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.

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.

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?

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 (www.achp.gov), 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.