Tom King's CRM Plus

That Petition

2012-01-29T07:53:00.000-08:00

I understand that so far I’ve under 100 signatures on my petition to President Obama about reforming environmental impact assessment. Not surprising, I suppose, since it’s a fairly esoteric topic and many of those interested in it are also self-interested in maintaining the status quo. I’ve given the effort till March 1, at which point I’ll decide whether to deliver it or forget it.

So please, if you’re inclined to sign it, do so, and please distribute it to others who may do so. Here again is the text of the petition and the URL where it can be signed.

"Please seek amendments to the National Environmental Policy Act, or issue an Executive Order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects."

Sign at: http://signon.org/sign/president-obama-reform?source=c.fwd&r_by=408029

One gratifying thing is that a number of Indian tribes and tribal members are signing it, even though it’s not explicitly worded to address tribal concerns. I think tribes recognize that rotten, self-serving EIA is causing unnecessary destruction of environments important to them, and short-circuiting the respectful consultation the President Obama and Secretary Salazar keep promising. I hope more tribes and tribal members will sign on, and I very much hope others will, too. Wasting time and money on EIA that just whitewashes proposed projects, fails to consider feasible alternatives, and shuts the public out of decision-making serves no one. In the long run it doesn't help even those who do whitewash EIA, because it erodes the value of such work to the public, and thus undercuts support for even bothering to do it.

I’ve heard from a few in the EIA community who think I’m nuts for tilting at this windmill, and some who think I should instead be working quietly behind the scenes to help the Council on Environmental Quality (CEQ) improve things from the inside. I’m all for working quietly behind the scenes, and believe it or not have done so fairly effectively from time to time. But I’ve seen no evidence that CEQ or anyone else in this administration is interested in getting help, or for that matter that they even recognize the existence of the problem. Yet the problem seems so obvious; here’s a reminder:

1. Project proponents prevail upon the political system to support particular projects or programs with little or no consideration for their potential environmental impacts.

2. The proponents are then tasked with finding out what those impacts will be, and reporting them to agencies that often have been (or think they’ve been) given their marching orders to “streamline” review.

3. The proponents hire (and hence can fire) the EIA firms that do the studies.

4. The EIA firms give their clients good report cards (how could they do otherwise?), and carefully avoid considering alternatives to the projects they review.

5. The public, and such very interested parties as Indian tribes, are effectively shut out of the process; there may be public hearings and opportunities to review draft reports, but not to influence decision making through serious, good-faith negotiation. Even with tribes – with whom agencies are required by multiple laws to consult – “consultation” is often only a pro-forma matter that wastes time and patience, accomplishing nothing but to wear people down until they acquiesce in disgust.

What should be done? Well, the following is from a letter I sent on December 18 of last year to the president’s senior policy advisor on Native American Affairs and to the Chair of CEQ. Having outlined the problem, and illustrated it with a specific case, I suggested that action be taken to reform the administration’s approach to EIA and tribal consultation, saying:

“Such an approach might have the following elements:

1. Honestly establish what the environmental impacts of proposed actions – including but not limited to “green” projects – are likely to be before supporting and promoting them, and before telling the federal establishment to fast-track their implementation;

2. In the course of such impact assessment, honestly consider a reasonable range of alternative ways to achieve the public purposes of such actions;

3. Do not allow agencies to rely on data on and analyses of impacts and alternatives prepared by project proponents unless they have been thoroughly vetted to eliminate bias;

4. Actually consult with tribes, as well as with other stakeholders, about whether and how to proceed with projects, which alternatives to pursue, and how to mitigate adverse effects; and

5. Don’t lie.”

Yes, that seems pretty simple. Unsurprisingly, my letter has gone unanswered.

Sign My Petition?

2012-01-25T17:32:00.000-08:00

OK, it’s a windmill-tilt if ever there was one, and a mark of my growing frustration, but there it is: I’ve started a petition drive. It’s aimed at President Obama, and it says:

"Please seek amendments to the National Environmental Policy Act, or issue an Executive Order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects."

Pretty simple, pretty obvious, but something has to be done. Since I published my book about it in 2009 (Our Unprotected Heritage: http://www.lcoastpress.com/book.php?id=219), the situation has if anything gotten worse. Environmental Impact Assessment (EIA) is simply understood to be, and generally accepted as, a whitewash of a project’s environmental impacts, by specialists who view themselves as (and indeed are) members of a project proponent’s planning team. This has two obnoxious effects:

1. It allows environmental impacts of all kinds – notably in my experience those on people, communities, and their cultural values – to be ignored, and

2. It undercuts public support for the conduct of impact assessment; if it’s crooked, what good is it?

The situation is especially odious where “green” projects like wind energy and solar power are involved. Since so many environmentalists have gotten on the bandwagon for such project, there’s almost no one to ride herd on their impacts and try to keep them under control. So agencies like the Bureau of Land Management are cutting corners and signing off on environmental assessments and impact statements whose pro-project biases couldn’t be clearer if they were emblazoned in neon on illuminated billboards, and utterly ignoring those Indian tribes and others who have the guts to object.

Will you sign my petition? Click here to add your name:
http://signon.org/sign/president-obama-reform?source=c.fwd&r_by=408029

Two Years of Studies!

2012-01-19T13:05:00.000-08:00

I was browsing a shop at O’Hare Airport today, and the shop’s TV was blaring.

“They’ve had TWO YEARS to study the impacts of that pipeline!” some talking head (Rick Perry, I think; I couldn’t see the screen) was saying with disgust. “That’s ENOUGH! It’s time to APPROVE IT!”

I assume the subject was the Keystone XL Pipeline. The thought that ran through my head was: “does it never occur to this doofus that one might study something for two years and conclude that it was a bad idea?”

Of course I know that it would not – particularly if the doofus was Perry, but quite likely if it was almost any other American citizen. We’ve become used to the idea that studies – particularly things like environmental impact assessments – aren’t really supposed to TEACH us anything or provide a basis for making informed decisions; they’re just things that have to be gone through, part of the price of doing business, on the way to doing what we’ve already decided to do. Sometimes, of course, we don’t bother to do studies at all (case in point: invading Iraq without thinking about what to do afterwards). Other times we waive planning studies or attenuate them into near-nonexistence (case in point: Deepwater Horizon). But even when we do them we don’t take them seriously, and don’t entertain the idea that they might lead us to re-think our initial prejudices.

Unfortunately, it’s not just the Rick Perrys of the world who think and act this way. The Obama administration has been – and continues to be – just as big a bunch of doofuses (doofi?) when it comes to its own pet projects, be they renewable energy development or high-speed rail. And we who do the studies – at least we who do environmental impact analyses – haven’t done a thing to discourage this doofusity. We’ve happily drawn our fees doing bogus studies that make our clients’ projects look benign – maybe stretching them out for quite awhile and sucking as much money out of them as we can, but never, never, never allowing them to suggest that a project is a bad idea.

And after all, how could we? We’d be fired if we did.

I don’t know much about the Keystone XL, but I do know that two years isn’t too long to study the potential impacts of such a project, particularly when it will presumably have the effect of accelerating the despoliation of the Canadian landscape overlying the tar sands, with all its attendant effects on water and air quality, wilderness values, wildlife, First Nations rights, and other natural and cultural resources. And I wouldn’t think it entirely beyond reason for such a study – of whatever duration – to provide a rational basis for concluding that on balance the U.S. government ought not to be a party to the scheme.

Except, of course, that such studies don't provide a rational basis for anything. They have long since become so unreliable, so biased, so untrustworthy as to be useless.

Which still doesn’t lead reasonably to the conclusion that two years’ study is enough, though; it’s probably way too much.

"Indian Sacred Sites"

2012-01-12T07:00:00.000-08:00

There’s a good deal of discussion around Washington DC these days – particularly in the Departments of the Interior and Agriculture, with encouragement from the White House – about “Indian Sacred Sites.” It’s pretty widely recognized that President Clinton’s 1996 Executive Order 13007 on the subject hasn’t accomplished much, so several gaggles of government lawyers and subject matter specialists, together with political appointees who may be either, both, or neither, are pondering what might be done to make it work. After, in some cases, extensive and ponderously documented rounds of “listening sessions” with the tribes. Is there anything more childish, demeaning, and flatly insulting than a government-sponsored “listening session?” But I digress.

Executive Order 13007 was issued in the wake of, and in response to, the Supreme Court’s deeply unfortunate decision in Lyng v. Northwest Indian Cemetery Protective Association (1) . This decision was rendered on a case involving a proposed Forest Service road through what the Karuk, Yurok, Hoopa and Tolowa Tribes of northern California refer to in English simply and respectfully as “the high country” – a craggy ridge on the top of the North Coast Range where tribal people go to gather and make medicine and to communicate with the spirit world. The Supremes found, in essence, that blasting the road through the area would not violate the Free Exercise Clause of the First Amendment to the Constitution – it would not “prohibit” the tribes from practicing their religion. They’d just have to dodge the trucks.

Unable to get Congress to do anything (even back then!) about what the Supremes had decreed, the tribes turned to the White House; President Clinton listened, and Executive Order 13007 was the result. Its laudable intent was to require federal agencies like the Forest Service and Bureau of Land Management to do what they could, within the framework of law and policy, to protect the physical integrity of places that tribes regard as spiritually significant, and to guarantee – again within reason – that tribal religious practitioners could gain access to and use such places. But it employed some unfortunate words, some of whose interpretation produced some unfortunate definitions, that have complicated efforts to implement it. I think that those involved in re-thinking “sacred sites” management today would be well advised to ponder these words and definitions, because without somehow resolving their inherent contradictions, there is little hope for achieving the executive order’s purposes.

“Site”

Though the executive order contains a number of problematical terms, the three that are perhaps most troubling make up its title. Taking the last first: what is a “site?”

“Site” is not always very meaningful as a division of tribal geography. Tribes usually occupied and used fairly large territories with somewhat vaguely defined boundaries; tribal territories could and did often overlap. Within these territories there were – and are – some fairly well-defined geographic features (River valley X; mountain Y), and many others that were not so well defined. Most land was not formally owned by individuals, so there was little or no need for the strict demarcation of boundaries. As a result, even an obvious landscape element like a mountain might have ambiguous boundaries. It’s obvious where the top of Mt. Everest is, but where are its feet?

In this sort of environment, with this sort of spatial ambiguity, what constitutes a “site?” Is a mountain a “site?” A river valley? Or does it have to be something smaller, with clearer boundaries? If so, how small does it have to be, and how clearly defined must its boundaries be? Given that tribes did not usually assign tightly defined boundaries, what is the basis for defining them?

In Section 1(b)(iii), the drafters of the executive order told us that to be a “site” a place must be “specific,” “discrete,” and “narrowly delineated.” “Specific” makes sense: a given site must be this site, and not confused with that site. But what does “discrete” mean? Dictionary.com says the word means “apart or detached from others, separate, distinct.” But this is exactly what many places viewed by tribes as “sacred” are not. The site known as Panther Meadows in northern California, for instance – well known as a place of spiritual power among the Wintu and other local tribes, is on – and therefore clearly not separate, distinct, or detached from – Mt. Shasta, which is also (with very ambiguous boundaries) regarded as a spiritual place. This sort of thing is quite common, and is hardly unique to Indian tribes. Consider the Sea of Galilee, for instance – surely a “sacred site” for Christians, but containing within it the shoreline where the loaves and fishes were multiplied, the rock outcrop on which Jesus told Peter he would be the rock on which his church would be built, the water on which Jesus walked, and so on. If we were applying the executive order in Israel, would we say that the Sea of Galilee is not a Christian sacred site because it is so indiscrete as to contain all those other sites? “Narrowly delineated” raises even more questions. Delineated by whom, on what basis, according to whose criteria?

Presumably the drafters of the executive order were trying to keep tribes from identifying the whole world, or the whole of XYZ National Park or National Forest, as a sacred site, but in pursuing this objective they effectively required that tribes abandon their own ways of viewing the landscape in favor of a Euroamerican system of metes and bounds. How does this square with the principle of respecting tribal religions that surely underlies and justifies the executive order?

“Sacred”

Dictionary.com gives us several pertinent definitions for the word “sacred:”

• devoted or dedicated to a deity or to some religious purpose; consecrated;

• entitled to veneration or religious respect by association with divinity or divine things; holy;

• pertaining to or connected with religion ( opposed to secular or profane), and

• regarded with reverence.

Some 35 years ago I had a brief but spirited debate with my good friend Fr. Francis Hezel, SJ about whether I was right to refer to Mt. Tonaachaw, on Wene Island in Chuuk, as “sacred.” Sure, Fran said, it’s where in Chuukese tradition the semi-supernatural culture-bearer Sowukachaw came in the form of a frigate bird and set up his meetinghouse; sure it’s a major landmark in the supernatural geographic lore of the islands; sure it’s metaphorically referred to as the supernatural octopus kuus, out of whose ear swim equally supernatural barracuda to protect the islands, but it’s not sacred as the term is defined in western theology. As discussed in my 2006 book Places That Count (2) , I dismissed Fran’s argument as Jesuitical hairsplitting until the statements and actions of the people living around the mountain showed me I was wrong. They respected the mountain, yes; they didn’t want other people messing with it, yes, but they were prepared – no doubt after engaging in the proper rituals – to let it be messed with for a price. Why? Because in their cultural traditions, there are ways to compensate for just about anything. So even by Dictionary.com’s rather broadminded definition, Fran was right; it’s hard to see the mountain as “consecrated,” or “devoted or dedicated to a deity” (even if Sowukachaw is deified). And while it’s certainly “connected with religion,” is that really “as opposed to” the secular or profane? This is the crux of the matter, I think. A lot of places that indigenous people regard as spiritually powerful, and entitled to respect and care on that basis, are nevertheless places where “secular” or “profane” activities go on with impunity. But to complicate things further, these “profane” activities – say, fishing, picking berries, or cutting trees – are not always or even often strictly profane; they often can be carried out only by particular kinds of people, at specific times of the day or year or cycle of the moon, accompanied by appropriate prayers or other rituals. So where do we draw the line between the “sacred” and the “profane?” And just as in forcing indigenous people to squeeze their special places into our definition of “site,” is government not forcing such people to violate the tenets of their own religions in order to receive the benefit of protection for such places? Even by the crabbed definition imposed on its language by the 9th Circuit Court of Appeals (3), is this not a violation of the Religious Freedom Restoration Act (RFRA)(4)?

Indian

Finally, there is the first word in the title: “Indian.” Setting aside the distaste for this term that arises periodically on historical and geographic ground, is it entirely fair to apply the Executive Order’s direction only to places valued only by those groups of American citizens that fall into the Order’s definition of “Indian Tribe?” That definition – in concert with those found in many other U.S. laws and regulations – is “an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law No. 103-454, 108 Stat. 4791.” There are good, practical reasons for that definition in other contexts – notably those involving the governance of reservations and the administration of tribal trust assets. But when it becomes the basis by which the legitimacy of a group’s assertion of a place’s spiritual significance is judged, does the Executive Order not impermissibly entangle the Secretary of the Interior in religious matters? Does it not have the Secretary, in effect, establishing which tribal religious will and will not be accorded respect? Is this quite consistent with the Establishment Clause?

Having pondered these questions ever since Executive Order 13007 was issued, I’ve sadly come to the conclusion that for all its good intentions, the Order is not worth keeping; it ought to be scrapped in favor of something else.

What else? Well, at the time of the Lyng decision, we didn’t have RFRA. Now we do, and it strikes me that a liberal reading of its prohibition on the government’s imposition of burdens on anyone’s religious practice without a compelling government interest would achieve the purposes of Executive Order 13007 without creating the complications that have kept the Order from being effective. As I’ve discussed elsewhere(5), the 10th Circuit has adopted such a reading, while the 9th Circuit has imposed a ridiculously restrictive one. It might be a lot more productive for the administration to look at ways to resolve this contradiction than to fiddle further with the deeply flawed Executive Order 13007.

Endnotes

(1) Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
(2) King 2006: Places That Count: Traditional Cultural Properties in Cultural Resource Management. Altamira Press: p. 7
(3) In Navajo Nation et al v. United States Forest Service, 535 F 3d 1058 (9th Cir. 2008).
(4) 42 U.S.C. §2000bb (2006)
(5) King: What Burdens Religion? Musings on Two Recent Cases Interpreting the Religious Freedom Restoration Act. 2010; Great Plains Natural Resources Journal 13:1-11

Consultation

2012-01-06T07:24:00.000-08:00

The word “consultation” is used in dozens, maybe hundreds or thousands of United States laws, regulations, guidelines, standards , and probably comic books, referring to something that should be done on the way to making decisions. Federal agency officials are regularly directed to consult with other federal officials, with federally recognized Indian tribes, with state and local government agencies, with subject-matter experts, with specific concerned parties, and sometimes even with the general public. These officials are usually told to initiate consultation early in planning, and are occasionally (though not often) told to bring it to some kind of conclusion before actually making a decision. Very occasionally they are told that consultation is supposed to influence their decisions, and there is a good deal of case law indicating that they should keep an administrative record documenting their consultation.

However, there is little official direction about just how an agency ought to consult – that is, about what “consultation” means.

I think that’s a problem that’s likely to render meaningless all the cogitation, head-scratching and paper-production that’s going on in the agencies these days – sometimes with reference to “tribal consultation,” sometimes with respect to “sacred sites” management, sometimes (though rarely, it seems) with respect simply to how the public – the voters and taxpayers – ought to be involved in their government’s decision-making.

So here’s some unsolicited advice for the White House, the Department of the Interior, the Forest Service, and all the others who are worrying about such matters:

(1) Give some thought to what “consultation” ought to mean.

(2) Once you figure it out:

      (a) Try to make sure your administrative procedures let or even make it happen; and

      (b) Give your people some explicit direction and training in how to do it.

I don’t think that item #1 above is all that difficult. It comes down to a simple rule, articulated long ago by a guy whose name a lot of politicians like to invoke these days, which goes like this:

"Therefore all things whatsoever ye would that men should do to you, do ye even so to them"
                                                              (Jesus of Nasareth, according to Matthew 7:12).

Or in its common simplified form: “Do unto others as you would have them do unto you.” Think about how you would want to be consulted if government was going to do something potentially affecting you. Ask yourself:

     • Would you be satisfied getting a letter saying “We’re planning to do XYZ; if you have any comments, please send them in within 30 days?”

     • Would it be OK with you for the government to take your comments, task somebody with writing dismissive responses to them, and ignoring them?

     • Would you think it reasonable for the government to establish in advance, and unilaterally, what could and couldn’t be discussed in the course of consultation?

     • Do you think that it would be helpful for the government to send low-level employees or contractors to chat with you, who couldn’t do a thing to accommodate your concerns?

     • Would you be satisfied with “listening sessions” that collected your concerns but didn’t engage you in trying to do anything about them?

No? I didn’t think so. But all the above (and other things just as ineffective and insulting) are things that government agencies routinely do under the guise of “consultation.”

So how would you like to be consulted? I don’t know about you, but I’d like to be consulted in the following manner:

1. Explain to me, in words I can understand, what it is you’re thinking of doing. Do this before you’ve decided to do it, or invested much time and money in planning to do it.

2. Communicate with me, back and forth, about

     a. Why you want to do what you want to do;

     b. What its purpose is, and why that purpose is justified;

     c. Alternative ways of achieving the purposes that justify doing it;

     d. Any problems I have with your doing it;

     e. Ways to resolve my problems; and

     f. If you don’t think you can resolve my problems, why you can’t.

3. If possible, reach agreement with me about how my problems will be addressed.

4. Do what you’ve agreed to do.

5. If we can’t reach agreement, document how we’ve tried to do so, and do whatever you can do to address my problems.

That, it seems to me, is what consultation ought to entail, and what government officials ought to be directed, instructed, and trained in doing.

Another thing they need to be directed, instructed, and trained about – because it’s critical to effective consultation – is thinking in advance about the intellectual baggage that they, the government officials, and their advisors, contractors, and experts, bring to the consultation table. This advice comes from a source (among others) that’s not quite as hoary as the one cited above, but it’s long enough in the tooth, and popular enough, that it ought not be the mystery it seems to be to some government officials and consultants:

“Your perceptions are likely to be one-sided, and you may not be listening or communicating adequately”
                               (Roger Fisher & William Ury: Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, Penguin 1991:22).

One of the great frustrations that Indian tribes have in “consulting” with some federal land management agencies about cultural resource issues is that they find themselves consulting with archaeologists, or with managers who are influenced by archaeologists, who expect them to phrase their cultural concerns in archaeological terms – or who at least themselves can’t get beyond archaeological world views. So the tribes are supposed to be happy that you’ve sent out archaeologists to find all the “sites” and designed your project to “avoid” them? That may make sense to your archaeologist, Ms. Manager, but it’s unlikely to carry much weight with a tribe. Citizens seeking to consult about impacts on their neighborhoods are often similarly frustrated by government representatives who think only about the historic or architectural value of buildings, or about the economics of a community’s lifeways.

A critical thing that agency people need to consider going into a consultation is: “How are the people I’m consulting likely to perceive the issues?” And they ought to prepare themselves – through study, through the composition of their consulting team, through simply keeping their minds open and sorting through their own beliefs, assumptions, and biases – to understand those perceptions and deal with them thoughtfully.

These things may seem intuitively obvious; it may seem unnecessary even to mention them. But I think that if they’re not thought about and addressed explicitly, all the direction in the world to “consult” isn’t going to do any good.

Highway to Hell: Worth Reading

2012-01-04T06:52:00.000-08:00

On the Highway to Hell: Thoughts on the Unintended Consequences for Portable Antiquities of § 11(1) Austrian Denkmalschultzgesetz. Raimund Karl, The Historic Environment Policy and Practice 2:2:111-133, 2011

Particularly if you’re a government employee and think yourself involved in “heritage management,” or if you’re an archaeological, historic preservation, or environmental activist thinking to promote better laws to protect the cultural environment, you need to read this excellent article. It’s about Austria, but the lessons it embodies are relevant to any country.

As Karl details, Austrian law includes a scheme under which people who find antiquities are required to report them to the National Heritage Agency Bundesdenkmalamt (BDA). The BDA is also responsible for licensing excavations for archaeological material, and under its current procedures (circa 1999) can issue licenses only to formally qualified archaeologists.

Giving a little thought to the matter, one might predict that this policy would drive artifact collecting underground (as it were). Karl rather elegantly demonstrates that this has precisely been the result. Collectors do not stop digging or collecting; they simply stop reporting, because to do so would be to pre-emptively admit to breaking the law. Karl’s paper features a comparison of finds reporting statistics from Austria with equivalent data from England and Wales – where the much more liberal Portable Antiquities Scheme (PAS) is in effect, and from Scotland, whose policies are more like Austria’s. The results are impressive: reported finds have increased dramatically under the PAS, while they have remained flat or declined in Austria and Scotland; moreover the absolute number of reports in England and Wales, adjusted for land area and population – is vastly higher than in Austria since institution of that country’s restrictive policies. Karl also reports his research into the actual behavior and perceptions of metal detector-using collectors in Austria, which indicates that they are extremely active, have substantial collections, do not for the most part sell them, often keep excellent records, and would like to cooperate with archaeologists if they wouldn’t be thrown in the slammer for doing so. He also shows that most metal detectorists do not dig very deeply, instead collecting mostly from the plow zone – which is routinely scraped away by archaeologists as a first step in the conduct of controlled excavations! There seems to be a lot of room for cooperation between archaeologists and collectors in Austria, but as the law is currently construed, it can’t happen legally.

I feel sure that Austria is in no way unique in this regard. Certainly my informal experience with collectors in the U.S. suggests a similar conclusion about the potential for cooperation and its suppression by restrictive regulation.

The Archaeology Channel

2011-12-27T14:34:00.000-08:00

If you're looking for a worthy place to send a year-end donation, and are turned off by the major charities, please consider The Archaeology Channel (TAC) -- see message below from its guru, Ric, Pettigrew. I donate a pittance annually.

Happy new year,
Tom

To our existing and recent supporting TAC Members and friends: In these economically difficult times, our nonprofit organization, Archaeological Legacy Institute, faces some tough challenges in maintaining and growing our programs, including The Archaeology Channel (www.archaeologychannel.org), our very popular visitor-supported streaming-media Web site devoted to telling the human story. This last week of the year is a special time for us, as many people choose this time to make their 2011 tax-deductible contributions.

If you are one of those people or you might consider becoming one, please take this opportunity to follow through with that. We have been sending out regular renewal reminders to supporting Members, so you might have received a message saying your renewal anniversary date is passed or is coming up soon. If that is the case, or if you want to make a supplementary contribution, please go ahead and do that now! See the instructions at http://www.archaeologychannel.org/member/member.htm. By pooling small contributions from many people, we will create a more stable and reliable income stream that is less dependent on the decisions of large sponsors. This is an important key to the success of TAC.

With your help, we are working to achieve some key breakthroughs in 2012. In the coming year, among other things, we plan to complete the make-over of TAC and begin development of a new nationwide cable TV channel to show content that we currently are not showing on TAC. The more financial support we have, the faster and more effective we will be in pursuing these initiatives.

If you have friends or associates who might be willing to support our public mission, please point them in our direction. One way to do that would be to forward this message to them. As you know, our standard Individual Membership is $45 and an Organizational Membership is $250, but we accept any amount, smaller or larger. All the information needed to renew or to become a supporting Member is on our Web site at http://www.archaeologychannel.org/member/member.htm.

Just five days left in 2011! Thanks very much.

Rick Pettigrew
Archaeological Legacy Institute
http://www.archaeologychannel.org/

Good (I think) On-Line Instruction re. Tribal Consultation

2011-12-26T07:17:00.000-08:00

For all those who keep asking about training in consultation with American Indian tribes (2 or 3 in the last year or so): the Natural Resources Conservation Service (NRCS) in the U.S. Department of Agriculture has just come out with a nice (I think) on-line class that's available free to the public (You do have to register, but it doesn't cost anything). It can be accessed at http://www.tribal.golearnportal.org/ . Lots of good information, and it strikes me as quite a balanced, accurate presentation with plenty of good advice.

The Corps of Engineers Needs an Appendectomy

2011-12-24T15:53:00.000-08:00

Introduction:

First a bit of background. Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) issues (and very occasionally denies) permits for filling wetlands, building piers, and other activities affecting the waters of the United States The Corps has extensive regulations governing its regulatory activities, which can be viewed along with much supporting data at http://www.usace.arm.mil/CECW/Pages/reg_materials.aspx.

Although Corps regulatory decisions require compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act, back in the 1980s the Corps decided that it was far too much trouble to follow the regular Section 106 regulations (36 CFR 800), so they came up with a sort of alternative, which they embedded in their regulatory program regs (33 CFR 320-232 and 334) as “Appendix C.”

Appendix C set up a strange, intricate system by which the Corps can regularly turn a blind eye to the impacts of any regulated project that occurred outside a Corps-defined “permit area” that is generally restricted to the affected waters, though the system allows for a variety of rather capricious exceptions. Never mind that under NEPA agencies are responsible for addressing the effects of their actions – not just those that occur within specific areas under their jurisdiction and control. Never mind that Section 106 imposes a similar standard. To the Corps – with those various exceptions that the District Engineer can invoke or not, as the spirit moves him – what’s outside the permit area doesn’t exist. Unless it’s something that’s on the National Register; then maybe they’ll consider effects on it. Never mind, here, that Section 106 applies both to properties that are on the Register and those that are eligible for it; it’s just too much trouble for the Corps to do what Congress told them to do.

The Advisory Council on Historic Preservation (ACHP) and the National Park Service (NPS) have regularly advised the Corps that Appendix C’s not worth the paper it’s written on. So have innumerable State Historic Preservation Officers (SHPOs), Indian tribes, and other knowledgeable and authoritative bodies. So, on several occasions, have the courts. But the Corps has persisted, every now and then setting up working groups to “reconsider” Appendix C but never actually doing anything about it.

Now, in response to President Obama’s Executive Order 13563, which directed agencies to undertake “retrospective reviews” of their regulatory systems to see how they could be improved, the Corps has once again sought public comments on its regulations. It will doubtless ignore whatever comments it receives, as it always has in the past, but some of us are moved to tilt at windmills and will file comments. If by chance you are so moved, you can submit your comments to docket number COE-2011-0028 at http://www.regulations.gov, or by email to regulatory.review@usace.army.mil – or by snail mail to HQ, US Army Corps of Engineers, Directorate of Civil Works, ATTN: CECW-CO-R, 441 G. Street NW, Washington DC 2-314-1000. But you need to get them in by January 17, 2012.

Ira Beckerman's Comments

If you’re moved to comment, you could do worse than to use the following as a template; it was prepared by Ira Beckerman of the Pennsylvania Department of Transportation and is published here with his permission. He drafted it for his agency, and stresses that it will not necessarily look precisely as it does now when it’s officially submitted to the Corps.

Thank you for the opportunity to comment on the Corps’ existing regulations. In particular, we respond to question 4: “How can the Regulations be changed to better harmonize with, be consistent with, and coordinate effectively with, other federal regulations and environmental review procedures?” With regard to archaeological and historic resources, our agency has one basic comment: 33 CFR 325, Appendix C - Procedures for the Protection of Historic Properties – should be abolished. In its place, the Corp should adopt the Advisory Council on Historic Preservation’s Regulations, 36 CFR 800. There are a number of reasons for doing so.

1. All of the substantive issues raised in Appendix C are already covered in 36 CFR 800 and in roughly the same way. Appendix C is duplicative regulation.

2. Appendix C has never been approved by the Advisory Council and the Corps has never recognized Advisory Council regulations. Consequently, it has been impossible for a state agency such as PennDOT to develop a programmatic agreement to cover historic resources since the two essential signatories cannot come to agreement on the basic set of regulations supporting the agreement.

3. The Advisory Council has a long-established and lengthy set of guidance for interpretation of 36 CFR 800. Generally, this guidance is well understood by other Federal Agencies and applicants (including PennDOT). The development of a duplicative set of regulations by the Corps without the commensurate history of guidance and the Corps unwillingness to seek assistance from the Advisory Council has resulting in Corps staff offering inconsistent and conflicting interpretations of Section 106 of the National Historic Preservation Act, which has increased PennDOT staff workloads and increased the time it takes to complete the process. The presence of 3 main Corps Districts in Pennsylvania has added to the inconsistency, as each District must interpret Corps regulations independently.

4. In Pennsylvania, the SHPO and most Federal agencies, including FHWA, have worked out protocols for the implementation of 36 CFR 800. The protocols provide predictability in process and outcome, and, in particular establish a useful role for the Advisory Council. Even mundane issues such as who should sign off on an MOA first must be worked out differently. PennDOT now works in largely an electronic document environment, which is supported by the SHPO and FHWA. Corps protocols do not fully support this environment. The Corps utilizing its own protocol adds work to the SHPO and PennDOT in duplicative processes and training.

5. The Corps has expressed concerns that acceptance of the Area of Potential Effect (APE) as defined by the Advisory Council would unduly burden the Corps and require it to regulate more than it should. In lieu of (APE), the Corps has developed the concept of permit area. We do not believe acceptance of the Advisory Council standard of APE will unduly burden the Corps. Council regulations are clear that the undertaking and applicability of Section 106 is constrained by: the Agency Official (Corps) determining whether the action is an undertaking (36 CFR 800.3.a); the Agency Official determining the Area of Potential Effects (36 CFR 800.4.a.1); and the Area of Potential Effect influence by the scale and nature of the undertaking (36 CFR 800.16.d). Other Federal agencies with apparently open-ended Areas of Potential Effect have successfully managed to establish limits, and with the assistance of the Advisory Council.

Quibbles and Conclusions

There are aspects of Ira’s comments with which I could quibble – for instance, agencies are not in fact allowed by the 106 regs to determine whether something is an “undertaking;” that term is defined in the statute itself. And as I’ve explained in these pages and elsewhere, I don’t think the ACHP regs are such great shakes; it would be nice if the ACHP's own retrospective review resulted in some fixes (I am, however, not holding my breath). But it is ridiculous for the Corps to follow its own manifestly extra-legal procedures rather than the existing or some future revised standard 106 process; it complicates life for applicants, the affected public, oversight bodies like SHPOs, and probably Corps staff themselves. It’s a waste of time, money, and everyone’s patience.

The Corps probably needs ways to simplify review of little dinky routine projects, but so do most other agencies, and the 106 regulations provide lots of ways to do this. What they do not provide is the authority for agencies to just waltz off and do their own 106 regs without the ACHP’s by-your-leave. The author of Appendix C, who was pathologically fixated on their perpetuation, has long since retired; it’s time for the Corps to join the rest of the world, and reduce the federal regulatory portfolio a little by excising its silly appendix.

Blog 2005-2011 is on Kindle

2011-11-30T03:15:00.000-08:00

In response to no popular requests at all, but to reports that pieces from this blog are becoming assigned readings in a few academic CRM (or CRMesque) classes -- and just in time for holiday giving -- I've organized, indexed, and published most of the posts that have appeared here so far as an Amazon Kindle book, which just went live on the Kindle Store at http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4/ref=sr_1_1?s=books&ie=UTF8&qid=1322650842&sr=1-1 . Assuming it will be a supplementary text, I've set a low, low price of $5.00. It's called CRMundgeoneity: Readings from Tom King's CRM Plus Blog, 2005-2011. The experience of publishing on Kindle was an interesting one, and suggests ways to get a lot of our infamous "grey literature" into accessible form.

