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Saturday, May 30, 2015

I Was Wrong

Back on April 27, I blogged about the newly published draft National Park Service (NPS) regulation on tribal plant gathering in National Parks (See I implied that the regulation was pretty good, and I assumed it was; after all, my late wife had worked diligently for some 20 years to make it happen.

Well, I was wrong. It’s a dreadful regulation. Below are the comments I filed yesterday with NPS. I hope others will read the thing and comment too. Especially tribes, intertribal groups, Native Hawaiians, and their supporters.


          May 30, 2015

Joe Watkins, Office of Tribal Relations and American Cultures
National Park Service
1201 Eye Street NW.,
Washington, DC 20005

Reference: Draft tribal plant gathering regulations: RIN 1024-AD84

Dear Joe,

I am writing to comment on the draft NPS regulation published in the Federal Register on April 20, 2015 concerning plant-gathering by tribes in units of the National Park System (RIN 1024-ADF84).

I have followed the development of this regulation with considerable interest over the years, and would like to regard its issuance as a positive step in the development of mutually respectful relationships between Indian tribes and the U.S. Government. Sadly – apparently due to late, unexplained changes from earlier drafts – I cannot. Deficiencies in the published draft include the following:

Deficiency #1: An agreement no longer functions as a permit

A key feature of the draft regulation negotiated between NPS and tribes over the last couple of decades was the provision that agreements between tribes and parks would function as permits, authorizing gathering by tribal members under tribal regulation subject to the agreement’s conditions and NPS oversight. This feature has been removed from the published draft, leaving tribes and their members subject to the requirement of 36 CFR §1.6 that they obtain a separate permit for each gathering action.

In other words, where earlier drafts of the regulation provided for tribes to regulate the activities of gatherers under the terms of their agreements with NPS, the published draft has the tribes negotiate agreements and then seek, or leave their members to seek, separate permits from the relevant Park’s management.

One is left to wonder why in the world any sensible tribal government would negotiate an agreement with NPS. What purpose would it serve, particularly since a Park’s management would be under no obligation even to consider its terms in reaching its quite separate §1.6 permit decisions? Any tribal government that gives the matter much thought is, I think, likely to throw its hands up in disgust and walk away, concluding – rightly – that its ostensible trustee, the U.S. government, has played bait and switch once again.

One also has to wonder what has driven this change from the earlier drafts. Whose oxen would be gored by not trusting tribal governments to regulate the actions of their members, subject to the various controls placed on the administration of agreements by the regulatory language? Where did this change come from, and why was it made?

I strongly suggest that NPS return to the notion of the agreement as a permit, whose terms will be administered by tribal governments subject to monitoring by the relevant Park units and regional offices.

If NPS is not inclined to adopt this suggestion, I ask that it explain its unwillingness to do so, providing whatever legal and/or policy bases there may be for this disrespect for sovereign tribal governments.

Deficiency #2: Deletion of minerals

Earlier drafts of this regulation covered not only the gathering of plants but the collection of certain minerals – specifically renewable, naturally redeposited minerals like salt and clay, collected traditionally by tribal members for personal consumption, religious purposes, and the creation of various art and craft items. This provision has been deleted without explanation from the published draft. Why?

Minerals like sand for sand painting, clay for pottery, and salt are tremendously important in the traditional cultures of many tribes; they occur in limited areas, often within National Parks. Their collection has little likelihood of diminishing Park resources. The earlier drafts wisely provided for their collection; the published one does not.

Again, my recommendation is to go back to the provision worked out in earlier drafts. If NPS cannot bring itself to do this, I request that it at least explain the reasoning behind the provision’s deletion.

Deficiency #3: Deletion of allowance for minor commercial use

The earlier drafts carefully avoided implying that minor use of gathered materials for “commercial” purposes was prohibited, and stressed in prefatory language that such minor use was not prohibited. The published draft has deleted all language relating to this issue. This creates the potential for utterly unnecessary conflicts with tribes and their members who wish to, say, sell a basket some of whose materials have been gathered from a park. Such conflicts will be absurd wastes of time – as will the controls a tribe or park will have to impose to prevent such “commercial” uses from taking place.

I request that NPS restore the allowance for small-scale and incidental commercial use, or provide an explanation of its decision not to.

