Friday, November 28, 2008

Environmental Impact Assessment and Cultural Resource Management:

Wastes of Money and Time That the Obama Administration Can Fix

The Myth of Federal Heritage Protection

Darkside Development Unlimited wants to build a new shopping mall, sports stadium, speedway or wind farm in your town or your rural community. The project will devastate some piece of your heritage in the natural or built environment—your neighborhood, or the landscape you love, the family farm, the hill where your tribal elders seek visions, the stream where everybody in your valley goes to fish. Darkside needs some kind of help from the federal government—in other words, from you and me, us taxpayers—to make its project happen. Maybe it needs a federal permit to fill a wetland, or maybe a new access road off the interstate. What can you do to fight the project, or at least seek changes to protect what you treasure?

Realistically, I’m sorry to say, not much—even though there are impressive-sounding federal laws that ostensibly give your heritage, and everyone’s, a degree of protection. I say this based on forty-plus years of increasingly bitter experience with those laws and despite having written half a dozen books encouraging people to use them.

Those laws – the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA) and others – have been around for almost half a century. They say that whenever a federal agency proposes to do something, or proposes to help or permit someone else to do something, that might damage the natural or cultural environment, it has to consider what those impacts are, and what it can do to avoid or reduce them. It has to factor them into its planning, consider alternatives, in some cases even consult with the interested public about them. Over the decades, most other countries, as well as international organizations like the World Bank, have adopted similar requirements.

As a result, we now have substantial federal and state bureaucracies overseeing environmental impact assessment (EIA) under NEPA and cultural resource management (CRM) under NHPA, and we have well-heeled private companies doing EIA and CRM work under contract. What we do not have is an orderly system for actually, honestly considering and trying to reduce impacts on our natural and cultural heritage. It’s all pretty much a sham.

Which is why, when Congress these days decides to do something like build a big fence along our southern border to keep out terrorists, its members don’t even blink before waiving EIA and CRM requirements. The notion that these requirements serve an actual purpose—that it’s a good idea to consider what damage may result from something you’re thinking of doing, before doing it—has been quite lost. Thinking about impacts on the environment is seen as something that’s nice to do if you have the time, but nothing that ought really to influence policy.

I’ve worked in CRM and EIA for over forty years, so I guess I have a vested interest in it, but I find the whole thing rather sad. There are good reasons to consider how something we plan may muck up the environment, and to do so before we undertake it. And in a democracy, citizens should have real opportunities to influence what government does, or lets others do, to their heritage. It’s too bad, I think, that we’ve let things develop in such a way that we’re spending lots of money on mere public relations efforts, slathering the lipstick of environmental responsibility on the pigs of development. We ought to change our system.

Early next year, Left Coast Press ( will publish my latest book, entitled Our Unprotected Heritage: Whitewashing Destruction of Our Natural and Cultural Environment, which goes into all this in some detail. Here, I want to outline what’s wrong with our EIA/CRM systems, and offer some suggestions (abstracted from the final chapter of Unprotected) about steps the Obama administration could take to make these systems serve the purpose they were designed to serve, in the interests of the American people.

What’s Wrong?

There are five essential problems with EIA and CRM in the United States (and elsewhere).

1. The specialist firms that perform EIA and CRM are usually hired by project proponents. They view themselves as members of their clients’ planning teams, and behave accordingly. If they don’t, they can be fired. The supposedly objective analyses of impacts that the specialist firms produce are inevitably shaped by their relationships with their clients.

2. It might nevertheless be possible to obtain honest analyses of project impacts on our natural and cultural heritage if the federal agencies responsible for complying with NEPA and NHPA took their responsibilities seriously, but they don’t. On the whole they regard EIA and CRM as processes of getting and giving “clearance” to projects, and they seek to do so with as little impediment as possible to the interests of project proponents.

3. We might still have tolerable EIA and CRM systems if there were strong, enlightened oversight by agencies like the Council on Environmental Quality (CEQ) and the Advisory Council on Historic Preservation (ACHP), but there is not. CEQ and ACHP are deeply compromised structurally and politically, and they have no real authority. If they ever provided serious oversight, they do so no longer. Oversight agencies that do exercise a degree of authority, like State Historic Preservation Officers (SHPOs) tend to focus their attention on technical fine points and ignore larger matters of policy and principle.

4. We might still at least sometimes see EIA and CRM results we could believe in if there were transparency in the review systems, with serious opportunities for stakeholders besides proponents and agencies to participate in and influence project review. But the systems are not transparent, and the limited opportunities for participation that do exist often are illusory.

5. But we in the EIA and CRM games, both in and out of government, have all pretty much accepted the fact that this is the way things are, and we resist even considering change.

Why don’t we do something about this? There are two reasons.

Vested Interests and Fear of Flying

Among professionals in EIA and CRM, there is something akin to contentment with things as they are. Yeah, what we do isn’t always much fun, and no, it doesn’t necessarily accomplish much. But hell, it beats flipping burgers or working in a bank, and there aren’t enough academic jobs to go around. We’re doing all right ourselves, and we need to keep our jobs, so we’re just going to keep on keepin’ on. Please don’t rock our boat.

Among people who want to save pieces of their heritage, I find a lot of discontent, in some cases a fair amount of cynicism, but not much organized desire to fix things. There’s a well institutionalized fear in the conservation/preservation world that if we “open up” laws like NEPA and NHPA to change, the changes we’ll get will not be ones we like. Based on the experience of the last eight years, this fear is not groundless, but interestingly, I heard it expressed just about as often during the Clinton administration as I have since the Bush ascendance. I could attribute it to a Republican-dominated congress, but I’ve heard it, really, for as long as I’ve been around Washington – some thirty years now.

So most of us muddle along doing our things, content with or at least resigned to the status quo. Or we rail about how impure and pointless EIA and CRM are, but shrink from doing anything to make them better.

These are understandable ways of thinking and living, but in the long run I don’t think they’re tenable. If EIA isn’t reliably producing responsible assessments of environmental impacts, if CRM doesn’t manage cultural resources in the public interest, it’s hard to believe the public will forever keep funding them, putting up with them. In our own self-interest, if we’re EIA and CRM practitioners, we need to clean up our act. And if we’re people who’d like to keep our heritage, we really ought to try to fix the systems that are supposed to give it a fighting chance at survival.

But how?

In Our Unprotected Heritage, I go into some detail about what others – notably the late Lynton K. Caldwell, NEPA’s major author – have proposed in the way of reform, and why these proposals have gone nowhere. Skipping all that here, let me offer what I think could be at least some first steps toward rebuilding an EIA/CRM system that actually does what Congress intended it to do.

Memo to the Obama Administration

Mister President – or more realistically, Mister or Ms. Secretary of the Interior and Chairs of CEQ and the ACHP – if you think it would be worthwhile to stop wasting everybody’s time and money whitewashing the impacts of federal actions and decisions on our natural and cultural heritage, here are a few things you can do.

Tell the Agencies to Clean Up Their Acts

Issue an executive order telling all agencies of the federal government to establish or rework their procedures for compliance with the heritage laws – notably but not exclusively NEPA and NHPA – to ensure to the extent possible that the studies that are done and the reports that are prepared are free from bias in favor of or against actions whose impacts are analyzed. Go on to direct that such procedures provide for things like:

1. Conducting impact analyses – environmental assessments, environmental impact statements, and all the specialist studies on which such summary analyses are based – using knowledgeable third parties with no direct or indirect links to the proponent of the actions whose impacts are analyzed.