The ACHP on Reason and Good Faith: an Annotated Version

2011-11-17T06:51:00.000-08:00

Introduction: One of the core requirements of the regulations (36 CFR 800) implementing Section 106 of the National Historic Preservation Act (NHPA) is that agencies make a "reasonable and good faith effort" to identify historic properties subject to effect by their undertakings. The Advisory Council on Historic Preservation (ACHP) has just issued guidelines for making such efforts, and they're to be congratulated for doing so. The guidelines should be helpful, though they also contain some perhaps risky ambiguities, and they are not by any means all they could be.

The squeaky-clean version of the guidance will presumably soon be posted at http://www.achp.gov/. Below is the complete text with my annotations interspersed.

MEETING THE "REASONABLE AND GOOD FAITH" IDENTIFICATION STANDARD

IN SECTION 106 REVIEW

The regulations implementing Section 106 of the National Historic Preservation Act ("Protection of Historic Properties," 36 CFR Part 800) require federal agencies to identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings. Section 800.4(b)(1) of these regulations states that federal agency officials shall make a "reasonable and good faith effort" to identify historic properties.

The ACHP is regularly asked how to determine when an adequate identification effort has been made— that is, at what point a federal agency has made a reasonable and good faith effort to determine whether historic properties are located within an undertaking's APE, which is the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Answering this question requires an understanding of what the ACHP's regulations say regarding the identification of historic properties.

Prior to beginning the identification stage in the Section 106 process, the regulations (at 36 CFR § 800.4) require the federal agency to do the following:

• Determine and document the APE in order to define where the agency will look for historic properties that may be directly or indirectly affected by the undertaking;

• Review existing information on known and potential historic properties within the APE, so the agency will have current data on what can be expected, or may be encountered, within the APE;

• Seek information from others who may have knowledge of historic properties in the area. This includes the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO) and, as appropriate, Indian tribes or Native Hawaiian organizations who may have concerns about historic properties of religious and cultural significance to them within the APE.

Annotation: The regulations actually require something else even earlier. At 36 CFR §§ 800.3(e) and (f) they require the federal agency to:

• Plan to involve the public, and

• Identify other consulting parties

The fact that these activities are supposed to be carried out BEFORE the agency undertakes the scoping actions listed at 36 CFR § 800.4 surely suggests that consulting parties should be involved in those scoping activities – otherwise why do them first? And of course, how can one “seek information from others” if one has not figured out who those “others” – quite likely consulting parties and/or members of the public – are?

This is not just a matter of word play. One of the continuing problems we face in Section 106 review is that agencies make unilateral decisions about APEs and identification methods without talking to anybody – except maybe the overburdened SHPO staff, who often have an understandable tendency to say “oh yeah, sure, whatever,” or “Follow our Handbook 1999-X57b.” Then by the time those publics and consulting parties who were supposed to be roped in back at 800.3(e) and (f) find out what’s happening, the agency’s set on its course and the SHPO, having gone along with it, may be disinclined to say “oops.”

Following these initial steps, the regulations (36 CFR § 800.4(b)(1)) set out several factors the agency must consider in determining what is a "reasonable and good faith effort" to identify historic properties. They call for the agency official to "take into account past planning, research and studies; the magnitude and nature of the undertaking and the degree of federal involvement; the nature and extent of potential effects on historic properties; and the likely nature and location of historic properties within the APE. The Secretary of the Interior's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, state, tribal, and local laws, standards, and guidelines. The regulations note that a reasonable and good faith effort may consist of or include "background research, consultation, oral history interviews, sample field investigation, and field survey."

Annotation: And I feel sure – or at least hope – that the ACHP would agree that the list given in the regulations is not an exhaustive one. It doesn’t preclude the use of LIDAR or other remote sensing methods, targeted studies to address particular questions (Is it REALLY likely that Jimmy Hoffa is entombed in the concrete pillars of this otherwise undistinguished parking garage?), ethnographic research, and even experimental techniques like the application of remote viewing. But deciding what to do requires consulting knowledgeable and thoughtful people about what the scope of the identification work should be. This is one reason that broad, multi-party consultation is so important to the scoping effort.

When asked to provide its advisory opinion (pursuant to 36 CFR § 800.2(b)(2)) on the adequacy of a specific identification effort, the ACHP will evaluate the agency's efforts in light of these factors and the following criteria.

1. The identification effort is reasonable when it is logically designed to identify eligible properties that may be affected by the undertaking, without being excessive or inadequate in light of the factors cited above. While it may be appropriate in some circumstances to identify all historic properties in the APE, it is important to note that the regulations do not require identification of all properties.

Annotation: This is an extraordinarily important point that needs to be carefully noted, and that will probably be widely misinterpreted. First, it’s a recognition of reality. Nobody can ever be sure that they’ve identified all the historic properties in an area. There’s no telling what’s lurking under the playground pavement or inside the walls of the warehouse. Second, there’s often no need to identify all the properties. Suppose you’re looking at the visual impacts of a project, at some distance from the project site. There may be thousands of individual structures and landscapes subject to visual impact. Do you have to go out and evaluate each one? The National Register will probably pat you on the head if you do, but it’s really not necessary. What’s needed is to determine that you do or don’t probably have a bunch of historic buildings, landscapes, viewpoints, etc. up there on which – or rather, on the human use of which – the project may have visual effects. Maybe you need to document a sample of them; maybe you don’t. Maybe generalities will suffice.

Thinking that you’ve got to identify “all” the historic properties I an APE is one thing that drives agencies to define APEs too narrowly, to ignore whole ranges of effects. So it’s important to understand that this isn’t necessary. On the other hand, what the ACHP is NOT saying is that just identifying, say, what’s already on the Register is OK. You have to make a reasonable and good faith effort to identify not only registered places but eligible ones as well. Exactly how much identification you need to do is something to be worked out – with the consulting parties – during scoping.

A reasonable identification plan is one that includes the following:

• Documentation of the horizontal and vertical extent of the APE that accounts for direct and indirect effects;

• An explanation of how the factors cited above inform the content and intensity of the identification plan. This could include information on past work in the area, scope of federal involvement in the undertaking, and the undertaking's magnitude and anticipated effects on any historic properties that might exist in the APE;

• A review of existing information on historic properties within the APE, including information about possible historic properties not yet identified;

• A cognizance of applicable professional, state, tribal, and local laws, standards, and guidelines;

• A familiarity with methodologies used in other historic property surveys in the area that have been effective in terms of time and cost;

• A clear description of the steps that will be taken during field investigations, during the analysis of field results, and in the subsequent reporting and consultation, to determine the presence or absence of historic properties within the APE.

Annotation: I think it’s unfortunate that the ACHP didn’t add that the plan should clearly reflect the results of consultation with those folks identified back in 800.3, and whose data were elicited under 800.4. I think it’s obvious that it should. What was all that identification and elicitation for if not to gain the benefit of their wisdom?

2. The identification effort is carried out in good faith when it is fully implemented by or on behalf of the federal agency.

Annotation: I trust this direction will not be taken out of context, since it implies that any ID effort is ipso facto done in good faith if it’s done by or for a federal agency. The ACHP’s seeming faith in the reason and honor of its sister agencies may be touching and generous, but it is not, I think, very well advised. The ACHP would have been well advised to consider the rule set down by the Tenth Circuit Court of Appeals in Pueblo of Sandia v. United States, 50 F.3d 856, 1995 -- essentially, that lying to and withholding data from the SHPO (and implicitly from other consulting parties) is a clear indication of bad faith.

3. An identification plan that is appropriate to the nature and scale of the undertaking is carried out in good faith when it meets the following criteria:

• The plan is carried out in consultation with, as appropriate, the SHPO, THPO, and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE;

Annotation: Here the ACHP seems to forget that there are other American citizens, and maybe even non-citizens, who ought to be consulted if an agency is to say it has made a reasonable or good faith effort that is appropriate to the nature of the undertaking. If the nature of the undertaking is, say, that it will demolish an ethnic Turkish-American neighborhood, would it be reasonable or in good faith just to consult with the SHPO and the Indian Tribe that once occupied the area?

• Is initiated in a timely manner that allows for appropriate analysis and reporting, with adequate time for review by the consulting parties;

• Is carried out by a qualified individual or individuals who meet the Secretary of the Interior's qualification standards and have a demonstrated familiarity with the range of potentially historic properties that may be encountered, and their characteristics;

Annotation: I question the easy (dare I say simpleminded?) reliance on the SOI’s qualifications standards here. NHPA Section 112 (added in 1992) says that agencies must use people who meet such standards, but it also directed the SOI and the Office of Personnel Management to get together, in consultation with a wide range of interested parties, to develop the pertinent standards, and that has never happened. The existing qualifications standards were cooked up ad hoc by a bunch of wet-behind-the-ears NPS “professionals” (myself included) back in the early 1970s, and to treat them as mandatory today is ridiculous. Agencies, SHPOs, tribes and other consulting parties need the flexibility to experiment with different kinds of expertise, and to effect cross-fertilization between disciplines and areas. Demanding that an SOI-qualified person “carry out” each identification operation is a formula for intellectual stultification and rote performance.

• Acknowledges the special expertise possessed by Indian tribes and Native Hawaiian organizations in assessing the eligibility of historic properties that may possess religious and cultural significance to them (regardless of whether or not such tribes and organizations meet the Secretary's qualification standards);

• Is fully supported by adequate funding and other necessary resources, and

• Is not compromised by lack of integrity or omission, such as manipulating or ignoring evidence.

Note that the regulations require that a reasonable and good faith effort to identify historic properties include some level of effort—at a minimum, a review of existing information on historic properties that are located or may be located within the APE (36 CFR § 800.4(a)(2)). Such an effort may consist of one or more methodologies and should be designed so that the federal agency can ensure that it produces enough information, in enough detail, to determine what the undertaking's effects will likely be on historic properties.

Annotation: That, I think, is the key rule: has the agency collected enough information, of the right kinds, to permit it to determine effects (and move toward resolving them)? That, after all, is what the exercise is all about.

It is also important to keep in mind what a reasonable and good faith identification effort does not require:

• The "approval" of a SHPO/THiP0 or other consulting party. The ACHP, SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.

Annotation: Very true, and very important. Conversely, though, an identification effort that ignores what the ACHP, SHPO, THPO, and other acronyms (or real people) recommend could be taken to be arbitrary and capricious.

• Identification of every historic property within the APE. One of the reasons the ACHP's regulations contain a post-review discovery provision (36 CFR § 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.

Annotation: Yes, but that’s not an excuse for saying “oh, we’ll skip identification now and just monitor construction.” Section 106 is a planning law, not a post-hoc pick-up-the-pieces law. The agency needs to identify enough to make reasonable judgments about effects, and the wise agency will try to do a good enough job to minimize the potential for expensive late discoveries.

• Investigations outside of, or below, a properly documented APE. The Section 106 process does not require that the agency search for all historic properties in a given area. Because the APE defines the geographic limits of federal agency responsibility for purposes of Section 106 review, identification efforts are carried out within its boundaries.

Annotation: First, note the term “properly documented,” which I presume means justified in some manner other than “duh, it’s the construction boundary,” or “duh, it’s were we drew the line.” Second, it needs to be remembered that there can be multiple APEs, their boundaries may be quite justifiably softly defined, and they may evolve as the project plans evolve. Third, some kinds of historic properties may extend far beyond an APE’s boundaries, and even entirely embrace the APE and its surroundings. This doesn’t justify doing detailed studies to characterize such properties, but it doesn’t justify ignoring them either, just because they extend beyond the APE. I invented the term APE back in 1984-85, and it seemed like a good idea at the time. Now I regret it. Often the APE can’t be defined very well, and it may be unnecessary.

• Ground verification of the entire APE. In many cases, areas can be considered to have a certain probability of containing historic properties based on current knowledge. This or similar characterizations can be used to justify where within the APE most identification efforts will or should be targeted. Predictive models that have been tested and found to be reasonably efficient can also assist federal agencies to meet the "reasonable and good faith" identification standard.

Annotation: "Ground verification,” I presume, means walking or driving or crawling over the whole APE. This is a very good point; you don’t need to do this if you can adequately characterize what’s out there, and what may be affected, without doing so. If the ground’s covered with asphalt, for heaven’s sake don’t have archaeologists walk across it at 5 meter intervals scratching the macadam with their Marshalltowns. Think creatively – consider predictions based on history, oral history, and/or environmental reconstructions (even if they HAVEN’T been tested; maybe this is an opportunity to test them. Consider LIDAR and other forms of remote sensing. Bring in a well-qualified geoarchaeologist. Talk to collectors about what artifacts they’ve found there. And generally, talk to the people.

In sum, the Section 106 regulations require federal agencies to make a "reasonable and good faith effort" to identify historic properties that may be affected by their undertakings. The regulations set out several factors that need to be considered in making the effort both reasonable in terms of intensity and scale, and carried out in good faith through its development and execution. The ACHP's online archaeology guidance provides further detailed discussion on how these factors can be applied to archaeological sites to ensure Section 106 identification plans are adequate and appropriate to a given situation (http://www.achp.gov/archguide/). The ACHP's professional staff is also available to assist agencies, SHPOs/THPOs, consultants, and contractors in interpreting the reasonable and good faith standard when questions or disputes arise.

What Constitutes a “Project” Subject to Review under Section 106? Some Useful Guidance from the ACHP

2011-11-16T09:17:00.000-08:00

Introduction
Under Section 106 of the National Historic Preservation Act (NHPA), federal “undertakings” are reviewed for their effects on historic properties, which are then (we hope) resolved through consultation. “Undertaking” can mean lots of things, but “projects” – specific developments, construction operations, land-use activities addressing more or less particular pieces of land – are unequivocally included if there’s some kind of federal involvement in them.

But when you have a project that involves a federal agency but also extends into geographic or other areas where the agency has no jurisdiction, where does the “project” stop for purposes of Section 106? For instance, if the Forest Service or Bureau of Land Management is considering a road across federal land to permit Oliver Oilrig to access the private land on which he wants to drill a well, is the “project” just the right-of-way across Federal land, or the right-of-way plus Oliver’s property?

I was recently asked about this, and – my files and memory failing me when I searched for the antique examples of cases where the matter had been more or less worked out with agencies like the Forest Service, Bureau of Land Management, and Corps of Engineers – I suggested that my interlocutor contact Javier Marquez, Associate General Counsel for the Advisory Council on Historic Preservation. Javier responded with admirable promptness, sharing a memo he had prepared some time ago that had never gotten distributed outside the ACHP and extending the invitation to share it more widely. Here’s what it says:

ACHP Memo

An important series of cases in the Fourth Circuit provide on point caselaw regarding the scope of “undertakings” whose effects must be considered under Section 106. The Fourth Circuit and judges in the district courts in Virginia have been particularly adamant in their opposition to the concept of agencies putting blinders on when defining the scope of the "project" subject to environmental review under Section 106. This is evident in cases dealing with segmentation. While the issue at hand is not technically a "segmentation" issue, the analysis attempts to solve the same problem: how to define the scope of the "project" whose effects must be considered.
For example, in Crutchfield v. U.S. Army Corps of Engineers, 154 F.Supp.2d 878 (E.D.Va. 2001), the court held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering under Section 106 the effects of an associated sewer interceptor, even though the interceptor was not part of the permit application submitted by the County applicant. In determining whether the interceptor was part of the "project" subject to environmental review, the court saw the issue as boiling down to whether the specifically permitted plant had independent utility without the interceptor. Id. at 889. It held that it did not, since it served no rational need in its own right without the interceptor. Id. at 902. Accordingly, the court ruled that for Section 106 purposes "... the determination of the 'effect of the undertaking on any [historic property]' could not be properly made because the TC Interceptor was not considered part of the 'undertaking.'" Id. at 905. Accordingly, under Section 106, agencies must consider the effects of an entire, proposed development on historic properties. The entire development is the "project" for Section 106 purposes because the specific works permitted by the agency serve no rational need in their own right without the proposed, overall development they will serve.

In a separate case cited by the Crutchfield court, the Eastern District of Virginia grappled with whether the Federal Highway Administration's funding of one expressway in Richmond, Virginia would require its consideration of the effects of a separate expressway that, while also in Richmond, did not have such Federal funding. River v. Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D.Va. 1973) , aff’d, 481 F.2d 1280 (4th Cir. 1973). In declining to look at the two expressways as one "project" for Section 106 purposes, the court explained that "... if the Court concludes that the two highways each have such little value in their own right that their separate construction could be considered arbitrary or irrational, the Court will find them to be a single project." Id. at 635. The Fourth Circuit affirmed the court's opinion in a short, per curiam decision. Again, as explained above, if the separate construction of the specific works permitted by an agency have very little (if any) value in their own right separate from the overall development project they serve, the overall development project must be considered under Section 106. Without the overall development project, those specifically permitted works would serve no useful purpose.

Applying this rule to the case of Oliver Oilrig, it appears that if the proposed road serves no plausible purpose other than serving Oliver’s drill site, then the federal land managing agency (probably BLM or the Forest Service) must review the whole project, including Oli’s property and the effects of his drilling, under Section 106. If on the other hand the road will go on to provide access to a public campground or Sasquatch-watching site, then maybe Oli’s property can be excluded. How the courts (or agencies) would feel about made-up cases designed to demonstrate “independent utility” will doubtless be revealed in time.

The cases cited by Marquez are, of course, in the Fourth Circuit, covering Maryland, Virginia, West Virginia, and the Carolinas; they aren’t precedential in other circuits, but they can certainly be cited, and any judge will want to consider them. Federal agencies and applicants for federal assistance, permits, licenses and rights-of-way would be well advised to do the same.

Thanks, Javier; I think this will be helpful to a lot of people in understanding the scope and limitations of Section 106.

A Good Historic Preservation Plan (I think)

2011-11-16T08:45:00.000-08:00

Thanks to Sherman Banker of the Wisconsin SHPO, via Claudia Nissley, for making me aware of the Historic Preservation Plan for the University of Minnesota, Morris -- http://www.morris.umn.edu/preservation/UMM_Historic_Preservation_Plan.pdf. It looks to me like an excellent model for institutions and agencies with historic (or partly historic or maybe historic, or just nice) campuses (or similar facilities) to manage (e.g. military bases, veterans hospitals, colleges, fairgrounds, parks). Very much worth taking a look at by anyone who needs or wants to put together a plan for such a facility.

I was initially a bit put off by its inclusion of an “historic context” section, but it turned out actually to be useful – relating directly to what remains of the campus’ buildings and landscaping relating to different periods of development, functions, and pedagological philosophy. The plan goes on to quite systematically identify what it is that makes the campus special in general, and then to break it down by area and building, identifying key elements and laying out treatment recommendations for each.

I suppose I would have liked to have seen a little more evidence of participation in plan development by those affected – in this case, students and faculty – but that aside, I think it’s a fine model. Of course, the authors had a very good complex of buildings and grounds with which to work.

The only criticism I’ve heard is from someone who said “It doesn’t follow NPS guidelines.” Well, gee. The key thing to remember about NPS guidelines is that – like the Pirate Code – they are ONLY guidelines.

Being a Veteran on Veterans' Day

2011-11-11T16:59:00.000-08:00

I’m a bit embarrassed by this year’s Veterans’ Day effusions – not because a lot of veterans don’t deserve recognition and support, in fact far more support than many get from our society – but because for the first time some of the effusions have been aimed at ME; people have been thanking ME for my military service. I was particularly taken aback when my son Josh posted a message on Facebook doing so.

Let me set the record straight. Yes, I’m a veteran, having served on active duty in the Navy from 1961 through 63. But…..

1. There was a draft in those days; I had the choice of joining the Navy or risking getting drafted into the Army. I was too stupid to give this much thought, but my father, thank goodness, saw what was coming in Southeast Asia and insisted that I join the Naval Reserve. When my draft notice actually came in, I was safely at sea, and my father delighted in so advising the draft board. So my “service” at sea arguably saved me from service in Viet Nam, which would quite possibly have gotten me killed, maimed, or even more messed up psychologically than I am. Incidentally, my father pressured my brother into Naval service just before the Korean war got underway, quite likely saving him from a similar fate. We both owe him (a World War II veteran) a considerable debt.

2. I served my country by helping operate a Landing Ship, Tank (LST) that hauled cargo and people – guns, tanks, trucks, bombs, Marines – around east Asia. I managed not to sink or blow up the ship when I was in positions to do so, and didn’t make too terrible a spectacle of myself on liberty in port, but that was about all I did.

3. In the course of those two years I learned a tremendous amount and spent time in some fabulous places – Tokyo, Hong Kong, Manila, Bangkok, and many, many points between.

4. I got home in time to take part in the anti-war movement with no fear of being drafted and shipped off to ‘Nam.

5. My veteran’s status made me eligible for loan guarantees without which I wouldn’t have been able to go to college. It also got me a mortgage guarantee that allowed me to purchase a home. It gave me preferred access to jobs in the federal government. Even now, fifty years after the Navy, with some relief, gave me my discharge, I have preferred access to certain federal contracts. It’s safe to say that my military “service” made my whole career possible. For better or for worse.

This nation, in short, owes me no thanks; rather, I’m thankful for what it’s allowed me to leverage with my modicum of military service. And my respect goes to those who’ve really served, really been shot at, wounded, traumatized, and killed – whether the wars they were sent to fight made much sense or not.

Speaking of whom: it was great to see Sonny Trimble and his Veterans’ Curation Project (VCP -- http://www.mvs.usace.army.mil/engr/curation/ARRA%20VCP/VCPHome.html --) featured on the PBS News Hour this evening. My colleagues in cultural resource management (or not) can show their gratitude to the nation’s veterans by hiring graduates of the VCP, or of the similarly motivated Veterans’ Preservation Corps (http://www.preservationarts.net/index.php/veterans_preservation_corps.html).

Traditional Cultural Properties, “Long-Term Use,” and “Sustained Awareness”

2011-11-01T10:18:00.000-07:00

I’m reviewing a report on an area’s “cultural resources” (by which the authors seem to mean archaeological stuff, with an occasional bow to old buildings), prepared in connection with an environmental impact assessment of a proposed land use project. Toward its end, as something of an afterthought, the report talks a little about whether the landscape within which lie the hundreds of “archaeological sites” it’s described might be a “traditional cultural property” (TCP) that’s eligible for the National Register of Historic Places.

The report was prepared by contractors working for the private company that proposes to build stuff all over the subject landscape, so predictably (given sad current practice) its authors do everything they can to downplay the area’s cultural significance – except to some extent the research significance of the “archaeological sites,” which they can be paid to dig up as “mitigation.” So, despite pretty vehement representations by tribes that value the landscape (and without consulting the tribes, the SHPO, or apparently anybody else), they say nope, it’s not a TCP.

Why? Because, they say:

TCPs … must exhibit long term use or sustained awareness by the community.

In other words, if the relevant community hasn’t “used” the property over the “long term,” and/or maintained some kind of unspecified “awareness” of it, the property is not a TCP.

Now, in this particular case it’s notable that nobody seems to have asked the tribes whether and how they “use” the landscape in question, or what “awareness” they have of its cultural significance (Archaeologists, after all, are experts, so they must just know this stuff through osmosis or something). In fact there are good reasons to think that tribal members are well aware of the landscape and its cultural character, and use it for both spiritual purposes and the education of youth. But never mind the particulars: does it make sense to say, in principle, that a community must continue to “use” a place, or be “aware” of specifics about it, in order for it to be a TCP, and eligible for the National Register as such?

Continuing Use

National Register Bulletin 38 (http://www.nps.gov/nr/publications/bulletins/pdfs/nrb38.pdf ), which (like it or not) is the National Register’s official word on the subject, says:

The fact that a property may have gone unused for a lengthy period of time, with use beginning again only recently, does not make the property ineligible for the (National) Register.

The Bulletin goes on to posit a situation in which a group revered a particular mountain in the past, but then was forcibly relocated to someplace where it could not readily access the mountain, and coerced into a religious conversion that caused them to ignore the mountain’s spiritual significance. It goes on to imagine the group now undergoing a cultural revival in which it seeks to reconstruct its relationship with the mountain, and concludes:

The fact that the contemporary use of the peak has little continuous time depth does not make the peak ineligible; the peak’s association with the traditional activity reflected in its contemporary use is what must be considered in determining eligibility.

So you don’t have to have “continuing use,” and let me add that it would be especially ironic (to put it mildly) for the federal government – which for many decades pursued policies of disconnecting tribes from their traditional religions and lands – to insist on “continuing use” as a prerequisite to recognizing a place’s cultural significance.

Sustained Awareness

But does the tribe or other group not at least have to be aware of the place in order for it to be significant? We didn’t think about this one in writing Bulletin 38, but it soon came up in practice, and I discussed it on pages 256-7 of Places That Count, my 2006 book on TCPs (http://www.amazon.com/Traditional-Cultural-Properties-Resource-Management/dp/0759100713) . As an example I looked briefly at Hopi and Zuni beliefs that their ancestors traveled all over the Southwest after their emergence into this world, guided, facilitated, and impeded by supernatural forces. The Hopi and Zuni have said that wherever their ancestors left evidence of their passing, that’s a TCP. They don’t know where all those places are, but they know them when they see them. Similarly, I quoted from an Australian case in which an aboriginal expert from one part of the country was able to recognize a place in an area he had never before visited, because of the way it is described in a traditional story, and thus know that (a) it was associated with a moiety not his own and (b) it was to be respected as such.

Clearly, a Hopi or Zuni elder cannot be said to have had “sustained awareness” of, say, archaeological site AZ-CIB-666P5 (if there is such a place), which he or she has never seen. But he or she knows that such places – with particular kinds of potsherds and masonry – are associated with the ancestors, and he or she knows that if he or she does visit it, there are things to be done to show respect – prayers, maybe an offering – and that one ought not mess the place up if one can help it. The aboriginal expert in the Australian case knew that there were things to do – maybe recite from a song, maybe refrain from picking things up – to respect the ancestral spirits of the moiety associated with the hitherto unvisited place. Are these associations sufficient to make such a place eligible for the National Register? I think so, though perhaps reasonable people can disagree. But surely it is clear that the mere fact that the Hopi don’t know precisely where each site associated with the ancestors is and what it looks like does not automatically make such sites ineligible for the Register; still less does it render them “not-TCPs.”

Unfortunately, the “continuing use” and “sustained awareness” criteria seem to be slipping into the practice of identifying (or trying hard not to identify) TCPs – spurred by the desire to avoid recognizing and dealing with such properties and to facilitate the projects of those who pay us CRM practitioners to make ostensibly objective and authoritative studies. If you want to use these criteria to help your client run roughshod over the cultural environment, that’s up to you, but please don’t pretend that you’re reflecting some widespread best practice or government guideline.

Thinking, and What to Do About It

2011-09-20T11:05:00.000-07:00

One of my publishers is considering a new edition of one of my books, and sent out requests for recommendations from folks who've used it as a textbook. One of the responses went like this:

"(King) is getting more crotchety in his old age, but he makes you (the teacher) and the students think. I don’t always, or even 50% agree with him, but he always stimulates debate in my classes."

and...

"(I tell people): 'You need to read Tom King’s stuff. You laugh, you cry, you cringe, you yell at the book, but it always makes you think.'"

I appreciate those comments; I naturally like to think that my writings stimulate thinking. But I can't help but be a bit frustrated, too. "Hey, Reviewer," I think, "if you don't agree with half of what I write, and if you find yourself yelling at my books, why in the world don't you write something about the subject yourself? A book, a journal article, something on my (or someone else's) blog? Why don't we have a dialogue? That's how we both -- all -- can learn."

I expect the National Park Service, the Bureau of Land Management, and other bastions of the lightly-considered status quo to ignore my existence, and my expectations have never been disappointed. But I do wonder about academics, who theoretically engage in scholarly discourse and encourage students to do the same. If you don't like or agree with what you read, sheesh, there are things to do about that. Question it! Challenge it! Argue about it! Isn't that what scholars are supposed to do?

Only the most stultified of bureaucrats simply ignores what doesn't comport with what he thinks (or has been taught to think) and waits for it to be forgotten. But -- maybe I'm missing the real point. Maybe life in a stultified bureaucracy is the kind of career for which you think you ought to prepare your students.

The Lihir Islands: a Cultural Heritage/Resource Planning Model?

2011-09-06T06:16:00.000-07:00

The latest issue (18:1, 2011) of the International Journal of Cultural Property (Cambridge University Press) contains a number of thought-provoking papers. One that should be of special interest to those involved in environmental impact assessment (EIA) and cultural resource management (CRM) is "Stepping Stones Across the Lihir Islands: Developing Cultural Heritage Management in the Context of a Gold-Mining Operation," by Nicholas Bainton, Chris Ballard, Kirsty Gillespie, and Nicholas Hall (pp. 81-110].

The Lihir Islands are in Papua New Guinea (PNG). Bainton and his colleagues provide a concise summary of how cultural heritage/resource management law and practice have developed in PNG in the post-colonial period, including their hopeful if rather tenuous relationship to national development schemes and the interests of extractive industries like gold mining. They then discuss their own experience with a particularly tricky relationship -- that between the traditional people of the gold-rich Lihir Islands and the mining company Lihir Gold Ltd. (LGL) At the center of this uneasy relationship is Ailaya, a cultural landscape of considerable spiritual significance to the Lihirians, around which mining has taken place and within which there are economic incentives to mine (i.e. there's gold in that thar landscape). The evident conflict between mining and preservation of the landscape has not been resolved, but the Lihirians and Stepwise Heritage and Tourism, the Australian company that engaged Bainton and his colleagues and drew financial backing from LGL, have taken significant-seeming steps toward creating a context in which to address this and other development/culture conflicts by developing the Lihir Cultural Heritage Plan, whose pidgin name translates as “A Plan for Social Stability and Harmony on Lihir.” The authors' discussion of how this plan was developed in active collaboration with (really BY) Lihirian communities is fascinating, and may provide something of a model that – with much adaptation – could be useful elsewhere. It was interesting to me that the Lihir initiative employed the popular Australian "footsteps" approach to planning, which I've seen referred to and described but never until now could quite get into my head. Bainton and his colleagues show how "footsteps" works, and it seems very sensible. It will be interesting to see how successful the Plan is at resolving the seemingly inevitable conflict between mining and the sanctity of Ailaya, but one of the Plan's heartening aspects is that it does not (apparently) focus on the sacred landscape in its own right, for its own sake, as we would tend to do if it were in the U.S. and treated as eligible for the National Register of Historic Places. Rather, as I understand it from this article, the Plan truly focuses on social stability and harmony on Lihir. In this broad context, management of Ailaya will inevitably play an important role, but not necessarily a determinative one, and not in isolation from the rest of what Lihirians value in their culture.

Public Hearings, Public Participation, and Consultation

2011-09-04T04:41:00.000-07:00

From Basin and Range Watch at http://basinandrangewatch.org/Stateline.html

September 3, 2011 - The Moreno Valley office of Bureau of Land Management (not the local Needles BLM office) held what was thought to be a scoping meeting at the Primm golf course for First Solar's Stateline Solar Farm application for a Right-of-Way for about 2,200 acres of public land next to the Ivanpah Solar Electric Generating System. Members of the public drove hours from as far as Palm Springs, Needles, and Las Vegas and beyond to the meeting thinking that they would be able to give voice to comments concerning the project. Union members, environmentalists, members of the Chemehuevi Tribe, and other concerned citizens attended the meeting hoping to have a chance to give comments in a public venue to the federal agency responsible for permitting the project.

They were denied this chance.

The meeting turned out to be a chance for First Solar to tell the public a few items about the proposed project, and then a "crowd-management" session of tables with various contractors available to answer questions privately. This is not what the public wanted. Quite often, in well-run BLM offices, scoping meetings will give people a chance to vocally enter comments into the record, and even have a recorder present to do this. Often an audience wants to hear other's concerns and learn about different issues and opinions. This is democracy after all.

But lately a new style of scoping has emerged, where the public is handed a sheet of paper and in 75 words or less asked to write comments to be handed in to BLM. No oral comments allowed. Jeffery Childers, BLM Project Manager for the application out of Moreno Valley, California, denied the public any chance to give public comments at this meeting after First Solar gave a brief review of the project. In addition, a county sheriff squad car was parked outside the building, and three BLM Law Enforcement Rangers armed with handguns and tasers were present in the room.

A colleague sent me the above link, asking if I was aware of similar forms of “consultation” or “scoping” used on other projects around the nation. My answer was sort of “a pox on both your houses.”

I’ve seen the basic format described above – presentation followed by breakouts – used quite responsibly in a lot of public participation efforts; it can be a lot more effective than the traditional “public hearing” as a means of sharing information and helping people understand a project and its potential impacts. Public hearings, in my experience, too often devolve into what a tribal colleague once defined for me as “Three-I” sessions: “Inform, get Input, and Ignore.” The proponent makes its pitch, the public officials blather, then each member of the benighted public gets 3 or 5 or 7.2 minutes to speak, and does so with greater or less coherence and vitriol, whereupon the “responsible” agency thanks everyone and checks off “public hearing” on its list of things to do.