Deficiency #4: NEPA overkill

The published draft requires that an environmental assessment (EA) be prepared on execution of each agreement, necessarily leading to a finding of no significant impact (FONSI). This is unnecessarily burdensome on both tribes and Parks. Given the miniscule potential for significant impact on the quality of the human environment presented by small-scale plant (and mineral) gathering by tribal members, with all the controls imposed by the regulation, agreements with tribes should be categorically excluded from detailed review under the National Environmental Policy Act (NEPA), subject to the “extraordinary circumstances” provision of 40 CFR § 1508.4. Should an “extraordinary circumstance” arise, of course an EA would be prepared in accordance with standard NEPA procedures, hopefully but perhaps not inevitably leading to a FONSI.

I request that NPS re-think its burdensome approach to NEPA review, or explain its rationale for imposing such burdens on tribes and itself.

Deficiency #5: Failure to address other authorities

Many locations where tribes and their members have traditionally gathered plants (and minerals) for cultural purposes are – by virtue of their being so used – traditional cultural places that may be eligible for inclusion in the National Register of Historic Places (NRHP). Accordingly, entering into agreements with tribes to regulate use of such places – arguably improving their management at little or no cost to the government while respecting tribal traditions – is consistent with the requirements of Section 110(a)(2)(B), (D) and (E) of the National Historic Preservation Act (NHPA). It would seem only just for NPS to take credit for this consistency. There may be some marginal possibility of adverse effects on such locations that would require review under Section 106 of the NHPA, which should also be acknowledged and addressed, perhaps via a simple “program comment” under 36 CFR § 800.14(e).

Such locations, and the activities carried out there, often have spiritual importance to tribes. Accordingly, the locations may be “Indian sacred sites” as defined in Executive Order 13007. Since that executive order not only directs agencies to avoid impacts on such sites but also to ensure tribal access to them, the regulation – if its deficiencies are corrected – would appear to advance the executive order’s purposes. Yet executive order 13007 isn’t even referenced in the published draft. Neither are the American Indian Religious Freedom Act or the Religious Freedom Restoration Act, although again, arguably, implementing the regulation (with corrections) would seem to advance their purposes.

Finally, the published draft fails to mention executive order 12898 on environmental justice. Tribes have been subjected for centuries to disproportionate adverse environmental impacts by being excluded from their traditional plant and mineral gathering places. The draft regulation (if corrected) would be a step toward relieving tribes of this burden, but the draft as published maintains and exacerbates it.

I request that the above authorities be considered and addressed in revising the draft.

Deficiency #6: Non-recognized tribes and Native Hawai’ians

The published draft makes no provision for gathering by members of tribes that are not federally recognized, or by Native Hawai’ians. I am aware, of course, of the special relationship between the U.S. government and federally recognized tribes. I also understand that the tribes consulted by NPS in drafting the regulation supported limiting gathering under agreements to members of federally recognized tribes. Nevertheless, this limitation may create unnecessary and disproportionate adverse effects on tribes that are not recognized but do constitute minority and often low-income communities, and on Native Hawaiians in similar situations. Special attention to the environmental interests of such communities is required by executive order 12898.

I understand that in California, where there are many non-recognized tribes, arrangements have sometimes been worked out under which recognized tribes in effect “stand in” for non-recognized groups having traditional associations with areas of concern or cultural sensitivity. Surely there should be ways to flex an improved version of this regulation enough to allow a recognized tribe to permit members of a non-recognized tribe to collect plants (and minerals) under the terms of its agreement with NPS.

Gathering by Native Hawai’ians certainly presents a different problem, since there are no federally recognized groups to serve as intermediaries. Since Native Hawai’ians still constitute a minority even in Hawaii, however, and particularly given the recognized and acknowledged injustice of our government’s overthrow of theirs, something should be done to respect their interests in managing and using their plants and minerals. Federal agencies including NPS have worked out ways to repatriate cultural items to Native Hawai’ian organizations under the Native American Graves Protection and Repatriation Act (NAGPRA), and Parks in Hawaii routinely consult and coordinate with Native Hawai’ian organizations on other matters. Such arrangements might serve as models for interactions regarding plants and minerals.

I request that NPS at least consider relieving the disproportionate environmental impact of its regulatory approach on non-recognized tribes and Native Hawai’ians, and if it cannot bring itself to do anything about the problem, explain why it cannot.

Relationship to Forest Service Regulation

NPS’s Federal Register notice also asked for comments on how NPS’s rule might be better aligned with the regulation recently published by the USDA Forest Service at 36 CFR 223.16.

