The Archaeology Channel

If you're looking for a worthy place to send a year-end donation, and are turned off by the major charities, please consider The Archaeology Channel (TAC) -- see message below from its guru, Ric, Pettigrew.  I donate a pittance annually.

Happy new year,
Tom

To our existing and recent supporting TAC Members and friends: In these economically difficult times, our nonprofit organization, Archaeological Legacy Institute, faces some tough challenges in maintaining and growing our programs, including The Archaeology Channel (www.archaeologychannel.org), our very popular visitor-supported streaming-media Web site devoted to telling the human story. This last week of the year is a special time for us, as many people choose this time to make their 2011 tax-deductible contributions.


If you are one of those people or you might consider becoming one, please take this opportunity to follow through with that. We have been sending out regular renewal reminders to supporting Members, so you might have received a message saying your renewal anniversary date is passed or is coming up soon. If that is the case, or if you want to make a supplementary contribution, please go ahead and do that now! See the instructions at http://www.archaeologychannel.org/member/member.htm. By pooling small contributions from many people, we will create a more stable and reliable income stream that is less dependent on the decisions of large sponsors. This is an important key to the success of TAC.

With your help, we are working to achieve some key breakthroughs in 2012. In the coming year, among other things, we plan to complete the make-over of TAC and begin development of a new nationwide cable TV channel to show content that we currently are not showing on TAC. The more financial support we have, the faster and more effective we will be in pursuing these initiatives.

If you have friends or associates who might be willing to support our public mission, please point them in our direction. One way to do that would be to forward this message to them. As you know, our standard Individual Membership is $45 and an Organizational Membership is $250, but we accept any amount, smaller or larger. All the information needed to renew or to become a supporting Member is on our Web site at http://www.archaeologychannel.org/member/member.htm.

Just five days left in 2011! Thanks very much.

Rick Pettigrew
Archaeological Legacy Institute
http://www.archaeologychannel.org/

Good (I think) On-Line Instruction re. Tribal Consultation

For all those who keep asking about training in consultation with American Indian tribes (2 or 3 in the last year or so): the Natural Resources Conservation Service (NRCS) in the U.S. Department of Agriculture has just come out with a nice (I think) on-line class that's available free to the public (You do have to register, but it doesn't cost anything).  It can be accessed at http://www.tribal.golearnportal.org/ .  Lots of good information, and it strikes me as quite a balanced, accurate presentation with plenty of good advice.

The Corps of Engineers Needs an Appendectomy

Introduction:

First a bit of background. Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) issues (and very occasionally denies) permits for filling wetlands, building piers, and other activities affecting the waters of the United States The Corps has extensive regulations governing its regulatory activities, which can be viewed along with much supporting data at http://www.usace.arm.mil/CECW/Pages/reg_materials.aspx.


Although Corps regulatory decisions require compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act, back in the 1980s the Corps decided that it was far too much trouble to follow the regular Section 106 regulations (36 CFR 800), so they came up with a sort of alternative, which they embedded in their regulatory program regs (33 CFR 320-232 and 334) as “Appendix C.”

Appendix C set up a strange, intricate system by which the Corps can regularly turn a blind eye to the impacts of any regulated project that occurred outside a Corps-defined “permit area” that is generally restricted to the affected waters, though the system allows for a variety of rather capricious exceptions. Never mind that under NEPA agencies are responsible for addressing the effects of their actions – not just those that occur within specific areas under their jurisdiction and control. Never mind that Section 106 imposes a similar standard. To the Corps – with those various exceptions that the District Engineer can invoke or not, as the spirit moves him – what’s outside the permit area doesn’t exist. Unless it’s something that’s on the National Register; then maybe they’ll consider effects on it. Never mind, here, that Section 106 applies both to properties that are on the Register and those that are eligible for it; it’s just too much trouble for the Corps to do what Congress told them to do.

The Advisory Council on Historic Preservation (ACHP) and the National Park Service (NPS) have regularly advised the Corps that Appendix C’s not worth the paper it’s written on. So have innumerable State Historic Preservation Officers (SHPOs), Indian tribes, and other knowledgeable and authoritative bodies. So, on several occasions, have the courts. But the Corps has persisted, every now and then setting up working groups to “reconsider” Appendix C but never actually doing anything about it.

Now, in response to President Obama’s Executive Order 13563, which directed agencies to undertake “retrospective reviews” of their regulatory systems to see how they could be improved, the Corps has once again sought public comments on its regulations. It will doubtless ignore whatever comments it receives, as it always has in the past, but some of us are moved to tilt at windmills and will file comments. If by chance you are so moved, you can submit your comments to docket number COE-2011-0028 at http://www.regulations.gov, or by email to regulatory.review@usace.army.mil – or by snail mail to HQ, US Army Corps of Engineers, Directorate of Civil Works, ATTN: CECW-CO-R, 441 G. Street NW, Washington DC 2-314-1000. But you need to get them in by January 17, 2012.