2. Conducting rigorous third party review and critique of any analyses performed by or on behalf of project proponents.

3. Objectively analyzing alternatives, including those suggested by members of the public.

4. Consulting – really consulting – with affected and interested parties and the general public, to identify and resolve objections and explore alternatives, with the objective of reaching agreements among all concerned parties (though with provision for a final decision to be made in the absence of agreement). You should be very clear about the fact that while expert opinion is important, so are the opinions of ordinary citizens, especially where places and things that citizens value are concerned.

5. Considering all kinds of project effects – direct effects, indirect effects, and crucially, how the alternatives under review would contribute to cumulative effects.

6. Considering not only quantifiable impacts but those that can’t be quantified, such as effects on our social, cultural, and spiritual values.

7. Integrating and coordinating analysis and consultation under all the environmental and heritage laws, regulations, and executive orders, notably including NEPA, NHPA, and the Endangered Species Act.

8. Regular training for agency and contractor personnel, cooperation with academic institutions, and other such measures designed to maintain the quality of interdisciplinary research and responsible consultation with the public.

9. Monitoring performance to promote integrity in analysis and in relations with the public.

10. Actually using the results of impact analysis in making decisions, with explicit attention to the policies set forth in NEPA (section 101) and NHPA (section 2). An agency should be able to show either that a decision it makes is consistent with these policies, or that its inconsistency is justified in the public interest.

I know that a lot of these things seem so obvious that you shouldn’t need to instruct your establishment in them, but believe me, you do. And doing so would be a start at reforming the system, both by improving its integrity and by getting the public actively involved.

There’s something else you should do.

Rework the Regulations and Consider Consolidation

Tell CEQ, the ACHP, the Fish and Wildlife Service, and all the other oversight agencies to get together over a specified period of time, with lots of public participation, to reconsider and revise their collective regulations implementing NEPA, NHPA, and the other impact assessment laws. The agencies should seek consistency, simplicity, transparency, and full, open public involvement.

Direct the same agencies, perhaps through the same program of cooperative review, to come up with recommendations for consolidating compliance with the various laws, including changes in the laws themselves as needed, to create an EIA system (including CRM) that is simple, straightforward, and accessible to the public.

Make sure the cooperative interagency review is overseen and coordinated by someone with the authority to resolve disputes and gore whoever’s oxen need goring (Maybe Al Gore). Consolidation of oversight agency functions is certainly going to leave blood on the floor, but it has to be done if a system is to be created that ordinary citizens, not just specialists, can understand and participate in.

And then –

Consider Legislation

Once you have an idea of what ought to be done to improve the review systems, and once you’ve explored how far you can go under existing authorities, consider going to Congress with a package of legislative adjustments to NEPA, NHPA, and the other laws. Some might simply be done away with. For instance, there would be no need for a Section 106 of NHPA if NEPA provided for public consultation about impacts on the cultural aspects of the environment. Others could be adjusted. For instance, rather than just calling for a “statement” of environmental impacts, NEPA might prescribe a process of analysis, consultation, and application of the policies already set forth in section 101 of the statute.

Whatever law or laws emerged from this process should clearly embody the principles of honest, balanced analysis and consultative public participation. The law should not elevate heritage protection over everything else, but it should make sure that such protection – and the interests of people who care about their heritage – have a fair chance to influence public policy.

A Constitutional Amendment?

Caldwell and others – most recently, I think, Congressman Jesse Jackson Jr. (D-IL) – have pointed out that the U.S. Constitution is painfully thin when it comes to protection of our natural and cultural heritage. Congress has had to stretch things like the Commerce Clause to construct a basis for environmental management. That needs to be fixed too but this will obviously take time. Congressman Jackson introduced an elegant version of such an amendment in 2007; it goes like this:

Section 1. All persons shall have a right to a clean, safe, and sustainable environment, which right shall not be denied or abridged by the United States or any State.
Section 2. The Congress shall have power to enforce and implement this article by appropriate legislation.

Caldwell argued that such a “rights-based” amendment would be difficult to interpret, but I think Congressman Jackson’s language is perfectly clear, and appropriately broad. It would require Congress and the courts to balance the right to environmental protection against other rights – like the right to the enjoyment of private property – which to me seems only sensible.

But there’s no need to wait for a constitutional amendment – or even legislation – to begin adjusting our EIA and CRM systems so they do what their creators intended, rather than merely wasting time and money and generating public frustration. A well-crafted executive order and some clear direction to the oversight agencies could work wonders.

Does It Matter?

Of course, the administration has lots of other environmental (to say nothing of economic, diplomatic, and political) crises on its hands that are of more cosmic significance than the quality of EIA and CRM. In writing Our Unprotected Heritage I’ve often paused – sometimes for hours, sometimes for months, overcome by the feeling that I’m fiddling while Rome burns. What earthly point is there, I ask myself, in diddling about with adjustments in the way we consider environmental impacts – and impacts on things like old buildings and archaeological sites, for heaven’s sake – when the atmosphere’s warming, the polar ice is melting, the seas are rising? Doing fieldwork as I sometimes do on a Pacific atoll, I can see the water rising, and I doubt if anything is going to save a host of island nations and a lot of continental waterfront from inundation. The costs of this disaster in terms of natural and cultural heritage will be far beyond anything we can imagine measuring or mitigating.

But be this as it may, it seems to me that the American people deserve to have effective ways to influence what government does to their – our – heritage. And I even harbor the notion that EIA and CRM might, if they’re improved, help a little in ameliorating the effects of global climate change. All those displaced islanders and coastal residents will have to be housed and fed; all those coastal cities and industries, farms and forests will have to be relocated or replaced. The impacts of all these adjustments may be greater in some ways than the impacts of climate change itself. And unlike climate change, these impacts will be subject to human control, human influence. EIA and CRM can help governments manage these impacts so that we don’t inadvertently do more damage than necessary to achieve the adaptations we will have to make. But if all we have to work with is the EIA/CRM industry as it’s presently constituted, we will only be wasting money that could be better spent building floating cities or seeking another planet to despoil.

Friday, September 26, 2008


The other day I broke a long-standing policy of avoiding historic preservation conferences, and attended a meeting of the National Association of Tribal Historic Preservation Officers (NATHPO). There I listened to two groups of speakers talk about historic – or cultural – or (heaven help us) “ethnographic” landscapes and the National Register of Historic Places.

One of the sessions was put on by the Advisory Council on Historic Preservation. The Council’s representatives accurately noted that some federal agencies have trouble understanding what tribes are talking about when they insist on respect for the landforms and landscapes that figure in their cultural traditions. To remedy this problem, the Council staff suggested that tribes consider using the language and concepts employed by the landscape architects who have made cultural landscapes the latest fad in the National Park Service.

I’m all in favor of recognizing the importance of cultural landscapes, whatever you call them – though I think that calling a landscape “ethnographic” puts the wrong spin on its significance. Landscapes are often significant to communities; their significance to ethnographers is rather beside the point. At the same time, a lot of the concepts employed by NPS and its ilk in the evaluation of landscape strike me as overly architectural and insufficiently ethnographic. But for all that, the move toward greater recognition of landscapes as cultural phenomena is, I think, a very good thing.

But the question I asked the Council at the end of their session was this, more or less verbatim:

Why should a sovereign Indian tribe that wants the U.S. government to respect places important in the tribe’s history and culture have to document that significance using terms and concepts dreamed up by non-indigenous landscape architects?

The response, after a few “oh, there goes Tom again” looks, was “it shouldn’t.” And, the Council’s Reid Nelson was quick to point out, “our (the Council’s) regulations are pretty clear in saying they don’t have to.”

