Thursday, December 30, 2010


I was just asked (by a client, unfortunately) where the hell I am, since I’ve been relatively quiet in cyberspace lately. Quick answer for anyone else who may wonder: I’m buried, but will, I am intent, dig out within the next week or so. The burial is not in snow, or even paying work, but in indexing the Companion to Cultural Resource Management, which Wiley-Blackwell will publish in March (See

Although indexing involves mostly just plowing through the manuscript (a PDF) identifying and tagging items that someone might want to refer to, and organizing these into an alphabetical list, it’s not entirely without interest. For example, can you guess how many times 32 authors of 30 chapters on CRM topics use the word “standards?” Answer: 120. Now, does one index every use of the word, or only those referring to specific standards? Answer (for me): the latter. But how specific? Does a reference to UNESCO standards in general qualify, or only a reference to a specific UNESCO recommendation? What about a comment on the relevance of SHPO-generated standards? And what about standards set forth by the Companion’s authors themselves? Sheri Ellis provides some useful standards for dealing with “intangible” cultural resources, derived from the UNESCO convention on the same; should I index these? (Answer: yes). Reba Fuller provides some thoughtful guidelines for consulting with indigenous communities, based on the UN declaration of their rights; do I index these, even though she doesn’t exactly call them standards? (Answer: yep, those too). And by the way, yes, thank you, President Obama, for bringing the U.S. into the community of responsible (or at least self-congratulatory) nations by endorsing that declaration – now will you kindly direct your *&^%$# Secretary of the Interior to get on board and do something tangible about it? Like re-thinking the give-away of the western deserts to the solar industry without meaningful tribal consultation?

Anyway, that’s what I’m up to, and my deadline for getting it done – and proofing the 565-page ms – is January 10. Don't be shy about dropping me a note between now and then, but please understand that I may be long getting back to you. And clients, yes, I certainly WILL get your work done.

Wednesday, December 22, 2010

Environmental Conflict Resolution and Section 106: a Minor Epiphany

I’m grateful to Western Cultural Resource Management, Inc. (WCRM) for making it possible for me to take part in its training last week in Reno, NV. The training was in environmental conflict resolution (ECR); the class was taught by Joan Calcagno of the U.S. Institute for Environmental Conflict Resolution at the Udall Foundation, University of Arizona. I think that Tom Lennon and his colleagues are very much to be commended for trying to make WCRM into more than the usual walk-the-transect-and-dig-the-hole cultural resource management firm by getting familiar with the principles and methods of things like ECR.

As one who’s theoretically been doing ECR for decades, in the guise of project review under Section 106 of the National Historic Preservation Act, I experienced a mild sort of epiphany during the training. Joan spent a good deal of time discussing what makes a case ripe for ECR – what conditions have to be present. I found myself thinking that it must be nice to be able to think about ripeness; in the 106 game we don’t have that luxury. The only game in the town of 106 review is ECR, in the form of consultation as prescribed in the regulations. Which led me to think -- here's the epiphany -- that this uniformity, this absence of options, may be the central flaw in the regulatory process.

The regulations, it occurred to me, essentially assume that there is always some kind of conflict to be resolved, requiring a more or less standard sort of multi-party (though often only bi-party) consultation. And they give little to no direction about how to decide how much consultation is necessary. The only real guidance is that if a project will have “adverse effects,” it requires some more consultation, sort of, than does a project without such effects.

And “adverse effect” is defined in a very abstract, theoretical way – you have an adverse effect if you’re going to diminish the integrity of a historic property. It doesn’t matter if you’re just going to diminish it a little bit or a lot, and more importantly it doesn’t matter whether anybody objects to the diminution. Everybody involved can be happy as clams with what you’re going to do to the place, and you’ve still got to go through the motions of consultation and execute a memorandum of agreement. On the other hand, some people can hate what’s proposed, and that doesn’t trigger any higher level of review – unless, of course, the haters are State Historic Preservation Officer (SHPO) staff, based on whatever technical standards they elect to apply.

Inevitably, such a system allocates unnecessary time, effort and angst to routine, non-controversial projects, while allocating insufficient resources and attention to projects that are troublesome. And there’s nothing in the system to flag troublesome projects early on, alert people to one another’s concerns, and allow people to think about whether there’s the need for some form of ECR. And because it’s so cumbersome, and mind-numbing, to try to consult about every single project, applying the abstract criteria of adverse effect (to say nothing of the National Register criteria), agencies and SHPOs get frantic to find means of “streamlining.” They negotiate programmatic agreements (PAs) to achieve this objective, but since nobody has a model other than what’s in the regulations, the PAs that get negotiated tend to be weird permutations on the standard Section 106 process that usually exacerbate its faults and dilute its strengths.

Although I think the National Trust for Historic Preservation was right, in its recent “Back to Basics” report, to call for a halt to PA development pending the establishment of better standards, it would be interesting to experiment with a PA that discriminated among projects not on the basis of their abstract effects on historical or architectural integrity but on the basis of the degree and kind of conflict they provoke. Perhaps if we could apply some of the principles that Joan Calcagno talked about in the WCRM class, we could come up with a more rational, simpler system of project review that’s more accessible to the public, more responsive to the public’s interests, and less taxing on all concerned.

Tuesday, December 21, 2010

A Visit to the Veterans Curation Project

I had a fascinating and, I might even say inspirational couple of hours yesterday visiting the Washington DC lab of the Veterans Curation Project. The VCP is the brainchild of the Corps of Engineers’ remarkable Sonny Trimble, and is currently funded with ARRA money, though a bill to give it permanent funding has passed the House and is – well, somewhere in the Senate.

The basic idea of the VCP is to train wounded veterans in the skills involved in artifact and archival curation – classification, catalogue-building, imaging, restoration of decaying documents, and so on – not with the necessary expectation that they’ll go into archaeology, museum studies, or historic preservation, but because the work teaches them things that are useful in a wide range of jobs, helps prepare them for higher education if that’s what they want, and (there’s some anecdotal evidence for this) may help overcome the effects of conditions like post-traumatic stress disorder (PDSD). The group of veterans I visited were working with an old collection of both artifacts and records from Richard B. Russell Reservoir; they seemed to be engaged, focused, interested in the work, and having a relatively good time. They were articulate in discussing their work, and seemed to be handling it with great patience and aplomb. Their supervisors, Alexandra Jones and Amelia Chisholm of Brockington & Associates, which runs the program for the Corps, seemed to have things very much in hand and to be getting along fine with the troops. I was really impressed.

Working these days as a consultant to the Department of Veterans Affairs (VA), I hope we can find ways to build on the strengths of the VCP (which VA co-sponsors with the Corps) and relate it in a systemic way to the VA’s historic preservation program. And I hope other agencies, institutions, organizations and firms will look to the VCP as a source of highly trained, skilled, motivated and disciplined curators.

Thursday, December 09, 2010

Eruvim and TCPs

David Rotenstein has done another of his fascinating blog postings on Washington DC-area eruvim – see . This one flatteringly quotes me (a dumb-as-dirt goy resident within the Silver Spring eruv) and mentions my connection with traditional cultural properties (TCPs; see for instance

Before anyone starts jumping up and down about this, I wouldn’t for a moment propose that every eruv set up by an Orthodox Jewish community is a National Register eligible TCP. Some might be, I suppose, but I don’t think the mere designation of an area as an eruv would qualify it for the Register or impose any legal constraints on the activities of federal agencies in its vicinity.

The connection I found between eruvim and TCPs is this: I’ve lived within the boundaries of the Silver Spring eruv for about 30 years, and until David started publishing his research, I had no idea that this was the case. When I saw funny little sticks and strings running up utility poles, I figured they were something the power company had put in for some obscure electrical-engineering purpose – when I thought about them at all. Yesterday I saw one and thought: “Oh, a…..” and hurried home to check David’s site and remind myself that it was a lechi.

Anyway, it is much the same with, for instance, Indian tribal or Native Hawaiian spiritual places. Most of us live in, work in, travel through, view, or ignore such places without consideration of their spiritual qualities, because they aren’t marked with crosses, stars, crescents, or other such indicators of religiosity. And we never notice when we cross their boundaries, because those boundaries are marked, if they’re marked at all, in ways that only someone knowledgeable in the ways of the culture can recognize. But this general anonymity doesn’t make the places any less significant in the eyes of those who ARE within the culture. Just as a breached eruv boundary can have real effects on the perceptions and behaviors of an Orthodox Jew on the Sabbath, so a perceived violation of a tribal spiritual place’s important characteristics can affect the sociocultural integrity of a tribe – even though the violation is entirely innocent and the violator has no idea that he or she has done anything.