It’s sad that people concerned about project impacts, like Basin and Range Watch in this case, put so much stress on public hearings. Such a hearing is a chance to vent, but that’s about all it is.

On the other hand, a “present the project and have breakouts,” by itself, may not accomplish much, and certainly lacks the synergy of a public hearing. It may be particularly ineffective – even counterproductive as seems to have been the case with the First Solar “hearing,” particularly when people have to drive in from considerable distances with the expectation of being heard.

It ought to be noted that neither the traditional hearing nor the “present and breakout” approach constitutes “consultation” as defined in the regulations implementing Section 106 of the National Historic Preservation Act. Nor, of course, does it have anything to do with an agency’s responsibility to consult with Indian tribes on a government-to-government basis. Section 106 consultation is defined as:

the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them (36 CFR § 800.16(f), emphasis added).

Tribal consultation, and, I think, all consultation, ought to be similarly understood – you try to find out what people’s concerns are (which may be aided by hearings and presentation/breakout sessions), you discuss them – which means a back and forth conversation, whether face-to-face or via phone, letter, internet or smoke signal – and consider them, and most importantly, unless for some reason it’s not feasible to do so, you seek agreement about how those concerns will be addressed. You may not achieve it, but you try. Which means negotiation, and documenting its results before you make your decision.

That’s how an agency or project proponent actually respects somebody’s concerns. Hearings and presentation/breakout sessions may contribute to this sort of consultation, but they don’t substitute for it.

Reflections on a Visit to China II: The Hegemony of Archaeology

2011-08-29T16:59:00.000-07:00

I’m old enough to remember when the government of the People’s Republic of China (PRC) used to fulminate about “hegemonism.” It was a kind of post-colonial version of rants on colonialism, and referred to how, in the PRC’s view, the U.S., sometimes the Soviet Union, and various European powers tried to push their values and points of view on the rest of the world – to exercise hegemony over everyone else.

The term kept running through my mind in Beijing while listening to papers at the World Archaeological Congress’s Intercongress on Cultural Heritage Management in East and Southeast Asia. It did so because the hegemony exercised by archaeology seemed so manifest in – it seemed – everyone’s understanding of cultural heritage management. There seemed to be a widespread shared assumption that “archaeology” and “cultural heritage” were essentially synonymous. Or rather, that there was academic research archaeology, and then there was cultural heritage, which was essentially applied archaeology and the care and interpretation of archaeological sites and historic architecture (itself not much represented in the WAC’s gathering of archaeologists, co-sponsored by the Institute of Archaeology in the Chinese Academy of Social Science).

I know, I know, this is my usual complaint, expressed in the U.S. context as “cultural resource management isn’t just archaeology and old buildings, dammit!” But it was kind of discouraging to find myself lodging the same mental criticism against what my Asian and European colleagues were doing, and how they were thinking.

It seems so painfully obvious: “cultural heritage” means the heritage of a community, group, tribe, nation, or planet that is cultural in character, and that heritage includes customary ways of doing things, systems of belief, values, practices of all kinds – as well as, rather incidentally, the sites, buildings, building complexes, landscapes, and artifacts with which all those things are associated. When we implicitly, virtually without thinking about it, redefine the term to mean only the sites, buildings, artifacts and other physical leavings of culture, we’re ignoring most of our – everyone’s – heritage. And since most people aren’t interested only in culture’s physical leavings, since most people value their cultures as whole things that include but aren’t limited to stuff on and in the ground, we risk losing, or never gaining, the support of most of the population. Both things strike me as sad, and unwise.

Before someone protests – yes, UNESCO has fairly recently begun promoting the care and feeding of “intangible” cultural heritage, but it’s done so by putting together a convention that reflects the intellectual traditions of site/structure/artifact management. Signatory nations are to put together lists of nifty intangible stuff (Manchurian throat singing is a hot issue in China), and then – uh – do something about it. Exactly what they’re to do besides listing stuff isn’t clear, and of course there are already the inevitable arguments about what ought to be listed, by whom, and how it ought to be described. None of this strikes me as a very useful exercise in cultural heritage management. It does, though, illustrate the hegemony of archaeology (and architectural history) over the cultural heritage game. If something like throat singing is going to be recognized as cultural heritage, it seems, it’s got to be officially vetted, given a professional, official, governmental stamp of approval, and put on an official list. That’s the way we’ve always done it with archaeological sites and old buildings, so that’s obviously what we’d better do with anything else we’re going to call cultural heritage.

Of course, my own paper was about doing it another way – eschewing official lists and professional vettery and simply respecting what people and communities view as their cultural heritage. Leaving them alone to practice it except when some sort of conflict arises, and then consulting respectfully about how to deal with it. I beat the drum as usual for my favorite (sort of official) guidelines on the subject, the Akwe:kon guidelines of the Secretariat of the Convention on Biological Diversity. The paper went over like the proverbial pregnant pole-vaulter; people clapped politely and that was that.

Still, though, there were quite a few discussions at the Intercongress about how to engage communities in “cultural heritage” work, and about the effects of things like World Heritage Listing on living communities. It’s not that academic and governmental cultural heritage managers don’t realize that cultural heritage exists in people’s minds and influences people’s behavior, and that it extends beyond the boundaries of sites and the walls of buildings, or that we don’t care about it; it’s that we don’t have a model for dealing with it.

We cultural resource management (CRM) types in the United States sometimes talk like we do have a model, because we, after all, are anthropologists first, archaeologists only second. Unlike those benighted Brits and other old-worlders who define archaeology as a discipline in its own right. But in fact it’s rare that we do much with our anthropology, and particularly rare that we pay much attention to the fundamental anthropological ethic of trying, first of all, to understand, respect, and help the people we “study” in maintaining their own lives, lifeways, and traditions. It’s much easier to focus on the buildings and sites in their own right, for their own sake.

Back in the days when the PRC was beating the drum about hegemonism, we hegemonists pretty much ignored them. Not (I think) that people like Henry Kissinger and George Schultz didn’t see some merit in what they said, but that no one could figure out anything to do about it that didn’t compromise our essential national interests. Similarly in archaeology/CRM/cultural heritage, some of us can recognize that our centralized, bureaucratized, place and thing-dominated models are faulty, but we don’t know what to do about it.

But times change, and things happen, whether we’re ready for them or not. And those once hegemonized can become hegemonists themselves. There’s something to be said for the idea that this is what’s happening today with the PRC vis-à-vis the rest of the world. I wonder what would happen if the people whose sites and buildings we seek to “preserve” in accordance with our own notions of propriety and professionalism ever found a way to exercise real hegemony over us. I wonder how this could happen, and what its outcomes might be.

Reflections on a Visit to China, Part 1: Generalities

2011-08-01T06:08:00.000-07:00

Introduction
With my wife, Pat Parker, I recently enjoyed a little under three weeks in the People’s Republic of China. At the invitation of the Chinese Academy of Social Sciences (CASS), Institute of Archaeology, I gave a paper in Beijing at the World Archaeological Congress (WAC) “Intercongress” on cultural heritage management in eastern and southeastern Asia, and we visited sites around Beijing, Xi’an and the mausoleum of emperor Qin shi Huangdi, often with the kind and knowledgeable assistance of Institute archaeologist Mr. Wang Renyu. On our own (with guides) we visited Hangzhou, Suzhou, Honcun, Xidi, Tongli, the Yellow Mountain Huangshan, and (briefly) Shanghai. I’m very grateful to Mr. Wang, CASS researcher Li Chunlin, Institute Deputy Director Prof. Chen Xingcan, and all their colleagues, as well as our China Odyssey guides, for making our visit a pleasurable and very educational one.

Three weeks in a country confers no expertise in its character, history, archaeology or culture, but there may be something to be said for first impressions, so I’m going to take this opportunity to offer a few reflections on our visit, for whatever they may be worth.

Environmental Matters

What they say about the air in Beijing is true. Within three days, the Navajo silver bracelet that Pat routinely wears had turned black (it cleaned up, though). Luckily (or maybe due to cloud seeding) there was then a thunderstorm and the sky turned clear and blue. But yes, pollution is a serious issue. However, there is apparently a serious effort underway to reduce emissions. For example, almost every rooftop seemed to sport a solar water heater. I saw few or no photovoltaic arrays, but lots of solar heating was going on. And while there are certainly too many gasoline and diesel vehicles on the (extensive and seemingly well-maintained) expressways, we also saw a vast number of bicycles, scooters, motorcycles and other vehicles driven by electricity, heavy use of public transport, and a lot of cars running on compressed natural gas.

As an inveterate recycler, I was charmed to see recycling bins almost everywhere, side-by-side with containers for non-recyclable trash, clearly labeled but often disguised as architectural forms compatible with historic structures, as rocks, as ancient urns, and in other clever ways. And lots and lots of people collecting discarded trash, moving huge piles of flattened cardboard boxes to collection points, and so on. The big cities we visited (e.g. Beijing, Shanghai) were remarkably clean, as big cities go.

I came away with no clear idea of how environmental impact assessment (EIA) is done. That it is done, somehow or other, was clear from, for example, an interesting paper at the Intercongress on archaeological survey and data recovery along a stretch of the humongous South-to-North Water Transfer Project (where, as here, “avoidance” of archaeological sites is apparently given precedence over excavation/destruction). Clearly studies are done and efforts are made to minimize and otherwise mitigate impacts, but it’s not clear to me how it happens, or what range of environmental variables are addressed. I’d like to know more.

Oh yes – and we rode the bullet train from Hangzhou to Shanghai the day after two similar trains collided not far away in Wenzhou City, and for what it’s worth, it was clean, pleasant, quiet, fully loaded with passengers, and really fast. And on time. I can’t testify to its safety, except to say that we survived, and enjoyed the ride.

Social-Cultural-Political Matters

We saw no particular evidence of oppression or repression (though there was no getting on Facebook, and one of the sites on which I routinely “click-to-donate” was blocked – doubtless because the donations go to Amnesty International). On the contrary, we were impressed at how many people we saw simply enjoying themselves – dancing, singing, and playing traditional instruments in the parks, in one case an apparently impromptu brass band of retirees playing patriotic music while people around them sang with seemingly unrestrained enthusiasm. We found people to be unfailingly gracious, friendly, and seemingly positive in their outlooks. And we were impressed at the volume of internal tourism we saw: thousands upon thousands of Chinese tourists crowding every historic or scenic site we visited, apparently having a good time and appreciating their country’s heritage. And having the disposable income to do so.

But in talking with some ordinary citizens, where language barriers permitted (neither Pat nor I, alas, speak Mandarin or any other Chinese dialect, and Rosetta Stone, while helpful, wasn’t enough), I was interested to encounter a lot of pretty frank expressions of unhappiness with corruption at high levels of government, inefficiencies, restraints on freedom of speech (especially as regards the Internet), and the growing gap between rich and poor. “Communism is dead,” one person volunteered; “all we have left is the Party.” And we crossed paths with one group of high Party officials getting the royal treatment at a couple of hotels where we stayed, to the disgruntlement of some around us. Of course, one could hear similar things expressed, and see similar kowtows to authority, in the U.S.

I couldn’t resist the impression, though – in the context of observing the incredible amounts of money being lavished on historic site development and internal tourism – that the government is pursuing a sort of bread and circuses policy: giving the people enough goodies to keep them off the streets, except when engaged in seemingly innocuous pursuits like tourism.

Cultural Heritage Management

Speaking of which: we were literally agog at the financial resources the PRC and its provincial governments are committing to aspects of cultural heritage/cultural resource management. At Xi’an, for example, the site of the Tang Dynasty (618-907 CE) Daming Palace – leveled hundreds of years ago and built over – has been cleared (relocating 100,000 or so people in the process) and developed as an archaeological park complete with a reconstructed monumental gatehouse, a scale model of the whole palace complex, an interactive archaeological museum (that even tries to explain field methodology!), and an Imax movie house showing relevant 3-D movies.

That’s before you leave town to go visit the first emperor, Qin shi Huangdi (aka Qin shi Huang, Qin Shihuangdi; 259-210 BCE) in his mausoleum, guarded by his terra cotta soldiers and horses. The terra cotta army as excavated so far is actually about a quarter mile from the mausoleum, in a very handsome park/museum complex incorporating the ongoing excavations. There are lots of soldiers, horses, and chariots, apparently, still to be uncovered, and who knows what else?

A quarter-mile away, the protected, still unexcavated mausoleum itself (bigger than the Great Pyramid of Khufu) and its extensive grounds have also become a park, with two museums under construction on the sites of major discoveries of burials, bronze chariots, armor, and other remarkable stuff. There are moves afoot to clear away nearby residential and industrial developments and expand the controlled area. All these developments are relatively recent; Mr. Wang showed me images from the early 20th century showing the whole area under agricultural use.

Xi’an is not unique in its attention to and investment in cultural and natural heritage sites. We saw similar investments being made in the interpretation and development of segments of the Great Wall, the Zhokoudian H. erectus site, river towns on the lower Yangtze, the Bund in Shanghai, and the Yellow Mountain Huangshan. All these places – most of them inscribed in the World Heritage List (and proudly advertised as such) were drawing vast, vast numbers of tourists, all paying fees for the privilege of visiting.

I was very impressed – mostly favorably – by all this investment, and all this interest. But the impression of bread and circuses continued to rattle around in my mind, and it generated another (though related) niggling worry as well. The history of China is characterized by a series of fairly autocratic imperial dynasties punctuated by peasant revolts. The uprising of 1989 that we associate with Tiananmen Square (where now a huge TV screen straddles the space, complicating assembly while inspiring with scenic and patriotic views but, I’m told, playing hell with the place’s feng shui) can be viewed as a recent unsuccessful example of the latter; the Cultural Revolution of 1966-76 was, in a twisted way, another such revolt. I had to wonder – viewing the magnificent cultural site developments, many of them seeming to glorify the imperial past (There’s a huge statue of Qin shi Huangdi – by all accounts not a very nice fellow – that greets visitors to the terra cotta army), and hearing people grumble about the rich/poor divide and the power of the Party – is the PRC government setting itself up for another revolt, and is “cultural heritage,” in the form of all these magnificent archaeological parks and similar developments, likely to become a target of revolutionary ire?

As it did, in many ways, during the Cultural Revolution. Countless times we were told: “There used to be a Buddhist shrine here, but during the Cultural Revolution….,” or “There was a handsome tablet here memorializing the ancestors, but during the Cultural Revolution….” I sat one day in the garden of a 19th century Qing Dynasty official, handsomely restored by his son in the early 20th century before he, the son (also a distinguished government official) was denounced and had to flee the country during the Cultural Revolution. The garden was classic – a complex of plantings, elaborate pavings, sculptures and stone constructions providing delightful vistas and enclaves. Many of the trees were marked with old marble slabs on which genus and species were inscribed in Chinese and Latin. I thought, “How beautiful, and erudite, and precious (in both senses of the word),” and – rather to my surprise – found myself kind of sympathizing with the Cultural Revolutionaries. I imagined them wondering, with sneering ire, where this aristocrat got off sitting around contemplating his beautiful garden and pondering the splendors of speciation when The People were suffering? It was an easy jump to imagining contemporary or near-future revolutionaries asking similar questions about massive investments in exhibiting the relics of past emperors.

Only after I’d left China did it occur to me to wonder whether anybody is pursuing the archaeology of the 700,000 workers said to have been involved in building Qin shi Huangdi’s mausoleum – along the lines of the recent exploration of the workers’ town associated with the Giza pyramids. It seems like some serious attention would be in order to the archaeology of the common people on whose labors the emperor (and every emperor) depended – both because it would be fascinating research and because it would convey a more populist, if not precisely communist, message to the visiting public about the glories of China’s past.

-- To be continued --

My Blather in Beijing

2011-06-28T03:42:00.000-07:00

Here's the paper I'm scheduled to present next week in Beijing at the World Archaeological Intercongress on Heritage Management in East and Southeast Asia. I'm grateful to WAC and the Institute of Archaeology in the Chinese Academy of Social Sciences for the invitation to do so.

Cultural Heritage, Environmental Impact Assessment, and People

Abstract: Environmental impact assessment (EIA) is the procedure by which the impacts of proposed construction and land-use projects are assessed and – in theory – made to influence development decisions. Cultural heritage tends to be poorly considered in EIA. Much of the blame lies with cultural heritage professionals. We tend to focus our energy on inscribing places in formal lists, and on debates about the formal interpretation of such places. We are too wrapped up in promoting the selective presentation and management of places that governments recognize as significant, and we too easily facilitate development schemes by excavating and thus removing sites that lie in their way. Most importantly we fail to engage the people of our countries, who alone have the power to redirect destructive development. We fail to engage them by failing to respect them and the places that they think are significant. Instead we insist that they respect our evaluations of places and our plans for management. We come to be seen as elitist, and as junior partners in the very development projects that destroy heritage. As junior partners we are easily ignored when conflicts arise between development and heritage, and the people who should be our allies in pushing back against destruction find us irrelevant to their concerns. We need to reconsider our priorities, and our methods of pursuing them.

Introduction: Assessing Environmental Impacts and Cultural Heritage

It is no secret that development projects of all kinds – housing and agricultural schemes, dams, highways, rail lines – do injury to the environment, however justified they may be on economic, social, and even environmental grounds. One has to destroy in order to build; it is in the nature of the enterprise. To control such damage, since the early 1970s virtually every national government, and such nongovernmental organizations (NGOs) as the World Bank, have put in place procedures for “environmental impact assessment” (EIA). The reason for such procedures is summed up in the Confucian’ maxim: “If you do not consider the future, you will be in trouble when it comes near.” Governments and funding bodies should consider what damage a project is likely to do before they decide whether and how to go forward with it. This is not to say that damaging projects should not be undertaken: only that if we know what damage is likely to occur, perhaps we can do things to keep it from happening, to reduce its severity, or make up for the damage somehow.

Of course, among the aspects of the environment that can be damaged by modern activities are what we call “cultural heritage.” We in this conference can probably all agree that potential impacts on cultural heritage should be closely examined in the course of EIA, that alternatives to damaging activities should be considered, that steps should be taken to avoid or reduce the damage. In general terms, the world’s people seem to agree; most communities react badly to actions that they perceive as damaging to their cultural heritage, and most governmental guidelines for EIA indicate that impacts on cultural heritage should be considered in planning.

Often, however, when EIA is performed on proposed projects, not much attention is paid to cultural heritage. EIA analysts merely list affected historic monuments or places included in the World Heritage List, and assert that these will be taken care of by following whatever standard procedures governments have put in place. Often the people and communities whose heritage is most at risk are poorly engaged in the process of EIA, their heritage values are poorly considered in planning, and the steps taken to mitigate impacts – decided on by project proponents and governments, if indeed any such steps are taken – are inadequate or even irrelevant to the people whose heritage is affected.

In my experience there are several common, interrelated reasons that cultural heritage is not addressed well in EIA. In this paper I want to outline some of these problems, and suggest steps that we might take to solve them.

Problem One: What is Cultural Heritage?

Different people conceptualize cultural heritage in different ways, and this complicates its consideration in EIA. In my own experience in the United States and the Pacific islands, and in reading the international literature, I find that cultural heritage is variously defined to include – or exclude (among other things) –

• Monuments, archaeological sites, and cultural landmarks;

• Traditional ways of using the land and its resources;

• Culturally important plants and animals;

• Stories, songs, philosophy and language;

• Traditional forms of subsistence;

• Traditional ways of life;

• Religious and cultural practices;

• Objects of material culture (artifacts, antiquities);

• Art forms, and

• Books, manuscripts, and other literary products.

Each of us academic and professional practitioners specializes in one or more of the above types of heritage. Most of us at this conference, in fact, specialize in a subdivision of the first type shown on my list: archaeological sites, which may also be thought of as historic places and/or landmarks. We understandably do not take responsibility for other kinds of cultural expression, other parts of the cultural environment. But here is the problem: we also often fail to inform those who plan and carry out EIA that we are not authorities on all aspects of cultural heritage. And we fail to recommend that they consult those who are authorities on cultural things other than archaeology, notably including the local people themselves. This results in assessments in which “cultural heritage” is equated entirely with monuments or archaeology, while the other aspects of culture are given little consideration or even ignored entirely. These aspects of the cultural environment may be just as worthy of protection as – even more worthy than – archaeological sites, and they may be much more the concern of local people, but if they are considered in EIA at all, they are often considered in spite of us rather than with our support.

Consider, for example, animals or plants that figure importantly in a community’s self-identity. I have been involved lately with the Okinawa dugong, significant in the beliefs of traditional Okinawans; the dugongs’ habitat is threatened by the proposed construction of a new U.S. military base. To those performing EIA on the project, the dugongs were simply animals of professional concern to biologists and natural resource managers. To the local people, however, the dugong is literally a sacred animal. Had it not been for legal intervention by Okinawan, Japanese, and U.S. environmental groups, and near-violent demonstrations on the project site by Okinawans, the cultural value of the dugongs and their habitat to the people of Okinawa would have been ignored in the military’s EIA and its decision making about the project.

Problem Two: The Limitations of Traditional Thinking About Cultural Heritage

EIA has developed as a widespread aspect of governmental and non-governmental planning only in the last half-century. The management of historic landmarks, monuments, and archaeological resources, of course, has a more venerable history, by some reckonings going back to the 10th century ACE and perhaps farther. Organized government systems for heritage management were being put in place in Europe by the early 19th century, and spread across the world with colonialism. So the ways archaeologists, architectural historians, and our close colleagues think about our aspects of cultural heritage were well set in place before EIA ever came on the scene. These ways of thinking feature the following more or less standard elements:

• A narrow focus on places: that is, buildings, other structures, monuments, and archaeological sites, and on portable antiquities;

• The compilation of official lists of heritage places, variously called registers, inventories, and schedules, among other things;

• An expectation that listed heritage places should be preserved unchanged in perpetuity;

• Little or no consideration given to places not on official lists, or regarded as eligible for them;

• Official governmental bodies that compile and maintain lists, and promote preservation;

• Laws and regulations aimed at protecting listed places to varying degrees, or at least at reserving to government the right to destroy them.

• More or less rigorous constraints on the private appropriation of heritage places, or of antiquities.

These standard elements are embedded not only in the legal systems of most nations, but in such international instruments as the World Heritage List. Even when we try to bend our minds around cultural things that are not archaeological sites and historic landmarks, we automatically apply our traditional ways of thinking. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, for example, directs that signatory nations compile lists of intangible cultural heritage, despite the inherent fluidity and evanescence of intangible culture.

When this list-based, hierarchical, bureaucratic and rather rigid system of thought intersects with EIA, it further narrows the scope of impact analysis. Not only does EIA come to represent archaeological sites and landmarks as the only culturally significant aspects of an affected environment, it tends to recognize as significant only those sites and landmarks that government has officially declared and listed as such. In the United States, for instance – to hold up only my own country as a sad example – if a local community fears that a place it holds to have cultural significance may be destroyed by government action and wants it considered in EIA, it must show that the place is eligible for the National Register of Historic Places. This requires the community to explain the place’s significance to government archaeologists and architectural historians, following technical regulations issued by the National Park Service and understood only by specialists. In most EIA documents in the United States, if a place has not been found to be eligible for the National Register, it is assumed to be of no significance, and can be destroyed with impunity. And cultural heritage that is not embodied in places – animals, plants, belief systems, traditional food – has almost no chance of being considered in EIA. This strikes me, at least, as a strange way for a grandly self-proclaimed democracy to consider its impacts on the cultural values of its people.

Problem Three: Attitudes and Assumptions

When people conducting EIA seek to consider the cultural aspects of the environment, they understandably turn for advice to government’s cultural heritage authorities – ministries of culture, official archaeological surveys, agencies that maintain schedules or registers of cultural places and things. They assume that such authorities can advise them about – perhaps even provide them with a list of – significant cultural heritage that may be affected.

The cultural heritage authorities often have little understanding of EIA, but they do know their own programs, regulations, policies, and professional specialties. As far as they know, when they are asked to advise about cultural heritage, they are being asked to advise about what is on their lists, what they are officially responsible for, or what falls within the ambit of their professional expertise. They advise about archaeological sites, scheduled monuments, registered buildings. What they almost certainly do not advise about is how to interact with local people, local communities, to find out what they think is important and what they think ought to be done about it. That sort of engagement has never been part of the portfolio of most government heritage offices, and few of them are staffed, funded, trained or encouraged to promote such engagement.

Presuming that they now know what cultural heritage may be involved, the people conducting EIA duly report it and proceed to analyze environmental impacts without further consideration of culture. If local people and other interest groups then object – perhaps violently – to what they think the project will do to their heritage, it often comes as a surprise to the project’s proponents and their EIA specialists (and perhaps to the cultural heritage authorities as well).

Government, Culture, and People

This situation is fundamentally unfair and counter-democratic, and it undercuts our efforts to preserve cultural heritage. Surely it is true that only the citizens of our countries, only the people, have the power to redirect and control destructive development, but our traditional ways of managing heritage disconnects us from the people. By focusing attention only on the kinds of heritage that we understand and appreciate, we fail to engage the people. By failing to respect them and the things that they think are significant, by insisting instead that they respect our evaluations of heritage, our ways of discussing it, and our plans for its management, we cause ourselves to be seen as elitist and irrelevant to the people’s interests. This leaves us in a relatively powerless position when confronting the development projects that destroy heritage. We become, in essence, junior partners in such developments, and as such we are easily ignored when conflicts arise between development and heritage.

Ironically, failing to engage the people and address the heritage they value can also impede development projects. I have personally seen important, highly justified projects held up for years, at very high cost, and sometimes abandoned altogether, because of last-minute controversies over locally valued cultural heritage. These controversies often could have been avoided or efficiently resolved had affected people and communities been respectfully consulted, early in project planning.

I suggest that it is in everyone’s interests – the interests of governments, of archaeologists and other heritage professionals, of our institutions and agencies, of communities world-wide, and of the development community, to make EIA more sensitive to cultural heritage, broadly defined, and notably to the cultural values of local communities. Interestingly, a way to do this has been offered, not by us cultural heritage experts, but by biologists.

The Akwé: Kon Guidelines

The Secretariat of the Convention on Biological Diversity – a convention to which China and other Asian countries are signatories but my country, I am sorry to say, is not – has produced a sophisticated set of guidelines for considering cultural heritage in EIA. These guidelines are called “Akwé: Kon”(“Ahgwégoh”) a term in the language of the North American Mohawk tribe meaning “everything in creation.” They outline how to conduct social, cultural, and environmental impact assessments in concert with affected communities.

A government or NGO planning some form of land-use – say a dam, a highway, an agricultural or urban revitalization scheme, or a power plant – that is conscientiously following Akwé: Kon would actively and creatively engage local communities in every aspect of project planning. It would work with such communities to identify who speaks for different cultural interests. It would learn how to communicate with these groups, find out and record their concerns and negotiate ways to address those concerns. In doing so, it would make sure that affected groups have the financial and other resources necessary to participate fully in impact assessment and decision making. It would negotiate and put in place agreements with the communities about how the impacts of the project would be identified and considered. Following such agreements, it would conduct cultural impact studies addressing the project’s possible impacts on, for example:

…cultural heritage, religions, beliefs and sacred teachings, customary practices, forms of social organization, sys¬tems of natural resource use, including patterns of land use, places of cul¬tural significance, economic valuation of cultural resources, sacred sites, ceremonies, languages, customary law systems, and political structures, roles and customs.

(Secretariat of the CBD 2004:13)

The scope of such studies would take into account:

(a) Possible impacts on continued customary use of biological resources;

(b) Possible impacts on the respect, preservation, protection and mainte¬nance of traditional knowledge, innovations and practices;

(c) Protocols (negotiated with communities);

(d) Possible impacts on sacred sites and associated ritual or ceremonial activities;

(e) Respect for the need for cultural privacy; and

(f) Possible impacts on the exercise of customary laws.

(Secretariat of the CBD 2004:14)

The government or NGO would carry out environmental assessments coordinated with the cultural assessments. These would “respect existing inherent land and treaty rights as well as legally established rights of indigenous and local communities” and “con¬tribute to the protection of the rights of indigenous and local communities by recognizing (their) distinct activities, customs and beliefs…” Such assessments would consider, among other more strictly eco-biological factors:

• areas of particular economic significance (as hunting areas and trapping sites, fishing grounds, gathering areas, grazing lands, timber harvesting sites and other harvesting areas);

• particularly significant physical features and other natural factors which provide for biodiversity and ecosystems (e.g. watercourses, springs, lakes, mines/quarries that supply local needs); and

• sites of religious, spiritual, ceremonial and sacred significance (such as sacred groves and totemic sites).

(Secretariat of the CBD 2004:16-17)

Coordinated social impact assessments would:

…. take into account gen¬der and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications… and evaluate …. tangible benefits to such communities, such as non-hazardous job creation, viable revenue from the levying of appropriate fees from beneficiaries of such developments, access to markets and diversification of income opportunities.

(Secretariat of the CBD 2004: 18)

Economic assessments would recognize that:

…changes to traditional practices for food production, or (that) involve the introduction of commercial cultivation and harvesting of a particular wild species (e.g. to supply market demands for particular herbs, spices, medicinal plants, fish, fur or leather) may lead to pressures to restructure traditional systems of land tenure or expropriate land, and to pressures on the sustainable use of biological diversity, in order to accommodate new scales of production. The ramifications of these kinds of changes can be far-reaching and need to be properly assessed, taking into account the value systems of indigenous and local communities. Likely impacts associated with the cultivation and/or commercial harvesting of wild species should also be assessed and addressed.

(Secretariat of the CBD 2004: 19-20)

The results of all these assessments would be brought back to the community and coordinated with its own planning, in a transparent, consultative manner, with provision made for the resolution of disputes (Secretariat of the CBD 2004:22-25).

Opting for Akwé: Kon

An EIA system based on Akwé: Kon would not discourage consideration of things like World Heritage sites and places or things listed in a national schedule or register, but it would recognize that those who are fixated on such places – that is, let’s admit it, many of us – constitute only one set of cultural stakeholders, whose values are not privileged over those of others, notably including local people. It would be significantly more democratic, more transparent, more inclusive than most existing systems. It would also, I think, produce a higher degree of predictability for development project proponents than they currently enjoy.

Adopting an Akwé: Kon based system would require administrative, legislative, and policy actions of different kinds, depending on the nation or NGO involved. In the U.S., unfortunately, it would require action by our legislative bodies, which is very unlikely to happen. In nations with less fossilized EIA and cultural heritage systems than ours, and among NGOs and even private-sector development proponents, there is probably much more hope.

I have no magic formula for replacing the world’s ineffective cultural heritage systems with something like Akwé: Kon, and I certainly have no wisdom to impart. My purpose here today is just to suggest that many of our existing systems for relating cultural heritage to EIA are self-defeating, and to suggest that we consider such creative alternatives as Akwé: Kon. I hope that WAC and other cultural heritage organizations, and the smart young people who are rising to leadership in such organizations, will undertake this consideration.

Gail Cohen’s Comments on the Cape Cod Dune Shacks: An Example

2011-06-26T04:28:00.000-07:00

Introduction

I post the following comments with their author's permission – the original addressed to the Superintendent of Cape Cod National Seashore – for a couple of reasons.

First, the case of the Dune Shacks is really a classic. The Shacks, which have been occupied by a self-defined community of non-conformist artists, writers, and other assorted ne’er-do-wells for generations, is obviously a traditional cultural property (TCP) by any reasonable definition, has and has been found so by repeated studies into which the National Park Service has thrown good money and bad. But NPS won’t agree that they're eligible for the National Register as a TCP; no, no. They are eligible, says NPS (and indeed are on the Register), but simply as pieces of interesting vernacular architecture with historical associations but no links to the living community's cultural identity. The Register staff itself have gone along with this, as they regularly do when it's NPS making the outrageous determinations (How could they do otherwise, and expect to coast untroubled on through to retirement?).

Why is NPS so up-tight about the matter? Apparently because it perceives, with some justification, that if the Shacks are viewed as a TCP, its representatives would have to (horrors!) consult with the Shacks’ residents and friends about their management, and perhaps not have the free hand it wants to have in evicting people and wasting tax dollars on prettying the Shacks up for tourists.

My second reason for posting Gail’s comments -- which apparently relate to a currently proposed NPS plan for the Shacks -- is that they’re exemplary of the form in which comments often come in from concerned, knowledgeable, impassioned citizens in cases like this, and the form is likely to cause public servants in agencies and SHPO offices to throw up their hands in despair. The comments are longish and rather rambling. They assume a considerable level of knowledge on the part of the reader about the place, the case, the situation, the issues, the individuals involved. They assume that the reader has been paying attention to the nuances of the case.

