Consultation Requirements Under Section 106: Can an Archaeological Opinion Make Them Go Away?

The other day (Sept. 12, 2009), I posted the following note on ACRA-L:

I'm confronted with a problem that's doubtless not uncommonly faced by CRM consultants, but it's not one I've encountered lately, and I'm wondering what others would do in my situation. Here are the facts:

1. At the mouth of a river, two archaeological sites were recorded in 1989, about 100 meters apart. Both are "Archaic" -- say, 2,000 years old. Both are recorded as distributions of flaked-stone tools and debitage, mostly in the plow zone. The area has been disturbed by various construction activities over the years. Both sites were regarded by their recorders, working for a major, reputable CRM firm, as not eligible for the National Register. The SHPO agreed.

2. Now a new construction project is planned that will be directly adjacent to and partly overlap one of the sites.

I see the two "sites" not as discrete entities, but as red flags, warning me that someone occupied this obviously attractive area (lots of game, fish, shellfish) 2000 years ago. I am skeptical of the notion that these people "lived" only within the areas where archaeologists found stuff in 1989.

I also observe that under current law and regulation (as opposed to what was in effect in 1989) there are today rather explicit requirements for agencies to consult with Indian tribes about effects on properties that may be culturally significant to them.

The SHPO, however, takes the position that since the archaeologists in 1989 didn't find anything that looked to them to be eligible for the National Register, and the SHPO continues to stand by the finding of non-eligibility, there is no need to consult with tribes. I should say that there are no federally recognized tribes in the state, though there are some in adjacent states with interests in the area, and there are several non-recognized tribes.

My client is the project proponent, and is used to depending on the SHPO's opinion. It will be less expensive and troublesome for my client to adopt the SHPO's position than to reconsider the matter and consult with tribes.

It seems to me, however, that following the SHPO's advice will put my client on thin ice legally (to say nothing of the SHPO's logic, which strikes me as faulty). I also fear an eleventh-hour confrontation with tribes, and/or a late discovery, that will be more expensive and time consuming than dealing with the matter now would be. If I recommend dealing with the matter now, however, I will doubtless be seen by my client as merely attempting to make more pricey work for myself.

Any recommendations? Let me assure you that this is NOT a trick question designed to collect ridiculous answers for use in my next book.

I got a number of recommendations, many of them helpful. A number of respondents commented that the situation I confronted was not an uncommon one. Several pointed out that in the 1980s, there was much less awareness than there is today of the potential for deeply buried archaeological sites in places like floodplains along rivers. Most archaeologists said that they would not accept the SHPO’s position on professional grounds, though several CRM practitioners said that if the client was determined to follow the SHPO’s advice, all one could do is warn of it’s possible consequences.

All of these comments were, I think, quite to the point and helpful. But it rather surprised me that no one pointed out the strangeness of the SHPO’s opinion that since the archaeologists back in 1989 hadn’t thought the sites were eligible, there was no need to consult with tribes about the matter in 2009.

Following is what I ended up telling my client (whose identify, naturally, I have not revealed here):

(With regard to) the archaeological site that will be affected by the project, the SHPO took the position that since it was found not eligible for the National Register in 1989, it need not be considered further, and Indian tribes need not be consulted about it. I believe this position is ill-advised, to say the least. In the first place, it ignores the fact that since 1989:

A. Congress amended NHPA in 1992 to require explicitly that tribes be consulted about historic properties of cultural or religious concern to them, and to remind federal agencies and SHPOs that the cultural and religious concerns of tribes may make a property eligible for the National Register;

B. Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA), establishing a requirement to consult with tribes about cultural items in the ground that is wholly independent of NHPA;

C. Congress also enacted the Religious Freedom Restoration Act (RFRA), which has recently been used by a tribe in Oklahoma to close down Army construction at Fort Sill that intruded into the viewshed of a sacred site (cf. http://turtletalk.wordpress.com/2008/08/20/comanche-nation-v-us-tro-on-federal-construction-at-fort-sill/) ;

D. President Clinton issued two executive orders dealing with tribal consultation: 13175 generally directing agencies to consult with tribes about matters of mutual concern, and 13007 directing agencies to give special attention to tribal “sacred sites” on federal land;

E. The ACHP has revised its Section 106 regulations and issued supplementary guidance emphasizing tribal consultation;

F. There has been extensive litigation not only surrounding the above specific statutory, executive, and regulatory authorities, but concerning the general responsibility of the federal government to consult with tribes on a government-to-government basis and exercise a fiduciary responsibility toward tribes. These responsibilities are embedded in treaties and in the U.S. constitution.

The SHPO would have the agency ignore all the above because an archaeologist in 1989 reached the conclusion that the site in question had lost integrity for purposes of research. Even if I thought that conclusion was correct (and as an archaeologist I do not), I would find the SHPO’s position antediluvian.

I also think the SHPO’s position raises questions about environmental justice. Executive Order 12898 directs federal agencies to avoid disproportionate adverse impacts on the environments of low income groups and minority populations, and to consult with such groups in appropriate ways to make sure that they have the opportunity to influence agency decisions. Tribes – both federally recognized and non-recognized – are by definition minority groups and very often have low incomes. Destroying a site created by their ancestors and not everyone else’s is arguably disproportionate. There is nothing in any law, anywhere, that allows a contract archaeologist or an SHPO to speak for a tribe in matters of environmental justice.

I believe that the agency has a clear responsibility to seek out interested tribes, and to consult with them about the National Register eligibility and general cultural significance (if any) of the site, as well as the likelihood that the kinds of items protected by NAGPRA exist there. Practically speaking, failure to initiate and pursue such consultation could expose the agency (but not, it should be noted, the SHPO) to litigation and resulting project delays. In a worst-case scenario, it could kill the project altogether; this happened not long ago to the Federal Highway Administration in Washington State, wasting tens of millions of dollars (cf. http://www.wsdot.wa.gov/Accountability/hcbgravingdock/default.htm). While such a drastic outcome is not likely in this case, project delays are certainly possible. While it is tempting to adopt the SHPO’s recommendation as a quick way of proceeding with minimal complications, in the long run it could have serious impacts – which, it is again worth noting, would fall on the agency, not the SHPO.

I posted this discussion on ACRA-L, too, and the response has mostly been deafening digital silence. I thought, though, that one respondent summed things up nicely by saying:

I naively continue to be surprised by how reluctant many who purport to value cultural and historic preservation (not just expect to make a living at it) consider it unnecessary and/or scary to consult with interested parties about those resources.

It can be scary, no question about it, and it also can be irritating, frustrating, time consuming, and generally a pain in the backside. This is particularly the case because those interested parties – whether they’re tribes or others – probably don’t speak our specialized language; they may not relate very well to the National Register Criteria or the Criteria of Adverse Effect. They may not split hairs the way we do, and they may split different hairs. But the fact remains – here I go on my soap box again – that Congress enacted NHPA and other such laws not for the convenience and enjoyment of CRM practitioners and government officials, but to ensure consideration for places that citizens – that is, taxpayers, voters – care about. And when, in the 1980s, we failed to pay proper attention to the concerns of tribes, the tribes prevailed on Congress to change the law and remind us of our duty. However inconvenient it may be, I don’t think we’re doing our jobs – whether we’re consultants, federal officials, or SHPOs – if we close our eyes to the law’s clear direction to consult with tribes and others. And in evaluating historic places, we can’t pretend that archaeologists speak for anybody but themselves, about what’s important to them. They certainly don’t speak for tribes unless the tribes authorize them to.