heartless, lacking in courage." My jets did need to cool.

Jets now cooled.

A more honest statement on my part would be that my feelings were deeply hurt. The two years I spent as DSHPO were, ultimately, harder than I could take, in no small part because of what I experienced as an atmosphere of petty meanness that pervades the system. I was accused by people in my own office of "betraying archaeology" in cases where I keep a dialogue open rather than simply fire off a "you screwed up" letter. I still believe that official letters aren't always the best places to do education. I tried them, and found that strangely they tended to make an agency retrench, harden their positions, and I had to make the phone call anyway.

No doubt, when such letters need to be sent, when there was no other choice, I sent them. See my comments on Oil and Gas Leasing in the BLM Vernal Field Office, or the letter I sent to the BLM State Director about the Westwide Energy Corridor PEIS that was about to be run through the high concentration of Paleoindian sites in the Sevier River Delta, or the letter I sent about the tribal consultation on the Lake Powell Dredging project in the Glen Canyon National Recreation Area. Sometimes the consultation comes in in such a way that you have to fire off that letter. I'm sure every SHPO and THPO office has sent similar letters, and 99% of them are never seen or heard of by the public, or even people in your own office as you send them and keep moving on. However, often you can find ways to keep the clock running and keep talking. Overall I found that calling, meeting people on their turf, worked best for me, but I took no small amount of grief for that perspective.

Having cooled my jets and tried to again offer a little more insider perspective on the thinking that goes on behind a "do I send a letter, what letter, or do I call" decision by a SHPO staffer, I can move on in the conversation.

Reflecting on your thoughts and my experience from a spiritual, perspective and with my jets cooled, I do wonder about the tone of historic preservation dialogues. As you often, wisely, and correctly point out, 106 and the 800 regs are ultimately about talking to each other, working things out. Such meetings were where I tried to spend most of my time as DSHPO, struggling to also respond to the flood of over 4,000 consultation requests a year. This dialogue often happens in tense situations with multiple, conflicting (and yes, often equally valid) opinions, plus a lot of experiences based on previous (and not always mutually supportive or even remotely kind) dialogues and consultations. I might ask, what kind of view do we need to have of each other - proponents, agency officials, SHPO's and staff, the public - to support an honest and constructive dialogue that at least recognizes the dignity of every human being in that dialogue? Do remarks that paint all folks with the failings of others, remarks that could be seen as prejudicial, help such a dialogue?

I resolve that as I continue to participate as I can in this important dialogue, I will once again recommit myself to focusing on the dignity of every human being as I take my part in the discussion. I hope this exchange helps others do the same.

Tom King said...

Thanks for your understanding, Matthew. I don't mean to offend, but I don't have much patience for being nicey-nicey, either. And it doesn't seem to me that the SHPO in this case would necessarily have driven the agency to dig in its heels if he or she had send in a thoughtful, dispassionate response saying something like: "I'm afraid you may misunderstand the requirements of the law and be backing yourself into an untenable position; what you should be doing, according to the regulations, is consulting with us and other concerned parties before deciding to demolish the building. We'd be happy to help you do the process right, but if you want to do it wrong, I'm afraid you're on your own."