Thursday, December 17, 2009

A Listless Approach to Resource Management


Early this year I was asked to prepare some thoughts to share with a group that (to judge from the rather vague description I was given) was considering the future of various institutions within and around the U.S. National Park Service. The following is what I wrote. Not surprisingly, a glance at it was enough to cause my invitation to be withdrawn. So I'll post it here for whatever interest it may have to others.

Lists in Resource Management: First Step or Knee-Jerk?

Whenever a nation, national subdivision (state, province, city, etc.), or international organization sets out to manage resources – be they endangered species, historic places, or even such intangibilities as songs, stories, and ways of life – its almost invariable first step is to establish or promote establishment of a list. The U.S. National Historic Preservation Act calls on the National Park Service to expand and maintain a “National Register of Historic Places.” The World Heritage Convention creates the “World Heritage List.” The U.S. Endangered Species Act requires creation and maintenance of the “Endangered Species List.” The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage even directs each of its States Parties to draw up, in a manner geared to its own situation, “one or more inventories of the intangible cultural heritage present in its territory

Such lists tend to become the centerpieces of the management systems of which they form a part – or at least to be perceived as such. The U.S. National Register of Historic Places, for example, touts itself on its web site as “the official list of the Nation's historic places worthy of preservation .”

The lust to list is understandable in a simple minded kind of way – how can one manage that which one does not know about, and what more obvious way is there to know about something than to make a list of its examples or expressions? But the fact that listing is understandable does not mean that it is always the wisest first step – or even a necessary step at all – in managing resources. Nor does it mean that it lacks negative consequences that might be avoided if one adopted a listless – or if we must be sober-sided, a list-free or list-minimizing – approach.

Some Down-Sides to Listing

As one simplistic example of the dangers inherent in listing, consider the U.S. National Register’s smug self-description as “the official list of the Nation's historic places worthy of preservation.” “Worthy,” we should surely be allowed to ask, “to whom?” To the American people as a whole? To the government? To the National Park Service? The answer is not clear, but in practice the answer is: “Worthy to the Park Service professionals who run the National Register,” since it is they who decide what gets listed and what does not. Without meaning to impugn the integrity or intelligence of these hard-working government employees, should we not ask whether this means of measuring worth is quite appropriate? It is not uncommon for, say, a local community or a group of citizens to feel strongly that a place associated with their history or cultural practices is worthy of preservation, and for the National Register to decide that it is not eligible – in other words, by the Register’s self-definition, not worthy. Is this entirely democratic? Who elected these guys?

The National Register’s exercise in self-congratulation would be merely amusing if it didn’t have practical implications, but it does. Under Section 106 of the National Historic Preservation Act, federal government agencies have to consider the impacts of their proposed actions on places included in or eligible for the National Register. Implicitly, if a place is not in or eligible for the Register, they don’t have to consider impacts on it. So if a place of great cultural, historical, significance to, say, the people of the Barrio de Don Quijote de la Mancha is in danger of destruction by a federal project, and the National Register decides that this place does not meet the Register’s criteria, the federal agency need not even think about preserving it, as far as the National Historic Preservation Act is concerned. There are other laws that in theory require broader consideration of historic and cultural places – for instance, the National Environmental Policy Act, which deals with the whole “human environment” – but as most agencies interpret their legal responsibilities, if a historic or cultural place is not on or eligible for the National Register, it is not seriously considered under any law.

A related problem with lists is that we tend to become fixated with deciding what does and does not qualify for listing. In my forty-plus years of experience trying to resolve conflicts between development and preservation under the National Historic Preservation Act, I estimate that at least half of all controversies I’ve encountered have not been over whether or how to preserve something, but over whether things were or were not eligible for the National Register. Often these arguments are not as much substantive as they are procedural and technical. Has a particular criterion or standard been met? Has the boundary of the property been correctly defined? Does the place have “integrity” in the eyes of an architectural historian or archaeologist? We spend vast amounts of time and money evaluating things against National Register standards, delay projects for months and years, often for no purpose whatever but to satisfy National Park Service technical standards or the nitpickery of those who interpret them. And in the end, what we “preserve” – if anything – may be those aspects of a place that mean nothing to those who value it. We may, for instance, force the physical preservation of a building as part of a development project, but lose its traditional functions, the role it played in the cultural life of its community. This may be as it must be; perhaps there is no realistic way to maintain the building in its traditional role, but if this is the case, is it worth preserving it at all? And should we congratulate ourselves on having preserved something when what we have preserved, often at great cost, is only a stark and lifeless shell?

My experience with other lists is limited, but I know that similar problems are confronted in the management of state and local level historic property registers in the United States. The criteria employed in maintaining the Endangered Species List are held to be too rigid on the one hand, too open to political manipulation on the other. The various UNESCO groups that are convened from time to time to address World Heritage List issues seem to spend most of their time wringing hands about why more “mixed” natural and cultural places don’t get listed, and why “Third World” countries don’t add more of their places to the List. Perhaps these issues have something to do with actually preserving or managing the world’s heritage, but they appear -- to me at least -- to reflect preoccupation with listing itself, as though it were a self-evident good in its own right.

