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Wednesday, January 22, 2014

Historic Post Offices, Public Hearings, and Consultation


An Op-Ed by freelance writer Anna Hiatt on yesterday’s (1/21/2014) Washington Post “Fed Page” reported that Representatives José Serrano (D-NY) and Barbara Lee (D-Calif) have issued statements urging the U.S. Postal Service (USPS) to hold up on its sales of historic post offices, pending studies by the Service’s inspector general and the Advisory Council on Historic Preservation (ACHP).  Ms. Hiatt correctly notes that old post offices are often important community assets, and that the communities they serve often object to their being closed and sold.

This is an old, long-standing problem, resulting from changes in demographics, transportation, the way mail is handled, and the growth of the internet, among other factors.  There is probably no ready solution to it, and each case doubtless presents unique characteristics.  Each case where there are community concerns ought to get the kind of consultation among concerned parties that’s required by the regulations implementing Section 106 of the National Historic Preservation Act (NHPA), leading either to an agreement about whether and how to proceed, or to a final high-level recommendation by the ACHP.  That’s simply what the law requires.

Unfortunately, to judge from Ms. Hiatt’s article, neither side is paying any attention to what the law requires.  The USPS, she says wants to fast-track its sales by exempting them, or some of them, from review under the National Environmental Policy Act (NEPA).  The two congresspeople and other concerned parties are calling for more “public input” – specifically public hearings.

Which, if the USPS graciously gives in and grants, will accomplish precisely nothing.  

All a public hearing does is get the public heard – that is, those members of the public who attend.  It doesn’t get what they say attended to; it doesn’t  force an agency to change its mind.  It merely lets the public spout off.  The agency, having generously given the public this hankered-for opportunity, can then retire to its Olympian heights and make its decision, with no necessary attention to what the public has said.  If it's said anything sensible, which is doubtful given the counterproductive structure and dynamics of the average public hearing.  

Claudia Nissley and I discuss this at some length in our forthcoming book, Consultation and Cultural Heritage: Let Us Reason Together (http://www.amazon.com/Consultation-Cultural-Heritage-Reason-Together/dp/1611323991), and conclude that while "Americans love public hearings, ... they're not consultation, ... and often impede sensible consultation."  

Consultation being what the law (not NEPA, but Sections 106 and 110 of NHPA) requires.  Not public hearings, not public input, but consultation, which means sitting down with all the concerned parties and trying to work out an agreement.

It’s easy enough to understand why the USPS would want to obscure and ignore this legal requirement, but what would be very strange if it weren’t so commonplace is that the representatives in Congress, who must have staffs to look into things like this, could be so dumb as to do the same.  Why promote public hearings instead of insisting that the USPS do the kind of reasoning-together that might do some good, and that the law actually requires?  Consultation has a fighting chance of resulting in some kind of agreement that meets the needs of both the USPS and the communities that value their post offices.  Public hearings, by themselves, have no chance of doing anything but generating hot air.

12 comments:

Anonymous said...

A process with no time limits and no incentives that offers, at best, a "fighting chance of some sort of agreement" sounds very milquetoast. Is there such a law in America ? Or is this just a governmental guideline ? You'd think the Congress would not bother to pass laws that don't do anything except encourage "consultation", with no expectation of outcomes: "Here - talk amongst yourselves. We'll give you a topic: keeping the Old Post Offices, or not. Discuss !"

Tom King said...

Well, if you think reasoning together on a case-by-case basis is milquetoast, you're welcome to your opinion, but what's the alternative? A law saying "Thou shall never get rid of an historic post office, whether you need it or not?" I think Congress would do well to pass lots more laws calling for consultation (as opposed to mere public input or public hearings), but pretty much the only one we have right now is the one that, coincidentally enough, applies to historic post offices -- the National Historic Preservation Act.

Anonymous said...

OK, I'll buy that explanation - for old Post Offices and the like. But a consultation law is still milquetoast. If every environnmental law were like that, we would do nothing but talk, as streams were polluted, the air more polluted, species went extinct, and so forth. I mean, there isn't even a penalty for failing to reason together about the old Post Offices, is there ?

Tom King said...