All reasonable enough assumptions for a citizen to have, one might think, and we oughtn't expect concerned citizens not to express their concerns, in their own vernacular. But for the SHPO staffer trying to juggle a hundred simultaneous cases while his or her job is threatened by budget cuts and he or she is being burdened with a thousand kinds of administrivia, it has to be enough to cause hair-tearing and the temptation to toss the whole thing into a file and forget it. It’s to the considerable credit of the Massachusetts SHPO that they’ve not done this; they keep poking NPS about the matter. I suspect, however – no, I know – that in other cases such tossing and forgetting is exactly what pretty routinely happens. It’s a problem that preservation authorities ought to attend to, if they expect to build and maintain public support. At the same time, members of the public ought to try to remember that they're trying to communicate with real, overworked people, and try to make it as easy as possible for those people to get the point that they're trying to make.

Tom

Public Comments (number 50 or so). DUNE SHACKS - Historic District Preservation and Use
Plan Etc. By Gail Cohen

Maria Burks put a hold on years of Injustice to the Dune Dwellers, Betrayal to the Citizens of Cape Cod, and to Provincetown concerning the promises made to the People in the Hearings that led up to, and in the Legislation that created the Cape Cod National Seashore. Maria let the Dune Dwellers stay when their stipulations ran out - the Tasha’s, Lawrence Schuster, and Zara Ofsevit Jackson in 2005.

George Price to this date refuses to attempt to make the National Park Service more Just, but he Could - as could any one in the National Park Service, any Congressman or Senator, and the Secretary Of The Interior. The person who does this would be a Hero or Heroine.

They could never erase the pain of the Dune Dwellers since 1961, those evicted, those harassed, and those who had their Dune Shacks (cottages) destroyed by the Cape Cod National Seashore. They could never erase the pain of the American Taxpayer over the Millions of dollars spent litigating the Dune Dwellers, the numerous public comment periods, reports, outside consultants, battles over the eligibility of the Dune Shacks to the National Register Of Historic Places, and that of the Traditional Cultural Property where the CCNS went against the recommendation of the person hired to make that determination.

It is high time that the Cape Cod National Seashore, and National Park Service start telling the Truth about the Dune Shacks (cottages). Not only has this continually been withheld, as evident in the recent released Listing of the Dune Shacks on the National Register for which no one from the Public or Dune Dwellers were allowed to speak to the outside consultant (PAL) that did the Listing, but the CCNS has directly lied to the Press telling them that none of the Dune Dwellers had any Property Rights when the last three law cases proved property rights, and others had deeds whose dune shacks were moved from their tracts due to the nature of the dunes, and peril of falling into the sea.

The only real dune dwellers are those whose dune shacks and property were taken by Eminent Domain in 1969, and 1971. Every thing concerning the Dune Shacks should have this FACT included. No One handed their dune shack over to the Cape Cod National Seashore. The Braaton’s did loan their dune shack to the U. S. Navy during WWII which threw out Eugene O’Neill’s sink, as much of the dune shack was salvage from the Peaked Hill Coast Guard Station where O’Neill lived that fell into the sea. Even though this was long gone, the O’Neill Estate property - over 50 acres was taken by Eminent Domain when the rest of the dune shacks and property were taken by the National Park Service.

However, one dune dweller who sold the CCNS land was allowed to stay - except for a cement foundation his dune shack was as all of the others. His was destroyed, so one was built on his Father’s property. One has to wonder why his was declared Improve Property, when the others who had deeds and proved their property rights in court were not . To understand this one only has to look as to why a Congressman was allowed to stay in Cayuga Recreation (National Park) when all others were forced out.

CCNS refused to let me speak to Bob Wolfe. I did the last day when he presented his findings which was the first time recognized that the CCNS destroyed many dune shacks on purpose - Tony Vevers when he was away teaching, 2 of Ozzie Ball’s, 2 of Grace Bessay’s - one in which the CCNS forced her to pay for its destruction, Carl Tasha’s, 3 of Pat Patricks, others that the fire department were given as fire practice, and Charlie Schmid’s that was bulldoze, and Herbert Olson had one protester actually picked up by the bull dozer. The dune shack was left in rubble for a year on the dunes inspiring the creation of Peaked Hill Trust by outraged citizens.

The Fleurant, Watson, Jones, and the Boat House were allowed to rot. The CCNS was to be cited for Demolition By Neglect. That is why they were allowed to be leased due to the extensive repairs that had to be made. Otherwise, they would not have been occupied. Even though the CCNS was mandated in 1989 to maintain the dune shacks once they were declared eligible for the National Register - the dune shacks were leased, and all of the owners which they were called had the full burden of maintaining them. I have often talked about Leo Fluerant’s jeep buried in the sand with the top of the jeep sticking out reminding me of the Statue Of Liberty in the film PLANET OF THE APES.

James Killion of the CCNS once he retired admitted that he did not even tell many of the dune dwellers that instead of Life, the stipulations could be for 25 years. Frenchie Chanel would not sign her stipulation until it was added that her daughter could have the dune shack for her lifetime which they did include. Yet, the Chaplins had to spend 18 years in court to get the exact same stipulation for their children as the NPS would not pay them what they were owed for their property claiming they had no money, though David Adams was paid the hundreds of thousand of dollars owed to him as their properties are oceanfront. All 3 dune dwellers who remained in court wanted to stay in their dune shacks only.

In Grace Bessay’s Historic law case (the oldest individual Federal one in America) the judges kept saying NO PUBLIC UTILITIES. Under the legislation that created the Cape Cod National Seashore the dune shacks only had to be in accordance with local zoning laws which they were. Instead the courts applied the Federal definition. The U.S. Court of Appeals did not even care that the dune shacks had just been declared eligible for the Historic Register in which public utilities were not allowed. Grace Bessay proved her property rights, but as in the other dune shack law cases, except for Conrad Malicoat they were not declared Improved Property. In the Legislation that created the Cape Cod National Seashore the dune shacks are listed as Improved Property.

George Price likes to state that the Dune Shack Stipulations which all were forced to sign will be enforced. Yet, Herbert Olson, a former Superintendent went against the stipulations for Hazel Hawthorne Werner’s dune shacks by allowing Peaked Hill Trust as an experiment to use Hazel’s two dune shacks while she was still alive.

The stipulations as do most state for residential use only. Later stipulations did not allow dune dwellers to rent for less than 90 days, or at all. Yet, all the 3 non-profits are allowed to rent out the 6 dune shacks given to them, or allowed for a large sum of money. Ironically, this was the reason given by the Keeper of the Register in denying the dune shacks Traditional Cultural Property status - that the non-profit stays were temporary. Peaked Hill Trust was founded because the Cape Cod National Seashore was destroying, and intended to destroy all of the dune shacks. There is not one word about Dune Shacks in their original Charter. They did initiate the Historic Register status, however the dune shacks were saved in 1989 by the efforts of many, and Beth Savage at the National Register. I saved the 3 that were allowed to rot by the Cape Cod National Seashore, and eventually were leased under historic leasing agreements.

That this report and the Historic Register Listing calls the Fuller-Bessay Dune Shack the Al Fearing Dune Shack is ridiculous, and directed at Peter Clemons and his Family as well as Grace Bessay who was in court for 23 years. Grace was evicted 3 times. At the 11th hour an agreement was reached. The Supreme Court would not hear her law case. This was wrong, and what happen to Grace has happen to many all over the country by the National Park Service. Change the name of this dune shack which has been on all of the owner/occupancy lists since the 1960’s. It should be done immediately. It was Dorothy Fearing who testified in Grace Bessay’s law case on her behalf.

It is clear that the Cape Cod National Seashore, and the National Park Service CONTINUE to destroy dune shack culture, and ignore the findings of Bob Wolfe. It is clear that the National Register of Historic Places needs to be removed from the National Park Service which is totally political, and does the bidding of the NPS. The Keeper of the Register refused to sign the eligibility statement in 1989 which is why Beth Savage had to sign it. Paul Loether refused to say what was the recommendation of his Staff when the Keeper at the time, Janet Matthews denied Traditional Cultural Property Status. NPS and the National Register claimed there was NOTHING in writing about the above when I filed for Freedom of Information documents. The conclusions of the Consensus Building Institute which were paid over $100,000 were the Exact Same as those reached in 1991 by the Dune Shack Subcommittee of the Advisory Commission of the Cape Cod National Seashore. The highlight of injustice is George Price making sure that he is not responsible for choosing who remains in the dune shacks, and had the rule changed so that it will be the NE Regional Office, and the Director of the National Park Service who will decide.
I have been involved now for 23 years in the dune shack/dune dweller issues. At every turn there has been injustice, lies, false and incomplete information. It is not the Dune Dwellers problem, but that of the American Taxpayer, and all citizens of Cape Cod who have been betrayed by the Federal Government. Promises were not kept, nor was the 1961 Legislation adhered to over the years. The Cape Cod National SEASHORE has been treated like all other National Parks. It was not suppose to be.

If there is any brave person out there, or George Price wants to be known for something good - I am submitting what little Justice can be gotten NOW. Even though Senator John Kerry claimed in a press release that the Dune Shacks Were a Traditional Cultural Property, he was ignored and there was no appeal at all allowed by the Keeper of the National Register. The only real solution for the Dune Dwellers can come from simple Legislation as that of Mineral King Permit Cabins, or by the Secretary of the Interior who should have in the 1960’s declared all of them Improved Property. Those at Mineral King have no property rights at all, but were allowed to stay, and pass them on to their families and heirs. This has to happen to sweep away decades of INJUSTICE. It is way too late for those who suffered the most now dead. A little Justice though can be had if someone has the courage to right the wrongs of the National Park Service and Cape Cod National Seashore.

HARRY KEMP IS WATCHING. The following should be implemented:

1. Jean Miller Cohen Dune Shack - I have no objection to the Provincetown Community Compact keeping this dune shack. However, if relatives of Jean Cohen or heirs exist they should have a week or two weeks. Please note that because this dune shack was in the Province Lands, Jean Miller Cohen got only a 15 year stipulation. The State did not recognize squatter rights. Her heirs had the dune shack, and were evicted. One died, but if the other one is still alive he should have a week or two at the dune shack. I have been told that Bob Wolfe put in his report that it was the Gail Cohen dune shack. This is untrue, and I am not related to Jean Cohen.

2. Leo Fleurant Dune Shack - Emily Bebe, and Evelyn Simon spent thousand of dollars rehabilitating this dune shack that had been left to rot by the Cape Cod National Seashore. They should be allowed to stay, and their lease renewed for a long term.

3. David and Marcia Adams Guest Cottage - The Adams family should be allowed to stay, and have use of this cottage.

4. David and Marcia Adams Dune Shack - The Adams family should be allowed to stay. They have total property rights, and were paid over $400,000. However, all of the dune shacks are Improved Property and were thus should not have been TAKEN. Just for keeping them in court for so many years, they should be allowed to keep the money. A way to pay back is documented in the film FOR THE COMMON GOOD, when the residents of Cayuga National Recreation Center (now changed to Park) were evicted, and paid for their property when they thought the Secretary of the Interior were going to let them stay. I have been told that after throwing these people and businesses out that new ones are in that Park which was also not to be treated like all the other National Parks.

5. Hazel Hawthorne Werner Dune Shack - Euphoria -- I have no objection to Peaked Hill Trust keeping this dune shack. However, only if they tell everyone they rent to about Hazel. Also, as soon as Aaron Avellar died - his wife Anna and sons were no longer given their week or two in Hazel’s dune shack. This time in Hazel’s dune shacks needs to be reinstated immediately. In addition, last time I spoke with Sue and the Uffords - Hazel’s other relatives - they had never been picked for the PHT lottery. A week or two should be set aside for them in one of Hazel’s two dune shacks.

6. Hazel Hawthorne Werner Dune Shack - Thalassic -- Same as Above. I will add that Hazel’s family is not happy at all with Peaked Hill Trust. The relationship is strained due to how the family was treated. I am annoyed that when Hazel late in life tried to go to her dune shacks - PHT was not able to get her up there though they tried. They should have succeeded.

7. Boris Margo and Jan Gelb Dune Shack - This dune shack should never have been given to Peaked Hill Trust. Murray Zimiles helped Boris build the dune shack. He paid the taxes when letting PHT use it before Boris died. He, and the entire Family are artists. Though Dawn Zimiles works at the Fine Arts Center run by Hattie Fitts, they have never spoken about the pain of the Family losing the dune shack. Murray Zimiles applied for it, and the CCNS instead gave it to Peaked Hill Trust. This was wrong, and needs immediately to be rectified. Murray was given two weeks at the dune shack by Peaked Hill Trust. They then reduced it to one week. This dune shack needs to go back to Murray Zimiles who can then decide if PHT can rent the dune shack when the family is not using it. The Family has a close relationship with the memory of Boris and Jan.
8. Harry Kemp (Tasha) Dune Shack - Harry Kemp willed his dune shack to Carl Tasha. Coastguardman and Provincetown Player Frank Henderson had given him the dune shack in writing. Due to his being underage, the dune shack was obtained by his Mother - Sunny Tasha for the Family. Carl was a brilliant artist and sculptor who also made jewelry though PAL did not mention him in the National Register Listing. Sunny Tasha was a Provincetown Icon who had survived the Johnstown Flood. Of course, the Tasha Family should remain in this Dune Shack, as should the upcoming generations. If the Tasha’s had remained in court, they would have proven their squatter rights. Their lawyer told them to drop out when the Justice Dept. lawyer said to him, “We are going to get those asses out of there”.

9. Zara Malkin Ofsevit Dune Shack - Though Zara has in recent years let Peaked Hill Trust rent her Dune Shack - she has told me that she would give any thing to get it back, and be able to do what she wants with it. Zara’s Mother (

Alice Malkin) purchased this Dune Shack from a Provincetown City Clerk. There is a deed, and Zara is the rightful owner and heir. This dune shack had to be moved off the deeded tract. Zara should decide who gets to have her dune shack in the future.

10. Nicholas and Ray Wells Dune Shack - Ray Wells purchased this Dune Shack and 50 acres from Eugene O’Neill’s wife Carlotta Monteray. There was a deed. When Ray was away, the dune shack was moved by the caretaker off of the deeded property to maintain it from erosion. It is Ray Wells Dune Shack, and at 103 Ray is living for that dune shack. She did not even want PHT to rent the dune shack until her death, though Joyce Johnson was allowed to maintain it along with Peaked Hill Trust. Ray should be allowed to decide who gets her dune shack after she is gone. If the Watson Dune Shack is not given to Joyce Johnson - this one should be given to her, along with Peaked Hill Trust to maintain it.

11. Andy Fuller and Grace Bessay Dune Shack (It is Not the Al Fearing Dune Shack) - I don’t care what you do with this one. However, Peter Clemon’s children are innocent victims and have grown up on the dunes. The dune shack should be given to them in 2016. PAL neglected to state that Peter Clemon’s is an artist. Grace Bessay fought for her way of life, and her property. That should be Honored.

12. Jeanne Chanel (Frenchie) Dune Shack - Frenchie Chanel was also an artist. When one went into Town Hall on the right hand wall was her painting MY DUNE HOME. I have a photo of Maria Burks in front of it. It was her Dune Home, and her daughter Adrienne (Shatzi) should be able to decide who gets it after her death. Originally, she wanted it to go to a relative who I believe is no longer alive. It should be her decision alone.

I do not know of the arrangements she made with the Del Deo’s. I do not want to know. If Shatzi wants the Del Deo’s to have it after she is gone fine. I have been told that the Del Deo’s son wants the dune shack. However, as far as I know he has never done any thing, or been involved in any of the Dune Shack issues. Though involved in a messy divorce, Andrew Clemon’s was also in one but has participated. The Del Deo’s son too is a prominent artist, and they have a daughter.

The one thing to note is that the Cape Cod National Seashore, and National Park Service has cause agony to Schatzi who loves that dune shack. After the war it gave her and her Mother peace. She has let Josephine Del Deo deal with the dune shack, though she did come to several meetings in the past. The pain has been too great.

13. Theodore and Eunice Braaten Dune Shack - This dune shack is one of the most sad stories up on the dunes. The National Park Service stopped Special Permits which the Braaten’s had one. This was at the same time they stopped the Special Use Permit for the Provincetown Landfill (Transfer Station). Since Special Use Permits have been reinstated. The Braaten’s purchased their dune shack. The land was owned by the sand company, yet the Braaten’s paid all of the taxes. All of a sudden when the Braaten’s were in their 90’s and still using the dune shack their Special Use Permit was not renewed. Eunice called me in tears. It remained empty until Lawrence Schuster had no place to live, and Eunice asked him to take care of the dune shack for them. This was totally illegal at the time since there was no Special Use Permit which was renewed annually. Eunice gave Lawrence a place to live from her own generosity.

For awhile, Lawrence let the Braaten children or grandchildren visit - then stopped. When Ted Braaten died at age 103, Lawrence was evicted. Before the eviction was carried out, Maria Burks decided to let Lawrence stay going against the Braaton stipulation. I have no objection to Lawrence who continues the tradition of year-round living on the dunes, but only if he allows the Braaten grandchildren time in the dune shack when he is not at home. The dune shack is rightfully theirs, and this should be done while David Braaten who grew up on the dunes is still alive. The Grandchildren who I have talked to want to visit the dune shack and claim their rightful heritage. If Lawrence does not allow them access, the dune shack should revert back to the Braaten Family.

14. Margaret (Peg) Watson Dune Shack - When wills were allowed by the CCNS, Peg Watson willed her dune shack to Charlie Schmid. Charlie in turn willed it to Joyce Johnson and another woman who helped him in his later years. They should be given the dune shack which is rightfully theirs. Peaked Hill Trust can also share it, as Joyce does not want to be totally responsible for the maintance. Julie Schechter’s (Peaked Hill Trust) Sister has no right to it whatsoever though I appreciate the fact that she lets Joyce use it in the Winter. The Dune Shack belongs to Joyce Johnson, and it is high time she had it. Joyce has Charlie Schmid’s ashes, and deserves this dune shack. She needs it now in her later years, and for the artist that she is.

15. Randolf and Annabelle Jones Dune Shack - Another sad story. Randolf and Annabelle loved this dune shack. Their ashes are there, and were upset by the current occupants from where they had been placed. Michael Sperber was willed Charlie Schmid’s dune shack which all of its unique 3 stories had been destroyed by the Cape Cod National Seashore. The Jones said Michael could have theirs. Michael’s children grew up in that dune shack. When Randolf Jones died, Michael Sperber was evicted. Michael Connelly, MA. Secretary of State had written that there were to be no more Evictions from the Dune Shacks. This was ignored, and has continued to be ignored except for Lawrence Schuster.

The dune shack rightfully belongs to Michael Sperber and his Family. At first, Marcia Dunn wanted to contact Michael to learn about the Jones. The Dunn’s, friends of the Fitts were allowed to lease the dune shack. At a meeting last year, Scott Fitts belligerently said he would not let Michael use the dune shack. This dune shack should immediately be returned to Michael Sperber and his Family. In addition, Randolf Jones left $25,000 for the maintenance of the dune shack. The CCNS rejected this gift, which instead went to the Jone’s church. The CCNS lied that they had not been told of this gift earlier, but Randolf had written them about it, and it had been received.

16. David and Connie Armstrong Dune Shack - The Armstrong children should have this dune shack when their parents die. They had to drop out of court due to the expense, and raising a family. The daughters are the rightful heirs.

17. Stanley and Laura Fowler Dune Shack - Another sad story. Since Peter Clemons has not been forthcoming with me about his arrangement with Laura Fowler, this dune shack should be given to the Fowler children. Immediately, the Fowler’s furniture, stove etc. should be moved back in. They should have never been ordered to be taken out by the CCNS. The Clemons should remain as caretakers as Laura Fowler may have had an issue with one of her children not taking care of it the way she wanted. Peter Clemon’s and his Family were evicted from this dune shack after Laura Fowler died, even though all the others were allowed to stay when stipulations were over - and George Price pledged that all would remain the same until the final dune shack use plan. This was wrong. Many dune dwellers had two or more dune shacks. The Provincetown Community Compact has no right to it, though except for the high rent I have no objection to them using it. I do object to how CCNS handled this, and the heartache it brought to the Fowler children and the Clemon’s Family.

18. Tony Vevers Dune Shack - Destroyed on purpose by the Cape Cod National Seashore. This dune shack was given to the Vevers by the son of Heinrich Pfiffer who had owned the Artist Theatre on Pfiffer’s Wharf which became the Provincetown Playhouse On The Wharf in 1940. Tony Vever’s wife and daughter should immediately be allowed to rebuild their dune shack on the property. Peaked Hill Trust has offered to build it for them. All of the Vevers are well known artists, and Tabitha Vevers has an art gallery in Provincetown.

19. If the Patrick Family wants to rebuild they should be allowed to do so. And since also Carl Tasha’s dune shack was destroyed while he was away at college, the Tasha Family should be allowed to rebuild it given that the family is a large once.

20. Given that the stipulations that ended in 2005 were allowed to continue staying in their dune shacks - this is a precedence for allowing ALL of the Dune Dwellers another 6 or more years. Meanwhile leases that expired were also renewed in recent years. You and NPS can’t give 6 or more extra years to some, and not to the other Dune Dwellers.

Gail Cohen
St. Petersburg, FL. 33710

Making the Section 106 Regulations More Effective and Less Burdensome

2011-06-02T16:12:00.000-07:00

Here are my June 2 comments in response to the

Advisory Council on Historic Preservation's request for advice

(See http://www.achp.gov/EO_13563.pdf).

Dear ACHP:

I'm writing in response to your notice of June 1, requesting public comments to assist with your retrospective review of the effectiveness of the NHPA Section 106 regulations. My comments are organized with reference to the nine questions you posed.

1. How should the ACHP periodically review its regulations to ensure they are serving their stated purpose efficiently and effectively? Please provide specific recommendations on appropriate outreach and timing.

The first step would be to rework the regs to make them much simpler and easier to understand (see below). Until that's done, it's going to be very difficult to "review" them in any meaningful, transparent way, because only specialists will understand them and be able to participate in review. Having reworked and simplified them, I'd suggest asking some outside organization -- NOT a preservation advocacy group like the NTHP, or an industry organization, or a contractor's lobby like ACRA -- to put together a stakeholders' group every 5 years or so to review the record of consultations and make recommendations. This might be a job for the Institute for Environmental Conflict Resolution. Of course, this review should be coupled with general public review and comment, and there should be some process for bringing the review to an actionable conclusion.

2. How can the ACHP reduce burdens and maintain flexibility for participants in the Section 106 regulatory process in a way that will promote the protection of historic properties?

First, and without the need for any regulatory or statutory changes, do the following:

a. Insist that the ACHP staff focus on serious issues and cut the crap. We should not, for example, be troubled in the process by wet-behind-the-ears ACHP staff members insisting that we really have to focus on avoidance before minimization before mitigation. If this requires re-educating your legal staff, do that, too.

b. REALLY beat up on agencies, SHPOs, and NPS as the SHPOs' overseer to focus attention on 36 CFR 800.3, initiating review. Try to get them all to understand that the process needs to start early, and that early consultation necessarily entails a degree of ambiguity about project plans, effects, and affected properties. Try to get them to understand that review really is supposed to be an open, public, consultative process, and that among the very first things an agency's supposed to do -- and an SHPO ought to help agencies to do -- is to identify and engage consulting parties.

c. Insist that NPS re-think the standards by which SHPO performance is judged; at the very least, the nonsense that SHPOs are required to keep track of should be consistent with the current regulations, not those left over from the 1980s. Try to get them to understand that however much they may be in love with National Register nominations and equivalent forms of hyper-documentation, these are seldom useful in real-world planning, and are not required by the regulations.

Preferably, however, change the regulations, and even better, seek changes in the statute (see below).

3. How can the process set forth in the Section 106 regulations better achieve positive preservation outcomes?

The question implies that the process is SUPPOSED to result in "positive preservation outcomes," and that strikes me as not necessarily true. It's also very ambiguous: "positive" in whose eyes? Have you forgotten that the ACHP is ON Historic Preservation, not FOR it? The process should be aimed at achieving outcomes that are broadly accepted as being in the public interest; it should NOT be aimed at achieving some abstract measure of historic preservation goodness. This being (I think) the case, the process should be revised to make broad, early, systematic consultation much easier to do, with truly meaningful participation by all parties, aimed at reaching agreed-upon results. In other words, it should emphasize what makes Section 106 review nearly unique in the federal system -- consultation -- and de-emphasize a lot of the fol-de-rol that inevitably comes into play when one insists on seeking "positive preservation outcomes."

4. How can the regulations be better harmonized with other federal environmental review procedures, such as the National Environmental Policy Act?

By actually relating to them. Presumably CEQ is going through an exercise similar to the ACHPs, so there may perhaps be opportunities for mutual revisions of regulations to make them more compatible. The ACHP ought to work on CEQ to get it to adopt a consultation-based approach to NEPA review, and then embed 106 review within it.

5. How can the ACHP ensure that the Section 106 regulations are consistent with and coordinated effectively with other regulations promulgated by the National Park Service pursuant to the National Historic Preservation Act?

Like what? I'm afraid there is a subtext here: "NPS good; cannot be questioned; ACHP must be consistent with good NPS, otherwise ACHP bad." BS. NPS regulations need fixing just as much as the ACHP's do, and NPS has shown brilliantly over the last several decades that its only coordinative capacity lies in its anatomically impressive ability to pat itself on the back. Your review should include review of all NPS regulations that relate in any way to Section 106 review, and you should make recommendations as to how THEY can be made less burdensome and more effective. NPS can then happily spend the next decade or so ignoring them.

6. How can the ACHP ensure that information developed to support findings under the regulations is guided by objective scientific evidence?

OK, I know that's in the Executive Order so you've got to address it, but it's really only marginally relevant. Trying to find "objective scientific evidence" as the basis for findings about, say, visual effects on the ambience of a historic district is like trying to catch a will-o'-the-wisp in a jar. It's a waste of time and will just frustrate everyone -- AND tend to make the process inaccessible to the public, which mostly is not made up of scientists, is not objective, and doesn't necessarily judge "evidence" the way scientists do. What the ACHP COULD do is look to the SOCIAL sciences -- anthropology, cultural geography, sociology, and the hybrid disciplines that study decision making and public engagement, both within and across cultural, social, and economic groups, and try really hard to make the 106 process reflect the best that these sciences have to offer.

7. Should performance metrics that demonstrate agency compliance and document Section 106 outcomes be developed? Please cite specific areas where metrics are needed.

Not just no, but hell no. "Performance metrics" applied to historic preservation have already resulted in agencies wasting time trying to calculate what percentage of historic properties under their control have been preserved, and by how much. Utter nonsense, and even more nonsensical when applied to something as necessarily flexible as Section 106 review. The only meaningful metric is the answer to the question: "did we or did we not, in this case, reach a conclusion that was broadly accepted as being in the public interest?" If you can count up the times you did and the times you didn't, I guess that would be of some interest.

8. Are there better ways to encourage public participation and an open exchange of views as part of Section 106 review? Please cite specific areas where improvements could be made and indicate what tools or mechanisms might be made available to achieve this goal.

"Better" ways? Better than what? Never mind; are there ways? Certainly. To start with, rigorously expunge the jargon and nit-pickery from the regulations. Specifically, do away with abstractions like "adverse effect" and "no adverse effect." When an agency wants to do something, the process ought to seek to find out whether anybody has a problem with it that's somehow related to historic preservation (broadly understood); if not, the agency ought to be good to go, but if there are problems, the process should be aimed at resolving them through consultation. It is outrageous to spend time and money arguing about whether something is or is not an adverse effect when nobody really gives a hoot whether the adverse effect occurs or not. It is equally outrageous to have an effect that people think is terrible treated as "not adverse" because it's possible to make a lawyerly argument that it doesn't "diminish the integrity of the property's location, design, setting, etc. etc. etc." The regulations are awash in such abstractions, and the related NPS regulations are even worse. Secondly, train your people to engage the public, and insist that SHPOs do likewise (Ridiculous as it is, they are, according to the regs, supposed to represent the people of the state). And restructure the regs to force such engagement. There is a lot of literature and expertise out in the world about how to engage people in defining and resolving disputes; the ACHP staff should become expert in it, and promote its use by others.

9. How else might the ACHP modify, clarify, or improve the regulations to reduce burdens and increase efficiency?

Oh, let me count the ways! To start with, think about restructuring the regs to address different project or program types in different ways. A project conducted directly by a federal agency is different from a project an agency assists, and both are different from projects that agencies permit. Procedures tailored to each type might be helpful. And/or try to build systems for determining the extent to which a given project outrages public sensitivities, and give projects that do a lot more rigorous review than is given those that don't. Whatever is done should be done in concert with CEQ, so that reforms are reflected both in 106 and NEPA, with EPA so they're reflected in the implementation of CERCLA, RCRA, and their toxic kin, and with the land managing agencies so they're reflected in planning under laws like FLPMA.

Seek ways -- and I realize that it would be hard and tricky -- to do away with the noxious practice of letting project proponents hire and fire those who analyze the impacts of their projects. Proponents doubtless need expert advice and advocacy, but it's ridiculous to pretend that a self-understood member of a proponent's planning team, who can be canned if he or she doesn't give the proponent's preferred answers, can objectively analyze impacts or reflect public concerns.

Ideally -- and this, I know, would require legislation -- uncouple the consultation process from the National Register and let it address WHATEVER is of concern to people about the cultural environment. Let the Register go off and be its happy, irrelevant self, while Section 106-type consultation (or rather, an improved version thereof) is applied to resolving concerns about impacts on "cultural resources" broadly defined, or on whatever people value in the environment

Thanks for the opportunity to comment.

Tom King

ACHP Seeks Advice

2011-06-02T12:26:00.000-07:00

The Advisory Council on Historic Preservation (ACHP) has just published a notice requesting advice from interested parties about how its National Historic Preservation Act Section 106 regulatory process (outlined at 36 CFR 800) might be improved to make it more effective and less burdensome. This is in response to President Obama's Executive Order 13563, which directed all rulemaking agencies to undertake such a review.

The ACHP's request, which includes specific questions to which it solicits responses, can be accessed at http://www.achp.gov/EO_13563.pdf . I'd certainly encourage everyone interested in how the Section 106 process does and doesn't work to take a close look at the request, and respond to it.

On Sweating the Small Stuff

2011-05-28T09:04:00.000-07:00

I’m helping an agency client plod along toward the end (I hope) of a long and complicated consultation regarding a new construction project. The other consulting parties have quite justly criticized the responsible agency for tardiness in initiating review, too late for the parties to influence key siting decisions. But now the same parties are wringing their hands over minor issues that can be resolved only in the process of final design. “Oh dear oh dear,” they say, “maybe we shouldn’t conclude a Memorandum of Agreement (MOA) until we’ve reviewed much more detailed plans and specifications.”

People, you can’t have it both ways. If you’re going to insist (as you should, and as the law requires), that agencies initiate and pursue Section 106 review early in planning, you cannot simultaneously say that they have to deliver to their consulting partners fully developed plans and specifications addressing every imaginable jot and twiddle.

Sure, the small stuff needs to be resolved, and the devil does lie in the details. But the way to handle this – or at least A way to handle it – is to include “process” stipulations in the MOA calling out what you think the issues might be and prescribing ways to resolve any problems they present. Usually this will involve review of plans and specifications by all or some of the consulting parties (or by others) and a process for addressing any concerns raised.

Such provisions are almost automatically included in a lot of MOAs (including the one I’m working on), but perhaps because their inclusion has become so automatic, people seem to have forgotten what they’re for. What they’re for is to allow us to address projects under Section 106 early in planning, establish agreement about generally how a project will be carried out, and then make adjustments as necessary to resolve relatively minor design issues as detailed plans and specifications are developed.

And no, inclusion of “process” stipulations does not automatically force an agency to negotiate a Programmatic Agreement (PA). It’s perfectly OK to include such stips in an MOA. If your agreement begins to become composed only of “process” stips, then you probably do need to think about a PA, but there are innumerable perfectly good MOAs that include “process” stips, and the regulations provide no bar to their inclusion.

Knock It Down Quick or Let It Rot: The Choice is Yours

2011-05-19T07:51:00.000-07:00

Continuing with my book-in-progress on “How to Destroy Historic Landmarks” –

Here are a couple of tips that apply mostly to the demolition of old buildings and structures, particularly those owned or controlled by federal agencies in the United States.

Knock it Down Quick

In the United States, most places regarded as “historic” have been around for at least fifty years, and other countries tend to demand even greater antiquity. The U.S. rule is that a place can’t be eligible for the National Register of Historic Places if it has “achieved significance” only within the last fifty years – unless it is of “exceptional” significance.

This rule presents you with an obvious opportunity if you have a building you want to get rid of that is, say, forty-five years old. If you plan to knock it down before it turns fifty, you’re relatively unlikely to run into problems with laws like the National Historic Preservation Act.

I say “relatively unlikely” because there is that pesky language in the National Register regulations (36 CFR 60) about “exceptional significance.” The language is there to handle things like the 9/11/01 crash site of United Airlines Flight 93, which went into the history books the moment it hit the ground (or before), and to keep the Register open to truly astounding pieces of modern (or postmodern) architecture. But the language is open to a lot of interpretation, and if someone really doesn’t like your project they may find ways to argue – and convince authorities like the Keeper of the Register – that your 40-year-old dairy barn really IS exceptionally significant in the history of milking-machine development.