The Forest Service’s regulation is admirably simple and straightforward, and in contrast with the NPS effort seems reasonably respectful of tribal interests. It suffers from many of the same deficiencies as does the NPS draft (limitation to federally recognized tribes, failure to address minerals, simplistic exclusion of commercial use), but these deficiencies are understandable in the case of the Forest Service given the specific authority under which it is issued. Refreshingly, in contrast with the NPS effort, the Forest Service regulation does not drive tribes through a two-step process of first negotiating an agreement and then – perhaps – getting a permit.

The Forest Service regulation was drafted in response to direction given it by Congress in the Food, Conservation and Energy Act of 2008 (the Farm Bill) authorizing it to provide trees, tree parts, and other plant materials to tribes at no cost for traditional purposes. I suggest that NPS consider the possibility that Congress’ action on the Farm Bill suggests a congressional intent that the Federal establishment actually try to accommodate tribal cultural needs, and rethink its approach accordingly. As to how the two agencies might better “align” their respective regulations, I suggest that both jointly consult with tribes and Native Hawai’ians to seek ways of arranging for tribal access to plants and minerals on both National Forests and National Parks in ways that impose minimum burdens on indigenous people.

Thank you for your attention to these concerns. If I can be of any assistance to you in addressing them, I would be happy to do so.


Tuesday, May 05, 2015

Don't Sweat the Small Stuff: Using 36 CFR 800.3(a)

Suppose you’re a federal official, or a contractor for a federal agency, with a piece of land to manage. Or maybe you’re a State Historic Preservation Officer (SHPO) consulting with such an agency.
Suppose you’re SURE that no historic properties, known or unknown, are likely to be affected by operations on the land – maybe because you’ve studied the place and consulted with everyone concerned and found nothing to be concerned about, maybe because the kinds of things being done there (say, routine maintenance) just doesn’t do any damage.
Suppose, as a result, you want to stop spending time doing standard NHPA Section 106 review on each and every operation (e.g. each building remodel or ditch-digging project, but don't know how.
What do you do?
I get this question pretty often, and people usually usually ask about negotiating a programmatic agreement (PA) or some other "program alternative." Which takes months or years to negotiate, bores everyone to tears, usually becomes dangerously bloated and subject to misinterpretation, and often, once in place, is simply (and understandably) ignored.
People, you don't have to go to so much trouble. Fixating on such things, I think, is an expression of an all-too-common distortion of​ the 106 review process, in which everybody agonizes over small, routine, pretty much insignificant issues and develops ponderous documents stipulating how they’ll be addressed.
The flip side of this distortion is ignoring the big, nasty issues and impacts and closing interested parties out of "consultation.” That last word usually defined as "getting the SHPO to approve our projects."
In other words, everybody sweats the small stuff and ignores the important cases where there are real issues to be resolved, of importance to real people.
There’s a simpler way to quit wasting time on reviewing routine, virtually-no-impact operations.
If a federal agency is really sure that its undertakings on a given facility have no potential to affect historic properties, then the agency and its helpers ought to look at 36 CFR 800.3(a). This section of the Section 106 regulations says that in initiating review of a proposed undertaking:
The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties. (underscore added)

It goes on to say:

 If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. (underscore added)

In other words, the agency can -- unilaterally and without going through any particular process, conclude that -- say -- routine operations at the Fred Noonan Institute for Aerial Navigation have no potential for effect on historic properties, and hence do not require review under Section 106. Document that for the record and proceed with no further 106 work.

No PA, no exemption, no SHPO buy-in.

I have some caveats, of course:
1.    You need to be REALLY sure there's no potential for impact -- direct or indirect, or contributions to cumulative impact, on any and all kinds of historic properties.
2.    But of course, you may be wrong, so you need to provide somehow for cases where impacts DO arise.
3.    Time passes, history happens, change comes, so you probably ought to reconsider your finding from time to time.

Some have been known to argue that if an action-type (say, ditch-digging) has the theoretical, abstract potential for impact (You can never be SURE what's in the ground, or not, or whether there's something historic about Building 72 that nobody's noticed despite the fact that it was built in 2012), an action falling into that type must be reviewed. There is some intellectual legitimacy to this sort of argument, but it is truly an argument for devoting limited resources to BS debates, and -- as one wise Federal Preservation Officer who used Section 800.3(a) effectively once asked me, "Who the &^%$# is going to sue?"

So seriously, if you’re a federal agency official, or a consultant advising such an official, or an SHPO consulting with such an official, consider Section 800.3(a). Applied responsibly, it can save a lot of time and trouble, and allow you to apply your limited personnel and financial resources to cases that actually matter.