Thank you, Reid; I think that’s a very important but widely misunderstood fact. But if it’s true – if the regulations don’t demand any particular sort of eligibility documentation, then why in the world is the Council acting like documentation IS required and encouraging tribes to try another way of providing it? Particularly a way that involves terms and precepts developed by specialists without an iota of tribal expertise in and around the U.S. government? Why doesn’t the Council use its precious (that is, limited) political clout and intellectual capital to (a) make it really, really clear to agencies that the regulations do NOT require that tribal cultural places be documented by ethnographers or anyone else, or at all, and (b) try – I know it would be hard and unrewarding, but TRY – to beat the same point through the heads of the National Register staff?

Rather than promoting more and different documentation of tribal cultural places, how about a nice succinct publication giving agencies guidance about how to respect such places WITHOUT documenting them? We all know this can be done, but it’s never been laid out in an authoritative government guideline; perhaps it should be. Or more generally, how about an elaboration on the sturdy direction given in the Secretary of the Interior’s Standards for Identification – standard #1 – that identification (and hence documentation) is done to the extent necessary to make a decision (and implicitly, no farther)?

But I have no expectation that the Council will undertake such an educational effort, and the (thankfully unlikely) prospect of the National Park Service’s doing so sends shivers down my spine, so as a different way to clarify things here’s a suggestion for tribes.

You’re sovereign governments, right? Then why should you have to prove the significance of your special places – be they landscapes, ancestral cemeteries and living sites, or big pointy rocks – to the United States government? Using methods that the United States Government approves? More to the point, perhaps, why do you let Washington get away with demanding such proof? France wouldn’t. Russia wouldn’t. The Republic of Kiribati wouldn’t. Why should you?

Instead, why don’t you adopt policies that say something like:

“We, the (xxx) tribe, have the sovereign right to define what constitutes our cultural heritage, including what constitutes a place that is significant as a part of that heritage. We decide such things based on our own beliefs and practices, and document such places to the extent and in the manner we determine to be correct and justified. We expect the U.S. government to consult with us about any action proposed or under consideration that may affect land, water, or air within, on, or over the territory used and occupied by our ancestors (See attached map). We further expect the U.S. government to treat as eligible for its National Register of Historic Places and as a significant cultural place any location, landscape, water body, or other area that we identify as culturally significant to our tribe, and consider it accordingly under its environmental, historic preservation, and religious freedom laws.”

And then focus your efforts on getting agencies to respect this policy, rather than on documenting your cultural places in ways that non-indigenous specialists – be they landscape architects, mainstream historians, archaeologists or U.S. government officials – want you to.

Not to put too fine a point on it – are you sovereigns, or are you not?

Wednesday, August 27, 2008

What The Hell is Section 110?

On the “ReNEPA” discussion forum maintained by the Federal Highway Administration (FHWA), there’s recently been a discussion of Section 110 of the National Historic Preservation Act (NHPA) that revealed a (to me) remarkable amount of confusion about what this piece of the law says. Having been very much involved in the 1992 amendments to NHPA that gave us Section 110 in more or less its present form, I thought it might be useful, or at least satisfying to me, to provide a complete copy of the section with my annotations. Here it is:

Section 110
(a) (1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. 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 in accordance with Executive Order No. 13006, issued May 21, 1996 (61 Fed. Reg. 26071). 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 101(g) of this Act, any preservation, as may be necessary to carry out this section.

Annotation: In other words, federal agencies are responsible for historic properties they own or control. That’s FEDERAL AGENCIES, not just FEDERAL LAND MANAGING AGENCIES, as some people seem to believe. And it’s HISTORIC PROPERTIES – in other words, districts, sites, buildings, structures and objects included in or eligible for the National Register, not just PROPERTIES THAT HAVE BEEN FORMALLY DETERMINED TO BE HISTORICALLY SIGNIFICANT THROUGH NOMINATION OR ELIGIBILITY DETERMINATION, as some seem to believe.
Agencies are supposed to give priority to “using” such properties in appropriate ways, following a rather complex prioritizing system established by Executive order 13006, and they’re to “preserve” such properties – but understand that the NHPA definition of “preservation” is a very broad one; it DOESN’T mean “preservation” as outlined in the Secretary of the Interior’s Standards for Historic Preservation Projects.

(2) Each Federal agency shall establish (unless exempted pursuant to Section 214) of this Act, in consultation with the Secretary, a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties. Such program shall ensure —
(A) that historic properties under the jurisdiction or control of the agency, are identified, evaluated, and nominated to the National Register;

Annotation: Again, each federal agency (not just each land managing agency) is required to have a historic preservation program. There are guidelines for such programs at . Note that the “nomination” part of this subsection does not obligate agencies to nominate everything they have anything to do with; in fact, a requirement to nominate “all” historic properties was removed by the 1992 amendments at the very reasonable (I think) request of agencies like BLM and the Forest Service. So it’s perfectly OK for an agency to do as the U.S. Army has done, and prescribe conditions under which it will and won’t nominate properties.

(B) that such properties under the jurisdiction or control of the agency as are listed in or may be eligible for the National Register are managed and maintained in a way that considers the preservation of their historic, archaeological, architectural, and cultural values in compliance with section 106 of this Act and gives special consideration to the preservation of such values in the case of properties designated as having National significance;

Annotation: This subsection establishes the affirmative responsibility of federal agencies (not just land management agencies) to manage historic properties they own or control in a responsible way, though it doesn’t rigidly require their physical preservation.

(C) 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;

Annotation: If the agency’s going to do, assist, or permit something that may affect a historic property it DOESN’T own or control, the agency has an affirmative responsibility to make sure that preservation is “given full consideration.” This obviously underscores agency 106 responsibilities.

(D) that the agency's preservation-related activities are carried out in consultation with other Federal, State, and local agencies, Indian tribes, Native Hawaiian organizations carrying out historic preservation planning activities, and with the private sector; and

Annotation: This is general direction, again to ALL federal agencies (not just land managers) to consult with others in carrying out their activities. The definition of “consultation” in the guidelines referred to above is the same as in the Section 106 regulations, though more fulsomely detailed.

(E) that the agency's procedures for compliance with section 106 of this Act —
(i) are consistent with regulations issued by the Council pursuant to section 211 of this Act;
(ii) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered; and
(iii) provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with section 3(c) of the Native American Grave Protection and Repatriation Act (25 U.S.C. 3002(c)).

Annotation: Agency programs must address Section 106 responsibilities, and do so in a manner consistent with the Advisory Council’s regulations. Programs must provide for consultation and agreements. Agency programs must be consistent with NAGPRA.

(b) Each Federal agency shall initiate measures to assure that where, as a result of Federal action or assistance carried out by such agency, an historic property is to be substantially altered or demolished, timely steps are taken to make or have made appropriate records, and that such records then be deposited, in accordance with section 101(a) of this Act, in the Library of Congress or with such other appropriate agency as may be designated by the Secretary, for future use and reference.

Annotation: If a federal agency (not just a land management agency) will do something or help anybody else do something that will muck up a historic property, the agency must AT LEAST provide for the property to be documented. The Secretary’s standards and guidelines indicate that the consulting parties under Section 106 are to decide what kind of documentation will be done; it can be whatever sort of documentation (architectural, archaeological, oral historical, etc.) the parties agree to. Nothing in this subsection relieve agencies of their responsibility to consider doing things BESIDES documentation, or of their broad “preservation” responsibilities.

(c) The head of each Federal agency shall, unless exempted under section 214 of this Act, designate a qualified official to be known as the agency's "preservation officer" who shall be responsible for coordinating that agency's activities under this Act. Each Preservation Officer may, in order to be considered qualified, satisfactorily complete an appropriate training program established by the Secretary under section 101(h) of this Act.

Annotation: Each agency has to have an FPO, who’s supposed to be “qualified.”

