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
Blog at
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Matt Bandy said...

Well, it looks like the Keeper agrees with you at any rate. What do you think of the DOE?

Thomas F King said...

Thanks, Matt. I think the DOE was a fair recognition of the obvious. Now it'll be interesting to see how the Secretary plays out the Section 106 end game.