I doubt if knowing that I live in an eruv will alter my behavior, but if I were responsible for managing my neighborhood I’d certainly want to consult with the Orthodox Jewish community before, say, taking out a bunch of utility poles on a Friday – not because there’s a specific law requiring that I do so, but because I’d think such consultation to be the fundamental responsibility of a public servant. And I wouldn’t assume that I could determine just what actions would have impacts on the beliefs and values of my Jewish neighbors; only they could do this. In just the same way, a federal land manager ought to be careful about doing things that may impact the values, beliefs, and practices of tribes (and others) who view themselves as tied somehow to the lands being managed – not necessarily to avoid doing things, but to consult with those affected and to mitigate the effects.

Tuesday, November 30, 2010

The Federal Historic Preservation Program Task Force: a Reaction

For some months, the Usual non-federal Suspects in U.S. historic preservation – Preservation Action, the National Conference of State Historic Preservation Officers, National Trust for Historic Preservation, American Cultural Resources Association, and others – have been deliberating earnestly as the “Federal Historic Preservation Program Task Force” (See Their task has been to examine the “external programs” in preservation managed by the National Park Service (NPS), assess their effectiveness, and come up with a “consensus plan for structural improvement,” which they will then seek to implement. The Task Force recently sent out a questionnaire to help inform its deliberations; like many others, I received a copy and amused myself for a quarter-hour or so completing it. If you haven’t gotten one yet, and want to, you can get it at

The Task Force’s effort is timely – or rather, past-timely. NPS has neglected, ignored, twisted, and distorted the “external programs” for decades, and current NPS management has shown no evidence that it has the faintest understanding even of what these programs are supposed to do. NPS – understandably enough – looks at the world outside the National Parks as something strange, vaguely threatening, and only marginally relevant, so it has made the external programs focus inward, on parks and park resources, effectively ignoring the broader responsibilities imposed by the National Historic Preservation Act and other legal authorities. This has been going on for so long that it has come to be seen – at least within NPS – as the right and proper norm. The Task Force can be congratulated for rejecting the status quo world view, for recognizing that NPS has mismanaged its responsibilities, and for attempting to effect improvements.

Sadly, though, to judge from its questionnaire, the Task Force is unlikely to accomplish much. I say this not because I think, as is widely assumed, that under current economic and political conditions nothing can be accomplished (though there’s a good deal to be said for that assumption), but because the Task Force itself seems to be little more creative or engaged with the outside world than is NPS.

After asking, in essence, whether respondents agree that NPS has done a rotten job, and understandably assuming agreement, the Task Force’s questionnaire asks us to rank several alternative pathways to program improvement. These include:

1. Pulling the external programs out of NPS and putting them into an independent agency, together with the Advisory Council on Historic Preservation (ACHP);
2. Pulling the external programs out and giving them to the ACHP;
3. Coagulating the external programs, with or without the ACHP, into a new agency within the Department of the Interior;
4. Doing the same thing within NPS;
5. Gussying up the leadership of the external programs and ACHP with things like Senate ratification of appointments; and
6. Doing nothing.

Having warned about NPS proclivities and promoted option 1 above back in the mid-1970s (See Anthropology in Historic Preservation;, I suppose I should be pleased to see the mainstream historic preservation community at last come around, and of the options given us by the Task Force, I certainly think option 1 is the best. Only with an entity that’s outside the ambit of a particular land manager – be it NPS or its parent Department of the Interior – would it be possible to develop a program that addresses historic preservation interests right across the federal establishment, in partnership (or not) with a full range of governmental and non-governmental interests. This was true in the 1970s, and it’s still true – perhaps more true – now.

But what the Task Force members – devoted, self-congratulatory preservationists all – can’t see is that “historic preservation” by itself doesn’t have the political firepower to establish or operate its own government agency – nor should it.

First: the vast majority of Americans do not know what historic preservation is – except that it’s something that keeps nice (or not so nice) old buildings standing and sometimes complicates land use and development. Most of our elected representatives are no better informed. You’re not going to get political support for something that elicits at best polite nods from the bulk of the population and members of Congress – unless you have a lot more money to pay the latter than historic preservation’s Usual Suspects have in their pockets.

More importantly, the deficiencies of the national historic preservation program are not wholly ascribable to NPS mismanagement, and they are not unique to historic preservation.

Some of the preservation program’s deficiencies are built into the National Historic Preservation Act itself, or at least into how the Act was interpreted and implemented in its earliest days (1968-72 or thereabouts). The Act and its early interpreters (admittedly, mostly NPS employees) focused attention on old buildings and archaeological sites, and turned program management over to professional historians, architectural historians, and archaeologists, creating a program that systematically excluded the broad array of landscapes, landforms, plants, animals, vistas, viewsheds, soundscapes and smellscapes that encode the cultural values of many ordinary citizens and communities – to say nothing of the less tangible aspects of culture like language, song, and tradition. Some of us have tried to drag the broader aspects of culture into the program through inventions like the “traditional cultural property” or the “cultural landscape,” but with very limited success; the deck was long ago stacked against us. As a result, we live with a program that seeks to preserve places valued by narrow disciplinary professionals, a program run by narrow disciplinary professionals for the benefit of narrow disciplinary professionals. And the Usual Suspects are – surprise! – themselves mainly narrow disciplinary professionals, or at least narrowly focused on old buildings and archaeology. Generating broad public support for an independent agency to service the interests of narrow disciplinary professionals is going to be a real challenge.

But preservation’s deficiencies are not unique; the same or very similar narrow-mindedness infects virtually every other aspect of government-based environmental management. Management of the natural living environment, when not driven wholly by economic interests, is done by and essentially for professional biologists, foresters, and the like; water resources are managed by hydrologists according to their own self-contained models, and professional environmental engineers are forever insisting that they and only they can speak to management of “the environment.” In the operation of programs designed and administered by practitioners of narrow professional disciplines, the interests, values, feelings of ordinary people have no place. Just as a community’s sense of place is likely to be ignored by the historic preservation system unless a pricy consultant is retained to translate it into terms that resonate with historians or architects, the feelings of ordinary citizens for plants, animals, lakes, rivers, language, dances, or traditions go unattended unless someone makes them sensible to biologists, ecologists, or hydrologists.

Here is where opportunity lies. If preservation’s Usual Suspects could make common cause with other groups interested in preserving cultural aspects of the environment, it just might be possible to build a broad enough support base to get something done.

Who are these groups? Here are a few with which I’ve interacted over the years, many of which have tried somehow to engage the national historic preservation program and gone away shaking their heads at its petty fixations:

Indian tribes and other indigenous groups that aren’t formally recognized by the federal government;

Property owners who value the traditional use of their land;

Equestrians and outdoorspeople who value wild horses and burros on the federal estate;

Urban and suburban neighborhoods and rural villages that like their own ambience but don’t happen to meet the National Register’s criteria;

Traditional fisherpeople, hunters, trappers, whalers (consider shrimpers on the Gulf coast);

Gatherers of traditional medicinal plants or plant foods;

People struggling to preserve threatened languages and art forms;

Local communities – including but not limited to low-income and minority ones – that just want some respect from the government.

The interests of some of these groups conflict with one another from time to time, or with the interests of historic preservation’s Usual Suspects, but they all share some common ground – which they also share, to some extent, with the ill-defined grumbling masses that make up movements like the Tea Party. And the ground they share – respect for the traditional and familiar – is thickly grown with the brambles of distrust toward narrow disciplinary professionals. As Frank Fischer put it in his wise but ill-timed book Citizens, Experts, and the Environment (Duke University Press 2000:30):

Although open protests have tended to occur only sporadically, polls show a steady decline in the public’s confidence in, and respect for, professions…. Rather than a group of experts dedicated to the public good, professionals are widely perceived as a group more interested in increasing their own authority, power, and wealth.

If preservation’s Usual Suspects could only turn around and look outside their circle, their zone of comfortable interaction with one another, of reliance on crutches like the National Register, they might, with luck, find the critical mass necessary to make useful changes in the way cultural resources are managed in this country. Such engagement with the larger world would require teetering away from our crutches, though – the National Register, the Secretary’s Standards, professional expertise as the necessary prerequisite to being heard. I don’t anticipate that the Usual non-governmental Suspects are any more willing to do that than NPS or the ACHP would be.

If they can’t look out beyond their self-referential, self-reverential circle, if they can’t step away from their crutches, preservation’s Usual Suspects both outside government and within have, I think, no chance of doing anything but holding on, tenuously, to a gradually (or maybe rapidly) deteriorating status quo. I don’t think they have the guts or brains to get outside their comfort zone, so I expect that the Task Force – well-justified as its findings may be – will be just another exercise in preservation’s long history of hand-wringing and viewing with alarm.