(a) Consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects (including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required) in accordance with the purposes of this Act and, give consideration to programs and projects which will further the purposes of this Act.

Annotation: I actually think this is an important provision. All federal agencies (That is, ALL federal agencies) are required to try to make their programs and actions consistent with the purposes of NHPA, and to advance those purposes. Nobody pays any more attention to this than they do to Section 101 of NEPA, which is a major reason that compliance with both Section 106 and NEPA is in the shape it’s in. This subsection SHOULD be understood to (among other things) set a standard for agreements under Section 106.

(e) The Secretary shall review and approve the plans of transferees of surplus federally owned historic properties not later than ninety days after his receipt of such plans to ensure that the prehistorical, historical, architectural, or culturally significant values will be preserved or enhanced.

Annotation: A curious provision, mostly honored in the breach, that predated the 1992 amendments. If an agency has surplus property that it’s transferring, and has the recipient prepare a plan for its preservation, and submits it to the Secretary of the Interior for review, the Secretary will review it within 90 days.

(f) Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.

Annotation: If you’re going to muck up an NHL, you’re supposed to do what’s necessary to minimize the up-mucking, and consult with the Advisory Council. This provision has been built into the Council’s regulations.

(g) Each Federal agency may 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.

Annotation: Agencies can budget for preservation, and charge others for it. In the early days of NHPA, there were agencies that insisted they lacked this authority; Section 110(g) disposed of that excuse.

(h) The Secretary shall establish an annual preservation awards program under which he may make monetary awards in amounts not to exceed $1,000 and provide citations for special achievements to officers and employees of Federal, State, and certified local governments in recognition of their outstanding contributions to the preservation of historic resources. Such program may include the issuance of annual awards by the President of the United States to any citizen of the United States recommended for such award by the Secretary.

Annotation: The Secretary will give prizes for preservation. Nice.

(i) Nothing in this Act shall be construed to require the preparation of an environmental impact statement where such a statement would not otherwise be required under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.], and nothing is this Act shall be construed to provide any exemption from any requirement respecting the preparation of such a statement under such Act.

Annotation: This does NOT relieve agencies of the responsibility to prepare EISs where they may have significant impacts on the quality of the human environment (the EIS trigger under NEPA), but it does say that NHPA does not automatically require an EIS if you’re going to muck up a historic property.

(j) The Secretary shall promulgate regulations under which the requirements of this section may be waived in whole or in part in the event of a major natural disaster or an imminent threat to the national security.

Annotation: Waiver regulations for emergencies, etc.

(k) Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of section 106 of this Act, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.

Annotation: If I’m looking for a federal grant to put in, say, a hog farm, and I decide to simplify my life by bulldozing away that nasty old Indian cemetery on the site before I put in my application, the federal agency isn’t supposed to give me the grant, unless they find, in consultation with the Advisory Council, that there’s some really good reason to.

(l) With respect to any undertaking subject to section 106 of this Act which adversely affects any property included in or eligible for inclusion in the National Register, and for which a Federal agency has not entered into an agreement pursuant to regulations issued by the Council, the head of such agency shall document any decision made pursuant to section 106 of this Act. The head of such agency may not delegate his or her responsibilities pursuant to such section. Where a section 106 of this Act memorandum of agreement has been executed with respect to an undertaking, such memorandum shall govern the undertaking and all of its parts.

Annotation: Where there’s no MOA under Section 106 on a project with adverse effects, and the Council accordingly comments to the agency head, the agency head has to consider the comment and document his or her response. He or she can’t delegate this responsibility down the food chain. This is designed to encourage agencies to negotiate MOAs, which the subsection underscores as documents that are binding on (shall govern) the relevant undertaking.

There’s an abiding myth that Section 110 speaks only to land managing agencies; in fact, only a handful of its subsections are limited to agencies with “jurisdiction or control” over historic properties. There also seems to be a myth that Section 110 is mostly about properties already on or determined eligible for the National Register; that’s absolutely not true. “Historic property” under Section 110 means the same thing it means everywhere else in NHPA – anyplace that’s included in or eligible for the Register, whether anybody’s determined it to be so or not.

Friday, June 06, 2008

The Keeper Forgets History

Those who cannot remember the past are condemned to repeat it
George Santayana, 1905

When the National Historic Preservation Act (NHPA) was enacted in 1966, its section 106 required federal agencies to take into account the effects of their undertakings on places included in the National Register of Historic Places. It soon became apparent that this requirement was unworkable, because it left agencies free to destroy historic places to their hearts’ content unless and until somebody else came along and got them listed on the National Register. In those days, nominating something to the Register wasn’t very hard, but it still didn’t make sense to lay the responsibility for finding and evaluating places on those who wanted to save them, rather than on those who wanted to benefit from destroying them.

So in 1971, President Nixon issued Executive Order 11593, directing agencies to treat places that were eligible for the Register but not yet listed just like those that were already on it. This provision was absorbed into NHPA itself a few years later; section 106 was amended to require agencies to consider the effects of their undertakings on places included in or eligible for the Register.

These presidential and congressional actions placed the burden of determining what significant places a project might affect where it rightfully belonged – on the project proponent or oversight agency. The obvious downside of this shift, though, was that the proponent had no motivation whatever to find anything eligible, and every motivation to find things not eligible. In theory, the State Historic Preservation Officer (SHPO), with whom agencies had to consult about eligibility, was supposed to provide a check on the natural tendency to give one’s own project a clean bill of health. But SHPOs are political creatures, and overworked to boot, and certainly not omniscient. By the mid-1980s a number of instances had arisen in which SHPOs and agencies had agreed on the ineligibility of manifestly eligible places, depriving these places, and hence the interested public, of the fragile protections of section 106.

To check the tendency toward such dealmaking, when the Advisory Council on Historic Preservation (ACHP) revised its regulations in 1985, it provided that agencies and SHPOs could determine eligibility by consensus, but if either the ACHP or the Keeper of the National Register so requested[1], the agency had to seek a formal determination of eligibility/ineligibility from the Keeper. This didn’t allow just anybody to trigger a formal determination for any old frivolous reason, but it did set up a system through which concerned citizens, if they had a good enough case, could get the ACHP or Keeper to require such a determination.

What constitutes a good enough case? The regulations don’t say, but a recent case provides an example. A year or so ago the Department of Energy (DOE) was discovered digging a backhoe trench in the middle of a dump created by the Manhattan Project on the Hanford Nuclear Reservation in Washington State. Archaeologists from the Umatilla Tribe objected, and notified a number of historical archaeologists and archaeological organizations, who did the same, claiming that DOE was violating section 106. DOE said nonsense, dumps aren’t eligible for the National Register. Unaccountably, the SHPO agreed. The archaeologists appealed to the ACHP, pointing out that dumps are pretty much what archaeologists study, and that the Manhattan Project was a rather significant historical phenomenon whose domestic leavings might very well produce significant information. The ACHP found these arguments convincing, and required DOE to seek a formal determination. DOE grudgingly did, and the Keeper found the dump eligible.

A fairly straightforward system: you don’t like what an agency and SHPO have agreed to, you write the ACHP or Keeper and lay out your counter-argument, and if one of them finds it worthy they can require the agency to give the matter more study, more documentation, and send that documentation to the Keeper for a determination. Importantly, the responsibility to do the documentation, to make the studies and hence to fund them, remains with the agency, and hence with the project proponent – the guy with the money, who expects to benefit from mucking up the putatively historic place.

I’m looking at a letter recently sent out by the National Park Service on behalf of the Keeper, in response to a citizen request that the Keeper ask an agency to seek a formal determination. The facts of the case don’t matter – though I’ll frankly acknowledge that I drafted the request, and thought we’d made a passably good case for the probable eligibility of the place involved. What does matter are the reasons the Keeper turned down our request.