Ira Beckerman's Comments

If you’re moved to comment, you could do worse than to use the following as a template; it was prepared by Ira Beckerman of the Pennsylvania Department of Transportation and is published here with his permission. He drafted it for his agency, and stresses that it will not necessarily look precisely as it does now when it’s officially submitted to the Corps.

Thank you for the opportunity to comment on the Corps’ existing regulations. In particular, we respond to question 4: “How can the Regulations be changed to better harmonize with, be consistent with, and coordinate effectively with, other federal regulations and environmental review procedures?” With regard to archaeological and historic resources, our agency has one basic comment: 33 CFR 325, Appendix C - Procedures for the Protection of Historic Properties – should be abolished. In its place, the Corp should adopt the Advisory Council on Historic Preservation’s Regulations, 36 CFR 800. There are a number of reasons for doing so.


1. All of the substantive issues raised in Appendix C are already covered in 36 CFR 800 and in roughly the same way. Appendix C is duplicative regulation.


2. Appendix C has never been approved by the Advisory Council and the Corps has never recognized Advisory Council regulations. Consequently, it has been impossible for a state agency such as PennDOT to develop a programmatic agreement to cover historic resources since the two essential signatories cannot come to agreement on the basic set of regulations supporting the agreement.


3. The Advisory Council has a long-established and lengthy set of guidance for interpretation of 36 CFR 800. Generally, this guidance is well understood by other Federal Agencies and applicants (including PennDOT). The development of a duplicative set of regulations by the Corps without the commensurate history of guidance and the Corps unwillingness to seek assistance from the Advisory Council has resulting in Corps staff offering inconsistent and conflicting interpretations of Section 106 of the National Historic Preservation Act, which has increased PennDOT staff workloads and increased the time it takes to complete the process. The presence of 3 main Corps Districts in Pennsylvania has added to the inconsistency, as each District must interpret Corps regulations independently.


4. In Pennsylvania, the SHPO and most Federal agencies, including FHWA, have worked out protocols for the implementation of 36 CFR 800. The protocols provide predictability in process and outcome, and, in particular establish a useful role for the Advisory Council. Even mundane issues such as who should sign off on an MOA first must be worked out differently. PennDOT now works in largely an electronic document environment, which is supported by the SHPO and FHWA. Corps protocols do not fully support this environment. The Corps utilizing its own protocol adds work to the SHPO and PennDOT in duplicative processes and training.


5. The Corps has expressed concerns that acceptance of the Area of Potential Effect (APE) as defined by the Advisory Council would unduly burden the Corps and require it to regulate more than it should. In lieu of (APE), the Corps has developed the concept of permit area. We do not believe acceptance of the Advisory Council standard of APE will unduly burden the Corps. Council regulations are clear that the undertaking and applicability of Section 106 is constrained by: the Agency Official (Corps) determining whether the action is an undertaking (36 CFR 800.3.a); the Agency Official determining the Area of Potential Effects (36 CFR 800.4.a.1); and the Area of Potential Effect influence by the scale and nature of the undertaking (36 CFR 800.16.d). Other Federal agencies with apparently open-ended Areas of Potential Effect have successfully managed to establish limits, and with the assistance of the Advisory Council.

Quibbles and Conclusions

There are aspects of Ira’s comments with which I could quibble – for instance, agencies are not in fact allowed by the 106 regs to determine whether something is an “undertaking;” that term is defined in the statute itself. And as I’ve explained in these pages and elsewhere, I don’t think the ACHP regs are such great shakes; it would be nice if the ACHP's own retrospective review resulted in some fixes (I am, however, not holding my breath). But it is ridiculous for the Corps to follow its own manifestly extra-legal procedures rather than the existing or some future revised standard 106 process; it complicates life for applicants, the affected public, oversight bodies like SHPOs, and probably Corps staff themselves. It’s a waste of time, money, and everyone’s patience.

The Corps probably needs ways to simplify review of little dinky routine projects, but so do most other agencies, and the 106 regulations provide lots of ways to do this. What they do not provide is the authority for agencies to just waltz off and do their own 106 regs without the ACHP’s by-your-leave. The author of Appendix C, who was pathologically fixated on their perpetuation, has long since retired; it’s time for the Corps to join the rest of the world, and reduce the federal regulatory portfolio a little by excising its silly appendix.