Sunday, November 28, 2010

NRC Nukes Environmental Review of Licensee Actions

The Nuclear Regulatory Commission (NRC), as its name implies, regulates a range of activities carried out by private corporations making up the nuclear energy industry – including uranium mining and processing and the operation of nuclear power plants. For some decades, NRC has performed National Environmental Policy Act (NEPA) review on a wide range of licensee and applicant actions defined broadly as “construction.” In 2007, NRC decided that it didn’t really have the authority to regulate some such actions, and therefore couldn’t review their impacts under NEPA. So in order to stop doing such reviews, NRC redefined the word “construction” to exclude certain licensee and applicant activities. However, it didn’t at that time exclude the full range of activities that the nuclear energy wanted to escape review, so NRC staff went to work, with the industry, drafting further regulatory revisions extending the narrowed definition of “construction” to a wider range of actions. The new revisions were published in the Federal Register on July 27 (75 FR 43865-76); the deadline for comments is late tomorrow, November 29. I learned about the rulemaking awhile ago, but frankly dilly-dallied about reviewing it and drafting comments until this weekend. It struck me, upon reading the Federal Register notice, that while there might be a theoretical legal argument for NRC’s position in the matter, there were also good arguments against it that probably got ignored by the Bush-era NRC and Council on Environmental Quality back in 2007. In any event, it seems obvious that the regulatory change has (and had back in 2007) the potential for substantial impacts on the quality of the human environment in general and on historic properties and Indian tribal concerns in particular.

Following are my comments, just filed with NRC. If you’re interested in reviewing the rulemaking and commenting, you can access the documents and file comments via Be aware that the deadline for comments is Monday, November 29.

I write to comment on NRC’s proposal to revise 10 CFR Parts 30, 36, 39, 40, 51, 70, and 150, governing licenses, certifications, and approvals for material licensees, published in the Federal Register on July 27, 2010 (75 FR 43865-76).

1. Let me begin by saying that your system for (ostensibly) eliciting public comment on this rule change is so complex, counterintuitive, and generally obfuscatory that it renders public comment almost infeasible. Doubtless this was its intent, but if you want even to pretend an interest in what the public has to say, you might try providing a direct link to the rule on which you’re soliciting comments, rather than forcing the reader to search through multiple documents on general-purpose web pages.

2. Your proposed rule change, and the 2007 NRC findings upon which it is grounded, are based on a false premise – that the National Environmental Policy Act (NEPA) is “purely procedural.” This is manifestly not true. NEPA is the National Environmental Policy Act, and although it has become the fashion throughout government in recent years to treat only the law’s procedural requirements without reference to its policy, the fact remains that Section 101 articulates general U.S. government policy regarding protection of the environment. Notably, Section 101(a) says it is the policy of the U.S. government, of which at last report NRC was a part, to use all practicable means to, among other things, create and maintain harmony between people and nature. Section 101(b) goes on to say that the government will use all practicable means to “improve and coordinate” federal plans and programs to achieve six broad environmental goals. Section 102 of NEPA directs that “to the fullest extent possible, …the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies…” set forth in Section 101 (emphasis added)

It follows from this rather explicit legislative language that where an agency has the authority and ability to influence how the environment is managed and how the impacts of land use are controlled, it must use all the means practicably at its disposal, to the fullest extent possible, to ensure that management is sensitive to environmental concerns and that impacts are effectively considered and controlled.

Prior to 2007, albeit in a rather lackluster manner, NRC made efforts to be consistent with this congressional direction by regulating the entirety of an applicant's environmentally damaging work, and subjecting this work to review under NEPA Section 101(C). In 2007, as part of a national administration intent on undoing environmental controls regardless of legislative mandates and impacts on the public interest, NRC decided it ought not do that anymore with respect to some classes of applicant actions. Now you propose to extend this decision to ignore NEPA policy to the full range of applicant actions. Please explain how you justify this proposal with reference to the policy articulated in NEPA Section 101. Is it no longer practicable to regulate the entirety of an applicant’s environmentally damaging activities? No longer possible? If so, why?

3. This proposed rule change clearly has the potential for significant effects on the quality of the human environment. How have you analyzed this potential in accordance with the regulations of the Council on Environmental Quality (CEQ; 40 CFR 1500-1508)? Where can one find your assessment and findings? If you have not conducted such an analysis, what is your rationale for ignoring the seeming requirement for such an analysis found in the CEQ regulations?

4. Have you consulted with CEQ regarding this rule change, as required by 40 CFR 1507.3? What has CEQ had to say about it? Perhaps the 2007 CEQ said nothing about the 2007 NRC finding, but such silence, understood in the political context of the time, should not be taken as an indication of what the current CEQ would say.

5. Policies similar to NEPA’s are set forth in the National Historic Preservation Act (NHPA) with reference to impacts on historic properties. Please explain how you have addressed these policies in proposing this rule change.

6. This rule change clearly has the potential to cause adverse effects to historic properties, by removing federal oversight from a wide range of potentially destructive applicant activities. Section 106 of NHPA requires that federal agencies consider the effects of their actions on historic properties, and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment on such actions. Please explain how you have done this, with reference to the ACHP’s regulations (36 CFR 800).

7. This rule change has the potential to have profound impacts on the interests of federally recognized Indian tribes in their cultural and natural heritage, including but not limited to ancestral burial places, living sites, and spiritual places as well as culturally important plants, animals, minerals, water, air, and landforms. Federal agencies are required by a range of laws, regulations, executive orders and case law grounded in treaties and in the U.S. constitution to consult with tribes on a government-to-government basis about agency actions potentially affecting tribal interests. Have you done this? Can you refer me to the record of such consultation?

Thank you for the opportunity to comment, and (prospectively) for answering my questions.

/s/ Thomas F. King

Wednesday, November 24, 2010

Cutting the Budget: One Small Suggestion

So, for better or worse, or indifferent, we have a Republican-dominated House of Representatives, and a lot of calls for reduction in the size and cost of the federal government. Without expecting that it will be attended to any more than it was before, I'm moved to re-post a piece I published here on January 21, 2009. I still think it would be a good idea.


Cutting a Bit of Fat from the Federal Budget: Do Away With the National Register of Historic Places

Maintaining the National Register of Historic Places – self-described as the nation’s official list of significant historic sites, districts, buildings, structures, and objects – is one of the minor non-park-related duties of the National Park Service. It doesn’t cost a great deal of money in terms of direct costs – just the salaries of some Park Service employees and associated administrative expenses – but that money could certainly be more fruitfully used for other things, and eliminating the Register would also result in significant indirect savings by simplifying and streamlining federal environmental impact review.

The Register serves three functions, none of them critical to government operations or the welfare of the American people:

1. Owners of income-producing properties included in the Register get federal income tax credits for rehabilitating such properties in such a way as to extend their lives and maintain their significant architectural qualities. If there were not a register of some kind it would be impossible to determine which properties should and should not receive such benefits. But “a register” does not have to be a central national register, maintained at considerable expense by the federal government. State and local lists would do just as well. Most states and many local governments already maintain their own lists of places they want to preserve; why not support them rather than maintaining a redundant national list?
2. The information in the Register can be and is used for educational and touristic purposes, but again, state and local lists, as well as Indian tribal and Native Hawaiian lists, could serve these purposes just as well as or better than the National Register. So could databases maintained by federal land managing agencies.
3. Federal agencies are required by Section 106 of the National Historic Preservation Act to consider the effects of actions they plan – things they want to undertake or that others want to undertake with their assistance or permission – on places included in or eligible for the National Register. In my experience – and I’ve been working with Section 106 for over 40 years, inside and outside the federal government – tremendous amounts of time and money are wasted on argumentation over whether endangered places are eligible for inclusion in the Register. Not only is the time of highly paid specialists wasted in such arguments, but often important and expensive projects have to be delayed while they are conducted. The arguments almost never focus on serious questions about the cultural, historical, or architectural significance of such places; they almost always involve differing interpretations or understandings of the technical criteria for eligibility issued by the National Park Service. I believe we would have a much stronger, more efficient, more sensible procedure for managing federal impacts on historic places if we focused Section 106 review on whatever people concerned about a given proposed project thought was historically, culturally, or architecturally significant in the affected environment – always with the understanding that, as today, if agreement couldn’t be reached about how to deal with a project’s impacts, the responsible agency could get the recommendations of the Advisory Council on Historic Preservation (or some equivalent body) and make its final decision about whether to go forward with the impacts or not. With such a system, of course, we would not need a National Register, and we would save the federal, state, local, and private money that goes into arguing over eligibilty for it.