If your 40- or 45-year-old building doesn’t seem to have anything super-special about it, though, and if opposition to your project hasn’t yet risen to a fever pitch, you’re probably well advised to knock the building down as fast as you can.

Let it Rot

There’s also a strategy that often works quite well at the other end of the spectrum, so to speak. If you’re confronted with a building that’s pretty old – not so ancient that its antiquity alone makes people treasure it, but pretty venerable – and you can neglect it long enough, and badly enough, it can “lose integrity,” in National Register-speak, and no longer be eligible for the Register. Or even if it doesn’t technically lose integrity, it may just become so obviously beyond repair that no one will object too loudly to your proposal to take it down.

Note, though, that if you’re a federal agency official, you’re not supposed to let old buildings you control go to hell. This practice – politely called “demolition by neglect” by preservation people – is pretty clearly forbidden by Section 110(a)(1) of NHPA, which says:

The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. … Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency and the professional standards established pursuant to section 10 1(g) of this Act, any preservation, as may be necessary to carry out this section.

In other words, you’re supposed to – hell, you’re required by law to – take care of your historic properties, including old buildings that may be eligible for the Register. But there are ways to get around this troublesome legality.

Neglecting the building may not have started on your watch; it may have been going on for years, or decades. So who’s to blame? Gee, it’s too bad, but now the roof’s caved in, or the pilings have rotted, and it just wouldn’t be cost-effective to try to fix it up. The preservation authorities may scold you, bemoan the situation, or even insist that you give lip service to considering alternatives or doing better next time, but in the end they’ll probably sigh and sign off on your demolition.

Or maybe you didn’t know the building was historic. Nobody had come along and put a brass plaque on it. It’s not on the National Register (or if it is, nobody told you it was). You thought it was just a rotten old building. In this case you’ll probably get beaten up a bit for failing to consider the building’s possible historicity or architectural merit, and you may have to agree to something like an installation-wide survey to establish what else under your control is eligible for the Register. But again, you’ll probably get agreement in the end; there’s a strong bias among SHPOs and at the ACHP toward reaching agreement, so ignorance of the law is pretty regularly taken as an excuse for non-compliance.

Or maybe retaining the building is inconsistent with your agency’s mission. You have to defend the country, or take care of the sick, or clean up the environment; you can’t be troubled to take care of an old building you don’t need, and whose maintenance is costing you money. This one’s actually pretty weak, because even if it’s true, it’s sort of irrelevant. If you really can’t perform your mission with that stupid old building standing around, then NHPA Section 106 gives you a way to deal with it – you propose to demolish it, and consult with the SHPO and other interested parties about whether and how to do it. And in the end, you get to make the call. There's also a provision at NHPA Section 111 directing that you make unused historic properties available for use by others. But historic preservation people, for all their pomposity and pretensions, tend to cave when confronted with agency missions that have a lot of public (or modestly high-level political) support. Or if they don’t exactly cave, they fall into chest-thumping about historical and architectural significance and how it transcends all other considerations, or into pettifogging proceduralism, which makes them look like irresponsible fools and when all is said and done helps you get your way.

So if you’re a federal official, and you’re responsible for an old building that you can’t use and don’t want to keep, it may be an effective strategy to avert your eyes, defer maintenance, and let the thing deteriorate for a few years before proposing to knock it down. You may even hasten its deterioration by making sure it’s open to infestation by animals, that it’s deprived of climate controls, exposed to the elements, left unprotected from flooding or rising damp, and simply that nothing is done to maintain it. You probably ought not to document decisions about such actions and inactions; such documents could be embarrassing if they come to light when you propose to demolish the sad old eyesore.

The Nomination Noose

2011-05-03T07:03:00.000-07:00

The following is another segment for my book-in-progress, “How to Destroy Historic Landmarks.” Matt Bandy has suggested that I title it something more innocuous, like “A Project Manager’s Guide to Historic Preservation,” but I don’t think that title would sell as well, and besides would involve taking my tongue out of my cheek – an anatomical impossibility.

The Nomination Noose

One device you can sometimes employ to trip up NIMBYs or Tribes (NOTs) in their efforts to get in the way of your project is to encourage them to nominate the place they’re concerned about to the National Register of Historic Places. This may seem counterintuitive, but I’ve seen it work on several occasions.

The Nomination Noose is a strategy that’s specific to the United States, where Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their actions (like approving your project) on places “included in or eligible for” the National Register. Until the mid-1970s, the law required only consideration of places “included in” the Register, which meant federal agencies could ignore impacts on historic places until somebody (like a NOT) got around to doing the studies and paperwork to nominate them to the Register. This really didn’t make for very sensible planning, so President Nixon issued an executive order (#11593) in 1971 directing agencies to treat “eligible” properties – that is, places that meet the criteria for inclusion in the Register – just as though they were listed. This provision was subsequently adopted by Congress as an amendment to the NHPA. So under current law, it’s up to the federal agency whose funding or permits you seek to figure out what’s eligible for the Register, and if it’s eligible, to consider how it will be affected and what to do about it, all in consultation with the State Historic Preservation Officer (SHPO) and other interested parties.

But not every NOT knows that, and a lot of federal agencies are pretty foggy on the concept themselves. And the National Park Service (NPS), which maintains the National Register and holds quite religiously to a belief that everybody should nominate whatever they possibly can, can be counted upon to encourage nomination and express a degree of scorn for places that are only found eligible for the Register.

So, sometimes you can con the NOTs into nominating the places they’re concerned about to the Register, instead of just insisting that they’re eligible.

How can this help you? Well, it may not; they may succeed, and then you’re in roughly the same place you’d be if your overseeing federal agency and SHPO just agreed to treat the place as eligible. But there’s a pretty good chance that they won’t succeed (regardless of their place's actual significance), and by initiating the nomination process they effectively take the pressure off you to worry about the matter, unless and until they succeed in getting it on the Register.

How is this? Recall that it’s the federal agency’s responsibility to consider impacts on eligible, as well as listed, properties. If a property’s not listed, the federal agency has to figure out whether it’s eligible, and the agency will most likely require you to give it the information it needs in order to do so – which usually means doing surveys, studies, and consultations of various kinds. And if you have a NOT out there jumping up and down insisting that its place is eligible, the path of least resistance for the agency and SHPO is usually to say “OK, it’s eligible,” and start looking at what damage your project will do to it. The burden of proof falls on you to show that it’s not eligible – though, as I’ve argued above, it’s usually wiser simply to accept eligibility and get on with it. But when the NOT (or anyone else) sets out to nominate a property, they take upon themselves the burden of proving it to be historically, archaeologically, architecturally, or culturally significant. They are now under the gun, not you.

And while an agency and SHPO can agree to treat a place as eligible for the Register based on whatever data they decide are sufficient, the nomination process is a highly structured, complicated paperwork exercise, that routinely costs thousands of dollars to complete. Nomination forms must be filled out just so, with appended maps and photographs and supporting documentation. Boundaries must be precisely delineated, sources cited in proper bibliographic fashion, and so on. Once complete, the forms must be reviewed, usually by the SHPO’s State Review Board, and then – if they pass muster – sent on to the Keeper of the National Register in NPS for a final blessing. The Review Board – made up of professional historians, architectural historians and archaeologists, for the most part, who may know and care nothing about the planning processes to which their decisions relate, but who tend to be pretty jealous of their own expert credentials, can be counted on to look on each nomination with a degree of skepticism, as can the SHPO staff members who organize the material for the Board's consideration.

So the NOT winds up spending a lot of time and treasure fighting its way through the nomination process, while you get on with planning your project. The time and treasure the NOT’s spending on nomination is, of course, time and treasure it’s not (sic) spending fighting your project. The NOT’s guns are directed at the SHPO and maybe NPS, not at you or the responsible federal agency; you can both essentially wash your hands of the matter until NPS awards the nomination its thumbs up or thumbs down.

Just to put frosting on the cake, while a place can be determined eligible for the Register regardless of how its owner feels about it (because the determination is simply a finding of fact, like noting that the ground is wet or the tree is a maple), under NHPA a property cannot be placed on the Register if its owner, or a majority of owners where the property has more than one, formally objects to its placement. So if you own the property, or if you can line up a majority of its owners and prevail on them to object (This doesn’t usually cost much), you can block the NOT’s nomination. The place can still be determined eligible, which puts you back into Section 106 review, but you will have caused the NOT to waste a lot of time and money getting back to where things were before the nomination process ever began. Frustration is likely to set in – to say nothing of confusion – and the NOT may simply give up. Moreover, since the average member of the public has, to say the least, a rather thin understanding of Section 106 review, a failed nomination is widely taken to mean that the place is not significant, so it can turn public and official opinion against the NOT.

So to summarize: if you can get a NOT to stick its head in the nomination noose, the NOT may very well hang itself. Or if not that, it will at least tangle itself up and waste time and money that it might otherwise spend fighting your project. BUT the NOT’s flailing about in the nomination process does introduce an element of uncertainty into your own planning – it’s not impossible that at the eleventh hour the place will get included in the Register, and then you’re back to square one. On balance I don’t think it’s a good strategy, but it’s one you can use if you’re so inclined.

On the Efficient Destruction of Historic Places: Don’t Question Significance

2011-05-01T06:30:00.000-07:00

Preface:

In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:

You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.

You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.

You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.

But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.

“Oh,” you say, looking at your lawyer, and she nods.

“So what’s to study?”

“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”

“What resources?”

“Cultural resources – that means historic landmarks, archaeological sites, things like that.”

You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.

“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”

And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.

OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…

Is It REALLY Historic?

Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.

Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.

Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.

Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.

If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)

It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.

And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.

So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”

Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.

True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”

We turned to the Air Force: “Any problem with that?”

“No,” the Air Force responded, “but we still don’t think they’re eligible.”

In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.

It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.

The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.

One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't. This is flatly not true. The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade. What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest. Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate. You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.

NHPA Doesn’t Trump NAGPRA

2011-04-13T06:12:00.000-07:00

I encountered a situation yesterday that made me think there’s a need to clarify the relationship (such as it is) between compliance with Section 106 of the National Historic Preservation Act (NHPA) and the discovery provisions of the Native American Graves Protection and Repatriation Act (NAGPRA). In the case I encountered, a survey for NHPA purposes had revealed a “prehistoric” site whose surface and immediate subsurface expression amounted to a few flakes and a fragmentary projectile point. The site was determined not eligible for the National Register of Historic Places, so it was not further considered under NHPA. It was also not further considered under NAGPRA, and therein lies a problem.

The NAGPRA regulations, at 43 CFR 10.3(c), say:

(1) The Federal agency official must take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal lands. Prior to issuing any approvals or permits for activities, the Federal agency official must notify in writing the Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The Federal agency official must also notify any present-day Indian tribe which aboriginally occupied the area of the planned activity and any other Indian tribes or Native Hawaiian organizations that the Federal agency official reasonably believes are likely to have a cultural relationship to the human remains, funerary objects, sacred objects, or objects of cultural patrimony that are expected to be found. The notice must be in writing and describe the planned activity, its general location, the basis upon which it was determined that human remains, funerary objects, sacred objects, or objects of cultural patrimony may be excavated, and, the basis for determining likely custody pursuant to Sec. 10.6. The notice must also propose a time and place for meetings or consultations to further consider the activity, the Federal agency's proposed treatment of any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any excavated human remains, funerary objects, sacred objects, or objects of cultural patrimony. Written notification should be followed up by telephone contact if there is no response in 15 days. Consultation must be conducted pursuant to Sec. 10.5.
(2) Following consultation, the Federal agency official must complete a written plan of action (described in Sec. 10.5(e)) and execute the actions called for in it.

So in this case, should the presence of a small “prehistoric” site have caused the federal agency official to determine that the work planned at the location might “result in the excavation of human remains…” etc? I imagine that honorable people could disagree about this, and I for one would hate to see all the complicated requirements of 43 CFR 10.3(c) triggered every time an artifact, flake, or potsherd shows up in a survey; this would unreasonably complicate the lives of agencies and tribes (and Native Hawaiian groups) alike. But the point to keep in mind is that the presence or absence of a property that the agency and State Historic Preservation Officer (or Keeper of the National Register) judge eligible or not eligible for the National Register has nothing to do with NAGPRA. The two statutes are totally independent of one another. So an agency really has to make two separate, independent determinations: under NHPA it has to decide whether its project will affect anything eligible for the Register; under NAGPRA it must determine whether its project may unearth Native American graves or cultural items. Neither statutory requirement trumps the other.

On the Preservation of our Timeless Words of Wisdom

2011-04-11T03:15:00.000-07:00

A current Facebook discussion of the topic compells me to re-post the following, which I think I posted some time ago (but have lost track.....)

Those concerned about what seems the inevitable transition from paper books to kindle-ware and Google-scanning may be interested in the recently translated text of a cuneiform tablet allegedly found in the ruins of Ninevah in Iraq. Like most antiquities in that country that have been found since the American invasion destroyed its historic preservation infrastructure and drove its residents to dig up and sell their heritage for food and clothing, it was unearthed by looters and sold on the black market, so its provenance is unsure. However, it appears to date to about 1000 BCE, when papyrus scrolls – long used along the Nile but new in Mesopotamia – were beginning to replace clay tablets as the popular writing medium. Like many such tablets, it has lost its first and last lines of script to erosion, but it appears to be a personal letter from one scribe to another. Loosely translated from the Akkadian, it goes like this:

“Yea, Inkidont, mark my words; the teaching of scribbling on flattened grass bodes ill for literacy and its pleasures. Soon, I fear, the calming smell of drying clay tablets will disappear from our writing chambers, together with the satisfaction one feels in the resistance of clay to stylus. In the reading chamber, the soft click-click of tablet on tablet will be no more, replaced by the crackling cacophony of “scrolls” being rolled and unrolled, and the stink of the “ink” slathered on the papyrus in imitation of script. Our children will lose all respect for literature when it is slothfully “written” in black liquid on rolled-up mats, to say nothing of the loss in dexterity that will come from unfamiliarity with the stylus! And oh, Inkidont, I shudder for the effect on our household economies! Clay is everywhere, and easy to acquire and make into fine tablets, but papyrus must be bought from those thieving Phoenician and Hebrew merchants! The transfer of wealth from east to west will be as a great sucking sound rolling across the desert. And what to do with this papyrus when it wears out? Leave it to litter the streets? Unlike tablets, it has no re-use as a building material, a doorstop, to throw at one’s child or pig….. And the stuff is useless if you spill beer on it…..”

Nominating TCPs to the National Register

2011-04-09T08:12:00.000-07:00

A few years ago, during one of the U.S. Congress’ periodic bouts of distemper over the national historic preservation “program” (sic), one of the dyspeptic congressmen found it scandalous, just scandalous, that so many properties had been found eligible for the National Register of Historic Places in the course of review under Section 106 of the National Historic Preservation Act, but never nominated for formal listing. Surely this meant that unimportant places were being blessed with the imprimatur of eligibility. The congressman’s staff asked me in to discuss this outrageous misuse of the law.

I explained, of course, that nomination usually served no useful purpose, particularly if the place you were considering was likely in the end to get blown away. I explained that there were often reasons to keep information about historic places confidential. I explained that nomination is a time-consuming, costly pain in the butt, and often a waste of time and money. I explained that there are lots of ways to protect and otherwise manage historic places that don’t require the nonsense paperwork associated with nomination. I doubt if I made much of an impression; congressional staffers, like those who employ them, tend to be much better at talking than listening, but the rhetoric about nomination did cool down a bit thereafter.

So I was mildly surprised, and deeply depressed, to see the idea laid on the table again recently, not by a raving right-wing Fool On The Hill, but by a certified liberal-type academic (LTA) who’ll remain nameless in this blog unless s/he wants to debate the matter. The LTA had polled a number of State Historic Preservation Officers (SHPOs) about how many traditional cultural properties (TCPs) had been nominated to the National Register, and found the answers to range from “none” to “very few.” The same poll revealed much SHPO uncertainty about how many TCPs had been treated as eligible for the Register in the course of Section 106 review without detailed documentation. This, the LTA suggested, was a pretty Bad Thing.

Of course, I think precisely the opposite. As I’ve pointed out far too often in too many venues, with regard not only to TCPs but all kinds of historic properties:

1. Nominating stuff to the Register is not required by law.

2. Nominating stuff to the Register is expensive and troublesome.

3. Nominating stuff to the Register can require eliciting information that people (especially indigenous groups and their elders) often don’t want to reveal.

4. Section 106 requires equal consideration of places that are included in the Register and places that are eligible for it.

5. Agencies and SHPOs/THPOs can simply agree to treat a place as eligible for the Register, and go on to consult about how best to manage impacts on it.

6. This is usually (though not necessarily always) more efficient for the agency and more respectful toward those who value the property than going through an elaborate process of eligibility determination or nomination.

So why did the LTA think it was bad that more TCPs hadn’t been nominated? Well, he said, if they’re not nominated, then there’s no record of them with the SHPO, and if there’s no record of them, project proponents and their consultants will assume they don’t exist and proceed with their projects without considering them or consulting anyone.

I suppose that could happen, and maybe it happens more often than it should, but when it does happen it’s a pretty stark violation of the Section 106 regulations. Since the LTA didn’t seem aware of what those regulations say, maybe others aren’t either, so let’s take a look. Here’s the relevant section from 36 CFR 800:

§ 800.4 Identification of historic properties.

(a) Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall:

(1) Determine and document the area of potential effects, as defined in § 800.16(d);

(2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and

(4) Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c).

(b) Identify historic properties. Based on the information gathered under paragraph (a) of this section, and in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take the steps necessary to identify historic properties within the area of potential effects.

(1) Level of effort. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary's Standards and Guidelines for Identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal and local laws, standards and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process.

So one does not – or should not, if one wants to be legal – just waltz into the SHPO’s files, look around, and if one doesn’t see anything on the list, waltz out again and fire up the bulldozers. But to the LTA, that is apparently what “really happens,” and instead of trying to do anything about it, the LTA proposes that more TCPs should be nominated to the Register.

Let me suggest that academics and others who would like to see better consideration given to TCPs – or anything else – under 106 ought to focus on the above regulatory language and hold agencies, project proponents, and SHPOs accountable for its implementation. Filling out paperwork is not the point. Good planning and respectful consultation, as the regulations require, is.

Consultants: Finding a Donut Hole May Not Be In Your Client’s Best Interests

2011-03-15T14:30:00.000-07:00

I’ve recently found myself reviewing a number of archaeological survey reports (usually mis-titled “cultural resource inventories”) prepared by consulting firms for agencies that propose to build things with the potential for churning up archaeological sites. I’ve been dismayed, though not especially surprised, to find a pattern of reportage that I have to think is designed to conceal potential archaeological problems and allow the consultants’ clients to find that their projects will have no effect on archaeological sites.

For example, in one case from southern California, construction is proposed on a bluff overlooking the ocean – a classic location for prehistoric occupation. The consultants’ report, in the section on “previous archaeological investigations,” presents a table showing all the archaeological sites previously recorded within a mile or so of the project location. A dozen or more – ranging from small deposits of mollusk shells, flakes, and fire-cracked rock to a large village/burial complex that’s been the source of considerable controversy over the years – lie within about 2-300 meters of the project location. The project location is completely covered by mid-20th century buildings, parking lots, sidewalks and landscaping. The consultants’ archaeologists duly walked the sidewalks and reported finding nothing. So, they reported, there’s nothing there and a finding of “no historic properties affected” is appropriate under Section 106. They say nothing about the topographic/environmental predictors of probable site location, and the fact that sites crowd the project location on every hand does not, it seems, suggest anything to them. And they evince no knowledge of the many cases in which more or less intact archaeological deposits and things like cemeteries have been found under modern buildings and landscaping.

In another case, from Oregon, the project site is a golf course on a riverbank, proposed for conversion to housing. The consultants’ report has a section on “ethnography” that is so general it fails to mention that tribes in the area tended to set up villages on riverbanks. In its section on “previous archaeological investigations” it reports one site, thought to have a lot of housepits and to be particularly important in understanding local prehistory, on the riverbank east of a sewer treatment plant; it fails to note that the proposed construction site is on the same riverbank, east of the same plant. From the project location map it appears that it’s maybe 150 to 200 meters from the sewage plant to the project site, so presumably the recorded site is somewhere on that intervening stretch of riverbank. Another possibly important site is reported just to the east; a bit of digging through the report and comparing it with Mapquest street maps reveals that it’s probably across the river from the project site, though the report doesn’t make this clear.

The Oregon project site, being a golf course, was a little more accessible than the California site, though its surface was obscured by turf. So the archaeologists walked transects across it and dug five or six test holes. In these they found a very light scatter of both prehistoric (flakes) and historic (bottle glass, etc.) artifacts. On the strength of this relatively negative data, they conclude that there’s nothing there.

Now, it may be that in both cases there really is nothing there, and undoubtedly it made the client happy in each case to learn that there were no archaeological impediments to the proposed project. The trouble, of course, is that this clean bill of health is not necessarily truthful. Prehistoric people, in my experience anyhow, were no respecters of site boundaries as defined by archaeologists (“No, no, Big Eagle, you can’t bury grandma over there; that’s outside the boundaries of site BS-2397!”). The presence of a “site” as defined by archaeologists simply means that people did stuff in the general area that produced something on that specific location that archaeologists can recognize. They may have done lots of other things in the broader area that archaeologists can’t recognize, or can’t recognize as well as they can other things. Burying dead people is one of those things. So the fact that your project footprint ju-u-ust misses the archaeologist-defined boundary of site BS-2397 doesn’t mean you’re not going to find grandma – maybe lots of grandmas – buried there. Or other things. And if the client doesn’t find out about those possible grandmas from your report, he or she may very well find out about them when they come up in a power shovel’s bucket. And living people start throwing things and seeking injunctions.

So, however much the client may want it, a determination that there’s nothing to worry about in a project area may not be in the client’s best interests. Such a determination can lull the client into thinking that all’s well, that he has nothing to worry about. Which is fine if it’s true, but a real problem if it’s not. And if there’s evidence that it’s not, and a consultant effectively covers it up, the consultant is setting the client up for a last-minute discovery situation that can be costly and embarrassing.

The reason to do background research in contract archaeology is not to find donut holes in which things can be built, but to make overall sense of what’s found in the transects fieldworkers walk and the test pits they dig. Contract archaeologists ought to take the results of background research, put them together with first-hand field observations, and give the client as realistic picture as possible of what archaeological problems his or her project may face. In the two cases I’ve outlined above, it seems obvious to me from the combination of topographic/environmental, ethnographic and archaeological data that the project sites may contain significant archaeological resources, and ought to be treated accordingly. My client may not be happy to have this advice from me, but he or she will be a lot less happy with a multi-million dollar work stoppage at the eleventh hour, and just may wonder why I didn’t mention the possibility early enough to let him or her do something about it.

SHPOs: Wimping Out Doesn’t Help

2011-03-11T12:39:00.000-08:00

I imagine it’s expectable, in these stressful times, but it seems to me that every time I’ve turned around lately, I’ve found another State Historic Preservation Officer (SHPOs) wimping out and letting an agency run roughshod over the Section 106 process and the (presumed) historic and cultural interests of his or her state’s citizenry. Recurrent issues include (but certainly aren’t limited to):

Consulting firms contacting SHPOs and making/seeking (on the assumption that the SHPO awards such things) determinations of “no historic properties affected” or “no adverse effect,” sometimes based on the promised implementation of conditions, with no evidence that the responsible federal agency even knows what’s being determined and promised. This truly reduces the 106 process to a paperwork exercise, since there’s no reason to think that the consulting firm’s statements mean anything once the firm has collected its money and gone.
Agencies (or consulting firms) initiating 106 review by filing determinations of eligibility or effect (or petitioning the SHPO to award them with such determinations) without any prior consultation at all – thus eliminating the guts of the process.
Determinations of effect that address only historic buildings when the project under “review” clearly has the potential for effect on archaeological sites, landscapes, and other kinds of properties that don’t happen to have four walls and a roof, with no evidence that anybody has considered these other kinds of properties.
“Consultation” only with the SHPO, with no effort whatever to identify and engage other consulting parties.
Unrationalized areas of potential effect (APE) – sometimes nonsensically big, sometimes absurdly small – that have nothing to do with the actual likely effects of the project.
Evaluations of individual buildings that are in fact parts of complexes, without any attention to the overall context of which the building is a part. I’ve lately seen one whole federal installation that’s literally been picked to pieces, with each piece – judged solely on its own out-of-context merits – judged insignificant, even though the whole installation was almost certainly eligible for the Register.

SHPOs, I realize that you’re under pressure; your staffs are being eviscerated, you get no help from NPS or the Advisory Council, your governor and legislature are on your backs, but for heaven’s sake, if you're going to accept any old piece of paper that anybody throws at you as evidence of compliance with Section 106, you're rendering the whole business -- and a large part of your existence -- meaningless. And you're not helping anyone. You’re not helping the agencies, or the taxpayers who pay for them, by nodding and winking at their violations of law and regulation; you’re undercutting the efforts of anyone in an agency who’s trying to promote effective compliance, and you’re setting the agencies up for successful litigation. You’re certainly not helping your states’ historic resources, or the citizens who care about them. Going along with BS “compliance” doesn’t help resolve the problems you’re facing; if anything it makes them worse. You’re helping make the Section 106 process worthless, and in the long (or maybe short) run that won’t help you or anybody else. If you can’t or won’t do your jobs, why don’t you just stop pretending to?

A Quiz for Cultural Resource Management Students

2011-03-04T06:16:00.000-08:00

I understand that this blog is being used in some university CRM classes, so here's a little educational application.

The following quote is from a U.S. Department of the Interior, Bureau of Land Management environmental impact statement:

A Traditional Cultural Property (TCP) is an area of traditional importance that has been determined eligible for listing or has been listed on the National Register of Historic Places based on established definitions and criteria.

Relative to published U.S. government definitions, the above text is factually incorrect in at least two related ways.

Can you identify how it is erroneous?

For extra credit:

1. What are the public policy implications of these errors?
2. Why do you suppose BLM has perpetrated them?

106: The Loneliest Number

2011-02-15T13:23:00.000-08:00

In reviewing agency (and other) proposals for the treatment of historic properties in response to the requirements of the National Historic Preservation Act (NHPA), I’m astonished (or would be if I hadn’t become jaded by it all) at the agencies’ inability – shared, it seems, with State Historic Preservation Officers (SHPOs), the Advisory Council on Historic Preservation (ACHP), historic preservation consultants, and even litigants seeking to protect historic places – to count beyond 106.

Agencies seem quite routinely to decide that they will demolish, relocate, or otherwise muck about with historic properties (whether known to be historic or not) without considering the following rather explicit provisions of law:

Prior to acquiring, constructing, or leasing buildings for purposes of carrying out agency responsibilities, each Federal agency shall use, to the maximum extent feasible, historic properties available to the agency… (NHPA Section 110(a)(1) [16 U.S.C. 470h-2(a)]

Notwithstanding any other provision of law, any Federal agency …..shall, to the extent practicable, establish and implement alternatives for historic properties, including adaptive use, that are not needed for current or projected agency purposes… (NHPA Section 111, [16 U.S.C. 470h-3(a)]

In simple language, with these two sections of law Congress directed federal agencies to (1) use historic buildings to house agency operations before deciding to go build new ones, and (2) figure out creative things to do with historic properties of all kinds under their control when they become surplus to their needs. But agencies quite routinely don’t do either thing, and nobody seems to do anything about it. Yes, the National Trust for Historic Preservation occasionally brings the matter up, and I suppose the ACHP talks about it in its general advice columns, but does it come up in the course of Section 106 review? Do SHPOs or the ACHP ever ask agencies about Sections 110 and 111 when the agencies come screaming in with proposals to knock down old buildings so they can build new ones? Does anybody bring it up during NEPA scoping? Not that I’ve seen. The attitude seems to be: “well, we can’t really expect the agencies to do that kind of proactive stuff.”

Maybe we can’t, but Congress did, and pretty directly told them to do it, and it strikes me that it wouldn’t hurt, from time to time, to throw that fact up in the faces of agencies that expect their consultants, SHPOs, the ACHP, and the concerned public to twist themselves into pretzels to help them fast-track their projects through the Section 106 process. I wonder what terrible things would happen if agencies were regularly reminded that NHPA continues on beyond Section 106.

Beefing up Protection for Graves

2011-02-14T12:09:00.000-08:00

Tribes and others interested in enhanced protection for ancestral graves might want to take a look at the bill currently being considered in the Guam legislature; it's on the web at http://www.guamlegislature.com/Bills_Introduced_31st/Bill%20No.%20B001-31%20%28LS%29.pdf. I've only skimmed it, but it certainly looks like a serious effort to put some teeth into burial protection.

It’s Not Easy Being a Statistic

2011-02-09T06:41:00.000-08:00

A few days ago, the historic preservation lists flashed an urgent appeal. We were warned that the U.S. Congress might be about to make drastic cuts in the Historic Preservation Fund (which supports the State and Tribal Historic Preservation Officers (SHPOs, THPOs), zero out the “Save America’s Treasures” and perhaps the “Preserve America” special grant funds, and make deep cuts in funding for Heritage Areas. We were all urged to contact our Senators and Congresspeople insisting that they resist any such cuts.

Naturally, I immediately sent the following message to both my Senators (Barbara Mikulski and Ben Cardin) and my Congressperson, Donna Edwards:

As a long-time professional in historic preservation and environmental impact assessment, I am being urged to contact you opposing the proposed cuts in funding for such Department of the Interior programs as "Save America's Treasures" and "Preserve America," as well as funding for State Historic Preservation Officers. I want you to know that I SUPPORT these proposed cuts, and more. The Historic Preservation Fund program administered by the National Park Service has become bloated, swollen, and divorced from any apparent purpose. It badly needs through re-thinking and re-design, which MIGHT result from a deliberate kick in its fiscal pants. I urge you to support such a kick.

The ensuing silence has been deafening from Senator Cardin and Representative Edwards, but I very promptly received the following robo-response from Senator Mikulski:

I share your support for preserving our national heritage. Historic preservation projects such as the Save America's Treasures, Preserve America, and National Heritage Areas programs help ensure that our historic landmarks and buildings will be there for future generations. These valuable resources give people the opportunity to appreciate our national heritage and learn about America's history. Once gone, these resources will be lost forever.

As a member of the Senate Appropriations Committee, I have worked aggressively for programs that benefit Maryland and our country and will continue to do so. Knowing of your support for historic preservation will be helpful to me as the appropriations process moves forward. You can be sure that I will give your request for full funding for these worthy programs every consideration.

I drafted the following rejoinder before I realized that the Senator’s system provided no way for me to send it:

Senator Mikulski -- Your staffer who prepared the response to my post must not have read what I sent. AS a dedicated preservationist, I support CUTTING the wasteful fat out of the federal preservation program; I do NOT follow the mindless party line of supporting every federal program in historic preservation. Based on 45 years experience inside and outside the federal historic preservation establishment, I am appalled at the waste of money allocated particularly to NPS historic preservation programs and such feel-good grant programs as "Save America's Treasures." There is a real need to rethink the national historic preservation program, and I can only hope that a significant reduction in happy money would force the preservation powers that be to undertake it.

We can, of course, argue about the substantive utility or inutility of cutting NPS historic preservation funding, but it’s not my intent here to promote that argument. My purpose instead is to express the sadness and frustration I feel upon learning that even a legislator as experienced and thoughtful as Senator Mikulski automatically assumes that anyone identifying himself as a preservation specialist, or writing about preservation, must want to support throwing federal money at NPS, the SHPOs, and the various grant programs.

Is it, to members of Congress, unimaginable that someone involved in preservation might also engage in independent thought?

Improving Regulation and Regulatory Review: The President's New Executive Order and Historic Preservation

2011-01-30T06:46:00.000-08:00

Introduction

On January 18, 2011, President Obama issued an executive order (which doesn’t seem yet to have been assigned a number) entitled “Improving Regulation and Regulatory Review.” The order articulates some excellent principles that I’ll get to in a moment, but first let’s skip toward the order’s end and look at its action-forcing paragraphs. These are found in Section 6, and speak to all executive branch agencies:

Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.

(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

So agencies, within 120 days, are to initiate plans to examine their regulations and fix them up to make them “more effective or less burdensome” – or, presumably, both.

This requirement is as applicable to the two federal agencies responsible for rulemaking (that is, regulation-issuance) under the National Historic Preservation Act (NHPA) as it is to the rest of the federal establishment. Pursuant to the executive order those two agencies – the National Park Service (NPS) and the Advisory Council on Historic Preservation (ACHP) have both the opportunity and the responsibility to do something creative and responsible with their regulations – but almost certainly will resist doing so. They will argue either that their regulations don’t really regulate anything (the obvious out for NPS), or that they’re just fine as they are (the ACHP’s likely angle).

This is too bad, because in fact the interlinked, overlapping NHPA-based regulations overseen by the two agencies create many inefficiencies and are not very effective at achieving their purposes. They cost millions if not billions of unnecessary dollars, and place undue burdens on a considerable cross-section of the American public, including a range of industries and businesses large and small, local and state governments, Indian tribes and other indigenous groups, low-income and minority groups, property owners, and just plain citizens – including citizens who support historic preservation.