First, the Keeper seems not to have understood what she was being asked to do. The letter says the Keeper’s office is “unable to adequately determine if the area…meets the National Register Criteria…” But no one was asking them to do that. What they were being asked to do was think about whether the area was likely enough to meet the criteria to justify insisting that the federal agency involved in the case get the information needed to determine eligibility. It’s almost as if the Keeper doesn’t understand the Advisory Council’s regulations, but of course that’s unthinkable.

Now, why couldn’t the Keeper determine if the area meets the criteria? According to the letter, because the citizens didn’t provide:

A careful delineation of boundaries;
A comprehensive inventory of features;
Conclusive evidence that an eligible (property) exists;
Answers to questions that occurred to the Keeper about integrity;
Documentation describing component resources and defining relationships;
Contextual information;
Photographs of component sites and features;
A map depicting the property in detail.

All these demands will be familiar to anyone who has nominated something to the National Register – they outline the requirements for such a nomination. In other words, the Keeper was insisting on a nomination before she could consider a citizen appeal of a determination of ineligibility. “Without conclusive evidence that an eligible (property) exists,” the Keeper said, “we do not think it appropriate to ask the (agency) to request a formal determination of eligibility” (emphasis added).

This effectively takes us back to the condition in which we existed before President Nixon issued Executive Order 11593. If we think an agency is ignoring a significant place, the Keeper is telling us, we have to provide “conclusive evidence” of its eligibility – for all practical purposes, we have to nominate it. If you haven’t prepared a nomination, this may not seem like a big deal, but if you have, you know it takes a great deal of research, writing, mapping, photography, and other documentary work, typically costing several thousand dollars. Executive Order 11593 shifted this burden from the public to the agency proposing to destroy a place; the Keeper is now shifting it back.

If you’re inclined, you can accuse me of sour grapes – I’m just irritated because my effort to demonstrate the significance of the place failed. But I actually never much expected to prevail; the case was a highly political one, and we were lined up against some very powerful interests. And however I feel about this particular case, I think there's something for everyone to be concerned about when an agency like the National Park Service forgets – or decides to ignore – the principle that the would-be destroyer of a resource, not the affected public, should bear the cost of evaluating and dealing with its significance.

[1] Or, of course, if the agency and SHPO didn’t agree.

Friday, April 25, 2008

Less Than Artful Dodges

Less Than Artful Dodges: “Tangibility,” “Integrity,” and Mythic Regulatory Requirements as Ways to Avoid Considering Impacts on Historic Properties

Thomas F. King
April 24, 2008

I’ve recently come into possession of a letter signed on April 14, 2008 by Elaine Zielinski, Arizona State Director for the U.S. Department of the Interior, Bureau of Land Management (BLM)[1]. It’s addressed to the Honorable Timothy Williams, Chairman of the Fort Mojave Indian Tribe. The letter is a classic: one of the most perfect, succinct examples I’ve seen lately of how federal agencies twist the provisions of the National Historic Preservation Act to avoid actually addressing the impacts of their actions on historic properties, and to avoid actually consulting with Indian tribes (or anyone else) in a reasonable and good faith manner. I write about the letter here not to pick on Ms. Zielinski in particular, but because it is such a good example of irresponsible agency interpretations of law and policy. Similar examples could be found throughout the federal government, but few that are as elegantly constructed as Ms. Zielinski’s.

In the interests of full disclosure, I should acknowledge that I am under retainer as an advisor to the Fort Mojave Tribe in matters pertaining to project review under Section 106 of the National Historic Preservation Act, and I write this in part as an expression of my frustration, and the Tribe’s, at BLM’s resolutely irresponsible behavior in connection with a current Section 106 case. However, I do not purport to represent the views of the Tribe here, and I am writing this not as the Tribe’s consultant but as someone who deals routinely with federal agencies and Section 106, and who knows, sadly, that Ms. Zielinski’s inartful dodging is by no means unique to her, or even to her agency.

The case about which Ms. Zielinski wrote involves drilling a well on a parcel of federal land in Arizona, within the traditional territory of the Mojave. The parcel lies within a landscape that the Fort Mojave Tribe, among others, regards as spiritually significant, and within which are a number of specific locations related to Mojave beliefs about the passage to the next world of those deceased in this one. The location has been disturbed over the years by various modern developments, as well as by the meanderings of the Colorado River. In a nutshell, the Tribe says the landscape, including the well site, is eligible for the National Register of Historic Places as a traditional cultural property. BLM says it is not. Ms. Zielinski’s letter is an ostensible response to a series of questions raised by the Tribe about the basis for BLM’s determination.

The “Smother Them In Legal Language” Dodge

One of the first and most pervasive dodges in which Ms. Zielinski indulges is to solemnly inform the Tribe of legal-seeming irrelevancies. This serves (or at least attempts) to convey the impression that she speaks from a position of authority and knowledge, without actually saying anything. For instance, early in her letter she informs the Tribe that “(c)ompliance with Section 106… requires that Federal agencies take into account the effects of their undertakings on historic properties.” The Tribe, of course, is well aware of this fact. She goes on to quote verbatim several pages worth of verbiage from National Register Bulletin 15, most of which is wholly irrelevant to any of the questions asked by the Tribe or to the issues at hand.

The “Say It Again, Sam” Dodge

Having informed the Tribe of what Section 106 requires, Ms. Zielinski says that “BLM has done this” – i.e., carried out Section 106’s requirements. She alludes to having performed “archaeological surveys” and conducting “consultation,” as the means by which these requirements have been complied with. But the Tribe’s questions, to which Ms. Zielinski’s letter purports to respond, were about the rationale for specific determinations BLM had made within the context of Section 106 review, and they challenged the adequacy of BLM’s compliance with the law’s requirements. Simply informing the tribe that BLM has, in BLM’s view, carried out the requirements of the law does not answer the Tribe’s questions or address the Tribe’s challenge. Ms. Zielinski seems to think, or at least wants the Tribe to accept, that if she says something often enough, it becomes a fact.


As mentioned, much of Ms. Zielinski’s letter is given over to verbatim quotes from National Register Bulletin 15, the National Register’s general guidance on how to apply the National Register Criteria for Evaluation. Most of these quotes have nothing whatever to do with the matter in question. Perhaps Ms. Zielinski or her advisors somehow find the material relevant, but I suspect that the main reason for including them is to flesh out the letter (It’s six pages long) and convey the impression of authoritativeness. It’s designed to confuse the reader; it’s a smokescreen.

The “Tangibility” Dodge

Ms. Zielinski brings her recitation from Bulletin 15 to a conclusion with the statement that “the National Register clearly requires consideration of physical, tangible, well-defined properties.” She goes on to quote from National Register Bulletin 38 on traditional cultural properties (in her only reference to this most relevant piece of National Register guidance) about how to be eligible for the Register an entity must be “a tangible property – that is, a district, site, building, structure, or object.” “Tangibility” seems to be the hook upon which she is hanging her hat.

Now, the place in question is a “site.” It is referred to as such in BLM’s own documents, and it meets the National Register definition of the term – that is, “the location of a significant event (etc. etc.) where the location itself possesses historic, cultural, or archaeological value regardless of the value of any existing structure.” The Tribe has asserted that the site, and the larger landscape within which it exists (which itself might be called a “site” or a “district” in Register jargon) have cultural value. Both the site and the landscape are “tangible.” They are pieces of real estate, doubtless recorded in the real estate records of the local county government. They are physical; one can see them, walk on them roll around on them if one so desires, and – as BLM has shown – drill holes in them. How much more “tangible” can something be? Their significance may be “intangible,” but that is in the nature of abstract concepts like significance. The significance of an archaeological site is intangible; it exists in the archaeologist’s mind. The significance of a building is intangible; it exists in the mind of the architectural historian. The significance of a traditional cultural property like the ones in question in this case is no more and no less “intangible,” but the places themselves are as tangible as the nose on Ms. Zielinski’s face.