We actually do not “need” a National Register today – it’s simply something that the National Historic Preservation Act created back in 1966 and we’ve gotten used to and stuck with. The Register today serves only as a distraction from the real work of preserving the heritage of the nation, its regions, states, tribes, and groups. It imposes upon us the obnoxious perception that the Secretary of the Interior, through the National Park Service, has to verify what is historically, culturally, and architecturally significant. Why is the Secretary qualified to do this, particularly with regard to what, say, the people of Gallup, New Mexico or Nyack, New York may think is part of their heritage? And why should the Secretary spend even a small chunk of his budget making decisions about such things? Why not let the people decide -- and save a bit of money, simplify government, and improve management of the environment in the process?

Saturday, November 20, 2010

Screen Test: A Bit of Archaeology

Writing a short paper at Mike Moratto's request on my archaeological mentor, the late and considerably lamented A.E. Treganza, I was reminded of the difficulty Trig had making the transition to the routine use of screens (sieves, as they’re called in some other venues); he, like others of his generation (the first generation of California archaeologists) had always been a shovel-and-trowel man.

It occurred to me that the issue – why Trig didn’t much like screens – might have had to do with his artistic, organic approach to archaeology; he really made himself at one with the site, and screening can’t help but remove the archaeologist from the site – either by putting him or her up on the backdirt pile shaking, or by leaving him or her down in the pit (oops – unit – that was another transition Trig had trouble with) relying on the screener to find the goods. The practice fragments, segments, partitions the excavation experience.

Like everyone else doing archaeology in the U.S., over the last 50 years I’ve gotten used to routine screening, but recently on Nikumaroro in Kiribati, pursuing Amelia Earhart, I had to pretty much eschew screens, and the results were interesting. We were stripping a large area of the site, going down only 10 cm. (because that’s about as deep as we ever find anything there), and doing it all by trowel. We had seven 2-meter wide lanes, with two excavators in each; they simply crawled, sprawled, along troweling and closely examining what appeared in front of them.

Interesting result: LOTS more tiny things found than we’d ever found in previous seasons screening. I think it was because the people were right down there with their faces in the excavation, with everything right in front of them, and they knew that THEY were the ones who had to find whatever there was to find, in situ. And because, given the particular character of the site – contained in the coral-rubble surge ridge on the windward side of an atoll – out-of-place objects were more evident in situ against the broken coral than they would have been if relocated into a screen full of the same rubble.

The Seven Site on Nikumaroro is a lot different from almost any site in the U.S., and I’m not advocating a wholesale abandonment of screens – just noting that there are times and places where, perhaps, they get in the way.

Unrelated screen/sieve note: I’ve sometimes wondered why British and Commonwealth archaeologists seem always to use dorky little circular sieves instead of the nice, efficient, rectangular rockers we prefer in the U.S.. Walking through the Spice Market in downtown Istanbul earlier this month, I came upon the answer – great heaping piles of the things, in every gauge, readily available for sale. Doubtless an implement of ancient and honorable parentage in the Middle East, picked up by the likes of Petrie and Wooley and a part of the standard tool kit ever since.

Tuesday, October 26, 2010

Playing the "Plus" in CRM Plus: Why Vote Democratic

I called this blog "CRM Plus" to give myself the space to write about things other than "cultural resource management," but haven't heretofore taken advantage of that flexibility. Now I will. I recently posted a note on Facebook asking anyone who was even thinking of voting Republican in the forthcoming election to give me the chance to talk them out of it. Only one person did so; I'll not reveal his or her identity; suffice to say that he or she is a law enforcement professional. Below, for whatever interest it may have for any of my faithful (or other) readers, is what I sent him or her.

Since I did my Facebook posting inviting anyone thinking of voting Republican to give me a chance to talk them out of it, and you (and only you) took me up on it, I guess the ball’s in my court and I’d better put up. Let’s see…..

Let’s start with something you and I discussed not long ago – immigration. You told me a story about stopping a vanload of obvious illegal immigrants en route to a distribution point, and being unable to do anything about it because dealing with them was reserved to the feds. That convinced me that there was justification in Arizona’s attempt to empower/require its police force to deal with illegals. Whether it’s constitutional for the state to do so is another matter, but I think we agree that something needs to be done, and that the federal government hasn’t yet done much. OK; I’ll also volunteer that I think one of the few smart things G.W. Bush proposed as president was an immigration policy including a guest worker program. But the Republicans never supported that, and now can’t propose anything but higher walls and more firepower along the border. That’s not going to do the job; the Romans and the Chinese and the French all learned that walls and troops along their borders don’t stop folks who really want to get in. We ought to profit from their education.

So what would work? I think it’s painfully obvious. Why are people risking and often losing their lives crossing the deserts to work here? Two related reasons. First, there are too many of them in their home countries – too many mouths to feed. Second, there aren’t enough jobs at home to make it feasible to feed everybody. How to fix this? Support population control and economic development in the countries from which illegal immigrants come. Do Democrats, on the whole, support such things? Yes. Do Republicans do so? Hell no; Republicans consistently want to cut foreign aid and prohibit our aid agencies from even talking to people about family planning.

Before you even say it, I know that promoting economic development and family planning in other countries isn’t going to solve the illegal immigration problem quickly; it’s a long-term strategy. In the meantime we need things like guest worker programs and probably amnesty for people already here, and some way for police forces not to have their hands tied in dealing with illegal immigrants. But those are all band-aids. We ought to be looking for long-term solutions as well as doing the best short-term fixes we can. At least some Democrats are willing to consider such things; Republicans have forbidden themselves even to contemplate them.

Let’s talk about drugs. Here again I think there are some obvious ways to bring drug abuse and drug-related crime under control. We ought to learn the lesson of Prohibition; decriminalize the use of at least the common “recreational” drugs, regulate their use the way we regulate the use of alcohol, and tax it. Undercut the cartels, stop stuffing the jails with relatively inoffensive “criminals,” bring in some revenue. Is this a perfect solution? Of course not, but it makes a whole lot more sense than the utterly mad arrangement we have now. Is it at least possible that Democrats would entertain such ideas? Yes. Republicans? Individual Republicans, sure, but as a body? Nope; the only thing the Republican Party can offer is to build more jails, contract with questionable private firms to run them, and lock lots more people up.

Then there’s the economy. It wasn’t really that long ago that the federal budget was showing a surplus, and the national debt was shrinking. That was an achievement of the Clinton administration, fighting back from years of tax cuts for the rich during the Reagan and Bush Senior years. Eight years of Bush Junior, more tax cuts, profligate spending, and blind deregulation of Wall Street, and the Obama administration comes in faced by a staggering debt, two wars to fight, and a meltdown of the stock market, housing market, and practically every other market around. They’ve had less than two years to fix all this and are making progress. Have they done everything right? Certainly not; whoever does? But they’ve tried, and they’ve had some success. What have the Republicans done? Sniped, whined, and tried – effectively, it sadly appears – to convince the electorate that our economic distress is Obama’s problem, that things would be better if we just cut upper-tier taxes some more.

How about health care? Is there some reason the World Health Organization ranks the U.S. health care system #37 in the world (See Other than that they’re all internationalist commies? Maybe there’s a problem? Maybe we should try to fix it? Again, the bill passed last year may not be the best approach in the world (I don’t think it was; I’d like to see single-payer), but it was what could be done, an exercise of the art of the possible. What would the Republicans prefer? Maybe a nice comfortable slip to number 47, as long as the upper crust can afford privileged treatment.

I could go on and on, but let me wind up with a subject close to my heart – the environment, impact assessment, and regulation. I’m frankly mad as hell at the way the Obama administration has dealt with the environment. They’ve gotten railroaded into backing every cockamamie “green energy” scheme that’s come along, and as a result are bending the environmental impact assessment laws into pretzels to expedite putting up solar fields and wind farms – in the process screwing over some of the most pristine environments on the continent. And even when confronted with the Deepwater Horizon disaster they couldn’t be moved to pursue ways to fix the obvious flaws in the impact assessment and regulatory regime in anything like a systematic way. They’ve renamed agencies and set up study commissions instead. But we’ve hardly seen the Republicans doing better – remember the notion that we should all apologize to BP for being so mean to them?

OK, enough. I think it’s a no-brainer; the Democrats are far, far from perfect, but the Republicans, to be charitable, are nuts. If they’re not nuts, there’s nothing I can say about them that wouldn’t be libelous.