Blog 2005-2011 is on Kindle

In response to no popular requests at all, but to reports that pieces from this blog are becoming assigned readings in a few academic CRM (or CRMesque) classes -- and just in time for holiday giving -- I've organized, indexed, and published most of the posts that have appeared here so far as an Amazon Kindle book, which just went live on the Kindle Store at http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4/ref=sr_1_1?s=books&ie=UTF8&qid=1322650842&sr=1-1 .  Assuming it will be a supplementary text, I've set a low, low price of $5.00.  It's called CRMundgeoneity: Readings from Tom King's CRM Plus Blog, 2005-2011.  The experience of publishing on Kindle was an interesting one, and suggests ways to get a lot of our infamous "grey literature" into accessible form.

The ACHP on Reason and Good Faith: an Annotated Version

Introduction:  One of the core requirements of the regulations (36 CFR 800) implementing Section 106 of the National Historic Preservation Act (NHPA) is that agencies make a "reasonable and good faith effort" to identify historic properties subject to effect by their undertakings.  The Advisory Council on Historic Preservation (ACHP) has just issued guidelines for making such efforts, and they're to be congratulated for doing so.  The guidelines should be helpful, though they also contain some perhaps risky ambiguities, and they are not by any means all they could be. 

The squeaky-clean version of the guidance will presumably soon be posted at http://www.achp.gov/.  Below is the complete text with my annotations interspersed.

MEETING THE "REASONABLE AND GOOD FAITH" IDENTIFICATION STANDARD

IN SECTION 106 REVIEW

The regulations implementing Section 106 of the National Historic Preservation Act ("Protection of Historic Properties," 36 CFR Part 800) require federal agencies to identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings. Section 800.4(b)(1) of these regulations states that federal agency officials shall make a "reasonable and good faith effort" to identify historic properties.

The ACHP is regularly asked how to determine when an adequate identification effort has been made— that is, at what point a federal agency has made a reasonable and good faith effort to determine whether historic properties are located within an undertaking's APE, which is the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Answering this question requires an understanding of what the ACHP's regulations say regarding the identification of historic properties.

Prior to beginning the identification stage in the Section 106 process, the regulations (at 36 CFR § 800.4) require the federal agency to do the following:

• Determine and document the APE in order to define where the agency will look for historic properties that may be directly or indirectly affected by the undertaking;

• Review existing information on known and potential historic properties within the APE, so the agency will have current data on what can be expected, or may be encountered, within the APE;

• Seek information from others who may have knowledge of historic properties in the area. This includes the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO) and, as appropriate, Indian tribes or Native Hawaiian organizations who may have concerns about historic properties of religious and cultural significance to them within the APE.


Annotation:  The regulations actually require something else even earlier. At 36 CFR §§ 800.3(e) and (f) they require the federal agency to:


• Plan to involve the public, and


• Identify other consulting parties


The fact that these activities are supposed to be carried out BEFORE the agency undertakes the scoping actions listed at 36 CFR § 800.4 surely suggests that consulting parties should be involved in those scoping activities – otherwise why do them first? And of course, how can one “seek information from others” if one has not figured out who those “others” – quite likely consulting parties and/or members of the public – are?

This is not just a matter of word play. One of the continuing problems we face in Section 106 review is that agencies make unilateral decisions about APEs and identification methods without talking to anybody – except maybe the overburdened SHPO staff, who often have an understandable tendency to say “oh yeah, sure, whatever,” or “Follow our Handbook 1999-X57b.” Then by the time those publics and consulting parties who were supposed to be roped in back at 800.3(e) and (f) find out what’s happening, the agency’s set on its course and the SHPO, having gone along with it, may be disinclined to say “oops.”

Following these initial steps, the regulations (36 CFR § 800.4(b)(1)) set out several factors the agency must consider in determining what is a "reasonable and good faith effort" to identify historic properties. They call for the agency official to "take into account past planning, research and studies; the magnitude and nature of the undertaking and the degree of federal involvement; the nature and extent of potential effects on historic properties; and the likely nature and location of historic properties within the APE. The Secretary of the Interior's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, state, tribal, and local laws, standards, and guidelines. The regulations note that a reasonable and good faith effort may consist of or include "background research, consultation, oral history interviews, sample field investigation, and field survey."

Annotation: And I feel sure – or at least hope – that the ACHP would agree that the list given in the regulations is not an exhaustive one. It doesn’t preclude the use of LIDAR or other remote sensing methods, targeted studies to address particular questions (Is it REALLY likely that Jimmy Hoffa is entombed in the concrete pillars of this otherwise undistinguished parking garage?), ethnographic research, and even experimental techniques like the application of remote viewing. But deciding what to do requires consulting knowledgeable and thoughtful people about what the scope of the identification work should be. This is one reason that broad, multi-party consultation is so important to the scoping effort.