The United States has not yet ratified UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage, so we have no first-hand experience with its direction to compile inventories of intangibilities. My expectation is that if we ever attempt such a compilation, the complexities with which we trouble ourselves in historic property evaluation will pale by comparison. Are we really going to try to decide where this fiddle-playing tradition leaves off and another begins? Decide which traditional religious practice is legitimate enough to be listed and which is not? And what will we do when all the practitioners of a particular cultural practice – say, line dancing – inconveniently decide to take up something else? Or die?

I raise these last concerns, I hasten to add, as one who believes that “intangible heritage” is very much worthy of consideration in planning. In fact, it may be the only heritage worthy of consideration, since even the ambience of historic places and the research value of archaeological sites comprise “intangible” interactions between physical reality (whatever that is) and our brains. My question is not whether such aspects of heritage should be given fair consideration for preservation through wise, balanced planning. My question is whether giving lists a central place in the processes of preservation and planning is necessary or wise.

Being Listless

I am not suggesting that one could ban lists altogether and have a better, or even a possible, resource management system. There are many uses for lists, and for some aspects of resource management they’re undoubtedly necessary. If you’re distributing benefits – grants, for instance, or tax credits, you need to know who’s qualified to receive them, and that’s going to create a list. If you’re imposing draconian controls – thou shall not paint thy house green; thou shall not dig up a tree – you probably need a list of the things to which these controls apply. But most resource management is not about distributing benefits or imposing absolute controls; it’s about balancing interests in resources with interests in other things, like development. There are ways to do this kind of management without lists – or at least without permanent, high-powered lists that purport to be official rosters of what’s worth managing.

Listless management involves the use of processes designed to identify and resolve conflicts. We recognize a need – say, the need to generate electricity. We look for ways to meet that need, and identify a few – wind turbines on the hill, a hydropower dam on the river, a nuclear plant on the lakeshore. We determine who’s likely to be interested in, affected by, concerned about each of these alternatives, and we begin to talk with them about it. We do studies to figure out what impacts each alternative may have. We continue to consult with the groups that have interests and concerns, and through these processes of study, consultation, weighing and balancing alternatives, we eventually reach a conclusion about what to do. We may carry out these processes well or poorly, of course, but my point is that it is by such processes, if well done, that we can reach thoughtful, well-informed, consensual decisions about managing resources. We may make lists along the way – of resources affected by this, that, or the other alternative, of people concerned about each, and so on, but we don’t need a high-powered central list of what’s been officially deemed to be worth considering. If we have such a list, we’re almost inevitably going to undervalue some things in the eyes of people whose perceptions don’t happen to mesh with the “official” view of significance, and we’re likely to waste a lot of time and treasure figuring out what ought to go on the list and what ought not.

An excellent example of a list-free approach to management is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. The Akwé:Kon Guidelines – the term is from the Mohawk language, and means “everything in creation” – recommend the conduct of integrated “cultural, environmental, and social impact assessments” as part of land use and development planning. 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. There is nothing in Akwé:Kon to suggest that resources or resource types important to other people – biologists, for instance, or archaeologists or national park services – should not also be considered, but such resources are not given “official” status, and there is no complicated bureaucratic system for deciding what does and doesn’t get attended to. If people are concerned about it, it’s an issue to be addressed. The focus of analysis and discussion is on figuring out what people are concerned about and how to resolve conflicts. If the processes of issue identification and resolution are pursued intelligently and with integrity, the results ought to be wise, balanced decisions – to which things like national or international registers of resources are irrelevant.

A cynic may say that such processes are never actually pursued with intelligence and integrity, but I don’t believe we can legitimately say that, because we’ve never really focused on them. We’ve spent our intellectual energy on the development and completion of lists, and figuring out what does and doesn’t fit on them. If we threw away the lists, and paid attention to the processes by which better decisions can be made, even a cynic might be gratified.


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,

Wednesday, December 02, 2009

Writing the Secretary of the Interior about Nantucket Sound

I'm trying to send the following to Secretary of the Interior Ken Salazar, but find that the Dept. of the Interior's website discourages such contacts. I suppose I'll have to do it in hard copy and let it get fried by the correspondence zappers that Homeland Security has foisted on all the agencies. In the meantime, I thought I'd share it with my faithful readers.

The Honorable Ken Salazar
Secretary of the Interior
Washington DC 20240

Dear Mr. Secretary:

In the current brouhaha over the Cape Wind project in Massachusetts, and the eligibility of Nantucket Sound for the National Register of Historic Places, you are confronted with what may appear – and what some of your advisors may portray – as an existential conflict among three important functions of your office. The administration of which you are a part, obviously and with justification, assigns high priority to developing clean, domestic sources of energy; Cape Wind Is arguably one means by which you may pursue this priority. But you are charged by the National Historic Preservation Act (NHPA) with being an advocate for the preservation of historic places, specifically including places of cultural and spiritual significance to Indian tribes. And quite apart from this responsibility, you are the point man in the federal government’s exercise of its trust responsibility toward tribes, charged with doing what you can to protect and advance their interests. In asserting that Nantucket Sound is a place of spiritual, cultural, and historical importance to them, the Wampanoag tribes have called on you to exercise your NHPA and trust responsibilities, perhaps at the expense of the Cape Wind project.