Tuesday, October 19, 2010

HR 5282 Needs Support in the U.S. Senate

HR 5282 would provide long-term support to the Veterans Curation Project, a Corps of Engineers project that trains wounded veterans in curation skills and helps them find work and/or encourages them to continue/resume their education. It addresses two needs -- the need for such veterans to develop marketable and intellectually stimulating skills, and the need to get federal and other archaeological/archival collections properly cared for. It's been in existence for a couple of years and already it's highly successful, with a high percentage of its graduates finding work and/or enrolling in college. Informal interviews with participants even suggests that the work may have direct therapeutic effects in handling PTSD. But the Corps money will run out soon. HR 5282 would provide longer-term funding, perhaps long enough to enable the program to become self-supporting.

HR 5282 has passed the House, but has no sponsors at all in the Senate. I've urged Maryland's Senators Mikulski and Cardin to become its champions in the Senate, and I hope they will, but anyone who's concerned about wounded veterans and/or the care of collections ought to consider asking their Senators to do the same.

For the text of the bill and its current status, see

Monday, October 18, 2010

Apologies to New Orleans

My good friend Chris Goodwin has quite properly taken me to task for the flip comment about New Orleans in my last post. Chris emphasizes the city's and region's overwhelming cultural, historical, and economic importance and very justly criticizes me for slandering it by suggesting that it's a lost cause. He argues that New Orleans is coming back and will be a stronger city than ever in the wake of its recent traumas.

I do apologize for any offense. My comment was a thoughtless one. It was driven by my unhappy belief that in the long -- and maybe not very long -- run we are not going to be able to do anything about global warming and the sea level rise that goes with it, so low-lying cities like New Orleans (to say nothing of the Pacific atolls to which I have attachments not unlike those Chris feels toward the Big Easy) are doomed. I'm not happy about that; I don't think it's a good thing, but I think it's a bullet we are probably going to have to bite and ought to be planning for. But for the sake of those whose roots or hearts lie in the bayous, along with the people of the atolls, San Francisco, Miami and Hong Kong, among many, many other places, I hope I'm wrong. Thanks, Chris.

Thursday, September 30, 2010

National Trust Says "Let's Take Section 106 Back to Basics"

Comments on Section 106 of the National Historic Preservation Act: Back to Basics, a report in two volumes issued in late September, 2010 by the National Trust for Historic Preservation in the United States.

People have been asking me if I was going to review the National Trust for Historic Preservation’s new report on the National Historic Preservation Act (NHPA) Section 106 process. OK, I will.

But the report, by preservation attorney Leslie Barras and entitled Back to Basics, is long and rather cumbersome, divided into two volumes – the second a technical elaboration and mustering of supporting data for the first. And it’s loaded with material with which it’s possible to quibble, and I know my quibbles would only put everyone (including me) to sleep. So what I’m going to do – for now, at least, until and unless some of the report’s recommendations begin to look like they might be implemented somehow – is comment just on the first volume, the “Summary Report.” Which is conveniently organized with reference to seven key recommendations, all but one complete with sub-recommendations. Let’s look at them one by one.

Recommendation 1. Federal agencies must endorse and compel compliance with Section 106.

The report begins its elaboration on this recommendation by urging the president to issue a “memorandum reinforcing agency responsibilities…and requiring reporting on current compliance.

Comment: Well, OK, but we’ve kind of been there and done that during the Bush administration, with little evident productive result. My personal belief is that this kind of initiative makes no sense except as part of a larger directive to agencies to clean up their environmental impact assessment (EIA) and public engagement systems generally (See my recommendation for presidential direction on pages 161-4 of Our Unprotected Heritage (Left Coast Press 2009). Section 106 by itself is too small-potatoes to be the subject of such direction, and directing better compliance with 106 without doing the same for the National Environmental Policy Act (NEPA) would not, I think, have very useful results.

The next subrecommendation is that “the Secretary of the Interior and Advisory Council Chair should consult with federal agencies on the adequacy of historic preservation staff capacity.” That’s probably a good idea, but they first ought to agree – with serious attention to outside advice – on what such capacity should look like. Just hiring lots more architectural historians and archaeologists is not necessarily a good idea, even if it were likely to happen.

Next, the report suggests that “federal agencies that oversee or delegate Section 106 compliance to nonfederal applicants for project funding or approvals should implement robust management systems to ensure procedural compliance with the law.” Yes indeed, and again it would be worth looking first at just what “compliance with the law” ought to entail. Agencies like the Environmental Protection Agency (EPA) in its delegation of Clean Water Act responsibilities and the Office of Surface Mining in its laughable (if it weren’t so sad) oversight of coal mining in Appalachia are letting their non-federal “partners” get away with murder, and it ought to stop. But again, just focusing on 106 won’t work; reform has to address the full range of environmental laws, notably NEPA.

Next, it’s suggested that “Special responsive strategies should be developed to address the challenges of Section 106 compliance when nonfederal parties receive project funding or approvals as a result of massive economic or disaster recovery initiatives.” There are two rather separate issues here. One circulates around the American Revitalization and Reinvestment Act of 2009 (ARRA), which pumped vast amounts of money into supposedly “shovel-ready” projects that weren’t, and is as a result distorting and short-circuiting the processes of environmental impact assessment, including but far from limited to Section 106. That’s pretty much a done deal, but yes, some sort of sensible strategy should be developed for such things when they happen in the future – other than just assuming that if an agency thinks its project is ready to go, it is. What that strategy (or suite of strategies) might be is anyone’s guess, and Back to Basics doesn’t essay to advance specifics. The other issue has to do with natural disasters like Hurricane Katrina, and here the report seems to reflect the Trust’s unhappiness with the Federal Emergency Management Administration for permitting large scale demolitions in New Orleans. As one who believes that New Orleans generally is doomed, and that the sooner we get used to the idea and let it go the better off we’ll be, I don’t think I have anything to say about this argument.

Next, Back to Basics says that “government performance and accountability reports should more specifically and prominently identify progress made and improvements needed in federal preservation programs.” This makes sense superficially, but the government performance and accountability report (PAR) standards and guidelines I’ve seen are idiotic, and only cause federal employees to while away their hours making up numbers. Calling on an agency like the Bureau of Land Management (BLM) to estimate how many historic properties it has taken nice care of this year is an utter waste of time, and calling on them to report things like nominations to the National Register is utterly counterproductive. If there’s ever a PAR system that makes sense, though, no doubt stuff like historic preservation should be represented in it.

Recommendation 2. Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes

The first subrecommendation here is that “in many cases, consideration of historic properties could be improved through better coordination or integration with National Environmental Policy Act compliance.” Yes indeed, but the fact that the Section 106 and NEPA regulations aren’t themselves coordinated in any meaningful way throws something of a roadblock in the way of implementing this suggestion. The Advisory Council could do something about this, and so could the Council on Environmental Quality, but neither, I think, has the wit to do so.

It’s next suggested that “the Advisory Council should be more active in fulfilling its commenting responsibilities under the National Environmental Policy Act.” That, I think, is true, but the Council would need to think through how its comments on an Environmental Assessment (EA) or Environmental Impact Statement (EIS) would relate to whatever it does (if it does anything) under 106, and that effort would probably provoke institutional brain freeze.

Next, Back to Basics proposes that “environmental management systems should be expanded to encompass cultural resources, including Section 106 implementation.” This was something some of us explored for the Department of Defense’s Legacy program back in the 1990s. It seemed like a good idea then, and it probably still is. It’s a shame if, as Ms. Barras reports, it hasn’t been developed; I’d thought that DOD was actually making advances in this area.

Back to Basics goes on to recommend that “sanctions should be imposed on federal agencies that misuse environmental reviews and prevent meaningful Section 106 compliance,” but the sanctions it discusses (e.g. scolding comments by the Council) are pretty wimpy. More draconian sanctions might be worth considering, but only if “meaningful Section 106 compliance” is clearly and understandably defined. Agency officials shouldn’t get slapped with fines or prison sentences for piddly sorts of noncompliance, but they should get hit for really circumventing full public review of impacts.

The report then veers off in an odd direction, commenting that “interstate projects provide an opportunity to plan for strategic and consistent ways to identify and evaluate archaeological sites.” Well, yes, and some of us have promoted taking advantage of such opportunities for decades, but if anything the tendency lately has been toward fragmenting such projects, and nobody seems to mind. It's probably something worth trying to fix, but it's a pretty small something.

It’s next suggested that “earlier consideration of preservation values should be promoted through increasing preservation advocates’ participation in agency advisory committees.” That’s probably true. Certainly some of the major advances in Corps of Engineers attention to historic preservation happened when there was vigorous archaeological participation in its environmental advisory committee. Of course, this disciplinary bias tended to skew the Corps’ compliance regime in the direction of archaeology at the expense of other aspects of culture; “advocate” representation needs to be carefully thought through.