When asked to provide its advisory opinion (pursuant to 36 CFR § 800.2(b)(2)) on the adequacy of a specific identification effort, the ACHP will evaluate the agency's efforts in light of these factors and the following criteria.

1. The identification effort is reasonable when it is logically designed to identify eligible properties that may be affected by the undertaking, without being excessive or inadequate in light of the factors cited above. While it may be appropriate in some circumstances to identify all historic properties in the APE, it is important to note that the regulations do not require identification of all properties.

Annotation:  This is an extraordinarily important point that needs to be carefully noted, and that will probably be widely misinterpreted. First, it’s a recognition of reality. Nobody can ever be sure that they’ve identified all the historic properties in an area. There’s no telling what’s lurking under the playground pavement or inside the walls of the warehouse. Second, there’s often no need to identify all the properties. Suppose you’re looking at the visual impacts of a project, at some distance from the project site. There may be thousands of individual structures and landscapes subject to visual impact. Do you have to go out and evaluate each one? The National Register will probably pat you on the head if you do, but it’s really not necessary. What’s needed is to determine that you do or don’t probably have a bunch of historic buildings, landscapes, viewpoints, etc. up there on which – or rather, on the human use of which – the project may have visual effects. Maybe you need to document a sample of them; maybe you don’t. Maybe generalities will suffice.


Thinking that you’ve got to identify “all” the historic properties I an APE is one thing that drives agencies to define APEs too narrowly, to ignore whole ranges of effects. So it’s important to understand that this isn’t necessary. On the other hand, what the ACHP is NOT saying is that just identifying, say, what’s already on the Register is OK. You have to make a reasonable and good faith effort to identify not only registered places but eligible ones as well. Exactly how much identification you need to do is something to be worked out – with the consulting parties – during scoping.

A reasonable identification plan is one that includes the following:

• Documentation of the horizontal and vertical extent of the APE that accounts for direct and indirect effects;

• An explanation of how the factors cited above inform the content and intensity of the identification plan. This could include information on past work in the area, scope of federal involvement in the undertaking, and the undertaking's magnitude and anticipated effects on any historic properties that might exist in the APE;

• A review of existing information on historic properties within the APE, including information about possible historic properties not yet identified;

• A cognizance of applicable professional, state, tribal, and local laws, standards, and guidelines;

• A familiarity with methodologies used in other historic property surveys in the area that have been effective in terms of time and cost;

• A clear description of the steps that will be taken during field investigations, during the analysis of field results, and in the subsequent reporting and consultation, to determine the presence or absence of historic properties within the APE.

Annotation:  I think it’s unfortunate that the ACHP didn’t add that the plan should clearly reflect the results of consultation with those folks identified back in 800.3, and whose data were elicited under 800.4. I think it’s obvious that it should. What was all that identification and elicitation for if not to gain the benefit of their wisdom?


2. The identification effort is carried out in good faith when it is fully implemented by or on behalf of the federal agency.

Annotation:  I trust this direction will not be taken out of context, since it implies that any ID effort is ipso facto done in good faith if it’s done by or for a federal agency. The ACHP’s seeming faith in the reason and honor of its sister agencies may be touching and generous, but it is not, I think, very well advised. The ACHP would have been well advised to consider the rule set down by the Tenth Circuit Court of Appeals in Pueblo of Sandia v. United States, 50 F.3d 856, 1995 -- essentially, that lying to and withholding data from the SHPO (and implicitly from other consulting parties) is a clear indication of bad faith.

3. An identification plan that is appropriate to the nature and scale of the undertaking is carried out in good faith when it meets the following criteria:

• The plan is carried out in consultation with, as appropriate, the SHPO, THPO, and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE;

Annotation:  Here the ACHP seems to forget that there are other American citizens, and maybe even non-citizens, who ought to be consulted if an agency is to say it has made a reasonable or good faith effort that is appropriate to the nature of the undertaking. If the nature of the undertaking is, say, that it will demolish an ethnic Turkish-American neighborhood, would it be reasonable or in good faith just to consult with the SHPO and the Indian Tribe that once occupied the area?