You are doubtless receiving a lot of advice about how to balance – or dodge, or finesse – these three bodies of responsibility. You are hearing – we’ve all read the words of the governor of Massachusetts to this effect – that the tribes’ assertion is “ridiculous” because we need wind energy. This, of course, is a non sequitur; our need for clean energy, windy or otherwise, no more makes the tribes’ spiritual values ridiculous than our need for peace in the Middle East vitiates the spiritual beliefs of Jews and Muslims. You are also hearing that the tribes are the bought and paid for creatures of rich yachties and homeowners. That’s theoretically possible, but even if it were true that the tribes are in league with non-Indian Cape Wind opponents, that wouldn’t automatically make their spiritual assertions illegitimate. As a former Senator you may have some familiarity with striking alliances to achieve or protect separate but overlapping or dovetailing interests.

You are also almost certainly hearing – quite likely, sadly, from your staff that oversees the National Register of Historic Places itself – that Nantucket Sound cannot be eligible for the Register because it is too big, or too wet, or too loosely bounded. But none of these variables are reflected in the National Register’s criteria of eligibility. It would be remarkable if they were; can government dictate that a place cannot be of historic and cultural value if it is bigger than – what? A breadbox? Does government know some secret relationship between moisture content and cultural significance? As for boundedness – well, the National Register’s staff is in love with boundaries as a matter of bureaucratic tidiness; it is nice to be able to plot things firmly on a map. But history and culture, and land management for that matter, are annoyingly disrespectful of boundaries. In the case of Nantucket Sound (as in many others) boundaries are irrelevant. Wherever the boundaries of Nantucket Sound might be set, it’s a safe bet that Horseshoe Shoals would be within them, and so would most of the effects of the Cape Wind project.

The Register staff may also be fretting about the need for more data, and asking for more studies. That’s standard operating procedure for the Register when confronted with a politically difficult call, but such studies seldom serve any purpose other than to generate costs and delays. There’s certainly no excuse for them in the Nantucket Sound case. The Wampanoag tribes have said that the Sound is culturally significant to its people, is it the place of the government’s history experts to study the matter for a few months or years and then perhaps say “no, it’s not?” Would one expect the tribes, in this event, to say “Oh, OK, Great White Father; poor dumb injuns make-um mistake?”

Finally, you are probably hearing that if you accept the eligibility of Nantucket Sound for the National Register, you are dooming Cape Wind. Perhaps Cape Wind deserves to be doomed; I don’t know. But I do know that nothing in law prevents you from approving a project that does violence to a National Register eligible property – provided your consultation with tribes and other interested parties in accordance with the law reveals no alternative you find worth pursuing, and you conclude that proceeding is in the public interest. On the other hand, your fiduciary responsibility to the tribes, and the requirements of statutes like the Religious Freedom Restoration Act (which says you can’t substantially burden anybody’s practice of religion without a compelling government interest in doing so) may preclude you from approving Cape Wind regardless of the Sound’s eligibility for the National Register.

What recognizing the Sound as eligible for the Register does do is open up an avenue through which you may be able to negotiate a mutually acceptable compromise; the process for doing so is laid out in the regulations for carrying out Section 106 of NHPA. NHPA was a product of Lyndon Johnson’s administration, and the Section 106 review process reflects the line from Isaiah 1:18 that President Johnson was so fond of quoting: “Come, let us reason together.” Under Section 106, when a project will impact a National Register eligible property, everyone involved is supposed to sit down and see if they can reason out a mutually agreeable solution – something that achieves the purposes of the project with as little damage as possible to the interests of those who care about the place. If such a solution can be found, it’s pursued; if it can’t be, then you, as the decision maker, get the recommendations of the Advisory Council on Historic Preservation and then make the final call. It may be a hard call, but that’s why we pay you the big bucks.

As someone who’s worked in and around the National Register and Section 106 for almost half a century, and as a supporter of clean domestic energy, and as a supporter of the administration you serve, I hope you will recognize the obvious fact that Nantucket Sound is eligible for the National Register, and get on with trying to negotiate a solution that respects the tribes’ spiritual and cultural values as well as the interests of local residents and the need for clean energy. It would have been a lot easier to find such a solution several years ago, when the tribes first advised the Minerals Management Service of their concerns, but the Service – doubtless based on what someone thought was impeccable logic – ignored those concerns and left them to fester. This complicates your task but doesn’t change it. The NHPA Section 106 review process – though sadly distorted and corrupted over the last decade – remains one of the federal government’s very few formal procedures for resolving environmental disputes outside the courts. You ought to seize the opportunity to use it to seek a solution to the Cape Wind controversy. But to do this, you need to accept the manifest truth of the Sound’s cultural significance to the Wampanoag tribes.

Thomas F. King

Thomas F. King, PhD
Writer, Consultant, Teacher in Cultural Resource Management
PO Box 14515
Silver Spring, MD 20911
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