Back to Basics suggests that “outreach to groups not traditionally familiar with Section 106 should be further expanded, including development interests and the media.” This is doubtless true, but I don’t think it will work unless and until the Section 106 process is simplified and rationalized. Trying to explain the process in all its ramifications to someone “not traditionally familiar with it” – especially those with other things to do, like developers and reporters – can be an exercise in futility.

Recommendation 3. The Advisory Council should vigorously assert Section 106 as its core mission.

What can I say to this in general but YES INDEED. Section 106 IS the Council’s core mission, however much its ostensible leadership would rather attend events in the White House Rose Garden and pontificate at international gatherings. The Council ought to get some leadership that will lead, in doing what the Council was designed by Congress to do, and that’s Section 106.

In terms of specific subrecommendations, the report suggests that “Advisory Council members should increase their direct involvement in strategic Section 106 cases.” I think Ms. Barras really means Council staff here – in other words, the Council should re-think it’s decision of the late 1990s to withdraw from case-by-case Section 106 review. Indeed it should, though over the last fifteen years or so the Council has made itself so irrelevant to the actual process of 106 review on the ground, and provided so little useful direction to its staff, that it will take a major, carefully designed effort to re-engage.

The report very usefully recommends that “the agency’s role in Preserve America should be redefined.” Without of course criticizing Preserve America, because how could the National Trust ever be critical of a White House preservation initiative, Back to Basics delicately suggests that the Council’s emphasis on this feel-good program has distracted it from its core mission. Amusingly, it’s reported that:

“(t)he Council’s staff leadership has emphatically stated that staffing and support for Section 106 compliance has not been adversely affected by the Council’s in¬volvement in Preserve America, and that any shift in resources over the past several years primarily reflects a more limited role assigned to Council staff due to changes in the Section 106 regulations.”

I’ll bet the leadership is emphatic; they do love hobnobbing with the upper crust, and you get to do that by taking part in goody two-shoes activities like Preserve America, not in doing the grubby work of 106. But in saying that its infatuation with Preserve America has not distracted the Council from its core mission, the leadership, to put it delicately, prevaricates.

Back to Basics wisely suggests that “the Advisory Council should consider reopening a western office.” As an alternative, I can’t resist offering the suggestion long ago proposed by the then-Western Office’s chief, Lou Wall: the Council should close its eastern office. Having the western office was important not only because it put Council staff within striking distance of western cases – a value that was diluted by facilitated air travel and the Council’s withdrawal from much casework – but because it introduced a certain amount of realism into the Council’s world-view. It’s not a sure bet that a western office alone would be enough to counterbalance the inside-the-beltway biases of the Council’s senior staff, but it would be a good start.

Usefully, the report comments that “checks and balances are needed to reduce conflict-of-interest concerns when the Advisory Council’s “liaison” staff participate in Section 106 reviews for their funding agencies’ projects.” To say the least. See my recent blog post on the related subject of paying SHPOs; it’s absurd to think that getting staff and money from the agencies whose actions they review does not distort and corrupt the Council’s and SHPOs' objectivity.

Next we are told that “there is a compelling need for timely and concrete Section 106advice from the Advisory Council; opinion letters are one possible solution.” Maybe so, but the Section 106 advice we have seen from the Council lately has been a mixed bag at best. I’d like to see a system developed for formulating such advice that at least gave it a fighting chance to be relevant and useful.

It’s suggested that “facilitated negotiations should be conducted more often in controversial Section 106 cases, and training in conflict resolution skills should be provided to the Advisory Council’s staff.” Very, very true. I’ve commented elsewhere (as I did to Ms. Barras) that I learned more about dispute resolution in a 40-hour class at Bowie State University than I did in ten years at the Council. I’ve run into one Council staff member recently who said she was planning to get such training. Good for her, but this should be something the Council does routinely.

Back to Basics calls for “expansion of basic and advanced Section 106 training,” “facilitated by the Advisory Council.” “Facilitated” is a felicitous term. As one who has taught for the Council and for others, I think that others do a better job. Others are not bound to support Council policy; they – we – can tell it like it is. But help and advice from the Council would be welcome. And the report wisely notes that there are lots of ways to provide training these days besides just flying around and giving face-to-face classes.

Recommendation 4. Improvements are needed to increase consulting party access and public involvement in the Section 106 process

The first subrecommendation here is that “federal agencies should honor the requirement to directly invite consulting parties to participate.” This is a tremendously important recommendation; too many agencies continue to think that the only folks they need to consult with are the SHPOs. Of course, there are SHPOs who encourage them in this belief, and the fault for this lies in part with the National Park Service (NPS) – I’ll have more to say about that below. And the Council itself is not always very vigorous in its insistence that agencies bring others into the process – despite the clear priority given to doing so in the regulations as revised in 2000. This is an issue on which some vigorous guidance from the Council would be in order – to the federal establishment, to the SHPOs, and to its own people.

The report goes on to recommend that “consulting parties should be provided a tentative plan of action or roadmap for consultation.” I’m dubious about this. Each consultation is so individualized that it’s hard to imagine a “plan of action” or “roadmap” being anything but stultifying. To me it smacks a little overmuch of the common and repulsive agency practice of smacking down a draft memorandum of agreement at the beginning of a consultation and expecting everybody to sign on. But some notion of how someone (who?) expects a consultation to unfold would doubtless be worth having; it’s an idea worth exploring.

Back to Basics notes that “the Section 106 advocacy capacity of the National Trust’s statewide and local preservation partners requires strengthening.” This of course is an initiative that the Trust itself needs to pursue, and it would be helpful. Too often, statewide and local preservation groups have strange and exotic notions of what Section 106 is about, and bring little to the consultation table other than confusion – if they come to the table at all. An effort – by the Trust perhaps – to motivate and educate such groups would be very welcome.

The report bluntly notes that “the use of public participation models of inclusiveness has languished and needs to be resurrected.” Indeed. Not only should the Council and SHPOs (among others) talk the talk of fully involving the interested public, they should learn how to walk the walk. There is a vast literature out there in the world on how to open up public decisionmaking to public involvement, and people in historic preservation ought to get familiar with and use it. “Transparency” isn’t enough; if I’m watching a consultation through a perfectly transparent but soundproof window, I can’t have much influence. People want influence, but federal decision makers during the Bush years pretty systematically set up roadblocks to its exercise. Regrettably, the Obama administration has not yet demolished them.

Ms. Barras also recommends that “federal agencies and applicants for federal funding or permits should be more responsible to the public for project changes and commitments made in Section 106 reviews.” In other words, eschew what one of my tribal colleagues has referred to as the “Three-I” model of consultation: Inform, get Input, and Ignore. Listen to what people say and respond to it, give it credence, look for ways to address people’s concerns.

The report next advances the interesting idea that “consulting party and public feedback on their experience in Section 106 reviews needs to be actively solicited.” Presumably this is something the Council and/or the SHPOs could do, and it’s a good idea. Notably, such feedback should be sought not just from the usual “preservation partners,” but from all participants in review, whatever their interests.

Recommendation 5. State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account

The report first recommends “serious exploration” of “the authority of states and tribes to assess fees to support their Section 106 review.” As discussed in a previous posting on this blog, I’m dubious of this proposition.

Next, Back to Basics proposes that “Congress should fully appropriate the proceeds in the national Historic Preservation Fund account.” This is a perennial plaint by the National Trust and other preservation advocates. If the proceeds were used to support real-world activities like Section 106 review, this recommendation would be worth real attention by Congress. Unfortunately, an awful lot of HPF-funded work – thanks to NPS – is plain silly, and would cause any thoughtful examiner to question the utility of supporting it with taxpayers’ dollars. If I were advising Congress, I’d say hold the HPF hostage to some serious reform on the part of NPS and its pet national organization, the National Conference of SHPOs.

Recommendation 6: Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability in implementing these ‘program alternatives.’

In this very welcome part of the report, Back to Basics takes aim particularly at programmatic agreements (PAs). I’ve spent enough screen space in this blog on criticizing the passion for PAs, and don’t need to spend any more; I simply welcome the Trust’s support for the idea of rethinking how they’re used. It’s revealing that according to the report (and I know it’s true), the Council can’t even tell us how many PAs are currently in effect across the land. I do question whether the Council staff is up to establishing standards; they’ve been as willing as anybody else to accept and promote utter trash in the guise of “program alternatives.” But if done with a lot of – dare I suggest it? – real consultation, preparation of such standards would be a good idea. And holding off on more such enterprises pending a serious review is a very good idea.