The ACHP and NPS ought to develop and implement review plans in cooperation with one another (as well as with all us stakeholders), because many of the gross inefficiencies of their regulatory systems, much of their undue complexity, much of the burden they place on industry and citizenry alike, result from interactions between the systems.

Complexity and Burdens: a Hypothetical Example

As noted above, NPS and ACHP will doubtless claim that they’re not really regulatory agencies and don’t need to do anything, and that besides, their regulations are just fine and everyone’s happy with them. To understand why they’re wrong, and why they (or better, someone else who isn’t deeply invested in the status quo) ought to perform the review the President orders, consider a hypothetical project – say, a small energy-production facility that requires a federal license or funding, or uses federal land. This project requires review under Section 106 of NHPA and the regulations of the ACHP (36 CFR 800). Let’s assume that the project proponent – call her Polly – is a responsible sort, as interested in doing right by the law, the environment, and the public interest as she is in the project’s bottom line. So she sets out to comply with 36 CFR 800 (and the National Environmental Policy Act – NEPA – but that’s another whole can of regulatory worms).

But the proponent in fact can’t comply with 36 CFR 800, because Section 106 of NHPA applies only to federal agencies. There may or may not be a federal agency clearly involved when Polly Proponent begins to develop her plans, or there may be several – or some may be involved at the outset while others are waiting in the wings. The result is that review of Polly’s project may be delayed until a federal agency is unambiguously involved, and by the time this happens Polly may have invested a lot of time and money in her project, limiting her ability or willingness to consider alternatives if it turns out her preferred approach will have serious impacts.

So here’s Problem #1 – Ambiguous, uncertain, or late federal involvement: Section 106 review was invented back when many if not most federal projects were directly undertaken by federal agencies. Today, many if not most projects in which the federal government is involved are actually planned and promoted by private parties or local/state governments. Federal agencies may become involved in a project rather late in planning. The Section 106 regulations quite reasonably insist that the law be complied with early in planning, when there’s lots of room for adjustment and consideration of alternatives, but at that early stage, there may be no federal agency involved. As a result, review may be delayed until many alternatives have been foreclosed, and there’s little wiggle room left.

Let’s suppose a federal agency gets involved in Polly’s project – or maybe a couple of Federal agencies do, and they initiate review. Polly may at this point run into another problem – call it Problem #1a – in that the agencies involved may have understandings and interpretations of their Section 106 responsibilities that are unique to themselves, and these understandings may conflict with one another, confusing and complicating review of Polly’s project. This isn’t exactly the ACHP’s or NPS’s fault, so let’s just note it and skip over it – though it’s certainly imaginable that thoughtful review of the regulatory system could help relieve the confusion.

The agency responsible for Polly’s project – let’s call it the Agency for Federal Assistance (AFA) -- now seeks to initiate Section 106 review. The Section 106 regulations say that it’s to do so by contacting the relevant State Historic Preservation Officer (SHPO) , coordinating with other reviews (e.g. NEPA review) and identifying other parties – stakeholders – with which it should consult. Under some circumstances the agency consults with one or more Tribal Historic Preservation Officers in lieu of or in addition to the SHPO, but to keep the discussion relatively simple (sic), let's stick with the SHPO.

And in consulting the SHPO, the agency is likely to be quite systematically misled as a result of NPS regulations and practice. NPS partly funds the SHPOs, and hence oversees how they perform their functions – including their consultation with agencies under Section 106. But NPS regulations (36 CFR 61) and procedures (extensive and obscure) dealing with SHPO operations go into loving detail about SHPO duties relating to things of interest to NPS (notably the National Register of Historic Places – see below), while largely ignoring SHPO responsibilities vis-à-vis Section 106. To the extent NPS procedures do touch on Section 106-related SHPO responsibilities, they are out of date; the Section 106 regulations have changed several times, and practice under Section 106 has evolved considerably, over the two decades or so since NPS last re-thought its SHPO review procedures.

So the agency holding the SHPO’s purse-strings – NPS – does little or nothing to encourage SHPOs to advise agencies about how to comply with Section 106 in a manner that’s consistent with the ACHP’s regulations. An SHPO may do so without such encouragement, of course, but he or she will not be rewarded for doing so when NPS doles out its grant moneys.

This is Problem #2: The interaction between ACHP and NPS procedures, via the SHPOs, does not encourage early, thoughtful initiation of Section 106 review in coordination with NEPA and in consultation with stakeholders.

The AFA, if it is like most federal agencies, wants to consult with just as few people as possible, and do the least work it can, in reviewing Polly’s project. AFA very likely believes – this belief is quite widespread, though utterly inconsistent with the regulations – that Section 106 simply requires them to seek “clearance” or approval for Polly’s project from the SHPO, or that the SHPO will tell them if the project presents any historic preservation issues.

So AFA drops the plans for Polly’s project on the SHPO and asks what the SHPO thinks – expecting to be told definitively whether Polly has any historic preservation problems. Under the Section 106 regulations, what the SHPO ought to do at this point is provide AFA with recommendations about how to identify any potentially affected historic properties, caution AFA to make sure it coordinates its 106 consultation with review under NEPA, and point AFA toward any other parties who ought to be brought into consultation. The SHPO may do these things, but since he or she gets no encouragement to do so from NPS, there’s no guarantee.

The SHPO may just tell AFA what’s in the “state inventory” – the list of places the state has identified that may have historic value. The inventory is very incomplete; no state has had the money to “complete” its inventory, and since history marches on, and discoveries are made all the time, and historic significance is in the minds of evaluators, the very notion of a “complete” historic property inventory is something of an oxymoron. But one possibility is that AFA assumes that the inventory is complete, notes that there’s nothing recorded in any of the locations that Polly’s considering, and tells Polly she has nothing to worry about when it comes to Section 106. This, of course, may be true but it probably isn’t; the reason there’s nothing in the inventory is probably that nobody’s looked at Polly’s potential project sites.

More likely, the SHPO will tell AFA that it doesn’t know of anything in the areas Polly’s looking at, and recommends that a survey be done to find out what is there. The SHPO quite likely has detailed standards for survey work – NPS encourages the development of such standards. The standards probably go into some detail about having archaeologists walk over every foot of the ground, digging holes every so often, while architectural historians look at and photograph all the buildings, and everybody does background research. What they almost certainly do not say much about is finding out what living people in the potentially affected areas (or elsewhere) think about those areas – unless those people are archaeologists, architectural historians, or perhaps Indian tribes – because NPS doesn’t encourage SHPOs to worry about that kind of thing (except where tribes are involved, based on a large corpus of action-forcing law).

Polly – a responsible sort, remember – has several possible alternative locations for her energy project, and some of them are quite large. She doesn’t have access to all of them yet. It will cost her a great deal of money to contract for surveys of them all, done to the SHPO’s standards. She objects, and the AFA takes her objection to the SHPO. They decide that Polly can get by with background study at this point, and put off full scale survey until a final project site has been identified.

So Polly’s historic preservation contractor does a vague general paper on the history and prehistory of the region, which goes in the project’s NEPA documents, but does nothing more about impacts on historic properties until Polly and AFA have selected a preferred alternative. By this time Polly has invested quite a lot of money in project planning. Now, at the eleventh hour, her consultants finally get out on the ground in the preferred alternative area, and – whoops! – they find something. Or – this is not uncommon – the consultants don’t find something, but others (those folks whose views haven’t been sought during earlier phases of planning), learn about the project because its NEPA document has been distributed or it’s gotten into the local papers or been touted on the internet, and they raise concerns. Maybe these concerns are about, say, an ancestral burial place an Indian tribe says will be disturbed, or maybe local people who really like the pristine views across the proposed project site raise aesthetic arguments. Whatever the concerns, they’re raised late in the planning process, when it’s going to cost Polly megabucks to do anything about them – if she can do anything at all.

So, Problem #3: By failing to ensure that stakeholders are involved early in the process, by failing to provide effectively for coordination with NEPA and similar reviews, and by imposing standards that promote delay in the identification of affected historic properties until alternatives have been foregone, the interaction between NPS and ACHP regulations almost guarantees late-breaking conflicts that waste money and time.

But it gets worse. Now that something has been identified in the area to be affected by the project, the Section 106 regulations require that its eligibility for the National Register of Historic Places be determined. Never mind that the tribe is deeply concerned about impacts on its ancestors’ burial place; never mind that the local aesthetic society is wild about what’s going to happen to the viewshed; we can’t consider impacts on such a place under Section 106 unless it’s eligible for the Register. And conversely, even if the only thing found is a pile of tin cans on the edge of the project site, and nobody gives a damn about it, it has to be evaluated for Register eligibility.

And here the ACHP and NPS regulations part company rather dramatically. The ACHP regulations (at 36 CFR 800.4(c)(2)) permit an agency and SHPO simply to decide that something is or is not eligible for the Register and move on, with provision for resolving objections raised by others. But NPS regulations (36 CFR 63) require that if an agency and SHPO decide that a property is eligible, the agency must submit detailed documentation to NPS, in the person of the Keeper of the National Register, who makes a final decision. If the agency and SHPO decide that the property is not eligible, though, they can treat it as such with no further review; in other words AFA can let Polly blow it away, and never mind the tribe or the aesthetes.

In determining eligibility, agencies, consultants, SHPOs and others apply criteria set forth in NPS regulations at 36 CFR 60.4. These criteria are very abstract and subject to interpretation by professional historians, architectural historians, and archaeologists – who are, for all practical purposes, the only people allowed by NPS and ACHP regulations to interpret them. Applying them can become the subject of intense, abstruse argumentation, taking up more time with little practical utility. SHPOs and NPS also commonly demand a great deal of documentation to support a determination of eligibility, grounding their demands (if they bother to explain them at all) in a considerable corpus of NPS guidance (based ultimately on regulations at 36 CFR 60) relating to the formal nomination of properties to the Register. This sort of documentation is often unnecessary for purposes of eligibility determination, but is insisted upon anyway as a matter of consistency (See Ralph Waldo Emerson for a succinct comment on this kind of consistency).

This is Problem #4: The ACHP and NPS regulations together focus attention on properties that meet abstract criteria interpretable only by professionals in specified academic disciplines, employing unduly complicated processes and generating unnecessary paperwork. The evaluation system is virtually impenetrable by outsiders, and can be very time-consuming. It can elevate the “official,” government-sanctioned significance of things that no one cares much about, while denigrating the significance of places about which people are deeply concerned. The character of the criteria, and the divergence between the ACHP and NPS regulations, create many opportunities for time-wasting arguments over petty technical and procedural issues.

Assuming something is found eligible for the National Register, the next step in the process is to determine whether the project will affect it, and if so, how. Here the regulations of the ACHP (36 CFR 800.5) hold sway, but the SHPO is an important interpreter of those regulations, and is held to account by NPS. The regulations allow for projects to fall into any of four categories – no historic properties subject to effect, no adverse effect, no adverse effect with conditions, and adverse effect. If there will be an adverse effect, the agency, SHPO, and others consult further, seeking agreement about how to “resolve” the adversity. There is much room for argument over how to interpret the regulations. Although the regulations do not say so, there is a widespread perception that it is wrong to have an adverse effect, so agencies tend to seek “no adverse effect” determinations. SHPOs tend to resist concurring in such determinations. SHPO and ACHP staff also tend to interpret the language of the regulations to require a rigidly sequential process of first exploring alternatives to avoid adverse effects, then alternatives to minimize them, and only if these prove infeasible, alternatives to mitigate them somehow – regardless of the severity of the impact or the significance of the property. Arguments over such petty issues can take up a great deal of time, including time spent by pricy consultants.

Thus, Problem 5: The overall effect of the Section 106 regulations, interacting with NPS regulations and procedures, is to reduce consideration of effects on historic properties to technical argumentation over petty points of regulatory interpretation and professional preference, with little opportunity for the public to become fruitfully involved.

Conclusion: Fixing the Problems

For those unfamiliar with the Section 106 process, I should say that Polly will probably get her project constructed – regardless of its effects on historic properties or the broader environment. She’ll probably wind up spending a good deal of money on “resolving” its impacts through such things as archaeological data recovery – on top of what she’s spent struggling through the review process. If worst comes to worst, if the project will have adverse effects and the AFA, Polly,and the SHPO can’t agree on what to do about them, the ACHP will comment to the head of AFA, who will make its final decision.

All that said, and despite all the problems outlined above, there is much that is worthwhile in the Section 106 process. Notably, it’s very nearly the only regulatory process in the federal government that emphasizes getting concerned parties together to consult over and work out their differences about how impacts on an aspect of the environment should be characterized and dealt with. It could be a model for other such review processes, had it not been allowed to evolve into such a petty, impenetrable, unnecessarily cumbersome and ill-focused enterprise.

What can be done? That remains to be seen, but I hope someone in the administration can and will force the ACHP and NPS to get off their self-satisfied duffs and reconsider the whole regulatory complex with reference to the excellent principles the President set out in the introduction to his executive order – to wit:

“Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.”

I want especially to point to the third and seventh sentences in this statement of principles. The complex of regulations surrounding and structuring Section 106 review give lip service (and even that only sometimes) to public participation and the exchange of ideas, but they do not really facilitate either, and they are a long, long way from being accessible, consistent, written in plain language, or easy to understand (The NEPA regulations, I should mention, are even worse). They could be made very much better. I hope – but don’t expect – that President Obama’s executive order will trigger a process that leads to such improvements.

"Tribal Monitoring"

2011-01-25T04:45:00.000-08:00

A posting on ACRA-L reminds me that Indian tribes in California continue to be hoodwinked into thinking that the cultural resource laws require, and require only, "tribal monitoring" of construction projects. Here's a paper I did several years ago for a class I took part in at the request of Reba Fuller of Tuolumne Rancheria, that tries to explain why tribes should not get fixated on monitoring, even in California where (sadly) it's become common practice.

WHY “MONITORING”

IS NOT NECESSARILY A GOOD IDEA

Thomas F. King: Prepared for a class at the Tuolumne Rancheria, 2007

Project proponents, government agencies, and environmental consulting firms in California often propose “monitoring” as a means of mitigating the effects of construction and other land-modifying activities on ancestral sites.

“Monitoring” means watching the bulldozing and recording or salvaging whatever may be found (graves, artifacts, etc.). Sometimes it’s done by tribal representatives, sometimes by archaeologists, sometimes by both.

Monitoring may often be necessary, but it should not be the first or primary option a tribe accepts, for at least the following reasons:

• The environmental and cultural resource laws are planning laws; they give tribes and others the opportunity to influence project planning. When you opt for monitoring, you give up your influence on planning.

• Accepting monitoring means you accept that the project as planned will go forward. The streets will go here, the houses will go there, the shopping mall will go over there – perhaps with some room for shifting things a little bit this way or that, but usually not much.

• If monitors find something important, practically speaking it is very unlikely that they’re going to be able to stop destruction of the place where that something lies. The best they’re likely to be able to do is delay destruction for awhile, while someone removes whatever has been found and puts it in a safe place.

• Monitoring can be applied only to small, discrete things like artifacts and graves; it cannot work to protect sites and natural areas.

Simply put, monitoring is one tool that may be agreed on as part of a plan to manage and protect cultural resources, but it should seldom if ever be the only tool, or the first thing discussed. Tribes should insist that project proponents and agencies first fully explore ways actually to protect ancestral places without disturbing them, and ways to compensate for loss or damage to such places, before considering monitoring.

Enforcing Section 106

2011-01-21T07:27:00.000-08:00

I understand that at the recent meeting in Palm Springs, California to discuss tribal cultural issues with energy development, some tribes were particularly vehement about the need for Section 106 of the National Historic Preservation Act (NHPA) and maybe the National Environmental Policy Act (NEPA) to be enforced more vigorously.

This is an interesting issue, and not as straightforward as one might think. For a very insightful discussion, let me recommend "Two Shades of Green," issued some years ago by the Rand Corporation. “Two Shades” compared how the Army complies with environmental laws that feature outside enforcement (Clean Air Act [CAA], Clean Water Act [CWS], etc.) and those that are supposed to be self-enforcing (NEPA, 106, etc.). It found, not surprisingly, that the Army did a helluva lot better with the former than with the latter. The report's downloadable at http://www.rand.org/pubs/reports/R4220.html, and worth reading.

BUT it's a lot easier to enforce such hard-edged laws like CAA and CWA, which say things like "thou shalt not pump more than X ppm of gunk into the environment," than it is to enforce soft, squishy, process-oriented laws like 106 and NEPA, and even CAA/CWA enforcement doesn't work perfectly (See, for example, Our Unprotected Heritage [Left Coast Press 2009], pp 47-48, 135-6). AND such enforcement requires a largish bureaucracy (at USEPA and the state EPAs) to carry out.

And most importantly, I think it's an unavoidable rule that the tighter the enforcement of an environmental law, the more narrowly and nit-pickingly the subject of the law will be defined. If you think we have problems now with issues like “how big is your traditional cultural property,” just wait till you start trying to enforce legal protections for such properties.

I don’t mean to discourage tribes or anyone else from considering how to enforce the laws, or to otherwise make them work better. I’m just saying that it’s something of a trick to imagine how enforcement could be built into NEPA or 106 without greatly restricting the scope of their application. It'd be interesting to try, but would need to be undertaken with considerable care and creativity.

A Devilish Definition

2011-01-20T15:23:00.000-08:00

I’ve just become aware of a draft Department of the Interior (DOI) tribal consultation policy that’s been posted on the web at http://www.doi.gov/governments/loader.cfm?csModule=security/getfile&pageid=119393 . The status of this document is not clear to me, but it’s being reviewed and commented on by tribes and, I take it, some DOI agencies. Whether, how, and when it will be made available for public review and comment is a mystery to me.

At a glance, the policy looks like a well-meaning document whose devils are, as usual, in the details. One detail that jumped out at me on first reading is at Section III.D, the definition of “Departmental Action with Tribal Implications.” This is a very important definition, DATIs are the things that DOI agencies are directed to consult about. If it’s a DATI you consult; if it’s not a DATI you don’t have to. Here’s the definition:

Departmental Action with Tribal Implications – Regulation, rulemaking, policy, guidance, legislative proposal made by the Department, grant funding formula changes, or operational activity that may have a substantial direct effect on Tribe or Tribal members’ traditional way of life, Tribal lands, Tribal resources, or access to traditional areas of cultural or religious importance on Federally-managed lands; or the ability of the Tribe to govern its members or to provide services to its members; or that may impact the Tribe(s) relationship with the Department or the distribution of responsibilities between the Department and Indian Tribes. This term does not include matters that are the subject of litigation or in settlement negotiations, or matters that undertaken in accordance with an administrative or judicial order.

Right off the bat, I see several problems with this definition.

One is its very existence. What earthly business does the Department of the Interior have deciding what does and does not have “tribal implications?” Surely only a tribe can decide what has implications for it and its people. Is it sensible, or fair, for the actor – the one contemplating an action – to decide whether it has implications for those acted upon, without even talking with them?

Now, of course, pragmatically a line has to be drawn somewhere; it would be absurd to have, say, the U.S. Park Police consulting with tribes about what fuel mix to use in their helicopters. But there’s got to be a better way than issuing this sort of peremptory definition.

And insult is added to injury – or maybe it’s vice versa, by the language “that may have a substantial direct effect.” Who, pray, is going to decide what’s “substantial” as opposed to “insubstantial?” Or “direct” as opposed to “indirect,” or maybe “cumulative?” Nit-picky lawyers will have a field day with this. And what’s the rationale for NOT considering indirect effects, or the contribution of an action to cumulative effects? We consider such impacts under the National Environmental Policy Act (NEPA), and under Section 106 of the National Historic Preservation Act (NHPA) – and in the latter case we even consult about them. Are we now going to have DOI agencies saying “well, we consult with everybody ELSE about indirect and cumulative effects, but our policy is NOT to consult with tribes?

Then there’s the language about “areas of cultural or religious importance on Federally-managed lands.” So DOI agencies don’t have to talk with tribes about impacts on areas of cultural and religious importance unless they’re on Federally-managed lands? So if DOI is, say, going to permit implantation of a vast bank of solar arrays on a chunk of public land that’s within the viewshed of a tribal sacred mountain that happens to be on private land, that action has no tribal implications? Give us a break!

Finally, there’s the perfectly wonderful exclusion for “matters that are the subject of litigation or in settlement negotiations, or matters that undertaken in accordance with an administrative or judicial order.” This one discriminates not only against tribes, but against the English language. We’re talking, here, about a definition of “action with tribal implications.” It ought to be offensive to any rational English speaker to see matters of litigation – in which, one has to assume, a tribe might often be a litigant – defined as having no tribal implications. So we have a tribe fighting the Department tooth and claw over, say, a project affecting a spiritual place, or culturally important plants or animals, and as soon as they go to court the matter stops having tribal implications?

Of course, it’s perfectly understandable that when a case goes to court, it’s going to have a chilling effect on other forms of interaction between the parties, and DOI is perfectly justified in not wanting to create a policy that will limit its maneuvering room in the conduct of litigation. That has to be addressed, and I’m sure ways can be found to do so, but the sort of gross misuse of the language that’s reflected in this definition is simply not the way.

I don’t doubt the good-faith intent of the Department of the Interior to consult with tribes, but this kind of pettifogging definition mongering is not going to help advance that intent. “Departmental action with tribal implications” ought to be defined to mean whatever an agency of DOI does that a tribe thinks has implications for it, and agencies ought to consult programmatically with tribes to decide what they’re going to consult about and what they aren’t.

Who Gives a Rat’s Patootie?

2011-01-12T06:21:00.000-08:00

Once again, I find myself being asked about how to resolve a Section 106 question in which both the responsible agency and the State Historic Preservation Officer (SHPO) seem to be agonizing over obscure abstractions without asking the obvious, first-order, real-world question of whether anybody thinks the issue is a matter of concern.

The case involves rather minor new construction on a federal facility, marginal to a complex of buildings long ago determined eligible for the National Register, and adjacent to a seemingly rather ordinary building that may (or may not) be just barely old enough to be part of the complex’s defined “period of significance.” There is great angst over whether the proposed site (a parking lot) is or is not within the “district” and whether the building “contributes to the district’s significance.”

What nobody has asked, and nobody seems to have the mother wit TO ask, is “who cares?” Despite the fact that the Section 106 regulations clearly establish that one of the very first things an agency is supposed to do in initiating review is to “identify other (than the SHPO) consulting parties” (36 CFR 800.3(f)), defined as people with “legal or economic relation to the undertaking or affected properties, or … concern with the undertaking's effects on historic properties” (36 CFR 800.2(c)(5)). Neither agency nor SHPO, it appears, has even given thought to the question of whether anybody cares if the construction occurs on the proposed site, or about the historical/architectural character of the location. When I ask about this, the response I get is “we don’t think anyone gives a damn,” and that, I would guess, is almost certainly true, but absent some effort to DETERMINE whether anyone gives a damn, the agency has, at best, a flawed administrative record. What we PROBABLY have here is a fairly easy “no adverse effect” situation, but if the agency makes that determination, without SOME effort to identify and talk with people who may be concerned, then in the perhaps unlikely event there IS someone out there who’s concerned, the agency can get caught with its pants loosely draped around its quivering ankles.

I don’t blame the agency in this case; it’s trying to juggle lots of variables that need to be addressed in planning a needed facility, and it’s just doing what it’s been long instructed to do (albeit misguidedly) to comply with 106: “go to the SHPO and ask if it’s OK.” But I DO blame the SHPO, and the National Park Service that’s supposed to be overseeing how SHPOs do their business. By not giving the agencies straight advice about what they really need to do to comply with Section 106, the SHPOs encourage agencies to blunder on and waste everyone's time building molehill issues into mountainous unnecessary complexities.

NPS needs to acquaint itself with the Section 106 regulations, which it’s shown no evidence of having read since approximately 1988, and then it needs to remind the SHPOs (who shouldn’t need it, but apparently do) that the bottom line in Section 106 review is determining the public interest, and that you can’t do that without talking to people. Which is why – yes, there IS a reason! – the regulations call for identifying consulting parties at the very beginning of the review process.

Sheesh, people, why is this so hard?

Contents: Wiley-Blackwell Companion to CRM

2011-01-06T07:06:00.000-08:00

In response to requests (well, a request), here's the table of contents of the Wiley-Blackwell Companion to Cultural Resource Management, scheduled for publication in the UK and US this spring.

Introduction
Thomas F. King

Part I. General Classes of Cultural Resources
Chapter 1 – Studying and Evaluating the Built Environment
Kate Kuranda
Chapter 2 – Principles of Architectural Preservation
David Ames & Leila Hamroun
Chapter 3 – Archaeology of the Distant Past
Michael J. Moratto
Chapter 4 – Archaeology of the Recent Past
Thomas F. King
Chapter 5 -Geographies of Cultural Resource Management: Space, Place and Landscape
William M. Hunter
Chapter 6 - Culturally Significant Natural Resources: Where Nature and Culture Meet
Anna J. Willow
Chapter 7 – History as a Cultural Resource
Deborah Morse-Kahn
Chapter 8 - Portable Cultural Property: “This Belongs in a Museum?”
Wendy Teeter
Chapter 9 - "Intangible" Cultural Resources: Values are in the Mind
Sheri Murray Ellis
Chapter 10 – Religious Belief and Practice
Michael D. McNally
Chapter 11 - Language as an Integrated Cultural Resource
Bernard Perley

Part II. Special Types of Cultural Resources
Chapter 12 - Challenges of Maritime Archaeology: In Too Deep
Sean Kingsley
Chapter 13 - Historic Watercraft: Keeping Them Afloat
Susan B.M. Langley
Chapter 14 - Historic Aircraft and Spacecraft: Enfants TerriblesRic Gillespie
Chapter 15 - Studying and Managing Aerospace Crash Sites
Craig Fuller and Gary Quigg
Chapter 16 - Evaluating and Managing Technical and Scientific Properties: Rockets, Tang™, and Telescopes
Paige M. Peyton
Chapter 17 – Historic Battlefields: Studying and Managing Fields of Conflict
Nancy Farrell
Chapter 18 - Managing Our Military Heritage
D. Colt Denfeld
Chapter 19 - Linear Resources and Linear Projects: All in Line
Charles W Wheeler
Chapter 20 - Rock Art as Cultural Resource
Linea Sundstrom and Kelley Hays-Gilpin

Part III. Perspectives on Cultural Resource Management
Chapter 21 – Consultation in Cultural Resource Management: An Indigenous Perspective
Reba Fuller
Chapter 22 - A Displaced People’s Perspective on Cultural Resource Management: Where We’re From
David Nickell

Part IV. Legal, Administrative, and Practical Contexts
Chapter 23 – Cultural Resource Laws: The Legal Mélange
Thomas F. King
Chapter 24 – International Variety in Cultural Resource Management
Thomas J. Green
Chapter 25 – Consultation and Negotiation in Cultural Resource Management
Claudia Nissley
Chapter 26 – Being a U.S. Government Cultural Resource Manager
Russell L. Kaldenberg
Chapter 27 – Making a Living in Private Sector Cultural Resource Management
Tom Lennon
Chapter 28 - The Historic Built Environment: Preservation and Planning
Diana Painter
Chapter 29 – CRM and the Military: Cultural Resource Management at War
Michael K. Trimble and Susan Malin-Boyce
Chapter 30 - A Future for Cultural Resource Management?
Thomas F. King

Buried

2010-12-30T07:28:00.000-08:00

I was just asked (by a client, unfortunately) where the hell I am, since I’ve been relatively quiet in cyberspace lately. Quick answer for anyone else who may wonder: I’m buried, but will, I am intent, dig out within the next week or so. The burial is not in snow, or even paying work, but in indexing the Companion to Cultural Resource Management, which Wiley-Blackwell will publish in March (See http://www.wiley.com/WileyCDA/WileyTitle/productCd-1405198737.html).

Although indexing involves mostly just plowing through the manuscript (a PDF) identifying and tagging items that someone might want to refer to, and organizing these into an alphabetical list, it’s not entirely without interest. For example, can you guess how many times 32 authors of 30 chapters on CRM topics use the word “standards?” Answer: 120. Now, does one index every use of the word, or only those referring to specific standards? Answer (for me): the latter. But how specific? Does a reference to UNESCO standards in general qualify, or only a reference to a specific UNESCO recommendation? What about a comment on the relevance of SHPO-generated standards? And what about standards set forth by the Companion’s authors themselves? Sheri Ellis provides some useful standards for dealing with “intangible” cultural resources, derived from the UNESCO convention on the same; should I index these? (Answer: yes). Reba Fuller provides some thoughtful guidelines for consulting with indigenous communities, based on the UN declaration of their rights; do I index these, even though she doesn’t exactly call them standards? (Answer: yep, those too). And by the way, yes, thank you, President Obama, for bringing the U.S. into the community of responsible (or at least self-congratulatory) nations by endorsing that declaration – now will you kindly direct your *&^%$# Secretary of the Interior to get on board and do something tangible about it? Like re-thinking the give-away of the western deserts to the solar industry without meaningful tribal consultation?

Anyway, that’s what I’m up to, and my deadline for getting it done – and proofing the 565-page ms – is January 10. Don't be shy about dropping me a note between now and then, but please understand that I may be long getting back to you. And clients, yes, I certainly WILL get your work done.

Environmental Conflict Resolution and Section 106: a Minor Epiphany

2010-12-22T17:48:00.000-08:00

I’m grateful to Western Cultural Resource Management, Inc. (WCRM) for making it possible for me to take part in its training last week in Reno, NV. The training was in environmental conflict resolution (ECR); the class was taught by Joan Calcagno of the U.S. Institute for Environmental Conflict Resolution at the Udall Foundation, University of Arizona. I think that Tom Lennon and his colleagues are very much to be commended for trying to make WCRM into more than the usual walk-the-transect-and-dig-the-hole cultural resource management firm by getting familiar with the principles and methods of things like ECR.

As one who’s theoretically been doing ECR for decades, in the guise of project review under Section 106 of the National Historic Preservation Act, I experienced a mild sort of epiphany during the training. Joan spent a good deal of time discussing what makes a case ripe for ECR – what conditions have to be present. I found myself thinking that it must be nice to be able to think about ripeness; in the 106 game we don’t have that luxury. The only game in the town of 106 review is ECR, in the form of consultation as prescribed in the regulations. Which led me to think -- here's the epiphany -- that this uniformity, this absence of options, may be the central flaw in the regulatory process.

The regulations, it occurred to me, essentially assume that there is always some kind of conflict to be resolved, requiring a more or less standard sort of multi-party (though often only bi-party) consultation. And they give little to no direction about how to decide how much consultation is necessary. The only real guidance is that if a project will have “adverse effects,” it requires some more consultation, sort of, than does a project without such effects.

And “adverse effect” is defined in a very abstract, theoretical way – you have an adverse effect if you’re going to diminish the integrity of a historic property. It doesn’t matter if you’re just going to diminish it a little bit or a lot, and more importantly it doesn’t matter whether anybody objects to the diminution. Everybody involved can be happy as clams with what you’re going to do to the place, and you’ve still got to go through the motions of consultation and execute a memorandum of agreement. On the other hand, some people can hate what’s proposed, and that doesn’t trigger any higher level of review – unless, of course, the haters are State Historic Preservation Officer (SHPO) staff, based on whatever technical standards they elect to apply.

Inevitably, such a system allocates unnecessary time, effort and angst to routine, non-controversial projects, while allocating insufficient resources and attention to projects that are troublesome. And there’s nothing in the system to flag troublesome projects early on, alert people to one another’s concerns, and allow people to think about whether there’s the need for some form of ECR. And because it’s so cumbersome, and mind-numbing, to try to consult about every single project, applying the abstract criteria of adverse effect (to say nothing of the National Register criteria), agencies and SHPOs get frantic to find means of “streamlining.” They negotiate programmatic agreements (PAs) to achieve this objective, but since nobody has a model other than what’s in the regulations, the PAs that get negotiated tend to be weird permutations on the standard Section 106 process that usually exacerbate its faults and dilute its strengths.

Although I think the National Trust for Historic Preservation was right, in its recent “Back to Basics” report, to call for a halt to PA development pending the establishment of better standards, it would be interesting to experiment with a PA that discriminated among projects not on the basis of their abstract effects on historical or architectural integrity but on the basis of the degree and kind of conflict they provoke. Perhaps if we could apply some of the principles that Joan Calcagno talked about in the WCRM class, we could come up with a more rational, simpler system of project review that’s more accessible to the public, more responsive to the public’s interests, and less taxing on all concerned.

A Visit to the Veterans Curation Project

2010-12-21T12:39:00.000-08:00

I had a fascinating and, I might even say inspirational couple of hours yesterday visiting the Washington DC lab of the Veterans Curation Project. The VCP is the brainchild of the Corps of Engineers’ remarkable Sonny Trimble, and is currently funded with ARRA money, though a bill to give it permanent funding has passed the House and is – well, somewhere in the Senate.

