Monday, August 31, 2009

What Is the National Historic Preservation Act About? Part III: Thank Richard Nixon for Cultural Resource Management as We Know It.

I actually lied at the end of the last segment. The big thing I said happened in 1972 actually happened in 1971, when President Richard Nixon issued Executive Order 11593, “Protection and Enhancement of the Cultural Environment.” It was in 1972 that it began to be seriously implemented. I think it’s fair to say that this executive order set the stage for cultural resource management as we know it today, and inadvertently brought about the ascendance of archaeology in the field.

I’m very hazy on just what led to the executive order; what I can report here is based on my recollections of the time, and of conversations with Bob Garvey and Jack MacDermott, another early NPS/ACHP official, and particularly on recent correspondence with the imminent retired NPS historian and Deputy Executive Director of the ACHP, Bob Utley. When the order was issued, I was deeply involved in my dissertation research in the Sierra Nevada foothills, in organizing the Society for California Archaeology’s (unsuccessful) effort to push statewide archaeological legislation, and in trying to keep body and soul together as an archaeological consultant – a very new and chancy status in those days.

As I’ve mentioned, a number of archaeologists had begun to agitate for improved federal archaeological laws, but most of us thought little of the NHPA. Part of the problem was that we were all so completely focused on salvage archaeology as the solution to all conflicts between archaeology and development, which really didn’t fit well with the “preservation and re-use in place” philosophy behind NHPA. Another part of the problem was Section 106, which didn’t kick in until a property was actually listed in the National Register. This put a terrible burden on anyone trying to – if you will – derail a project he or she didn’t like; it was necessary to nominate the property and get it listed before the agency responsible for its impending destruction had to do anything about it. Though nomination was much less burdensome then than it is today, it was still something that took time and money, and often involved literally sneaking onto an agency’s jobsite to find stuff to nominate. So those of us who DID pay some attention to NHPA wanted the law fixed to require agencies to identify places for review under Section 106.

Our focus, however, remained on amending the Reservoir Salvage Act to cover all federal actions and to require agencies themselves to fund salvage, as opposed to leaving it to NPS. NPS took advice on archaeological matters from a “Committee on the Recovery of Archaeological Remains” (CRAR), which represented the mainstream universities and archaeological organizations, and kept constant pressure on NPS to support an expansion of the Reservoir Salvage Act. NPS, trying to struggle with the intricacies of implementing NHPA – not an entirely happy fit itself with NPS’s in-house park-oriented functions – wasn’t terribly interested. But every bureaucracy responds to pressure.

Meanwhile, Congress had enacted one of the last pieces of Lyndon Johnson’s Great Society in the form of NEPA – the National Environmental Policy Act – and President Nixon found himself with a Council on Environmental Quality attached to the Executive Office of the President. CEQ was headed by Russell Train, a notable environmentalist (In those days there WERE Republican environmentalists), who went on to become the administrator of the Environmental Protection Agency. Train, or people on his staff, were acquainted with folks at NPS and the budding ACHP, including Garvey and his associate MacDermott.

It is not uncommon for agencies to pay little attention to laws enacted by Congress until they are (a) forced to by litigation or (b) told very directly to do so by their boss, the president. In the late ‘60s and early ‘70s, NPS and the ACHP perceived that this was a problem with Section 106. Agencies just weren’t paying attention. How to fix this? An executive order was an obvious strategy, but with President Johnson preoccupied with the growing disaster in Viet Nam, it wasn’t until the happy coincidence of a new president – Nixon – and a new vehicle for lobbying him – CEQ – that an opportunity presented itself.

Nixon, I should mention, was by no means an anti-environmental president, and he was particularly sympathetic to Native American interests. He was, for instance, intimately involved in returning the sacred Blue Lake to Taos Pueblo – as neat an act of governmental preservation of a traditional cultural property as there has ever been.

So Nixon, thanks to Garvey, McDermott, and Russell Train’s aide William Reilly (subsequently himself head of EPA as well as the World Wildlife Fund and other conservation organizations), issued Executive Order 11593 on May 13, 1971. The order (See ) told federal agencies to exercise leadership in preserving the nation’s historic and cultural environment, and then provided some specific directions. The major ones were:

1. By July 1, 1973, all agencies were to find all the places under their jurisdiction that might qualify for the National Register, and nominate them thereto.

2. In the interim until everything was on the Register, agencies were to treat places that were eligible for the Register as though they were already listed.

3. The Secretary of the Interior – meaning NPS – was to issue guidance about how to determine whether something was eligible.

The “nominate everything by 7/1/73” business was impossible, of course – though the quaint notion of “completing the National Register” persists even today, even in pronouncements by the ACHP, which should know better. Everyone knew that the “interim” was going to be a very long time. NPS got right to work on issuing guidance for eligibility determination, which would ultimately become the now very strange and anachronistic 36 CFR Part 63. These regulations put great stress on consultation between agencies and the “State Liaison Officers” that NHPA had created – who by now were coming to call themselves “State Historic Preservation Officers” and developing a voice of their own through their National Conference. Oddly, the regulations provided that while every determination of ELIGIBILTY had to be made by the Keeper (based on agency and SHPO recommendations) if an agency and SHPO decided that a place was NOT eligible for the National Register, that was that; it was entitled to no further consideration. Unless a “question” existed about eligibility, and a “question” existed when an agency determined that one did. Incidentally, as a newly employed archaeologist at NPS in Washington, I objected strenuously to this language, but Interior’s solicitors were shocked, just shocked, to think I could suspect that a federal agency would ever misuse this decision making authority. The Forest Service on the San Francisco Peaks in Arizona very soon proved me right, but the attorneys never apologized, and the regulation, though widely ignored and now contradicted by the ACHP’s Section 106 regulations, still survives.

The more important and determinative thing that NPS did in response to the executive order was to designate three of its employees – Larry Aten, Roy Reeves, and Jon Young – to be “Executive Order Consultants.” These three were to be the apostles to the heathen; they were to go out and beat on agency doors, wave the law and executive order in their faces, and “help” them comply. And they did, very effectively.

Aten, Reeves, and Young were and are all archaeologists. Why this was so, I don’t know, but I suspect that NPS’s architectural historians and historians just weren’t all that interested, and didn’t have much experience dealing with agencies. The NPS archaeological salvage program, however, had worked with the Corps of Engineers for years, and to some extent with other agencies, so that program’s people, now headed by a “Departmental Consulting Archaeologist,” were a natural choice.

The EO Consultants naturally targeted the agencies whose activities had lots of archaeological impacts. They didn’t ignore HUD or EPA, but their big foci were the Corps, Bureau of Reclamation, Bureau of Land Management, Forest Service. And the message they conveyed to these agencies – notably to the people who were organizing environmental impact assessment programs under NEPA – was that they needed to staff up with specialists. Specialists in what? Well, archaeology, naturally.

You can see where this is going. In the next segment we’ll explore another parallel set of events that contributed to the widely held notion that NHPA is about archaeology.

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