Recommendation 6: Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.

Back to Basics offers four subrecommendations here. First is that “’Web 2.0’ technology should be harnessed to enhance implementation of the National Historic Preservation Act.” Of course, I read that we’re about to see the development of “Web 3.0,” but that aside, I’m sure Ms. Barras is right, and I’m vaguely aware of a number of agency, SHPO, tribal, and other initiatives to do what she recommends. Nothing general and nationwide, though, except for NPS’s well-intentioned if not yet very effective historic preservation portal. The problems, of course, involve costs and the speed with which technology is changing – and the potential for wasting money on whiz-bang gadgets that don’t really accomplish much. Incidentally, I’ve been corresponding recently with a software developer about building a 106/CRM video game to take the place of a lot of face-to-face training. It would be (I think) a real money-saver in the long run, but it would cost about a million bucks. Anybody interested?

The report next recommends that “project management software needs to include Section 106 compliance milestones to help early and coordinated consideration of historic properties in construction projects.” Yes indeed, and this is an initiative that the Council could, I think, very usefully take on. I know that some state departments of transportation (but by no means all) have good systems that might be used as models, but most agencies just don’t factor 106 into project management at all; few do much with NEPA, either.

Back to Basics says that “the Advisory Council should establish deeper content on its website for Section 106 practitioners, consider establishing a compliance-oriented website name for inexperienced Section 106 stakeholders, and offer a targeted Section 106 link for the public on its homepage.” I kind of like the Council’s website, but it doubtless could use updating and “deepening,” and the idea of a pages especially for newbies and the public is a good one. Maybe the Council would like to fund my video game.

The last, rather lame subrecommendation offered by Back to Basics is that “metropolitan and regional transportation planning organizations need access to digitized cultural resource information.” To the extent I understand what Ms. Barras is getting at here – and the detailed background report doesn’t help much – I’m a bit frightened by this recommendation. It promotes linking planning and land use geographic information systems (GIS) with “cultural resource GIS,” but to the best of my knowledge there’s no such thing as a GIS that really represents cultural resource data in a reliable and comprehensive way. There are archaeological site GISs and historic building GISs and a few predictive model-generating GISs focused on particular kinds of resources, but there’s nothing that’s going to tell a planning organization where all the resources are, and that’s the simple-minded plea (or worse, expectation) that we keep hearing from such organizations and (unfortunately) even such august bodies as NPS and the Council. The idea of a comprehensive list of all the “cultural resources” makes even less sense than a comprehensive list of all historic properties – a notion that led to creation of the National Register and its ilk around the world, and has systematically misled planners ever since it bubbled into the fevered brains of the French revolutionaries back in the early 19th century. I really think we ought to give it up, or at least very seriously re-think it.

What Back to Basics Misses

I’m very glad to see Back to Basics, and hope that its recommendations are attended to by the Advisory Council and others. There are four things that I’d have liked to see the report touch on that it doesn’t address, but none of them, I’m sure, would have been politically feasible even if Ms. Barras had been inclined to pursue them.

One is the obnoxious role of NPS in distorting the 106 process. As I’ve discussed elsewhere in this blog (among other places), by structuring its periodic reviews of SHPO programs as it has, NPS has turned the SHPOs pretty generally into nit-picky counters of standard transactions, carefully keeping track of how many determinations of eligibility and effect they’ve concurred in, how many agreements they’ve executed, and the like, and systematically discouraging consideration of any more creative approaches to 106 review. It’s also predictably stressed the part of the process that it controls and loves – determinations of eligibility – allowing them to become chokepoints. All this has encouraged agencies to seek ways to “streamline” the process, usually through nonsense PAs.

Then there’s the problem of for-profit consultants (like me) performing Section 106 work for project proponents – an absolutely obvious formula for rotten, self-serving, biased findings and determinations. I’ve discussed this problem in my 2009 book, Our Unprotected Heritage, so won’t belabor it here.

Another issue that Back to Basics pretty much dances around is the need for the ACHP to revise its regulations. A lot of the changes the report recommends would be facilitated by regulatory adjustments, but the report doesn’t come right out and say so – or at least I haven’t found where it does. The Council would understandably resist such a recommendation – the last round of regulation changes was a painful experience – but it’s still something that should be considered. The last time round, some useful changes were made – notably the insertion of provisions for early identification of consulting parties, scoping, and the like, which are precisely the aspects of the process that have been ignored by most agencies and SHPOs (the latter largely because of NPS direction). But the 2000 regulations also introduced or retained a lot of little nitpicky steps, or perceived steps, in the process, and it may not be possible to reform the process without fixing the regs.

Finally, as I’ve also argued in Our Unprotected Heritage and hence won’t expound on here, I don’t think it’s possible to really fix 106 without reforming NEPA practice as well. Of course, it was not in Ms. Barras’ brief to go after the Council on Environmental Quality (CEQ) as well as the Advisory Council, but seriously, I think we’ll spin our wheels trying to reform 106 on its own, and 106 by itself is such small potatoes that nobody in Congress is likely to promote such reform either – or if they do, it will probably be nonsense reform. But then, it’s naïve to expect much more of Congress these days anyhow.

All in all, I’m glad to see Back to Basics out on the street, and I hope somebody in authority pays close attention to it.

Saturday, September 25, 2010

The Advisory Council on Historic Passivity

The Advisory Council on Historic Preservation (ACHP) has come out with another opinion that ducks engagement in controversy and in so doing undercuts the interests of historic preservation.

The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.

Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.

Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”

The ACHP’s reasoning runs like this:

(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.

(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....

(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.

The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.

Why? Two reasons:

(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”

(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”

So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.

Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.

Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”

But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.

Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.

Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.

Friday, September 24, 2010

Ethnographic Studies Again

I’ve been asked – again – why I’m opposed to ethnographic studies as a part of environmental-cultural-social impact assessment. Let me try to be clear.

1. I’m not. It’s a bum rap. What I’m opposed to is the assumption that one MUST do such a study in order to identify places or things of cultural importance to people. Sometimes you do, sometimes you don’t.

2. Here, I think, are the basic rules one should follow in deciding whether such a study is needed.

a. If a group of people say something is culturally significant to them, it is. You ought to take them at their word, because after all, who can possibly know better than they? You don’t need an ethnographic study to verify that it’s important to them. To say you do is deeply ethnocentric: “I’m not going to believe you until an expert, not of your culture but of mine, verifies that what you say is true.” Insisting on a study will also, of course, take time and cost money, both of which can be saved by just accepting what people assert.

b. If one subgroup of a group says something is culturally significant, and another subgroup of the same group (e.g. tribe) says it’s not, then you may need a study of some kind to determine why you’re getting diverse perspectives, but it’s likely you can deal with the question more simply and straightforwardly just by sitting down with both subgroups and discussing where they’re coming from.

c. If the cultural significance of something is suspected, but not asserted by anyone, then you probably DO need an ethnographic study (by whatever name) to find out whether it has such significance in someone’s eyes. For example, there are plenty of things (places, plants, minerals, etc.) that are important to people who aren’t very directly represented by, say, a tribal government, and/or who don’t readily take part in Euroamerican decision making processes. A careful, respectful study may be needed to find out what the concerns of such people may be.

d. If there’s reason to believe that a relatively dominant subgroup (say, a tribal government) is suppressing the concerns of a less dominant one (say, elders), then some kind of study to ascertain the concerns of the latter may be in order – because both subgroups are human beings and citizens, and have the right to be heard. Exactly what kind of study is needed, or what alternatives to a study may be pursued, is something that needs to be very carefully worked out in view of the inevitable political complications involved.

e. Finally, if you’re trying to relate the significance of something to some set of specific criteria – like those for inclusion in the National Register of Historic Places – then you may need a study to do so, but for the sake both of efficiency and of being respectful to people, you ought first to consider the option of just assuming the thing is significant for the purposes of whatever planning exercise you’re engaged in.

In short, I don’t object to ethnographic studies where they serve a real purpose. What I object to is treating them as an across-the-board, standard thing to do, and what I object to even more is using them as a way to “vet” what a group of people say is significant to them. Such vetting is particularly offensive when the group is a sovereign tribal government or its equivalent.

OK, is that clear?

Sunday, September 12, 2010

Paying SHPOs to Consult? The ACHP Interprets the Law but Fails to Advise

The Advisory Council on Historic Preservation (ACHP) has recently – well, I think it was recently; like the good historical organization it is, the ACHP didn’t bother to date it – issued a legal opinion on whether it’s OK for federal agencies to pay State Historic Preservation Officers (SHPOs) for their advice and assistance in the conduct of project impact reviews under Section 106 of the National Historic Preservation Act (NHPA). The opinion doesn’t seem to be available directly through the ACHP web site (, but I presume it can be obtained upon request.