• Is initiated in a timely manner that allows for appropriate analysis and reporting, with adequate time for review by the consulting parties;

• Is carried out by a qualified individual or individuals who meet the Secretary of the Interior's qualification standards and have a demonstrated familiarity with the range of potentially historic properties that may be encountered, and their characteristics;

Annotation:  I question the easy (dare I say simpleminded?) reliance on the SOI’s qualifications standards here. NHPA Section 112 (added in 1992) says that agencies must use people who meet such standards, but it also directed the SOI and the Office of Personnel Management to get together, in consultation with a wide range of interested parties, to develop the pertinent standards, and that has never happened. The existing qualifications standards were cooked up ad hoc by a bunch of wet-behind-the-ears NPS “professionals” (myself included) back in the early 1970s, and to treat them as mandatory today is ridiculous. Agencies, SHPOs, tribes and other consulting parties need the flexibility to experiment with different kinds of expertise, and to effect cross-fertilization between disciplines and areas. Demanding that an SOI-qualified person “carry out” each identification operation is a formula for intellectual stultification and rote performance.

• Acknowledges the special expertise possessed by Indian tribes and Native Hawaiian organizations in assessing the eligibility of historic properties that may possess religious and cultural significance to them (regardless of whether or not such tribes and organizations meet the Secretary's qualification standards);

• Is fully supported by adequate funding and other necessary resources, and

• Is not compromised by lack of integrity or omission, such as manipulating or ignoring evidence.

Note that the regulations require that a reasonable and good faith effort to identify historic properties include some level of effort—at a minimum, a review of existing information on historic properties that are located or may be located within the APE (36 CFR § 800.4(a)(2)). Such an effort may consist of one or more methodologies and should be designed so that the federal agency can ensure that it produces enough information, in enough detail, to determine what the undertaking's effects will likely be on historic properties.

Annotation:  That, I think, is the key rule: has the agency collected enough information, of the right kinds, to permit it to determine effects (and move toward resolving them)? That, after all, is what the exercise is all about.


It is also important to keep in mind what a reasonable and good faith identification effort does not require:

• The "approval" of a SHPO/THiP0 or other consulting party. The ACHP, SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.

Annotation:  Very true, and very important. Conversely, though, an identification effort that ignores what the ACHP, SHPO, THPO, and other acronyms (or real people) recommend could be taken to be arbitrary and capricious.

• Identification of every historic property within the APE. One of the reasons the ACHP's regulations contain a post-review discovery provision (36 CFR § 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.

Annotation:  Yes, but that’s not an excuse for saying “oh, we’ll skip identification now and just monitor construction.” Section 106 is a planning law, not a post-hoc pick-up-the-pieces law. The agency needs to identify enough to make reasonable judgments about effects, and the wise agency will try to do a good enough job to minimize the potential for expensive late discoveries.

• Investigations outside of, or below, a properly documented APE. The Section 106 process does not require that the agency search for all historic properties in a given area. Because the APE defines the geographic limits of federal agency responsibility for purposes of Section 106 review, identification efforts are carried out within its boundaries.

Annotation:  First, note the term “properly documented,” which I presume means justified in some manner other than “duh, it’s the construction boundary,” or “duh, it’s were we drew the line.” Second, it needs to be remembered that there can be multiple APEs, their boundaries may be quite justifiably softly defined, and they may evolve as the project plans evolve. Third, some kinds of historic properties may extend far beyond an APE’s boundaries, and even entirely embrace the APE and its surroundings. This doesn’t justify doing detailed studies to characterize such properties, but it doesn’t justify ignoring them either, just because they extend beyond the APE. I invented the term APE back in 1984-85, and it seemed like a good idea at the time. Now I regret it. Often the APE can’t be defined very well, and it may be unnecessary.


• Ground verification of the entire APE. In many cases, areas can be considered to have a certain probability of containing historic properties based on current knowledge. This or similar characterizations can be used to justify where within the APE most identification efforts will or should be targeted. Predictive models that have been tested and found to be reasonably efficient can also assist federal agencies to meet the "reasonable and good faith" identification standard.

Annotation: "Ground verification,” I presume, means walking or driving or crawling over the whole APE. This is a very good point; you don’t need to do this if you can adequately characterize what’s out there, and what may be affected, without doing so. If the ground’s covered with asphalt, for heaven’s sake don’t have archaeologists walk across it at 5 meter intervals scratching the macadam with their Marshalltowns. Think creatively – consider predictions based on history, oral history, and/or environmental reconstructions (even if they HAVEN’T been tested; maybe this is an opportunity to test them. Consider LIDAR and other forms of remote sensing. Bring in a well-qualified geoarchaeologist. Talk to collectors about what artifacts they’ve found there. And generally, talk to the people.