The Archaeo-Think and Integrity Dodges

I think, though, that the word “tangible” implies something more to Ms. Zielinski and her staff than its English-language meaning. This is suggested by a portion of her letter addressing the “integrity” of the site. After regurgitating a paragraph on integrity from National Register Bulletin 15 – as usual lengthy, unexceptionable, and irrelevant – Ms. Zielinski argues that the site in question lacks integrity because it has been “disturbed.”

The notion that “integrity” demands a lack of disturbance is a very archaeological one. Never mind that what archaeologists study is often the very product of “disturbance” of the land through construction, occupation, grave digging, and the like. Once something has become an archaeological site in the (intangible) view of an archaeologist, anything that “disturbs” it diminishes its integrity. This is not necessarily the case from the standpoint of a tribe, or indeed from the standpoint of any non-archaeologist. A tribe – or other party – may not especially like the fact that a place has been bulldozed, bombed or bored into, but this may have little or no impact on how the tribe – or other party – perceives its significance. National Register Bulletin 38 explicitly says that “the integrity of a possible traditional cultural property must be considered with reference to the views of traditional practitioners.” A classic example of the proper application of this principle is the Forest Service’s determination of eligibility at Cave Rock in Nevada. Though Cave Rock has a highway tunnel bored through its guts, the Washoe Tribe regards it as retaining integrity, and the Forest Service respected the Tribe’s view when determining the Rock’s eligibility.

To the BLM, however, it appears that to be eligible for the National Register a place must have integrity in the eyes of an archaeologist, regardless of how it is perceived by those who value it. Considering the variation in perspectives between many tribes and archaeologists, this is rather like requiring that a Jew demonstrate the significance of Masada to a Nazi.

The Little Red Fence Dodge

Another concept that sneaks into Ms. Zielinski’s discussion of “tangibility” and “integrity” is that of “boundaries.” “Without clearly defined spatial limits, descriptions, and other information,” she says, it is “difficult” to determine eligibility. In other words, if you want your place regarded as National Register-eligible, you need to give it to us with a little red fence around it.

The case under consideration here is a good example of why the Little Red Fence dodge is, in a word, silly. The undertaking here is drilling a hole in the ground, at a specific site. The site extends for some distance beyond the borders of the bore-hole. The site lies within a landscape that the Tribe sees as significant; the landscape naturally extends far beyond the boundaries of the site, whatever they are. No matter where one sets up the little red fence, the bore hole – the project location – will be inside it. Boundaries are irrelevant to the agency’s consideration of effects, and hence to its compliance with Section 106.

Sometimes boundaries are relevant, but most often their relevance is limited at best. If, in this case, the drilling were taking place outside the boundaries of the site and landscape, it would probably be taken not to have a physical adverse effect on them, but it might well still have direct visual, auditory, and other direct effects, as well as indirect effects, and it might still contribute to a pattern of cumulative effect. Boundaries are necessary for record-keeping purposes where one is nominating something to the National Register, but they need be defined in considering the eligibility of a place for Section 106 purposes only to the extent such a definition is useful in judging effects.

The Regulatory Requirement Dodge

Throughout her letter, Ms. Zielinski alludes to “regulatory constraints” and “requirements.” For instance, she says, without things like rigid boundary definition, “you (the Tribe) can see why, given the regulatory constraints of defining historic properties, an agency official would find it very difficult to determine eligibility.”

In other words, “gee, Tribe, I’d love to accommodate you, but I’m constrained by those damn regulations.”

In fact, aside from one vague and misleading allusion to the Section 106 regulations Ms. Zielinski’s letter says nothing about regulatory requirements. It talks a lot about National Register Bulletin 15, an explicitly non-regulatory guideline document, and even with reference to this document it cherry-picks only those points that support BLM’s desired determination. The relevant regulations here – the Section 106 regulations – are quite flexible about determining eligibility; an agency and state or tribal historic preservation officer can decide to regard a place as eligible for the Register based on whatever information they jolly well please. Boundaries are not required. One does not have to agonize over integrity. What the regulations do require, and such guidance documents as National Register Bulletin 38 and the Secretary of the Interior’s standards and guidelines for agency programs under Section 110 of NHPA do emphasize is that consultation is required, notably with tribes. “Regulatory constraints” under Section 106 are few and far between, as long as one does a reasonable job of consultation.

The Ignorance Dodge

Toward the end of her letter, Ms. Zielinski makes the breathtaking assertion that in BLM’s eyes, those pesky regulatory constraints “preclude evaluation of landscapes for eligibility.” Landscapes, apparently, are to BLM categorically not eligible for the Register. Never mind that there are two National Register bulletins on evaluating landscapes (to say nothing of Bulletin 38; many traditional cultural properties are landscapes). Never mind that there is a National Park Service technical bulletin on landscape management, and a National Park Service program – the Historic American Landscape Survey – whose mission it is to record landscapes. Never mind that many, many landscapes are included in the National Register, and many more have been determined eligible. Never mind that BLM itself has quite properly determined landscapes eligible for the Register in such cases as that of Zuni Salt Lake in New Mexico and Indian Pass and the Medicine Lake Highlands in California. If we can ignore the existence of something, it doesn’t exist – as long as we can flummox the public about it.

Other relevant matters of which Ms. Zielinski appears to be blissfully ignorant include several court cases – notably Pit River Tribe vs. U.S. Forest Service et al and Pueblo of Sandia v. United States – that have provided direction to agencies in how to relate to tribes in the course of Section 106 review, and a host of direction outside the narrow envelope of Section 106 – for instance the American Indian Religious Freedom Act, the Religious Freedom Restoration Act, and Executive Orders 12898, 13007,and 13175 – that direct agencies variously to consult with tribes, respect tribal (and other) religious values, and interpret “regulatory constraints” flexibly in order to accommodate the concerns of tribes and low income or minority communities. Totally beyond her ken, apparently, are such relevant if non-binding international standards as the United Nations Declaration on the Rights of Indigenous Peoples and the UNESCO Convention on – what do you know? – the Safeguarding of the Intangible Cultural Heritage, which also emphasize respectful consultation across cultural boundaries.

Again, I do not mean to pick on Ms. Zielinski, or on whoever drafted her letter. Their dodgy attitudes are unfortunately all too typical of federal agencies these days. But what they and their ilk are doing is dodging – dodging their responsibilities as public servants, and they ought to be called to account for it.

[1] If you'd like to see the letter, which I'm not able to figure out how to include here, please let me know at, and I'll send it along.

Monday, April 21, 2008

Learning from U.S. Mistakes

Environmental Impact Assessment,
Cultural Resource Management
and Historic Properties
Learning from the Errors of the United States

Cultural Resource Management

Back in the 1970s, archaeologists in the United States faced a challenge. New laws had been enacted promoting the protection of “natural resources” on the one hand and “historic properties” on the other. Government agencies were being required to conduct environmental impact assessments of their actions, seeking ways to protect the environment. How could archaeologists be sure that the places they were concerned about – archaeological sites – were protected by these legal requirements?

Among other things they needed a term to describe such sites that seemed a little grander than the esoteric term “archaeological site.” It should be a term that related somehow to “natural resources,” but of course archaeological sites are not “natural,” they are cultural in origin. “Historic property” was the term that architectural historians used for the cultural places – old buildings and structures – that they were interested in, but that term didn’t describe archaeological sites very well – particularly prehistoric archaeological sites.