The bottom line is that the ACHP says yes, it’s OK for agencies to compensate SHPOs for the work they do in conducting Section 106 review. The statutory authority for such compensation is actually pretty clear; Section 110(g) of NHPA authorizes each federal agency to:
… include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted by such agency. The eligible project costs may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit (emphasis added).

The opinion points out that compliance with Section 106 is a pretty basic part of carrying out an agency’s responsibilities under the act, so clearly agencies are authorized to pay SHPOs for helping them do it. Usefully, the opinion stresses that Section 106 compliance is exclusively the responsibility of federal agencies. Whether paid for it or not, SHPOs don’t (properly) make determinations or otherwise call the shots under Section 106; they advise and assist agencies in doing so.

I suppose it would be asking more of a legal opinion than such an opinion can deliver, but it would be nice to see the ACHP go a bit beyond the letter of the law and provide some advice (yes, advice!) about some of the issues that naturally come up, or ought to come up, in connection with agency compensation to SHPOs.

First, of course, is the question of whether having the feds pay the SHPO to help review projects compromises the SHPO’s independence and ability to (in the really quite silly words of the Section 106 regulations) “reflect the interests of the State and its citizens in the preservation of their cultural heritage.” The ACHP apparently thought about this question, because the opinion notes that the National Park Service (NPS) has been paying SHPOs for decades out of the Historic Preservation Fund, “without raising concerns that SHPOs are somehow compromised by it in their Section 106 role.” The ACHP cites no source for its assurance that no concerns have been raised. I have a hunch that there are a few people out there among the citizens whose interests in cultural heritage the SHPOs are supposed to reflect who do have concerns about how independent an SHPO can be in reviewing NPS projects when NPS controls the SHPO’s federal purse-strings. I even suspect that there may be an SHPO or two who’s troubled by this relationship. But I guess such concerns have never been “raised” to a level discernible by the ACHP. And even if one is untroubled by the NPS-SHPO relationship, it doesn’t necessarily follow that one ought not to wonder about SHPO independence if an agency with real money and political clout starts lining their pockets. Some thoughts on how to ensure SHPO independence and responsiveness to citizen concerns would be welcome, should the ACHP have any.

Then there’s the question about just what an agency should pay an SHPO to do. In another opinion, some years ago, the ACHP said that agencies didn’t need to reimburse Indian tribes for the expenses they incur in consultation, representing their own tribal concerns, but should compensate them for work that was on the order of what a contractor might do, supplying substantive data or services. Should the same rule apply to SHPOs? But what authority does the SHPO have in Section 106 review if he or she isn’t acting on behalf of the state and its citizens? If an agency is going to pay an SHPO, but not for representing the concerns of the state’s people, what precisely does the agency actually expect the SHPO to do?

Underlying all this is the almost never-asked question of what the SHPO’s role should be in Section 106 review. The less sophisticated federal agencies, and perhaps the majority of non-federal entities like developers who get their projects reviewed because they want federal licenses or assistance, tend to have a pretty straightforward notion of the SHPO’s role: it’s to sign off on projects, approve plans, issue “clearances.” The more sophisticated agencies use fancier language to mean the same thing: the SHPO is expected to concur or not concur in determinations, and execute agreements. Which is, in part, more or less what the regulations say.

But the regulations since their revision in and around 2000 have also directed agencies to consult with SHPOs at the very beginning of a project review under Section 106, in planning how to involve the public (36 CFR 800.3(e)) and in identifying consulting parties (36 CFR 800.3(f)), as well as in establishing the scope of any work needed to identify historic properties and determine effects (36 CFR 800.4(a)). It is at this stage in review that an SHPO can be most helpful to an agency, and to the citizens that the SHPO ostensibly represents. The SHPO can help the agency and other concerned parties set the stage for effective consultation, get people together and talking so that problems get identified and resolved before they become intractable. This would be worth paying for, and it’s a function that wouldn’t necessarily compromise the SHPO’s responsibility to serve the people of the state.

Neither agencies nor SHPOs focus much on the performance of these early planning responsibilities, and in the case of the SHPOs there’s a good reason for this. It goes back to those purse-strings that NPS holds. NPS periodically reviews the SHPOs to make sure they’re spending their federal money the way NPS thinks is right, and it requires the SHPOs to keep records of what they do. The last time I had occasion to look at the list of stuff NPS wants SHPOs to keep track of – about a year ago – I was grimly amused to find that the list hadn’t changed since about 1985. So it doesn't reflect the innovations of the 2000 (and later) Section 106 regulations), and what it does do is insist that SHPOs keep careful track of things like determinations of eligibility and effect, and the execution of memoranda of agreement. Reasonable enough things to keep track of, but by focusing on these interactions, which inevitably occur late in the process of review, NPS encourages SHPOs to focus on them too, to the inevitable exclusion of attention to early coordination.

So, SHPOs are convinced that they must carefully process each determination of eligibility and effect – whatever that may mean to a given SHPO, In the context of NPS oversight and direction. That’s a time-consuming business, and since it does tend to happen rather late in review, it’s likely to be fraught with difficulty, particularly if the agency (lacking useful early SHPO advice) has not gotten off to a good start in consulting concerned parties and establishing its scope of work. SHPOs become overburdened with requests for their concurrence in determinations, to say nothing of requests for “clearance” or its equivalent. Agencies get frustrated with the speed at which SHPO review proceeds. When asked how things can be sped up, the SHPO is likely to say: “Pay me so I can put on more staff.”

This sort of question and answer, I suspect, is what has led to the ACHP legal opinion. Now consider what may happen as agencies digest it. Agencies pay SHPOs. SHPOs lay on staff. Staff speeds up the processing of agency paperwork. All very well, except we ought, perhaps, to remember that Section 106 review isn’t supposed to be about the efficient processing of paper; it’s supposed to be about reasoned consultation to balance the interests of preservation and other public values. And of course, paying for the processing of determinations and agreement documents inevitably raises the specter of conflict between the SHPO’s duty to his or her state’s citizens and to the agency with which he or she is contracting.

We’re already well along in the process of turning SHPO offices into paperwork processing mills, whose driving priorities are turning reviews around, getting the paper out the door. I’m afraid the ACHP’s legal opinion – correct as it is – is going to exacerbate this process.

It’s really time – it’s been time for a decade or more – for the parties who oversee how things are done under NHPA – that is, NPS and the ACHP, with the agencies, SHPOs and, critically, non-governmental interests – to step back and take a hard look at how the system’s working, and how it can be made better to fulfill the purposes of the statute. I know, I know, the ACHP has undertaken reviews from time to time under various authorities, but these tend to be very internal-to-the-government, and they tend to produce easily ignored fluff. And they look outward and criticize the agencies; they don’t look critically at how the ACHP, NPS, and SHPOs themselves do their business.

We ought to have a system in which agency payments to an SHPO, if they must be made, are made not to accelerate the processing of determinations of eligibility and effect or the conclusion of agreements, but to inform early agency planning – to help make sure that all the appropriate consulting parties have been identified and brought into consultation, and that the agency, with those consulting parties and the public, has done a good job of scoping its identification and effect determination work. That, I think, could both speed up review and make it more meaningful and responsible; it could not only better fulfill the agency’s responsibilities but also help the SHPO really “reflect the interests of the state and its citizens in the preservation of their cultural heritage.” The ACHP legal opinion certainly doesn’t preclude that sort of arrangement, but SHPO operations under NPS oversight don’t encourage it. That’s a problem that the ACHP ought to think and advise about.

Wednesday, August 25, 2010

The ACHP on "Reasonable and Good Faith" Identification

Unaccustomed as I am to saying anything good about the U.S. Advisory Council on Historic Preservation (ACHP), I’m happy to report that in my opinion, they provided some pretty decent guidance recently about what constitutes a “reasonable and good faith effort” to identify historic properties under their regulations (36 CFR 800). This shouldn’t be a challenging question, but it seems to be; federal agencies, State Historic Preservation Officers (SHPOs) and others are forever trying to translate the simple terminology of the regulations into hard-and-fast standards, which leads to all kinds of idiotic arguments. Does a “reasonable and good faith effort” always demand an archaeological survey? A survey of possibly historic buildings? A landscape study? Must we space our archaeologists ten meters apart on the ground, or will fifteen do? Must everybody on the team have an advanced degree? Oh dear oh dear; whatever shall we do?

The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:

In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:

(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.

Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see, which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –

That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.

That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:

(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.

Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.

And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.

The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.