Below, a letter that went out today to the Secretary of the Interior about what her minions in the Fish and Wildlife Service are up to. I do not expect it to accomplish anything; I may (or may not) get a letter from some dweeb in the Secretary's office thanking me for my input and assuring me that the Secretary and the Obama administration are so, so interested in public input, and then they'll pass the letter to another dweeb in Fish and Wildlife to file and forget. But one has to do SOMETHING.
And I know it's the same old thing. That damned brick wall just keeps standing there, taunting the head.
August 15, 2016
The Honorable Sally Jewell
Secretary of the Interior
1849 C Street, N.W.
Washington DC 20240
Washington DC 20240
I am writing to object in the strongest terms to something purporting to be the “policy” of your Fish and Wildlife Service (FWS) regarding “cultural resources,” posted recently on the Worldwide Web at https://www.fws.gov/policy/614fw1.html.
I am perhaps suffering under a misapprehension, but I thought that the Administrative Procedures Act required interagency and public review of such documents before their issuance. I see no evidence that this “policy” was subjected to such review, and cannot believe that if it had been, it would have survived to appear in its present form. As it stands, it appears to be almost deliberately designed to lead FWS officials into noncompliance with at least the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA). I presume, however, that no ill intent was involved; rather, I suspect that a group of inexperienced and ill-educated FWS employees came up with what they thought was a good idea, and somehow got their superiors to sign off on it.
Their superiors should seriously re-think their approvals.
The “policy” is so riven with errors and misleading statements that I cannot begin to take the time to identify them all, but let me just point out a few low points:
1. Conflation of the NEPA term “cultural resource” with the NHPA term “historic resource.” “Cultural resources” are among the “unique characteristics” of a potentially affected area that the NEPA regulations at 40 CFR § 1508.27(b)(3) require an agency to consider in judging the significance of a proposed action’s potential effects. Since the term is not defined, one is left to assume that it means “resources” (useful things) whose value is somehow “cultural.” The term “historic resource” is also used without definition in 40 CFR § 1508.27(b)(3), apparently to mean “resources” that are somehow “historic” (i.e. old). The same term was defined more narrowly by Congress at Section 301(5) of the NHPA to mean places included in or eligible for the National Register of Historic Places maintained by your National Park Service (NPS).
The FWS “policy” conflates the terms, effectively saying that if something is not a NHPA historic resource – or an artifact or old document -- it is not a NEPA cultural resource, and therefore presumably need not be considered under either statute. Actual direction about how to recognize and deal with “cultural resources” is overwhelmingly oriented toward historic resources; after an initial mention, all other kinds of “cultural resources” are forgotten.
This defines rather substantial parts of the cultural environment out of existence. Apparently to whoever dreamed up the FWS “policy,” such cultural institutions as the hula in Hawai’i and the practice of decorating graves in the southeastern United States are not “cultural resources.” More directly relevant to the FWS mission, can one seriously say that bison are not cultural resources from the perspective of a Plains tribe? That salmon are not cultural resources for tribes of the Northwest? That wild horses and burros are not cultural resources despite Congress’ declaration in the Wild and Free-Ranging Horses and Burros Act of 1971 that they are “living symbols of the historic and pioneer spirit of the West?” That eagles are not cultural resources for a great many tribes, and indeed for the United States?
By essentially writing off any “cultural resource” that is not an “historic resource” (or maybe an artifact or document), your employees in FWS are excusing their agency from considering its impacts on cultural resources that are not pieces of real estate eligible for the National Register. I hope that you do not support such a narrow, crabbed interpretation of any Interior agency’s responsibilities.
2. Exclusion of land acquisition from NHPA Section 106 review. The “policy” “reminds” readers that “land acquisition is not an undertaking with the potential to affect historic properties” – meaning that it does not require review under Section 106 of the NHPA and its regulations (36 CFR Part 800). Has this conclusion been embodied somewhere in formal Department of the Interior policy, as the notion that one should be “reminded” of it suggests? If, for example, cattle ranching is a traditional land use of long standing in Wildherd County, Nevada, such that many working ranches there may be eligible for the National Register, and if FWS proposes to acquire such ranches for purposes of improved sage grouse habitat management, can you seriously contend that this acquisition has no potential effect on historic properties? If so, I suggest that someone needs to lay out the logic on which such a contention is based, and subject it to public and interagency review.
3. Bias in favor of “experts” and against the public. The “policy” asserts that “only a subject matter expert may identify a property as historic.” Based on some fairly substantial experience, I am not aware of any law, regulation, or even general policy guideline (other than the one discussed here) that could serve as a basis for this assertion. Expert opinion is sometimes needed to determine what is historic, but anyone can nominate something to the National Register or propose that something is eligible for it. Particularly with respect to “traditional cultural places” – a category of “resource” explicitly listed in the “policy” – NPS guidance stresses that evaluation must be done in close consultation with those who value such places, who are not ordinarily “subject matter experts” as defined in the “policy” (i.e. professional archaeologists, historians, etc.). The NHPA Section 106 regulations, at 36 CFR § 811,4(c)(1), requires that agencies “acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.” The geniuses who put together the FWS “policy” apparently think that such expertise exists only among members of tribes and Hawaiian groups who are also archaeologists, historians, or architectural historians.
Seriously, Madam Secretary, you are presumably paying people to put out stuff like the FWS “policy;” you really ought to insist that they do their jobs, and not leave it to unpaid outside critics like me to call them on their mistakes.
Please have your people withdraw the “policy” and rework in in consultation with people who have some idea what they are talking about, including relevant other federal agencies and the public.
/s/ Thomas F. King