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Saturday, June 28, 2014

"Representing" an Indian Tribe: Part Two

Background

On June 25, I posted a copy of a letter that I’d written to Department of Defense John Rymer about the behavior of the Seattle District, U.S. Army Corps of Engineers (See immediately preceding post below).  Needless, I imagine, to say, I’ve not gotten a response. 

Here, I want to focus on one part of my letter – in which I said:

What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor ……………. to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

It’s that naïve expectation I’d like to explore a bit here. 

The Naïve Expectation

To elaborate: my expectation went like this:

1.    The purpose of an environmental impact assessment (EIA) is to make a fair, honest, comprehensive, at least reasonably objective assessment of a proposed action’s environmental impacts.

2.    That’s presumably what the company in question has been engaged to do, in this case in the form of an environmental impact statement (EIS).

3.    Part of their scope of work, presumably, is to gather the data necessary to form a basis for this assessment.

4.    So they ought to welcome input from all sources.

5.    My experience is that in this case, for whatever reason, it’s been hard for the Corps to quite come to grips with the Tribe’s concern for the landscape, as opposed to the specific archaeological site.

6.    Ergo, the company ought to welcome and respond positively to what amounted to an offer to facilitate their coordination with the Tribe, to help ensure their understanding of the Tribe’s environmental concerns.

But….

Well, I was obviously wrong, because the company’s representative did not take my call, did not return it, and indeed the only action the company seems to have taken was to scurry off to the Corps, or perhaps to their more immediate client, to report about me – whereupon the Corps undertook to sever my relationship with the Tribe.

Discussion

I hear my contractor colleagues chortling:  “Serves you right, King.  What did you think they’d do?  Their responsibility is to their client.” Who is probably either explicitly or implicitly (through a funding arrangement via the Corps) the project proponent.

Which strikes me as a problem.  If your responsibility is to your client – who very likely wants the project to move ahead, or at least to see it processed through the regulatory system with minimum muss and fuss – isn’t that a tad inconsistent with your responsibility to do a fair, balanced, comprehensive assessment of impacts?

To be fair myself, I’ve tried to imagine the shoe being on the other foot.  What if someone had called me up and said “Look, your tribal client isn’t giving you the full story, and I really think you ought to consult with XYZ?”  Would I have run off to the Tribe to tell them?

Well, yeah, maybe I would have, but then, I’m not under contract to produce an impact assessment; I’m under contract to help the Tribe get its point of view attended to.  If my job WERE to assess impacts on the environment, presumably in service to the greater public good, I DON’T think I’d go tell my client about the call.  Instead I’d try to follow up on it, see whether it revealed anything that was relevant to my analysis. 

Why?  Because my responsibility as an impact analyst would not be to my very likely (duh) self-interested client, but to the environment, and to the “public interest” that the Corps is so wont to spout off about. 

Moreover, I’d argue that even my client’s interests would be better served by my being open to information from outside – even from “the other side” – than by having me consider only sources approved by the client.  If they want only their own information considered, why in the world do they need me – or the company – to consider it?  Just to put a polish on the analysis to impress the review agencies and flummox the public?  That’s not supposed to be what EIA is about, but to me it doesn’t even seem like good business.  “Look before you leap” is good business, and you can’t look if you deliberately blindfold yourself. 

It seems to me that if I were the EIA company my responsibility to my client – if I have one, as opposed to a responsibility to the environment and the public interest – is to help my client avoid being blindsided.  I should find out what the hot-button environmental issues are, so they can be factored into planning and decision-making before they burst out in a public hearing or become grounds for litigation.

But to judge from my experience with Col. Estok and his troops, and the EIA company, mine is at best a minority opinion. 

Would anyone care to articulate the majority opinion?  

9 comments:

Anonymous said...

Estok is retiring this month. I wonder if the his replacement will be more responsive and responsible.

Tom King said...

Maybe, but the institutional, policy, and legal issues remain to be resolved.

Anonymous said...

NPI is providing a course in Seattle in September on Native Sacred Lands. It might be a good opportunity for exposure to the subject for those involved in the Corps NHPA/NEPA process.

http://www.npi.org/sem-consult.html

The Anonymous Archaeologist said...

This is yet another example of the inherent conflicts of interest built into the current system of environmental regulation in general and CRM in particular. Does anyone else find it a little odd that the ones who pay for the cultural resources work (i.e. the clients) are the ones who benefit the most from not finding any cultural resources? You can try your best to serve the public interest and the environment, but you are still balancing that against a client who cares mainly about their budget (and probably a boss who is largely concerned with pleasing that client). Of course, as you bring up, the client should realize that in the long run they will be better served by someone who does a more thorough job. However, as long as clients keep getting away with doing a perfunctory and half-assed job of complying with the regulations, they will always opt for the easiest and cheapest way out. And we all know that the easiest and cheapest route is generally to run roughshod over whatever stands in their way.

Tom King said...

Indeed. See my most-ignored book, "Our Unprotected Heritage," Left Coast Press 2009, which is all about that very topic. And as I said, most ignored.

Ryan Duddleson said...

To continue the discussion a bit - I'll be interested to see how this situation in particular plays out. But, in general, as we continue to receive similar "responses" to our minority opinions, for me it's difficult to see what can be done other than to continue to issue the minority opinions, no matter how well or poorly they might be received.

Tom King said...

Unfortunately, I don't see any options either. It'd be nice to think that some member of Congress would get interested in corrections, but it doesn't seem to be a subject that's got any political traction.

Anonymous said...

Tom - Of course the EIS consultant goes back to the client before contacting you or the tribe. You can't presume to know what is in their scope of work; it might not contain budget to track down the story of every crank who calls them. But a smart consultant would know how to pressure the Corps into a contract mod to go spend say 250-500 hours of labor on the Lummi lanscape concerns, give them a cursory hand waving write up in the EIS and then summarily dismiss them as not relevant/important. Sometimes feel like I am the only person who really understands how to conduct NEPA.

Tom King said...

No, Annon, I can't know what's in their scope of work. But my point is that if there scope of work says "don't collect any data without the prior approval of the client," that makes a perfect joke of the idea of environmental impact assessment. "Don't tell me what the impacts of my project will be unless they're impacts that I pre-approve." Sure, boss. What a sham.