So archaeologists invented the term “cultural resources,” and called what they did – surveying to find archaeological sites and excavating them to “mitigate” the impacts of construction projects on them – “cultural resource management.”

These terms have gained broad acceptance in the United States, and are being used increasingly in other nations. This, I suggest, is most unfortunate.

Consider for a moment all the “resources” that a culture may think valuable. Consider, for example, an indigenous group living in a forest. Among the resources that it uses to sustain its culture, surely, are:

• The indigenous language;
• Place names;
• Stories and traditions;
• Songs;
• Rituals and religious practices;
• Religious beliefs;
• Subsistence practices;
• Animals and plants;
• The landscape in which the group lives, or that it uses;
• Water sources, and sources of other natural resources; and
• The group’s social organization and family structure.

Now imagine that some government-regulated project is proposed in the vicinity – say, a logging project – and either government or the project sponsor performs an environmental impact assessment (EIA). If it follows the model employed in the United States, production of this EIA will be supervised by environmental scientists of some kind, perhaps biologists. It will include an element dealing with “cultural resources,” but no one will define this term. Archaeologists will most likely be in charge of finding and assessing impacts on such resources.

Will the archaeologists consider the indigenous group’s social organization? Its religious practices? The plants and animals and water sources it values? Its subsistence practices? No, the archaeologists will consider impacts on archaeological sites. But in the U.S., they will say that they have performed a “cultural resource” analysis; that they have done “cultural resource management.” The biologist in charge of the EIA is likely to take the archaeologists at their word; after all, they are the experts. So the report on the EIA, in its “cultural resource” section, will talk about archaeological sites, and perhaps old buildings and structures. Most of the indigenous group’s cultural environment will be ignored, and impacts on its religious practices, social organization, plants and animals, and so on will simply not be analyzed.

It may be that some of these important cultural aspects of the environment will be addressed by others working on the EIA – perhaps those performing social impact assessment (SIA). But in the United State at least this often does not happen, because “social” impact assessment becomes equated with “socioeconomic impact assessment,” and focuses only on easily quantifiable economic factors. Religious practices, beliefs, social structures, the cultural significance of plants and animals, even many aspects of subsistence are ignored. So if the logging project goes forward, perhaps the archaeological sites get protected somehow, or are excavated before they are destroyed. But most of the “cultural resources” that matter most to the indigenous group are not considered, and are lost.

So here is one lesson to learn from the mistakes the United States has made: say what you mean! If archaeological sites are the subject, call them archaeological sites; do not use some vague euphemism like “cultural resource.” On the other hand, if you say you will assess impacts on “cultural resources,” consider all such resources that are relevant to the area, the project, and the people and cultures involved.

Historic Properties

Another mistake the United States has made is to use its “National Register of Historic Places” as the centerpiece of its historic preservation system. The National Register is a list maintained by the U.S. National Park Service. The list includes “districts, sites, buildings, structures and objects” significant in U.S. history, prehistory, archaeology, architecture, engineering, and culture. Under U.S. law, those doing environmental impact assessment must consider impacts on places included in the Register and on those not yet included but eligible for the Register. If there are questions about whether a given place is eligible for the Register, they are resolved by the Register’s “Keeper,” a National Park Service official.

The major problem with this system is its anti-democratic character. Again consider our hypothetical indigenous group. Imagine that there is a place where the group collects plants used in a very important healing ritual. If the group wants this place to be considered in the EIA on the logging project, and the project is in the United States, the group is going to have to convince those doing the EIA that its plant-gathering area is eligible for the National Register. It will have to frame its argument for eligibility in terms that are meaningful to “professionals” – mostly architectural historians and archaeologists – in the National Park Service and the offices of the State Historic Preservation Officers. These people are likely to ask all kinds of strange questions – what are the boundaries of the place, how often do you use it, how long has it been used? And if they decide, for whatever reason, that the place is not eligible, then it receives little or no consideration in the EIA. Is this reasonable in a democracy? That government should consider its impacts only on things that government decides are important? Should not the people have some say in the matter, when the importance of a thing is theoretically based on their cultural values?

So another lesson to learn, I believe, is not to place too much emphasis on lists like the National Register. Lists can be important tools in bookkeeping; they are less useful in planning and environmental impact assessment, and if they assume the status of a national institution as the National Register has in the U.S., they can suppress the voice of the people in the protection of their cultural patrimony.

A Better Model

A better approach to dealing with cultural resources in EIA, I believe, is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. These remarkable guidelines recommend the conduct of integrated “cultural, environmental, and social impact assessments” when planning development. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. If environmental impact assessments were done along the lines recommended by Akwé:Kon (a Mohawk Indian word meaning “everything in creation”) – assuming they were done responsibly and well – then we would actually be doing “cultural resource management” and we could largely dispense with esoteric national lists like the U.S. National Register of Historic Places.

In suggesting a democratic, consultative approach to “cultural resource management” that looks at all aspects of the cultural environment rather than just at archaeological sites and historic buildings or structures, I do not mean that such sites, buildings, and structures should be ignored. Of course, they should be considered in EIA in a way that is sensitive to their importance in archaeological research and architectural patrimony. But what we should not do is focus all our attention on archaeological and architectural matters to the exclusion of what matters most to local people whose cultural environments are affected by modern development. The United States has unfortunately allowed itself to fall into this elitist, antidemocratic trap; others, I suggest, would do well to try to avoid it.


Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. CBD Guidelines Series, Montreal,

Tuesday, March 04, 2008


In a talk in Denver recently, I used the word "corrupt" with reference to today's systems of environmental impact assessment (EIA) and cultural resource management (CRM). A colleague in the audience very properly challenged me to define what I meant by the term, and to say just who I was tarring with the corruption brush. I'll try to do both things here.

"Corruption," according to the Oxford Dictionary, means the destruction or spoiling of anything, esp. by disintegration or by decomposition with its attendant unwholesomeness and loathsomeness. That's what I mean in using the word with reference to the EIA and CRM industries.

The purpose of EIA is to conduct honest, thoroughgoing analyses of environmental impacts, and to put the results of these analyses before decision makers and the public so all can be informed in their judgments about a project’s costs and benefits. The purpose of CRM – at least, that part of CRM in which most of us work – is to do the same thing with reference to the environment’s cultural aspects, in consultation with interested parties. How many of us, I wonder, can honestly claim to perform such analyses and consultations? If we’re truthful, I’m convinced that the number would be very small. Most of us, I suspect, instead see our jobs as being – in the words of an “NHPA game” distributed by the U.S. Army Environmental Center to Army CRM specialists – to complete needed projects, in compliance with (the law), in the least number of moves?

This transformation of our purpose – from that of honestly assessing and addressing impacts to “completing needed (sic) projects…in the least number of moves,” is a corruption of that purpose, and hence of our practice and ourselves. We are well on the way to being spoiled, and as a result are becoming loathsome – or at the very least useless.

But, you protest, the “NHPA game” says that it has to be played “in compliance with the law,” so where’s the problem? The problem is that laws like NEPA and NHPA are not like, say, the highway speed laws. There’s no easy to understand, universally agreed upon, standard for compliance. A speed limit is a speed limit, set down in miles or kilometers per hour, but what is compliance with NHPA or NEPA? It’s easy to say that compliance means following the regulations, but that’s deceptive – first because (in my experience) most practitioners have exotic and ungrounded assumptions about what the regulations say, and second because the regulations really are not very explicit. It’s perfectly possible – easy, even – to produce an environmental assessment or impact statement, or to do something that passes for compliance with section 106, without in fact honestly assessing impacts at all, and without effectively consulting the concerned public. People and agencies do it all the time, and the impulse to get the job done in “the least number of moves,” to advance our clients’ interest in completing “needed (by them) projects,” drives us toward this sort of “compliance.”