In sum, the Section 106 regulations require federal agencies to make a "reasonable and good faith effort" to identify historic properties that may be affected by their undertakings. The regulations set out several factors that need to be considered in making the effort both reasonable in terms of intensity and scale, and carried out in good faith through its development and execution. The ACHP's online archaeology guidance provides further detailed discussion on how these factors can be applied to archaeological sites to ensure Section 106 identification plans are adequate and appropriate to a given situation (http://www.achp.gov/archguide/). The ACHP's professional staff is also available to assist agencies, SHPOs/THPOs, consultants, and contractors in interpreting the reasonable and good faith standard when questions or disputes arise.

What Constitutes a “Project” Subject to Review under Section 106? Some Useful Guidance from the ACHP

Introduction
 Under Section 106 of the National Historic Preservation Act (NHPA), federal “undertakings” are reviewed for their effects on historic properties, which are then (we hope) resolved through consultation. “Undertaking” can mean lots of things, but “projects” – specific developments, construction operations, land-use activities addressing more or less particular pieces of land – are unequivocally included if there’s some kind of federal involvement in them.


But when you have a project that involves a federal agency but also extends into geographic or other areas where the agency has no jurisdiction, where does the “project” stop for purposes of Section 106? For instance, if the Forest Service or Bureau of Land Management is considering a road across federal land to permit Oliver Oilrig to access the private land on which he wants to drill a well, is the “project” just the right-of-way across Federal land, or the right-of-way plus Oliver’s property?


I was recently asked about this, and – my files and memory failing me when I searched for the antique examples of cases where the matter had been more or less worked out with agencies like the Forest Service, Bureau of Land Management, and Corps of Engineers – I suggested that my interlocutor contact Javier Marquez, Associate General Counsel for the Advisory Council on Historic Preservation. Javier responded with admirable promptness, sharing a memo he had prepared some time ago that had never gotten distributed outside the ACHP and extending the invitation to share it more widely. Here’s what it says:


ACHP Memo

An important series of cases in the Fourth Circuit provide on point caselaw regarding the scope of “undertakings” whose effects must be considered under Section 106. The Fourth Circuit and judges in the district courts in Virginia have been particularly adamant in their opposition to the concept of agencies putting blinders on when defining the scope of the "project" subject to environmental review under Section 106. This is evident in cases dealing with segmentation. While the issue at hand is not technically a "segmentation" issue, the analysis attempts to solve the same problem: how to define the scope of the "project" whose effects must be considered.
 For example, in Crutchfield v. U.S. Army Corps of Engineers, 154 F.Supp.2d 878 (E.D.Va. 2001), the court held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering under Section 106 the effects of an associated sewer interceptor, even though the interceptor was not part of the permit application submitted by the County applicant. In determining whether the interceptor was part of the "project" subject to environmental review, the court saw the issue as boiling down to whether the specifically permitted plant had independent utility without the interceptor. Id. at 889. It held that it did not, since it served no rational need in its own right without the interceptor. Id. at 902. Accordingly, the court ruled that for Section 106 purposes "... the determination of the 'effect of the undertaking on any [historic property]' could not be properly made because the TC Interceptor was not considered part of the 'undertaking.'" Id. at 905. Accordingly, under Section 106, agencies must consider the effects of an entire, proposed development on historic properties. The entire development is the "project" for Section 106 purposes because the specific works permitted by the agency serve no rational need in their own right without the proposed, overall development they will serve.

 In a separate case cited by the Crutchfield court, the Eastern District of Virginia grappled with whether the Federal Highway Administration's funding of one expressway in Richmond, Virginia would require its consideration of the effects of a separate expressway that, while also in Richmond, did not have such Federal funding. River v. Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D.Va. 1973) , aff’d, 481 F.2d 1280 (4th Cir. 1973). In declining to look at the two expressways as one "project" for Section 106 purposes, the court explained that "... if the Court concludes that the two highways each have such little value in their own right that their separate construction could be considered arbitrary or irrational, the Court will find them to be a single project." Id. at 635. The Fourth Circuit affirmed the court's opinion in a short, per curiam decision. Again, as explained above, if the separate construction of the specific works permitted by an agency have very little (if any) value in their own right separate from the overall development project they serve, the overall development project must be considered under Section 106. Without the overall development project, those specifically permitted works would serve no useful purpose.

Applying this rule to the case of Oliver Oilrig, it appears that if the proposed road serves no plausible purpose other than serving Oliver’s drill site, then the federal land managing agency (probably BLM or the Forest Service) must review the whole project, including Oli’s property and the effects of his drilling, under Section 106. If on the other hand the road will go on to provide access to a public campground or Sasquatch-watching site, then maybe Oli’s property can be excluded. How the courts (or agencies) would feel about made-up cases designed to demonstrate “independent utility” will doubtless be revealed in time.

