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.

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