My point was that consultation-to-agreement beats the hell out of meaningless public hearings, but is it less powerful than "thou shalt not" or "you get a big fine if you do" laws? Sure, but the trouble with those "strong" laws is that they work only with respect to pretty clearly defined things -- "You're in trouble if you put more than X ppm of gunk in the river." With softer, squishier things like the cultural value of places, it's very hard to apply such a strict law. Further, the stricter the law, the narrower the range of things it gets applied to, so if you say "Thou shalt not knock down old post offices," you're going to get all wrapped around how old the post office has to be, or how fancy, or whether some high-placed but irrelevant party like the Secretary of the Interior thinks it's a good 'un. A consult-to-agreement arrangement, without many limits, avoids all that silliness.

About this site said...

Anna Hiatt's article in the Post was a news article, not an op-ed, and I'm not sure where it gives the impression that neither side is paying attention to what the law says. The Postal Service is well aware of NEPA, Section 106, Section 110, and all the other legal requirements (including executive orders) for disposing of its properties, and the other side — the National Trust, the ACHP, and numerous "Save the Post Office" organizations across the country — are well aware of them too. The sale of the historic Stamford CT post office is being challenged in federal court on the grounds that the Postal Service has not followed NEPA, NHPA, etc., and you can be sure the lawyers on both sides are all well aware of what the law says. The problem is that the two sides have conflicting interpretations of what the laws say, and critics of the sales say the Postal Service is not following these laws. As Hiatt's article explains, the USPS OIG is investigating these claims. The issue is not whether there should be public hearings — there obviously should be even if the Postal Service doesn't want them — but getting the Postal Service to follow the many other legal requirements for preserving and disposing of historic federal buildings. The Postal Service is not very interested in consultation, public hearings, or anything else that would get in the way of its plans. It wants to do what it wants to do.

Tom King said...

Thanks for the clarification; unfortunately, my own experience suggests that whatever the parties to this controversy may ostensibly know, they're unlikely to interpret the law to demand thoughtful consultation, and more likely -- as Ms. Hiatt's article reported -- to focus on such procedural nicities as public hearings.

About this site said...

Tom, I guess my comment was meant really more as a question than a clarification. I was only saying that in this case the parties do know the law, but one of them, the one that's really in control of the process, doesn't really care very much about consultation with relevant stakeholders like the ACHP, National Trust, SHPOs, and the public. What do you do when the Postal Service says the buildings will simply be sold to the highest bidder, shows no interest in exploring alternatives (like leasing extra space or finding other public uses), and gives every indication of not caring about its obligations to engage in constructive consultation?

Tom King said...

Well, the Postal Service has a long (long, long) history of aggressively uncreative thinking about its historic preservation responsibilities. It's not at all surprising that it would dig in its heels, play the "we're not a federal agency" card, and otherwise try to slime out from under the law; it's a long-standing tradition. I don't know of anything to do but insist that they DO what the law requires, but if everybody goes along with the notion that the law can be satisfied with public hearings, then they can "comply" without really doing anything. The 106 regs require an MOA in a case like this -- which is SUPPOSED to be a negotiated document -- UNLESS they can make everyone agree that dumping the building won't have an adverse effect. If one views that question -- adverse versus no adverse effect -- solely from the standpoint of the building's architectural values, then one can probably make the case that transfer with some kind of ostensibly protective covenants will make the adversity go away. But if the building's significance lies substantially in its cultural value to the community, and you can make that case, then you OUGHT to be able to push them into consultation toward an MOA. The NTHP is likely to understand this and try to make the case; the ACHP -- well, I doubt it, but maybe I'll be surprised.

Anonymous said...

Any thoughts about how the murals in the post offices will/should fare in the end, after the hearings/consultations,etc?

Tom King said...

The fate of murals, I should think, ought to be among the subjects of consultation. What's reasonable in one case may be unreasonable in another, but negotiation among interests SHOULD lead to responsible solutions. What won't work is prescribing one-size-fits-all "solutions."

Anonymous said...

Who is representing the murals? Is there a national arts organization that is participating in the negotiations in order to advance the public art interests that the murals express?

Tom King said...

As far as I know, no organization is "representing the murals," but I could be wrong; if there are consultations taking place I'm not privy to them.