It's well accepted that power corrupts, and we've evolved CRM and EIA systems that ultimately are all about power relationships. Clients -- understandably and inevitably -- have absolute power over their contractors, which means that however ethical a consultant may want to be, however honest and honorable, he or she is always beholden to his or her client, and there is powerful, powerful motivation to be part of the client's team. Most of us have accepted this as "the way it is," and have even become comfortable with it, but it can't help but be corrupting. We become interested in seeing our clients' projects succeed, and that can't help but influence the way we define the scope of our work, interpret our data, and interact with others.

I do not mean to tar any particular individual, firm, or agency with the brush of corruption, though I have no doubt that some of each could be thus described. My point is that the system is inherently corrupting, and as time passes with no corrective action, we (and the environment) are bound to suffer accordingly.

What can we do about it? I'm not sure. Third party contracting is probably a good idea, in which the project proponent pays for an impact analysis but some outside party -- a regulatory agency, for instance -- actually supervises the work, but how can that be made to work without creating a bigger, more cumbersome bureaucracy? And what sort of honesty or public accountability have we seen recently from such regulatory and oversight agencies as the U.S. Environmental Protection Agency, the Council on Environmental Quality, or the Advisory Council on Historic Preservation?

Or from such state-level bodies as the State Historic Preservation Officers (SHPOs)? If the SHPOs are any example, we can’t expect state agencies to hold federal agencies or other project proponents to high standards. However the section 106 regulations may pontificate about the SHPOs representing the interests of the state’s citizens in historic preservation, all the pressure on the SHPOs seems to be to expedite review of projects, and hang the public. Except the pressure they get from NPS to impose and enforce mindless standards that frustrate project proponents and the public alike.

But there must be a way, and we ought to be looking at alternatives. We ought to be examining what other countries are doing, and constructing and playing out possible options. For starters, we need to recognize that there really is a problem – that minimalist “compliance” with the letter of the law, expending the least possible effort with the intent of speeding projects forward, really is a corruption of the intent of laws like NEPA and NHPA, however uncomfortable it may be to acknowledge it.

Saturday, February 16, 2008

Splinters For a Platform

I for one would like to kick around ideas about what we should look for in a presidential platform splinter (it would hardly be a plank) on cultural resources. So I posted the following yesterday on ACRA-L.

I’ll start by stipulating that I’m a lifelong Democrat, and a supporter of Barack Obama. At the same time I’ll say that in terms of demonstrated thoughtful support for initiatives that support the kind of thing we do (or ought to do), it’s hard to beat John McCain. I’m thinking of his long-time sponsorship of the National Institute for Environmental Dispute Resolution, which applies the principles on which section 106 review is based (despite their near-abandonment by the Advisory Council on Historic Preservation) to the management of environmental impacts in general.

That said, let’s consider: whichever party one supports, and whatever candidate, what would we like whoever’s elected to do in terms of CRM? Here are my opening suggestions, which naturally reflect my beliefs that (a) impact assessment and mitigation are the heart and soul of CRM; (b) that CRM is tightly related to environmental impact assessment (EIA); (c) that it ought to be about giving a fair shake to things that are important to ordinary people, not just specialists; and (d) that the CRM and EIA systems are in serious trouble, despite the happy talk we get from NPS, the Advisory Council, and the SHPOs. I didn’t mean to make them the Seven Rs; they just came out that way. They’re in no particular rank order.

Reformulate environmental, social, and cultural resource impact assessment.

Nobody wants to talk about it, but review of project impacts under NEPA, Section 106 of NHPA, and related authorities has devolved substantially into the generation and exchange of paperwork, into mindless adherence to the (often counterproductive and overly complicated) dictates of regulatory authorities (e.g. SHPOs) and – most damagingly – into client-contractor relationships that paper over project impacts and frustrate the interests of the public. It will be a difficult job – because the regulatory agencies and contractors have vested interests in the status quo, and the advocacy groups can’t bring themselves to advocate anything but its continuance with more funding – but the new president needs to put some good minds to work reformulating the process of impact analysis -- seeking to make it honest, straightforward, transparent, efficient, and consultative. We should end the inherently corrupting practice of having project proponents hire and supervise the consultants who assess the impacts of their projects, and simplify review processes to a point at which citizens can participate in meaningful ways.

Reform the management of federal land and resources in the interests of future generations
We need a thorough review of federal agency policies and how they are implemented, to undo (to the extent it’s possible) the current administration’s policy of carte blanche for private energy extraction, resource development, and other private exploitation of federal and tribal land and resources. This is not to say that the federal estate should be locked up, simply that balance needs to be restored in the public interest, and agencies need to understand their duties to be those of stewards, not facilitators of every cockamamie development scheme that comes along. It is also not to suggest support for things like the recent recommendations of the National Trust for Historic Preservation to the Bureau of Land Management. Some of the Trust’s recommendations are sensible, but many are mindless (“Nominate more places to the National Register”) and the Trust’s general tendency to want more money thrown at every preservation problem, while understandable, needs to be viewed critically.

Rejoin the international community
We’ve largely abrogated leadership in international environmental and cultural resource management, but we ought at least to be responsible followers. For starters (besides joining the team in trying to reduce global warming), the U.S. should become party to the UN Declaration of the Rights of Indigenous Peoples, the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, and (in principle if not in its particulars, some of which are silly) the UNESCO Convention on the Intangible Cultural Heritage.

Rethink police action as a cultural resource management tool
The assumption that police action can control traffic in antiquities, whether in the US or internationally, needs critical reconsideration. The thriving business done by antiquities dealers both licit and illicit despite ARPA and a variety of international conventions and agreements indicates that some other approach is in order. Personally, I think legalization with regulation is the way to go, but at the very least, a thorough, openminded review is needed of alternative ways to address the problem.

Respond to ongoing environmental change
We can’t stop the seas from rising, and their doing so is going to force large-scale displacement of people and facilities from coastlines and islands into the continental and high island interiors. These displacements are going to have serious impacts on natural and cultural resources. We need to undertake concrete programs NOW to assess these impacts and adopt means of mitigating them. At the same time we need to attend (to the extent possible) to the impacts of sea level rise itself – the erosion of coastal cultural sites, the inundation of culturally important built and natural resources, and the effects of more frequent hurricanes and other severe weather events.

Resolve conflicts between historic preservation standards and alternative energy development
Can windfarms in the viewsheds of historic places be made acceptable to people who live in or use such places? Can solar panels be designed that are aesthetically pleasing replacements for traditional slate, shake, or tile roofs? Are there ways to extract geothermal energy and harness hydropower in culturally sensitive landscape with little or no damage? What sociocultural impacts are likely from the extensive production of biofuels, and what can be done about them? I certainly don’t know, but these are issues to which someone ought to be seriously attending.

Revisit repatriation
I’ve written elsewhere about the fundamental flaw in NAGPRA and similar laws – the notion that people can own one another, so that a person’s remains can and should be the subjects of dispute over ownership. It seems, to judge from some of the discussions I’ve seen on the World Archaeological Congress listserv and elsewhere, that others are beginning to come to similar conclusions – in short, that our policies ought to be based on respect for the dead, rather than on ownership. A full, open, no-holds-barred rethinking of the principles underlying NAGPRA and the policies that arise from it might have very fruitful results.

Those are my top-of-the-head ideas – none of which, I hasten to say, I have any way to advance through political processes. Any other ideas, or reactions?
Tom King