The cases cited by Marquez are, of course, in the Fourth Circuit, covering Maryland, Virginia, West Virginia, and the Carolinas; they aren’t precedential in other circuits, but they can certainly be cited, and any judge will want to consider them. Federal agencies and applicants for federal assistance, permits, licenses and rights-of-way would be well advised to do the same.

Thanks, Javier; I think this will be helpful to a lot of people in understanding the scope and limitations of Section 106.

A Good Historic Preservation Plan (I think)

Thanks to Sherman Banker of the Wisconsin SHPO, via Claudia Nissley, for making me aware of the Historic Preservation Plan for the University of Minnesota, Morris -- http://www.morris.umn.edu/preservation/UMM_Historic_Preservation_Plan.pdf. It looks to me like an excellent model for institutions and agencies with historic (or partly historic or maybe historic, or just nice) campuses (or similar facilities) to manage (e.g. military bases, veterans hospitals, colleges, fairgrounds, parks). Very much worth taking a look at by anyone who needs or wants to put together a plan for such a facility.


I was initially a bit put off by its inclusion of an “historic context” section, but it turned out actually to be useful – relating directly to what remains of the campus’ buildings and landscaping relating to different periods of development, functions, and pedagological philosophy. The plan goes on to quite systematically identify what it is that makes the campus special in general, and then to break it down by area and building, identifying key elements and laying out treatment recommendations for each. 

I suppose I would have liked to have seen a little more evidence of participation in plan development by those affected – in this case, students and faculty – but that aside, I think it’s a fine model. Of course, the authors had a very good complex of buildings and grounds with which to work.

The only criticism I’ve heard is from someone who said “It doesn’t follow NPS guidelines.” Well, gee. The key thing to remember about NPS guidelines is that – like the Pirate Code – they are ONLY guidelines.

Being a Veteran on Veterans' Day

I’m a bit embarrassed by this year’s Veterans’ Day effusions – not because a lot of veterans don’t deserve recognition and support, in fact far more support than many get from our society – but because for the first time some of the effusions have been aimed at ME; people have been thanking ME for my military service. I was particularly taken aback when my son Josh posted a message on Facebook doing so.


Let me set the record straight. Yes, I’m a veteran, having served on active duty in the Navy from 1961 through 63. But…..

1. There was a draft in those days; I had the choice of joining the Navy or risking getting drafted into the Army. I was too stupid to give this much thought, but my father, thank goodness, saw what was coming in Southeast Asia and insisted that I join the Naval Reserve. When my draft notice actually came in, I was safely at sea, and my father delighted in so advising the draft board. So my “service” at sea arguably saved me from service in Viet Nam, which would quite possibly have gotten me killed, maimed, or even more messed up psychologically than I am. Incidentally, my father pressured my brother into Naval service just before the Korean war got underway, quite likely saving him from a similar fate. We both owe him (a World War II veteran) a considerable debt.

2. I served my country by helping operate a Landing Ship, Tank (LST) that hauled cargo and people – guns, tanks, trucks, bombs, Marines – around east Asia. I managed not to sink or blow up the ship when I was in positions to do so, and didn’t make too terrible a spectacle of myself on liberty in port, but that was about all I did.

3. In the course of those two years I learned a tremendous amount and spent time in some fabulous places – Tokyo, Hong Kong, Manila, Bangkok, and many, many points between.

4. I got home in time to take part in the anti-war movement with no fear of being drafted and shipped off to ‘Nam.

5. My veteran’s status made me eligible for loan guarantees without which I wouldn’t have been able to go to college. It also got me a mortgage guarantee that allowed me to purchase a home. It gave me preferred access to jobs in the federal government. Even now, fifty years after the Navy, with some relief, gave me my discharge, I have preferred access to certain federal contracts. It’s safe to say that my military “service” made my whole career possible. For better or for worse.

This nation, in short, owes me no thanks; rather, I’m thankful for what it’s allowed me to leverage with my modicum of military service. And my respect goes to those who’ve really served, really been shot at, wounded, traumatized, and killed – whether the wars they were sent to fight made much sense or not.

Speaking of whom: it was great to see Sonny Trimble and his Veterans’ Curation Project (VCP -- http://www.mvs.usace.army.mil/engr/curation/ARRA%20VCP/VCPHome.html --) featured on the PBS News Hour this evening. My colleagues in cultural resource management (or not) can show their gratitude to the nation’s veterans by hiring graduates of the VCP, or of the similarly motivated Veterans’ Preservation Corps (http://www.preservationarts.net/index.php/veterans_preservation_corps.html).