The basic idea of the VCP is to train wounded veterans in the skills involved in artifact and archival curation – classification, catalogue-building, imaging, restoration of decaying documents, and so on – not with the necessary expectation that they’ll go into archaeology, museum studies, or historic preservation, but because the work teaches them things that are useful in a wide range of jobs, helps prepare them for higher education if that’s what they want, and (there’s some anecdotal evidence for this) may help overcome the effects of conditions like post-traumatic stress disorder (PDSD). The group of veterans I visited were working with an old collection of both artifacts and records from Richard B. Russell Reservoir; they seemed to be engaged, focused, interested in the work, and having a relatively good time. They were articulate in discussing their work, and seemed to be handling it with great patience and aplomb. Their supervisors, Alexandra Jones and Amelia Chisholm of Brockington & Associates, which runs the program for the Corps, seemed to have things very much in hand and to be getting along fine with the troops. I was really impressed.

Working these days as a consultant to the Department of Veterans Affairs (VA), I hope we can find ways to build on the strengths of the VCP (which VA co-sponsors with the Corps) and relate it in a systemic way to the VA’s historic preservation program. And I hope other agencies, institutions, organizations and firms will look to the VCP as a source of highly trained, skilled, motivated and disciplined curators.

Eruvim and TCPs

2010-12-09T05:29:00.000-08:00

David Rotenstein has done another of his fascinating blog postings on Washington DC-area eruvim – see http://blog.historian4hire.net/2010/12/08/eruv-life/ . This one flatteringly quotes me (a dumb-as-dirt goy resident within the Silver Spring eruv) and mentions my connection with traditional cultural properties (TCPs; see for instance http://www.amazon.com/Traditional-Cultural-Properties-Resource-Management/dp/0759100713).

Before anyone starts jumping up and down about this, I wouldn’t for a moment propose that every eruv set up by an Orthodox Jewish community is a National Register eligible TCP. Some might be, I suppose, but I don’t think the mere designation of an area as an eruv would qualify it for the Register or impose any legal constraints on the activities of federal agencies in its vicinity.

The connection I found between eruvim and TCPs is this: I’ve lived within the boundaries of the Silver Spring eruv for about 30 years, and until David started publishing his research, I had no idea that this was the case. When I saw funny little sticks and strings running up utility poles, I figured they were something the power company had put in for some obscure electrical-engineering purpose – when I thought about them at all. Yesterday I saw one and thought: “Oh, a…..” and hurried home to check David’s site and remind myself that it was a lechi.

Anyway, it is much the same with, for instance, Indian tribal or Native Hawaiian spiritual places. Most of us live in, work in, travel through, view, or ignore such places without consideration of their spiritual qualities, because they aren’t marked with crosses, stars, crescents, or other such indicators of religiosity. And we never notice when we cross their boundaries, because those boundaries are marked, if they’re marked at all, in ways that only someone knowledgeable in the ways of the culture can recognize. But this general anonymity doesn’t make the places any less significant in the eyes of those who ARE within the culture. Just as a breached eruv boundary can have real effects on the perceptions and behaviors of an Orthodox Jew on the Sabbath, so a perceived violation of a tribal spiritual place’s important characteristics can affect the sociocultural integrity of a tribe – even though the violation is entirely innocent and the violator has no idea that he or she has done anything.

I doubt if knowing that I live in an eruv will alter my behavior, but if I were responsible for managing my neighborhood I’d certainly want to consult with the Orthodox Jewish community before, say, taking out a bunch of utility poles on a Friday – not because there’s a specific law requiring that I do so, but because I’d think such consultation to be the fundamental responsibility of a public servant. And I wouldn’t assume that I could determine just what actions would have impacts on the beliefs and values of my Jewish neighbors; only they could do this. In just the same way, a federal land manager ought to be careful about doing things that may impact the values, beliefs, and practices of tribes (and others) who view themselves as tied somehow to the lands being managed – not necessarily to avoid doing things, but to consult with those affected and to mitigate the effects.

The Federal Historic Preservation Program Task Force: a Reaction

2010-11-30T05:40:00.000-08:00

For some months, the Usual non-federal Suspects in U.S. historic preservation – Preservation Action, the National Conference of State Historic Preservation Officers, National Trust for Historic Preservation, American Cultural Resources Association, and others – have been deliberating earnestly as the “Federal Historic Preservation Program Task Force” (See Preservationaction.org). Their task has been to examine the “external programs” in preservation managed by the National Park Service (NPS), assess their effectiveness, and come up with a “consensus plan for structural improvement,” which they will then seek to implement. The Task Force recently sent out a questionnaire to help inform its deliberations; like many others, I received a copy and amused myself for a quarter-hour or so completing it. If you haven’t gotten one yet, and want to, you can get it at http://www.surveymonkey.com/s/FederalPreservationSurvey.

The Task Force’s effort is timely – or rather, past-timely. NPS has neglected, ignored, twisted, and distorted the “external programs” for decades, and current NPS management has shown no evidence that it has the faintest understanding even of what these programs are supposed to do. NPS – understandably enough – looks at the world outside the National Parks as something strange, vaguely threatening, and only marginally relevant, so it has made the external programs focus inward, on parks and park resources, effectively ignoring the broader responsibilities imposed by the National Historic Preservation Act and other legal authorities. This has been going on for so long that it has come to be seen – at least within NPS – as the right and proper norm. The Task Force can be congratulated for rejecting the status quo world view, for recognizing that NPS has mismanaged its responsibilities, and for attempting to effect improvements.

Sadly, though, to judge from its questionnaire, the Task Force is unlikely to accomplish much. I say this not because I think, as is widely assumed, that under current economic and political conditions nothing can be accomplished (though there’s a good deal to be said for that assumption), but because the Task Force itself seems to be little more creative or engaged with the outside world than is NPS.

After asking, in essence, whether respondents agree that NPS has done a rotten job, and understandably assuming agreement, the Task Force’s questionnaire asks us to rank several alternative pathways to program improvement. These include:

1. Pulling the external programs out of NPS and putting them into an independent agency, together with the Advisory Council on Historic Preservation (ACHP);
2. Pulling the external programs out and giving them to the ACHP;
3. Coagulating the external programs, with or without the ACHP, into a new agency within the Department of the Interior;
4. Doing the same thing within NPS;
5. Gussying up the leadership of the external programs and ACHP with things like Senate ratification of appointments; and
6. Doing nothing.

Having warned about NPS proclivities and promoted option 1 above back in the mid-1970s (See Anthropology in Historic Preservation; http://www.amazon.com/Anthropology-Historic-Preservation-Cultures-Archeology/dp/0124082505), I suppose I should be pleased to see the mainstream historic preservation community at last come around, and of the options given us by the Task Force, I certainly think option 1 is the best. Only with an entity that’s outside the ambit of a particular land manager – be it NPS or its parent Department of the Interior – would it be possible to develop a program that addresses historic preservation interests right across the federal establishment, in partnership (or not) with a full range of governmental and non-governmental interests. This was true in the 1970s, and it’s still true – perhaps more true – now.

But what the Task Force members – devoted, self-congratulatory preservationists all – can’t see is that “historic preservation” by itself doesn’t have the political firepower to establish or operate its own government agency – nor should it.

First: the vast majority of Americans do not know what historic preservation is – except that it’s something that keeps nice (or not so nice) old buildings standing and sometimes complicates land use and development. Most of our elected representatives are no better informed. You’re not going to get political support for something that elicits at best polite nods from the bulk of the population and members of Congress – unless you have a lot more money to pay the latter than historic preservation’s Usual Suspects have in their pockets.

More importantly, the deficiencies of the national historic preservation program are not wholly ascribable to NPS mismanagement, and they are not unique to historic preservation.

Some of the preservation program’s deficiencies are built into the National Historic Preservation Act itself, or at least into how the Act was interpreted and implemented in its earliest days (1968-72 or thereabouts). The Act and its early interpreters (admittedly, mostly NPS employees) focused attention on old buildings and archaeological sites, and turned program management over to professional historians, architectural historians, and archaeologists, creating a program that systematically excluded the broad array of landscapes, landforms, plants, animals, vistas, viewsheds, soundscapes and smellscapes that encode the cultural values of many ordinary citizens and communities – to say nothing of the less tangible aspects of culture like language, song, and tradition. Some of us have tried to drag the broader aspects of culture into the program through inventions like the “traditional cultural property” or the “cultural landscape,” but with very limited success; the deck was long ago stacked against us. As a result, we live with a program that seeks to preserve places valued by narrow disciplinary professionals, a program run by narrow disciplinary professionals for the benefit of narrow disciplinary professionals. And the Usual Suspects are – surprise! – themselves mainly narrow disciplinary professionals, or at least narrowly focused on old buildings and archaeology. Generating broad public support for an independent agency to service the interests of narrow disciplinary professionals is going to be a real challenge.

But preservation’s deficiencies are not unique; the same or very similar narrow-mindedness infects virtually every other aspect of government-based environmental management. Management of the natural living environment, when not driven wholly by economic interests, is done by and essentially for professional biologists, foresters, and the like; water resources are managed by hydrologists according to their own self-contained models, and professional environmental engineers are forever insisting that they and only they can speak to management of “the environment.” In the operation of programs designed and administered by practitioners of narrow professional disciplines, the interests, values, feelings of ordinary people have no place. Just as a community’s sense of place is likely to be ignored by the historic preservation system unless a pricy consultant is retained to translate it into terms that resonate with historians or architects, the feelings of ordinary citizens for plants, animals, lakes, rivers, language, dances, or traditions go unattended unless someone makes them sensible to biologists, ecologists, or hydrologists.

Here is where opportunity lies. If preservation’s Usual Suspects could make common cause with other groups interested in preserving cultural aspects of the environment, it just might be possible to build a broad enough support base to get something done.

Who are these groups? Here are a few with which I’ve interacted over the years, many of which have tried somehow to engage the national historic preservation program and gone away shaking their heads at its petty fixations:

Indian tribes and other indigenous groups that aren’t formally recognized by the federal government;

Property owners who value the traditional use of their land;

Equestrians and outdoorspeople who value wild horses and burros on the federal estate;

Urban and suburban neighborhoods and rural villages that like their own ambience but don’t happen to meet the National Register’s criteria;

Traditional fisherpeople, hunters, trappers, whalers (consider shrimpers on the Gulf coast);

Gatherers of traditional medicinal plants or plant foods;

People struggling to preserve threatened languages and art forms;

Local communities – including but not limited to low-income and minority ones – that just want some respect from the government.

The interests of some of these groups conflict with one another from time to time, or with the interests of historic preservation’s Usual Suspects, but they all share some common ground – which they also share, to some extent, with the ill-defined grumbling masses that make up movements like the Tea Party. And the ground they share – respect for the traditional and familiar – is thickly grown with the brambles of distrust toward narrow disciplinary professionals. As Frank Fischer put it in his wise but ill-timed book Citizens, Experts, and the Environment (Duke University Press 2000:30):

Although open protests have tended to occur only sporadically, polls show a steady decline in the public’s confidence in, and respect for, professions…. Rather than a group of experts dedicated to the public good, professionals are widely perceived as a group more interested in increasing their own authority, power, and wealth.

If preservation’s Usual Suspects could only turn around and look outside their circle, their zone of comfortable interaction with one another, of reliance on crutches like the National Register, they might, with luck, find the critical mass necessary to make useful changes in the way cultural resources are managed in this country. Such engagement with the larger world would require teetering away from our crutches, though – the National Register, the Secretary’s Standards, professional expertise as the necessary prerequisite to being heard. I don’t anticipate that the Usual non-governmental Suspects are any more willing to do that than NPS or the ACHP would be.

If they can’t look out beyond their self-referential, self-reverential circle, if they can’t step away from their crutches, preservation’s Usual Suspects both outside government and within have, I think, no chance of doing anything but holding on, tenuously, to a gradually (or maybe rapidly) deteriorating status quo. I don’t think they have the guts or brains to get outside their comfort zone, so I expect that the Task Force – well-justified as its findings may be – will be just another exercise in preservation’s long history of hand-wringing and viewing with alarm.

NRC Nukes Environmental Review of Licensee Actions

2010-11-28T11:49:00.000-08:00

The Nuclear Regulatory Commission (NRC), as its name implies, regulates a range of activities carried out by private corporations making up the nuclear energy industry – including uranium mining and processing and the operation of nuclear power plants. For some decades, NRC has performed National Environmental Policy Act (NEPA) review on a wide range of licensee and applicant actions defined broadly as “construction.” In 2007, NRC decided that it didn’t really have the authority to regulate some such actions, and therefore couldn’t review their impacts under NEPA. So in order to stop doing such reviews, NRC redefined the word “construction” to exclude certain licensee and applicant activities. However, it didn’t at that time exclude the full range of activities that the nuclear energy wanted to escape review, so NRC staff went to work, with the industry, drafting further regulatory revisions extending the narrowed definition of “construction” to a wider range of actions. The new revisions were published in the Federal Register on July 27 (75 FR 43865-76); the deadline for comments is late tomorrow, November 29. I learned about the rulemaking awhile ago, but frankly dilly-dallied about reviewing it and drafting comments until this weekend. It struck me, upon reading the Federal Register notice, that while there might be a theoretical legal argument for NRC’s position in the matter, there were also good arguments against it that probably got ignored by the Bush-era NRC and Council on Environmental Quality back in 2007. In any event, it seems obvious that the regulatory change has (and had back in 2007) the potential for substantial impacts on the quality of the human environment in general and on historic properties and Indian tribal concerns in particular.

Following are my comments, just filed with NRC. If you’re interested in reviewing the rulemaking and commenting, you can access the documents and file comments via http://www.regulations.gov/search/Regs/home.html#searchResults?N=8099&Ne=11+8+8053+8098+8074+8066+8084+1&Ntk=All&Ntx=mode+matchall&Ntt=NRC-2010-0075. Be aware that the deadline for comments is Monday, November 29.

I write to comment on NRC’s proposal to revise 10 CFR Parts 30, 36, 39, 40, 51, 70, and 150, governing licenses, certifications, and approvals for material licensees, published in the Federal Register on July 27, 2010 (75 FR 43865-76).

1. Let me begin by saying that your system for (ostensibly) eliciting public comment on this rule change is so complex, counterintuitive, and generally obfuscatory that it renders public comment almost infeasible. Doubtless this was its intent, but if you want even to pretend an interest in what the public has to say, you might try providing a direct link to the rule on which you’re soliciting comments, rather than forcing the reader to search through multiple documents on general-purpose web pages.

2. Your proposed rule change, and the 2007 NRC findings upon which it is grounded, are based on a false premise – that the National Environmental Policy Act (NEPA) is “purely procedural.” This is manifestly not true. NEPA is the National Environmental Policy Act, and although it has become the fashion throughout government in recent years to treat only the law’s procedural requirements without reference to its policy, the fact remains that Section 101 articulates general U.S. government policy regarding protection of the environment. Notably, Section 101(a) says it is the policy of the U.S. government, of which at last report NRC was a part, to use all practicable means to, among other things, create and maintain harmony between people and nature. Section 101(b) goes on to say that the government will use all practicable means to “improve and coordinate” federal plans and programs to achieve six broad environmental goals. Section 102 of NEPA directs that “to the fullest extent possible, …the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies…” set forth in Section 101 (emphasis added)

It follows from this rather explicit legislative language that where an agency has the authority and ability to influence how the environment is managed and how the impacts of land use are controlled, it must use all the means practicably at its disposal, to the fullest extent possible, to ensure that management is sensitive to environmental concerns and that impacts are effectively considered and controlled.

Prior to 2007, albeit in a rather lackluster manner, NRC made efforts to be consistent with this congressional direction by regulating the entirety of an applicant's environmentally damaging work, and subjecting this work to review under NEPA Section 101(C). In 2007, as part of a national administration intent on undoing environmental controls regardless of legislative mandates and impacts on the public interest, NRC decided it ought not do that anymore with respect to some classes of applicant actions. Now you propose to extend this decision to ignore NEPA policy to the full range of applicant actions. Please explain how you justify this proposal with reference to the policy articulated in NEPA Section 101. Is it no longer practicable to regulate the entirety of an applicant’s environmentally damaging activities? No longer possible? If so, why?

3. This proposed rule change clearly has the potential for significant effects on the quality of the human environment. How have you analyzed this potential in accordance with the regulations of the Council on Environmental Quality (CEQ; 40 CFR 1500-1508)? Where can one find your assessment and findings? If you have not conducted such an analysis, what is your rationale for ignoring the seeming requirement for such an analysis found in the CEQ regulations?

4. Have you consulted with CEQ regarding this rule change, as required by 40 CFR 1507.3? What has CEQ had to say about it? Perhaps the 2007 CEQ said nothing about the 2007 NRC finding, but such silence, understood in the political context of the time, should not be taken as an indication of what the current CEQ would say.

5. Policies similar to NEPA’s are set forth in the National Historic Preservation Act (NHPA) with reference to impacts on historic properties. Please explain how you have addressed these policies in proposing this rule change.

6. This rule change clearly has the potential to cause adverse effects to historic properties, by removing federal oversight from a wide range of potentially destructive applicant activities. Section 106 of NHPA requires that federal agencies consider the effects of their actions on historic properties, and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on such actions. Please explain how you have done this, with reference to the ACHP’s regulations (36 CFR 800).

7. This rule change has the potential to have profound impacts on the interests of federally recognized Indian tribes in their cultural and natural heritage, including but not limited to ancestral burial places, living sites, and spiritual places as well as culturally important plants, animals, minerals, water, air, and landforms. Federal agencies are required by a range of laws, regulations, executive orders and case law grounded in treaties and in the U.S. constitution to consult with tribes on a government-to-government basis about agency actions potentially affecting tribal interests. Have you done this? Can you refer me to the record of such consultation?

Thank you for the opportunity to comment, and (prospectively) for answering my questions.

/s/ Thomas F. King

Cutting the Budget: One Small Suggestion

2010-11-24T07:36:00.000-08:00

So, for better or worse, or indifferent, we have a Republican-dominated House of Representatives, and a lot of calls for reduction in the size and cost of the federal government. Without expecting that it will be attended to any more than it was before, I'm moved to re-post a piece I published here on January 21, 2009. I still think it would be a good idea.

TK

Cutting a Bit of Fat from the Federal Budget: Do Away With the National Register of Historic Places

Maintaining the National Register of Historic Places – self-described as the nation’s official list of significant historic sites, districts, buildings, structures, and objects – is one of the minor non-park-related duties of the National Park Service. It doesn’t cost a great deal of money in terms of direct costs – just the salaries of some Park Service employees and associated administrative expenses – but that money could certainly be more fruitfully used for other things, and eliminating the Register would also result in significant indirect savings by simplifying and streamlining federal environmental impact review.

The Register serves three functions, none of them critical to government operations or the welfare of the American people:

1. Owners of income-producing properties included in the Register get federal income tax credits for rehabilitating such properties in such a way as to extend their lives and maintain their significant architectural qualities. If there were not a register of some kind it would be impossible to determine which properties should and should not receive such benefits. But “a register” does not have to be a central national register, maintained at considerable expense by the federal government. State and local lists would do just as well. Most states and many local governments already maintain their own lists of places they want to preserve; why not support them rather than maintaining a redundant national list?
2. The information in the Register can be and is used for educational and touristic purposes, but again, state and local lists, as well as Indian tribal and Native Hawaiian lists, could serve these purposes just as well as or better than the National Register. So could databases maintained by federal land managing agencies.
3. Federal agencies are required by Section 106 of the National Historic Preservation Act to consider the effects of actions they plan – things they want to undertake or that others want to undertake with their assistance or permission – on places included in or eligible for the National Register. In my experience – and I’ve been working with Section 106 for over 40 years, inside and outside the federal government – tremendous amounts of time and money are wasted on argumentation over whether endangered places are eligible for inclusion in the Register. Not only is the time of highly paid specialists wasted in such arguments, but often important and expensive projects have to be delayed while they are conducted. The arguments almost never focus on serious questions about the cultural, historical, or architectural significance of such places; they almost always involve differing interpretations or understandings of the technical criteria for eligibility issued by the National Park Service. I believe we would have a much stronger, more efficient, more sensible procedure for managing federal impacts on historic places if we focused Section 106 review on whatever people concerned about a given proposed project thought was historically, culturally, or architecturally significant in the affected environment – always with the understanding that, as today, if agreement couldn’t be reached about how to deal with a project’s impacts, the responsible agency could get the recommendations of the Advisory Council on Historic Preservation (or some equivalent body) and make its final decision about whether to go forward with the impacts or not. With such a system, of course, we would not need a National Register, and we would save the federal, state, local, and private money that goes into arguing over eligibilty for it.

We actually do not “need” a National Register today – it’s simply something that the National Historic Preservation Act created back in 1966 and we’ve gotten used to and stuck with. The Register today serves only as a distraction from the real work of preserving the heritage of the nation, its regions, states, tribes, and groups. It imposes upon us the obnoxious perception that the Secretary of the Interior, through the National Park Service, has to verify what is historically, culturally, and architecturally significant. Why is the Secretary qualified to do this, particularly with regard to what, say, the people of Gallup, New Mexico or Nyack, New York may think is part of their heritage? And why should the Secretary spend even a small chunk of his budget making decisions about such things? Why not let the people decide -- and save a bit of money, simplify government, and improve management of the environment in the process?

Screen Test: A Bit of Archaeology

2010-11-20T05:13:00.000-08:00

Writing a short paper at Mike Moratto's request on my archaeological mentor, the late and considerably lamented A.E. Treganza, I was reminded of the difficulty Trig had making the transition to the routine use of screens (sieves, as they’re called in some other venues); he, like others of his generation (the first generation of California archaeologists) had always been a shovel-and-trowel man.

It occurred to me that the issue – why Trig didn’t much like screens – might have had to do with his artistic, organic approach to archaeology; he really made himself at one with the site, and screening can’t help but remove the archaeologist from the site – either by putting him or her up on the backdirt pile shaking, or by leaving him or her down in the pit (oops – unit – that was another transition Trig had trouble with) relying on the screener to find the goods. The practice fragments, segments, partitions the excavation experience.

Like everyone else doing archaeology in the U.S., over the last 50 years I’ve gotten used to routine screening, but recently on Nikumaroro in Kiribati, pursuing Amelia Earhart, I had to pretty much eschew screens, and the results were interesting. We were stripping a large area of the site, going down only 10 cm. (because that’s about as deep as we ever find anything there), and doing it all by trowel. We had seven 2-meter wide lanes, with two excavators in each; they simply crawled, sprawled, along troweling and closely examining what appeared in front of them.

Interesting result: LOTS more tiny things found than we’d ever found in previous seasons screening. I think it was because the people were right down there with their faces in the excavation, with everything right in front of them, and they knew that THEY were the ones who had to find whatever there was to find, in situ. And because, given the particular character of the site – contained in the coral-rubble surge ridge on the windward side of an atoll – out-of-place objects were more evident in situ against the broken coral than they would have been if relocated into a screen full of the same rubble.

The Seven Site on Nikumaroro is a lot different from almost any site in the U.S., and I’m not advocating a wholesale abandonment of screens – just noting that there are times and places where, perhaps, they get in the way.

Unrelated screen/sieve note: I’ve sometimes wondered why British and Commonwealth archaeologists seem always to use dorky little circular sieves instead of the nice, efficient, rectangular rockers we prefer in the U.S.. Walking through the Spice Market in downtown Istanbul earlier this month, I came upon the answer – great heaping piles of the things, in every gauge, readily available for sale. Doubtless an implement of ancient and honorable parentage in the Middle East, picked up by the likes of Petrie and Wooley and a part of the standard tool kit ever since.

Playing the "Plus" in CRM Plus: Why Vote Democratic

2010-10-26T14:52:00.000-07:00

I called this blog "CRM Plus" to give myself the space to write about things other than "cultural resource management," but haven't heretofore taken advantage of that flexibility. Now I will. I recently posted a note on Facebook asking anyone who was even thinking of voting Republican in the forthcoming election to give me the chance to talk them out of it. Only one person did so; I'll not reveal his or her identity; suffice to say that he or she is a law enforcement professional. Below, for whatever interest it may have for any of my faithful (or other) readers, is what I sent him or her.

Since I did my Facebook posting inviting anyone thinking of voting Republican to give me a chance to talk them out of it, and you (and only you) took me up on it, I guess the ball’s in my court and I’d better put up. Let’s see…..

Let’s start with something you and I discussed not long ago – immigration. You told me a story about stopping a vanload of obvious illegal immigrants en route to a distribution point, and being unable to do anything about it because dealing with them was reserved to the feds. That convinced me that there was justification in Arizona’s attempt to empower/require its police force to deal with illegals. Whether it’s constitutional for the state to do so is another matter, but I think we agree that something needs to be done, and that the federal government hasn’t yet done much. OK; I’ll also volunteer that I think one of the few smart things G.W. Bush proposed as president was an immigration policy including a guest worker program. But the Republicans never supported that, and now can’t propose anything but higher walls and more firepower along the border. That’s not going to do the job; the Romans and the Chinese and the French all learned that walls and troops along their borders don’t stop folks who really want to get in. We ought to profit from their education.

So what would work? I think it’s painfully obvious. Why are people risking and often losing their lives crossing the deserts to work here? Two related reasons. First, there are too many of them in their home countries – too many mouths to feed. Second, there aren’t enough jobs at home to make it feasible to feed everybody. How to fix this? Support population control and economic development in the countries from which illegal immigrants come. Do Democrats, on the whole, support such things? Yes. Do Republicans do so? Hell no; Republicans consistently want to cut foreign aid and prohibit our aid agencies from even talking to people about family planning.

Before you even say it, I know that promoting economic development and family planning in other countries isn’t going to solve the illegal immigration problem quickly; it’s a long-term strategy. In the meantime we need things like guest worker programs and probably amnesty for people already here, and some way for police forces not to have their hands tied in dealing with illegal immigrants. But those are all band-aids. We ought to be looking for long-term solutions as well as doing the best short-term fixes we can. At least some Democrats are willing to consider such things; Republicans have forbidden themselves even to contemplate them.

Let’s talk about drugs. Here again I think there are some obvious ways to bring drug abuse and drug-related crime under control. We ought to learn the lesson of Prohibition; decriminalize the use of at least the common “recreational” drugs, regulate their use the way we regulate the use of alcohol, and tax it. Undercut the cartels, stop stuffing the jails with relatively inoffensive “criminals,” bring in some revenue. Is this a perfect solution? Of course not, but it makes a whole lot more sense than the utterly mad arrangement we have now. Is it at least possible that Democrats would entertain such ideas? Yes. Republicans? Individual Republicans, sure, but as a body? Nope; the only thing the Republican Party can offer is to build more jails, contract with questionable private firms to run them, and lock lots more people up.

Then there’s the economy. It wasn’t really that long ago that the federal budget was showing a surplus, and the national debt was shrinking. That was an achievement of the Clinton administration, fighting back from years of tax cuts for the rich during the Reagan and Bush Senior years. Eight years of Bush Junior, more tax cuts, profligate spending, and blind deregulation of Wall Street, and the Obama administration comes in faced by a staggering debt, two wars to fight, and a meltdown of the stock market, housing market, and practically every other market around. They’ve had less than two years to fix all this and are making progress. Have they done everything right? Certainly not; whoever does? But they’ve tried, and they’ve had some success. What have the Republicans done? Sniped, whined, and tried – effectively, it sadly appears – to convince the electorate that our economic distress is Obama’s problem, that things would be better if we just cut upper-tier taxes some more.

How about health care? Is there some reason the World Health Organization ranks the U.S. health care system #37 in the world (See http://www.youtube.com/watch?v=yVgOl3cETb4)? Other than that they’re all internationalist commies? Maybe there’s a problem? Maybe we should try to fix it? Again, the bill passed last year may not be the best approach in the world (I don’t think it was; I’d like to see single-payer), but it was what could be done, an exercise of the art of the possible. What would the Republicans prefer? Maybe a nice comfortable slip to number 47, as long as the upper crust can afford privileged treatment.

I could go on and on, but let me wind up with a subject close to my heart – the environment, impact assessment, and regulation. I’m frankly mad as hell at the way the Obama administration has dealt with the environment. They’ve gotten railroaded into backing every cockamamie “green energy” scheme that’s come along, and as a result are bending the environmental impact assessment laws into pretzels to expedite putting up solar fields and wind farms – in the process screwing over some of the most pristine environments on the continent. And even when confronted with the Deepwater Horizon disaster they couldn’t be moved to pursue ways to fix the obvious flaws in the impact assessment and regulatory regime in anything like a systematic way. They’ve renamed agencies and set up study commissions instead. But we’ve hardly seen the Republicans doing better – remember the notion that we should all apologize to BP for being so mean to them?

OK, enough. I think it’s a no-brainer; the Democrats are far, far from perfect, but the Republicans, to be charitable, are nuts. If they’re not nuts, there’s nothing I can say about them that wouldn’t be libelous.

HR 5282 Needs Support in the U.S. Senate

2010-10-19T07:21:00.000-07:00

HR 5282 would provide long-term support to the Veterans Curation Project, a Corps of Engineers project that trains wounded veterans in curation skills and helps them find work and/or encourages them to continue/resume their education. It addresses two needs -- the need for such veterans to develop marketable and intellectually stimulating skills, and the need to get federal and other archaeological/archival collections properly cared for. It's been in existence for a couple of years and already it's highly successful, with a high percentage of its graduates finding work and/or enrolling in college. Informal interviews with participants even suggests that the work may have direct therapeutic effects in handling PTSD. But the Corps money will run out soon. HR 5282 would provide longer-term funding, perhaps long enough to enable the program to become self-supporting.

HR 5282 has passed the House, but has no sponsors at all in the Senate. I've urged Maryland's Senators Mikulski and Cardin to become its champions in the Senate, and I hope they will, but anyone who's concerned about wounded veterans and/or the care of collections ought to consider asking their Senators to do the same.

For the text of the bill and its current status, see http://thomas.loc.gov/cgi-bin/query/D?c111:4:./temp/~c111RV8i2E::

Apologies to New Orleans

2010-10-18T13:33:00.001-07:00

My good friend Chris Goodwin has quite properly taken me to task for the flip comment about New Orleans in my last post. Chris emphasizes the city's and region's overwhelming cultural, historical, and economic importance and very justly criticizes me for slandering it by suggesting that it's a lost cause. He argues that New Orleans is coming back and will be a stronger city than ever in the wake of its recent traumas.

I do apologize for any offense. My comment was a thoughtless one. It was driven by my unhappy belief that in the long -- and maybe not very long -- run we are not going to be able to do anything about global warming and the sea level rise that goes with it, so low-lying cities like New Orleans (to say nothing of the Pacific atolls to which I have attachments not unlike those Chris feels toward the Big Easy) are doomed. I'm not happy about that; I don't think it's a good thing, but I think it's a bullet we are probably going to have to bite and ought to be planning for. But for the sake of those whose roots or hearts lie in the bayous, along with the people of the atolls, San Francisco, Miami and Hong Kong, among many, many other places, I hope I'm wrong. Thanks, Chris.

National Trust Says "Let's Take Section 106 Back to Basics"

2010-09-30T09:36:00.000-07:00

Comments on Section 106 of the National Historic Preservation Act: Back to Basics, a report in two volumes issued in late September, 2010 by the National Trust for Historic Preservation in the United States.

People have been asking me if I was going to review the National Trust for Historic Preservation’s new report on the National Historic Preservation Act (NHPA) Section 106 process. OK, I will.

But the report, by preservation attorney Leslie Barras and entitled Back to Basics, is long and rather cumbersome, divided into two volumes – the second a technical elaboration and mustering of supporting data for the first. And it’s loaded with material with which it’s possible to quibble, and I know my quibbles would only put everyone (including me) to sleep. So what I’m going to do – for now, at least, until and unless some of the report’s recommendations begin to look like they might be implemented somehow – is comment just on the first volume, the “Summary Report.” Which is conveniently organized with reference to seven key recommendations, all but one complete with sub-recommendations. Let’s look at them one by one.

Recommendation 1. Federal agencies must endorse and compel compliance with Section 106.

The report begins its elaboration on this recommendation by urging the president to issue a “memorandum reinforcing agency responsibilities…and requiring reporting on current compliance.

Comment: Well, OK, but we’ve kind of been there and done that during the Bush administration, with little evident productive result. My personal belief is that this kind of initiative makes no sense except as part of a larger directive to agencies to clean up their environmental impact assessment (EIA) and public engagement systems generally (See my recommendation for presidential direction on pages 161-4 of Our Unprotected Heritage (Left Coast Press 2009). Section 106 by itself is too small-potatoes to be the subject of such direction, and directing better compliance with 106 without doing the same for the National Environmental Policy Act (NEPA) would not, I think, have very useful results.

The next subrecommendation is that “the Secretary of the Interior and Advisory Council Chair should consult with federal agencies on the adequacy of historic preservation staff capacity.” That’s probably a good idea, but they first ought to agree – with serious attention to outside advice – on what such capacity should look like. Just hiring lots more architectural historians and archaeologists is not necessarily a good idea, even if it were likely to happen.

Next, the report suggests that “federal agencies that oversee or delegate Section 106 compliance to nonfederal applicants for project funding or approvals should implement robust management systems to ensure procedural compliance with the law.” Yes indeed, and again it would be worth looking first at just what “compliance with the law” ought to entail. Agencies like the Environmental Protection Agency (EPA) in its delegation of Clean Water Act responsibilities and the Office of Surface Mining in its laughable (if it weren’t so sad) oversight of coal mining in Appalachia are letting their non-federal “partners” get away with murder, and it ought to stop. But again, just focusing on 106 won’t work; reform has to address the full range of environmental laws, notably NEPA.

Next, it’s suggested that “Special responsive strategies should be developed to address the challenges of Section 106 compliance when nonfederal parties receive project funding or approvals as a result of massive economic or disaster recovery initiatives.” There are two rather separate issues here. One circulates around the American Revitalization and Reinvestment Act of 2009 (ARRA), which pumped vast amounts of money into supposedly “shovel-ready” projects that weren’t, and is as a result distorting and short-circuiting the processes of environmental impact assessment, including but far from limited to Section 106. That’s pretty much a done deal, but yes, some sort of sensible strategy should be developed for such things when they happen in the future – other than just assuming that if an agency thinks its project is ready to go, it is. What that strategy (or suite of strategies) might be is anyone’s guess, and Back to Basics doesn’t essay to advance specifics. The other issue has to do with natural disasters like Hurricane Katrina, and here the report seems to reflect the Trust’s unhappiness with the Federal Emergency Management Administration for permitting large scale demolitions in New Orleans. As one who believes that New Orleans generally is doomed, and that the sooner we get used to the idea and let it go the better off we’ll be, I don’t think I have anything to say about this argument.

Next, Back to Basics says that “government performance and accountability reports should more specifically and prominently identify progress made and improvements needed in federal preservation programs.” This makes sense superficially, but the government performance and accountability report (PAR) standards and guidelines I’ve seen are idiotic, and only cause federal employees to while away their hours making up numbers. Calling on an agency like the Bureau of Land Management (BLM) to estimate how many historic properties it has taken nice care of this year is an utter waste of time, and calling on them to report things like nominations to the National Register is utterly counterproductive. If there’s ever a PAR system that makes sense, though, no doubt stuff like historic preservation should be represented in it.

Recommendation 2. Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes

The first subrecommendation here is that “in many cases, consideration of historic properties could be improved through better coordination or integration with National Environmental Policy Act compliance.” Yes indeed, but the fact that the Section 106 and NEPA regulations aren’t themselves coordinated in any meaningful way throws something of a roadblock in the way of implementing this suggestion. The Advisory Council could do something about this, and so could the Council on Environmental Quality, but neither, I think, has the wit to do so.

It’s next suggested that “the Advisory Council should be more active in fulfilling its commenting responsibilities under the National Environmental Policy Act.” That, I think, is true, but the Council would need to think through how its comments on an Environmental Assessment (EA) or Environmental Impact Statement (EIS) would relate to whatever it does (if it does anything) under 106, and that effort would probably provoke institutional brain freeze.

Next, Back to Basics proposes that “environmental management systems should be expanded to encompass cultural resources, including Section 106 implementation.” This was something some of us explored for the Department of Defense’s Legacy program back in the 1990s. It seemed like a good idea then, and it probably still is. It’s a shame if, as Ms. Barras reports, it hasn’t been developed; I’d thought that DOD was actually making advances in this area.

Back to Basics goes on to recommend that “sanctions should be imposed on federal agencies that misuse environmental reviews and prevent meaningful Section 106 compliance,” but the sanctions it discusses (e.g. scolding comments by the Council) are pretty wimpy. More draconian sanctions might be worth considering, but only if “meaningful Section 106 compliance” is clearly and understandably defined. Agency officials shouldn’t get slapped with fines or prison sentences for piddly sorts of noncompliance, but they should get hit for really circumventing full public review of impacts.

The report then veers off in an odd direction, commenting that “interstate projects provide an opportunity to plan for strategic and consistent ways to identify and evaluate archaeological sites.” Well, yes, and some of us have promoted taking advantage of such opportunities for decades, but if anything the tendency lately has been toward fragmenting such projects, and nobody seems to mind. It's probably something worth trying to fix, but it's a pretty small something.

It’s next suggested that “earlier consideration of preservation values should be promoted through increasing preservation advocates’ participation in agency advisory committees.” That’s probably true. Certainly some of the major advances in Corps of Engineers attention to historic preservation happened when there was vigorous archaeological participation in its environmental advisory committee. Of course, this disciplinary bias tended to skew the Corps’ compliance regime in the direction of archaeology at the expense of other aspects of culture; “advocate” representation needs to be carefully thought through.

Back to Basics suggests that “outreach to groups not traditionally familiar with Section 106 should be further expanded, including development interests and the media.” This is doubtless true, but I don’t think it will work unless and until the Section 106 process is simplified and rationalized. Trying to explain the process in all its ramifications to someone “not traditionally familiar with it” – especially those with other things to do, like developers and reporters – can be an exercise in futility.

Recommendation 3. The Advisory Council should vigorously assert Section 106 as its core mission.

What can I say to this in general but YES INDEED. Section 106 IS the Council’s core mission, however much its ostensible leadership would rather attend events in the White House Rose Garden and pontificate at international gatherings. The Council ought to get some leadership that will lead, in doing what the Council was designed by Congress to do, and that’s Section 106.

In terms of specific subrecommendations, the report suggests that “Advisory Council members should increase their direct involvement in strategic Section 106 cases.” I think Ms. Barras really means Council staff here – in other words, the Council should re-think it’s decision of the late 1990s to withdraw from case-by-case Section 106 review. Indeed it should, though over the last fifteen years or so the Council has made itself so irrelevant to the actual process of 106 review on the ground, and provided so little useful direction to its staff, that it will take a major, carefully designed effort to re-engage.

The report very usefully recommends that “the agency’s role in Preserve America should be redefined.” Without of course criticizing Preserve America, because how could the National Trust ever be critical of a White House preservation initiative, Back to Basics delicately suggests that the Council’s emphasis on this feel-good program has distracted it from its core mission. Amusingly, it’s reported that:

“(t)he Council’s staff leadership has emphatically stated that staffing and support for Section 106 compliance has not been adversely affected by the Council’s in¬volvement in Preserve America, and that any shift in resources over the past several years primarily reflects a more limited role assigned to Council staff due to changes in the Section 106 regulations.”

I’ll bet the leadership is emphatic; they do love hobnobbing with the upper crust, and you get to do that by taking part in goody two-shoes activities like Preserve America, not in doing the grubby work of 106. But in saying that its infatuation with Preserve America has not distracted the Council from its core mission, the leadership, to put it delicately, prevaricates.

Back to Basics wisely suggests that “the Advisory Council should consider reopening a western office.” As an alternative, I can’t resist offering the suggestion long ago proposed by the then-Western Office’s chief, Lou Wall: the Council should close its eastern office. Having the western office was important not only because it put Council staff within striking distance of western cases – a value that was diluted by facilitated air travel and the Council’s withdrawal from much casework – but because it introduced a certain amount of realism into the Council’s world-view. It’s not a sure bet that a western office alone would be enough to counterbalance the inside-the-beltway biases of the Council’s senior staff, but it would be a good start.

Usefully, the report comments that “checks and balances are needed to reduce conflict-of-interest concerns when the Advisory Council’s “liaison” staff participate in Section 106 reviews for their funding agencies’ projects.” To say the least. See my recent blog post on the related subject of paying SHPOs; it’s absurd to think that getting staff and money from the agencies whose actions they review does not distort and corrupt the Council’s and SHPOs' objectivity.

Next we are told that “there is a compelling need for timely and concrete Section 106advice from the Advisory Council; opinion letters are one possible solution.” Maybe so, but the Section 106 advice we have seen from the Council lately has been a mixed bag at best. I’d like to see a system developed for formulating such advice that at least gave it a fighting chance to be relevant and useful.

It’s suggested that “facilitated negotiations should be conducted more often in controversial Section 106 cases, and training in conflict resolution skills should be provided to the Advisory Council’s staff.” Very, very true. I’ve commented elsewhere (as I did to Ms. Barras) that I learned more about dispute resolution in a 40-hour class at Bowie State University than I did in ten years at the Council. I’ve run into one Council staff member recently who said she was planning to get such training. Good for her, but this should be something the Council does routinely.

Back to Basics calls for “expansion of basic and advanced Section 106 training,” “facilitated by the Advisory Council.” “Facilitated” is a felicitous term. As one who has taught for the Council and for others, I think that others do a better job. Others are not bound to support Council policy; they – we – can tell it like it is. But help and advice from the Council would be welcome. And the report wisely notes that there are lots of ways to provide training these days besides just flying around and giving face-to-face classes.

Recommendation 4. Improvements are needed to increase consulting party access and public involvement in the Section 106 process

The first subrecommendation here is that “federal agencies should honor the requirement to directly invite consulting parties to participate.” This is a tremendously important recommendation; too many agencies continue to think that the only folks they need to consult with are the SHPOs. Of course, there are SHPOs who encourage them in this belief, and the fault for this lies in part with the National Park Service (NPS) – I’ll have more to say about that below. And the Council itself is not always very vigorous in its insistence that agencies bring others into the process – despite the clear priority given to doing so in the regulations as revised in 2000. This is an issue on which some vigorous guidance from the Council would be in order – to the federal establishment, to the SHPOs, and to its own people.

The report goes on to recommend that “consulting parties should be provided a tentative plan of action or roadmap for consultation.” I’m dubious about this. Each consultation is so individualized that it’s hard to imagine a “plan of action” or “roadmap” being anything but stultifying. To me it smacks a little overmuch of the common and repulsive agency practice of smacking down a draft memorandum of agreement at the beginning of a consultation and expecting everybody to sign on. But some notion of how someone (who?) expects a consultation to unfold would doubtless be worth having; it’s an idea worth exploring.

Back to Basics notes that “the Section 106 advocacy capacity of the National Trust’s statewide and local preservation partners requires strengthening.” This of course is an initiative that the Trust itself needs to pursue, and it would be helpful. Too often, statewide and local preservation groups have strange and exotic notions of what Section 106 is about, and bring little to the consultation table other than confusion – if they come to the table at all. An effort – by the Trust perhaps – to motivate and educate such groups would be very welcome.

The report bluntly notes that “the use of public participation models of inclusiveness has languished and needs to be resurrected.” Indeed. Not only should the Council and SHPOs (among others) talk the talk of fully involving the interested public, they should learn how to walk the walk. There is a vast literature out there in the world on how to open up public decisionmaking to public involvement, and people in historic preservation ought to get familiar with and use it. “Transparency” isn’t enough; if I’m watching a consultation through a perfectly transparent but soundproof window, I can’t have much influence. People want influence, but federal decision makers during the Bush years pretty systematically set up roadblocks to its exercise. Regrettably, the Obama administration has not yet demolished them.

Ms. Barras also recommends that “federal agencies and applicants for federal funding or permits should be more responsible to the public for project changes and commitments made in Section 106 reviews.” In other words, eschew what one of my tribal colleagues has referred to as the “Three-I” model of consultation: Inform, get Input, and Ignore. Listen to what people say and respond to it, give it credence, look for ways to address people’s concerns.

The report next advances the interesting idea that “consulting party and public feedback on their experience in Section 106 reviews needs to be actively solicited.” Presumably this is something the Council and/or the SHPOs could do, and it’s a good idea. Notably, such feedback should be sought not just from the usual “preservation partners,” but from all participants in review, whatever their interests.

Recommendation 5. State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account

The report first recommends “serious exploration” of “the authority of states and tribes to assess fees to support their Section 106 review.” As discussed in a previous posting on this blog, I’m dubious of this proposition.

Next, Back to Basics proposes that “Congress should fully appropriate the proceeds in the national Historic Preservation Fund account.” This is a perennial plaint by the National Trust and other preservation advocates. If the proceeds were used to support real-world activities like Section 106 review, this recommendation would be worth real attention by Congress. Unfortunately, an awful lot of HPF-funded work – thanks to NPS – is plain silly, and would cause any thoughtful examiner to question the utility of supporting it with taxpayers’ dollars. If I were advising Congress, I’d say hold the HPF hostage to some serious reform on the part of NPS and its pet national organization, the National Conference of SHPOs.

Recommendation 6: Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability in implementing these ‘program alternatives.’

In this very welcome part of the report, Back to Basics takes aim particularly at programmatic agreements (PAs). I’ve spent enough screen space in this blog on criticizing the passion for PAs, and don’t need to spend any more; I simply welcome the Trust’s support for the idea of rethinking how they’re used. It’s revealing that according to the report (and I know it’s true), the Council can’t even tell us how many PAs are currently in effect across the land. I do question whether the Council staff is up to establishing standards; they’ve been as willing as anybody else to accept and promote utter trash in the guise of “program alternatives.” But if done with a lot of – dare I suggest it? – real consultation, preparation of such standards would be a good idea. And holding off on more such enterprises pending a serious review is a very good idea.

Recommendation 6: Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.

Back to Basics offers four subrecommendations here. First is that “’Web 2.0’ technology should be harnessed to enhance implementation of the National Historic Preservation Act.” Of course, I read that we’re about to see the development of “Web 3.0,” but that aside, I’m sure Ms. Barras is right, and I’m vaguely aware of a number of agency, SHPO, tribal, and other initiatives to do what she recommends. Nothing general and nationwide, though, except for NPS’s well-intentioned if not yet very effective historic preservation portal. The problems, of course, involve costs and the speed with which technology is changing – and the potential for wasting money on whiz-bang gadgets that don’t really accomplish much. Incidentally, I’ve been corresponding recently with a software developer about building a 106/CRM video game to take the place of a lot of face-to-face training. It would be (I think) a real money-saver in the long run, but it would cost about a million bucks. Anybody interested?

The report next recommends that “project management software needs to include Section 106 compliance milestones to help early and coordinated consideration of historic properties in construction projects.” Yes indeed, and this is an initiative that the Council could, I think, very usefully take on. I know that some state departments of transportation (but by no means all) have good systems that might be used as models, but most agencies just don’t factor 106 into project management at all; few do much with NEPA, either.

Back to Basics says that “the Advisory Council should establish deeper content on its website for Section 106 practitioners, consider establishing a compliance-oriented website name for inexperienced Section 106 stakeholders, and offer a targeted Section 106 link for the public on its homepage.” I kind of like the Council’s website, but it doubtless could use updating and “deepening,” and the idea of a pages especially for newbies and the public is a good one. Maybe the Council would like to fund my video game.

The last, rather lame subrecommendation offered by Back to Basics is that “metropolitan and regional transportation planning organizations need access to digitized cultural resource information.” To the extent I understand what Ms. Barras is getting at here – and the detailed background report doesn’t help much – I’m a bit frightened by this recommendation. It promotes linking planning and land use geographic information systems (GIS) with “cultural resource GIS,” but to the best of my knowledge there’s no such thing as a GIS that really represents cultural resource data in a reliable and comprehensive way. There are archaeological site GISs and historic building GISs and a few predictive model-generating GISs focused on particular kinds of resources, but there’s nothing that’s going to tell a planning organization where all the resources are, and that’s the simple-minded plea (or worse, expectation) that we keep hearing from such organizations and (unfortunately) even such august bodies as NPS and the Council. The idea of a comprehensive list of all the “cultural resources” makes even less sense than a comprehensive list of all historic properties – a notion that led to creation of the National Register and its ilk around the world, and has systematically misled planners ever since it bubbled into the fevered brains of the French revolutionaries back in the early 19th century. I really think we ought to give it up, or at least very seriously re-think it.

What Back to Basics Misses

I’m very glad to see Back to Basics, and hope that its recommendations are attended to by the Advisory Council and others. There are four things that I’d have liked to see the report touch on that it doesn’t address, but none of them, I’m sure, would have been politically feasible even if Ms. Barras had been inclined to pursue them.

One is the obnoxious role of NPS in distorting the 106 process. As I’ve discussed elsewhere in this blog (among other places), by structuring its periodic reviews of SHPO programs as it has, NPS has turned the SHPOs pretty generally into nit-picky counters of standard transactions, carefully keeping track of how many determinations of eligibility and effect they’ve concurred in, how many agreements they’ve executed, and the like, and systematically discouraging consideration of any more creative approaches to 106 review. It’s also predictably stressed the part of the process that it controls and loves – determinations of eligibility – allowing them to become chokepoints. All this has encouraged agencies to seek ways to “streamline” the process, usually through nonsense PAs.

Then there’s the problem of for-profit consultants (like me) performing Section 106 work for project proponents – an absolutely obvious formula for rotten, self-serving, biased findings and determinations. I’ve discussed this problem in my 2009 book, Our Unprotected Heritage, so won’t belabor it here.

Another issue that Back to Basics pretty much dances around is the need for the ACHP to revise its regulations. A lot of the changes the report recommends would be facilitated by regulatory adjustments, but the report doesn’t come right out and say so – or at least I haven’t found where it does. The Council would understandably resist such a recommendation – the last round of regulation changes was a painful experience – but it’s still something that should be considered. The last time round, some useful changes were made – notably the insertion of provisions for early identification of consulting parties, scoping, and the like, which are precisely the aspects of the process that have been ignored by most agencies and SHPOs (the latter largely because of NPS direction). But the 2000 regulations also introduced or retained a lot of little nitpicky steps, or perceived steps, in the process, and it may not be possible to reform the process without fixing the regs.

Finally, as I’ve also argued in Our Unprotected Heritage and hence won’t expound on here, I don’t think it’s possible to really fix 106 without reforming NEPA practice as well. Of course, it was not in Ms. Barras’ brief to go after the Council on Environmental Quality (CEQ) as well as the Advisory Council, but seriously, I think we’ll spin our wheels trying to reform 106 on its own, and 106 by itself is such small potatoes that nobody in Congress is likely to promote such reform either – or if they do, it will probably be nonsense reform. But then, it’s naïve to expect much more of Congress these days anyhow.

All in all, I’m glad to see Back to Basics out on the street, and I hope somebody in authority pays close attention to it.

2010-09-27T03:49:00.000-07:00

The Advisory Council on Historic Passivity

2010-09-25T17:15:00.000-07:00

The Advisory Council on Historic Preservation (ACHP) has come out with another opinion that ducks engagement in controversy and in so doing undercuts the interests of historic preservation.

The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.

Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.

Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”

The ACHP’s reasoning runs like this:

(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.

(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....

(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.

The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.

Why? Two reasons:

(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”

(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”

So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.

Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.

Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”

But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.

Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.

Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.

Ethnographic Studies Again

2010-09-24T10:54:00.000-07:00

I’ve been asked – again – why I’m opposed to ethnographic studies as a part of environmental-cultural-social impact assessment. Let me try to be clear.

1. I’m not. It’s a bum rap. What I’m opposed to is the assumption that one MUST do such a study in order to identify places or things of cultural importance to people. Sometimes you do, sometimes you don’t.

2. Here, I think, are the basic rules one should follow in deciding whether such a study is needed.

a. If a group of people say something is culturally significant to them, it is. You ought to take them at their word, because after all, who can possibly know better than they? You don’t need an ethnographic study to verify that it’s important to them. To say you do is deeply ethnocentric: “I’m not going to believe you until an expert, not of your culture but of mine, verifies that what you say is true.” Insisting on a study will also, of course, take time and cost money, both of which can be saved by just accepting what people assert.

b. If one subgroup of a group says something is culturally significant, and another subgroup of the same group (e.g. tribe) says it’s not, then you may need a study of some kind to determine why you’re getting diverse perspectives, but it’s likely you can deal with the question more simply and straightforwardly just by sitting down with both subgroups and discussing where they’re coming from.

c. If the cultural significance of something is suspected, but not asserted by anyone, then you probably DO need an ethnographic study (by whatever name) to find out whether it has such significance in someone’s eyes. For example, there are plenty of things (places, plants, minerals, etc.) that are important to people who aren’t very directly represented by, say, a tribal government, and/or who don’t readily take part in Euroamerican decision making processes. A careful, respectful study may be needed to find out what the concerns of such people may be.

d. If there’s reason to believe that a relatively dominant subgroup (say, a tribal government) is suppressing the concerns of a less dominant one (say, elders), then some kind of study to ascertain the concerns of the latter may be in order – because both subgroups are human beings and citizens, and have the right to be heard. Exactly what kind of study is needed, or what alternatives to a study may be pursued, is something that needs to be very carefully worked out in view of the inevitable political complications involved.

e. Finally, if you’re trying to relate the significance of something to some set of specific criteria – like those for inclusion in the National Register of Historic Places – then you may need a study to do so, but for the sake both of efficiency and of being respectful to people, you ought first to consider the option of just assuming the thing is significant for the purposes of whatever planning exercise you’re engaged in.

In short, I don’t object to ethnographic studies where they serve a real purpose. What I object to is treating them as an across-the-board, standard thing to do, and what I object to even more is using them as a way to “vet” what a group of people say is significant to them. Such vetting is particularly offensive when the group is a sovereign tribal government or its equivalent.

OK, is that clear?

Paying SHPOs to Consult? The ACHP Interprets the Law but Fails to Advise

2010-09-12T18:28:00.000-07:00

The Advisory Council on Historic Preservation (ACHP) has recently – well, I think it was recently; like the good historical organization it is, the ACHP didn’t bother to date it – issued a legal opinion on whether it’s OK for federal agencies to pay State Historic Preservation Officers (SHPOs) for their advice and assistance in the conduct of project impact reviews under Section 106 of the National Historic Preservation Act (NHPA). The opinion doesn’t seem to be available directly through the ACHP web site (www.achp.gov), but I presume it can be obtained upon request.

The bottom line is that the ACHP says yes, it’s OK for agencies to compensate SHPOs for the work they do in conducting Section 106 review. The statutory authority for such compensation is actually pretty clear; Section 110(g) of NHPA authorizes each federal agency to:
… include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted by such agency. The eligible project costs may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit (emphasis added).

The opinion points out that compliance with Section 106 is a pretty basic part of carrying out an agency’s responsibilities under the act, so clearly agencies are authorized to pay SHPOs for helping them do it. Usefully, the opinion stresses that Section 106 compliance is exclusively the responsibility of federal agencies. Whether paid for it or not, SHPOs don’t (properly) make determinations or otherwise call the shots under Section 106; they advise and assist agencies in doing so.

I suppose it would be asking more of a legal opinion than such an opinion can deliver, but it would be nice to see the ACHP go a bit beyond the letter of the law and provide some advice (yes, advice!) about some of the issues that naturally come up, or ought to come up, in connection with agency compensation to SHPOs.

First, of course, is the question of whether having the feds pay the SHPO to help review projects compromises the SHPO’s independence and ability to (in the really quite silly words of the Section 106 regulations) “reflect the interests of the State and its citizens in the preservation of their cultural heritage.” The ACHP apparently thought about this question, because the opinion notes that the National Park Service (NPS) has been paying SHPOs for decades out of the Historic Preservation Fund, “without raising concerns that SHPOs are somehow compromised by it in their Section 106 role.” The ACHP cites no source for its assurance that no concerns have been raised. I have a hunch that there are a few people out there among the citizens whose interests in cultural heritage the SHPOs are supposed to reflect who do have concerns about how independent an SHPO can be in reviewing NPS projects when NPS controls the SHPO’s federal purse-strings. I even suspect that there may be an SHPO or two who’s troubled by this relationship. But I guess such concerns have never been “raised” to a level discernible by the ACHP. And even if one is untroubled by the NPS-SHPO relationship, it doesn’t necessarily follow that one ought not to wonder about SHPO independence if an agency with real money and political clout starts lining their pockets. Some thoughts on how to ensure SHPO independence and responsiveness to citizen concerns would be welcome, should the ACHP have any.

Then there’s the question about just what an agency should pay an SHPO to do. In another opinion, some years ago, the ACHP said that agencies didn’t need to reimburse Indian tribes for the expenses they incur in consultation, representing their own tribal concerns, but should compensate them for work that was on the order of what a contractor might do, supplying substantive data or services. Should the same rule apply to SHPOs? But what authority does the SHPO have in Section 106 review if he or she isn’t acting on behalf of the state and its citizens? If an agency is going to pay an SHPO, but not for representing the concerns of the state’s people, what precisely does the agency actually expect the SHPO to do?

Underlying all this is the almost never-asked question of what the SHPO’s role should be in Section 106 review. The less sophisticated federal agencies, and perhaps the majority of non-federal entities like developers who get their projects reviewed because they want federal licenses or assistance, tend to have a pretty straightforward notion of the SHPO’s role: it’s to sign off on projects, approve plans, issue “clearances.” The more sophisticated agencies use fancier language to mean the same thing: the SHPO is expected to concur or not concur in determinations, and execute agreements. Which is, in part, more or less what the regulations say.

But the regulations since their revision in and around 2000 have also directed agencies to consult with SHPOs at the very beginning of a project review under Section 106, in planning how to involve the public (36 CFR 800.3(e)) and in identifying consulting parties (36 CFR 800.3(f)), as well as in establishing the scope of any work needed to identify historic properties and determine effects (36 CFR 800.4(a)). It is at this stage in review that an SHPO can be most helpful to an agency, and to the citizens that the SHPO ostensibly represents. The SHPO can help the agency and other concerned parties set the stage for effective consultation, get people together and talking so that problems get identified and resolved before they become intractable. This would be worth paying for, and it’s a function that wouldn’t necessarily compromise the SHPO’s responsibility to serve the people of the state.

Neither agencies nor SHPOs focus much on the performance of these early planning responsibilities, and in the case of the SHPOs there’s a good reason for this. It goes back to those purse-strings that NPS holds. NPS periodically reviews the SHPOs to make sure they’re spending their federal money the way NPS thinks is right, and it requires the SHPOs to keep records of what they do. The last time I had occasion to look at the list of stuff NPS wants SHPOs to keep track of – about a year ago – I was grimly amused to find that the list hadn’t changed since about 1985. So it doesn't reflect the innovations of the 2000 (and later) Section 106 regulations), and what it does do is insist that SHPOs keep careful track of things like determinations of eligibility and effect, and the execution of memoranda of agreement. Reasonable enough things to keep track of, but by focusing on these interactions, which inevitably occur late in the process of review, NPS encourages SHPOs to focus on them too, to the inevitable exclusion of attention to early coordination.

So, SHPOs are convinced that they must carefully process each determination of eligibility and effect – whatever that may mean to a given SHPO, In the context of NPS oversight and direction. That’s a time-consuming business, and since it does tend to happen rather late in review, it’s likely to be fraught with difficulty, particularly if the agency (lacking useful early SHPO advice) has not gotten off to a good start in consulting concerned parties and establishing its scope of work. SHPOs become overburdened with requests for their concurrence in determinations, to say nothing of requests for “clearance” or its equivalent. Agencies get frustrated with the speed at which SHPO review proceeds. When asked how things can be sped up, the SHPO is likely to say: “Pay me so I can put on more staff.”

This sort of question and answer, I suspect, is what has led to the ACHP legal opinion. Now consider what may happen as agencies digest it. Agencies pay SHPOs. SHPOs lay on staff. Staff speeds up the processing of agency paperwork. All very well, except we ought, perhaps, to remember that Section 106 review isn’t supposed to be about the efficient processing of paper; it’s supposed to be about reasoned consultation to balance the interests of preservation and other public values. And of course, paying for the processing of determinations and agreement documents inevitably raises the specter of conflict between the SHPO’s duty to his or her state’s citizens and to the agency with which he or she is contracting.

We’re already well along in the process of turning SHPO offices into paperwork processing mills, whose driving priorities are turning reviews around, getting the paper out the door. I’m afraid the ACHP’s legal opinion – correct as it is – is going to exacerbate this process.

It’s really time – it’s been time for a decade or more – for the parties who oversee how things are done under NHPA – that is, NPS and the ACHP, with the agencies, SHPOs and, critically, non-governmental interests – to step back and take a hard look at how the system’s working, and how it can be made better to fulfill the purposes of the statute. I know, I know, the ACHP has undertaken reviews from time to time under various authorities, but these tend to be very internal-to-the-government, and they tend to produce easily ignored fluff. And they look outward and criticize the agencies; they don’t look critically at how the ACHP, NPS, and SHPOs themselves do their business.

We ought to have a system in which agency payments to an SHPO, if they must be made, are made not to accelerate the processing of determinations of eligibility and effect or the conclusion of agreements, but to inform early agency planning – to help make sure that all the appropriate consulting parties have been identified and brought into consultation, and that the agency, with those consulting parties and the public, has done a good job of scoping its identification and effect determination work. That, I think, could both speed up review and make it more meaningful and responsible; it could not only better fulfill the agency’s responsibilities but also help the SHPO really “reflect the interests of the state and its citizens in the preservation of their cultural heritage.” The ACHP legal opinion certainly doesn’t preclude that sort of arrangement, but SHPO operations under NPS oversight don’t encourage it. That’s a problem that the ACHP ought to think and advise about.

The ACHP on "Reasonable and Good Faith" Identification

2010-08-25T17:24:00.000-07:00

Unaccustomed as I am to saying anything good about the U.S. Advisory Council on Historic Preservation (ACHP), I’m happy to report that in my opinion, they provided some pretty decent guidance recently about what constitutes a “reasonable and good faith effort” to identify historic properties under their regulations (36 CFR 800). This shouldn’t be a challenging question, but it seems to be; federal agencies, State Historic Preservation Officers (SHPOs) and others are forever trying to translate the simple terminology of the regulations into hard-and-fast standards, which leads to all kinds of idiotic arguments. Does a “reasonable and good faith effort” always demand an archaeological survey? A survey of possibly historic buildings? A landscape study? Must we space our archaeologists ten meters apart on the ground, or will fifteen do? Must everybody on the team have an advanced degree? Oh dear oh dear; whatever shall we do?

The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:

In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:

(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.

Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see http://www.achp.gov/book/case132.html), which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –

That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.

That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:

(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.

Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.

And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.

The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.

New Acronyms

2010-08-02T05:45:00.000-07:00

As the inventor of such widely used cultural resource management (CRM) acronyms as "TCP" (traditional cultural property or place) and "APE" (area of potential effects), I'm pleased to announce promulgation of two more.

1. "MMD" stands for "mealy-mouthed drivel," that is, high-falutin language that means nothing (especially if not followed up in, or if contradicted by, a document's substantive provisions). Example (real language, with agency identity protected):

The Tribes and the agency shall, in a spirit of positive collaboration, effect goals in regards to the project, protection and preservation of natural and cultural resources, under the agency’s jurisdiction or control and for mutually creating a positive management strategy for maintaining properties that considers the preservation of their archaeological, historical, and cultural values and the avoidance of adverse effects in the light of the views of the Tribes.

2. "GSF" stands for "gratuitous statement of fact," wherein an agency clutters up a document by stating facts having nothing directly (or often even indirectly) to do with the subject of the document. These may note that the agency will obey a law or regulation (awfully good of them, yes?), or simply provide an extraneous bit of filler material. Example (again, real language, agency ID disguised):

The agency, in carrying out its responsibilities as the lead Federal agency for NHPA Section 106 compliance, has developed policies and procedures to help guide its planning and decision making as it affects historic and cultural properties.

I've recently reviewed two draft-final programmatic agreements (PAs) under Section 106 of the National Historic Preservation Act, almost every clause of which is made up of MMD and GSF. This creates a dense thicket of prose in which the substantive provisions, such as they are, get lost, and it's hard for even an experienced reader to pick out their strengths and weaknesses.

Please welcome MMD and GSF to the lexicon of CRM acronymology.

Beyond Deepwater Horizon

2010-05-15T14:43:00.000-07:00

Here's what I sent the President today.

May 15, 2010

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear Mr. President:

As a supporter of your administration and a specialist in aspects of environmental impact assessment (EIA), I applaud your direction that a thorough review be undertaken of Minerals Management Service (MMS) oversight of oil drilling in the Gulf of Mexico.

However, the problem is not just with MMS, or with offshore oil rigs, and limiting your scrutiny to the circumstances that permitted the Deepwater Horizon disaster to occur will not be effective. We – and by “we” I mean the federal oversight agencies and the EIA community – have developed a culture over the last couple of decades (not solely during the Bush administration, though certainly exacerbated by it) in which it is perfectly OK for EIA to be performed by and for the proponents of projects like Deepwater Horizon, and in which agencies see their major roles as being to “streamline” the review of such projects. Congress, the agencies, and to a considerable extent the American people have come to see EIA as merely a pesky bureaucratic hoop to be jumped through. Such review as is done is largely obscure to the public, which is excluded from meaningful participation by obscure rules and jargon-laden analyses.

I explored some of these issues on a small scale in my 2009 book, Our Unprotected Heritage, a copy of which is enclosed. Chapter 8 contains recommendations to you for some initial actions to cause adjustments in the culture of EIA. These recommendations are a bit out of date in view of the Deepwater Horizon disaster; it is clearly time for a truly comprehensive initiative to change the culture of EIA throughout the federal establishment and the consulting community – to make our assessment work more thoughtful, honest, and participatory. I hope you will look beyond the Deepwater Horizon and lead such an initiative.

Respectfully,

/s/ Thomas F. King