Traditional Cultural Properties, “Long-Term Use,” and “Sustained Awareness”

I’m reviewing a report on an area’s “cultural resources” (by which the authors seem to mean archaeological stuff, with an occasional bow to old buildings), prepared in connection with an environmental impact assessment of a proposed land use project. Toward its end, as something of an afterthought, the report talks a little about whether the landscape within which lie the hundreds of “archaeological sites” it’s described might be a “traditional cultural property” (TCP) that’s eligible for the National Register of Historic Places.

The report was prepared by contractors working for the private company that proposes to build stuff all over the subject landscape, so predictably (given sad current practice) its authors do everything they can to downplay the area’s cultural significance – except to some extent the research significance of the “archaeological sites,” which they can be paid to dig up as “mitigation.” So, despite pretty vehement representations by tribes that value the landscape (and without consulting the tribes, the SHPO, or apparently anybody else), they say nope, it’s not a TCP.

Why? Because, they say:

TCPs … must exhibit long term use or sustained awareness by the community.

In other words, if the relevant community hasn’t “used” the property over the “long term,” and/or maintained some kind of unspecified “awareness” of it, the property is not a TCP.

Now, in this particular case it’s notable that nobody seems to have asked the tribes whether and how they “use” the landscape in question, or what “awareness” they have of its cultural significance (Archaeologists, after all, are experts, so they must just know this stuff through osmosis or something).  In fact there are good reasons to think that tribal members are well aware of the landscape and its cultural character, and use it for both spiritual purposes and the education of youth. But never mind the particulars: does it make sense to say, in principle, that a community must continue to “use” a place, or be “aware” of specifics about it, in order for it to be a TCP, and eligible for the National Register as such?

Continuing Use

National Register Bulletin 38 (http://www.nps.gov/nr/publications/bulletins/pdfs/nrb38.pdf ), which (like it or not) is the National Register’s official word on the subject, says:

The fact that a property may have gone unused for a lengthy period of time, with use beginning again only recently, does not make the property ineligible for the (National) Register.


The Bulletin goes on to posit a situation in which a group revered a particular mountain in the past, but then was forcibly relocated to someplace where it could not readily access the mountain, and coerced into a religious conversion that caused them to ignore the mountain’s spiritual significance. It goes on to imagine the group now undergoing a cultural revival in which it seeks to reconstruct its relationship with the mountain, and concludes:

The fact that the contemporary use of the peak has little continuous time depth does not make the peak ineligible; the peak’s association with the traditional activity reflected in its contemporary use is what must be considered in determining eligibility.

So you don’t have to have “continuing use,” and let me add that it would be especially ironic (to put it mildly) for the federal government – which for many decades pursued policies of disconnecting tribes from their traditional religions and lands – to insist on “continuing use” as a prerequisite to recognizing a place’s cultural significance.

Sustained Awareness

But does the tribe or other group not at least have to be aware of the place in order for it to be significant? We didn’t think about this one in writing Bulletin 38, but it soon came up in practice, and I discussed it on pages 256-7 of Places That Count, my 2006 book on TCPs (http://www.amazon.com/Traditional-Cultural-Properties-Resource-Management/dp/0759100713) . As an example I looked briefly at Hopi and Zuni beliefs that their ancestors traveled all over the Southwest after their emergence into this world, guided, facilitated, and impeded by supernatural forces. The Hopi and Zuni have said that wherever their ancestors left evidence of their passing, that’s a TCP. They don’t know where all those places are, but they know them when they see them. Similarly, I quoted from an Australian case in which an aboriginal expert from one part of the country was able to recognize a place in an area he had never before visited, because of the way it is described in a traditional story, and thus know that (a) it was associated with a moiety not his own and (b) it was to be respected as such.

Clearly, a Hopi or Zuni elder cannot be said to have had “sustained awareness” of, say, archaeological site AZ-CIB-666P5 (if there is such a place), which he or she has never seen.  But he or she knows that such places – with particular kinds of potsherds and masonry – are associated with the ancestors, and he or she knows that if he or she does visit it, there are things to be done to show respect – prayers, maybe an offering – and that one ought not mess the place up if one can help it. The aboriginal expert in the Australian case knew that there were things to do – maybe recite from a song, maybe refrain from picking things up – to respect the ancestral spirits of the moiety associated with the hitherto unvisited place. Are these associations sufficient to make such a place eligible for the National Register? I think so, though perhaps reasonable people can disagree. But surely it is clear that the mere fact that the Hopi don’t know precisely where each site associated with the ancestors is and what it looks like does not automatically make such sites ineligible for the Register; still less does it render them “not-TCPs.”

Unfortunately, the “continuing use” and “sustained awareness” criteria seem to be slipping into the practice of identifying (or trying hard not to identify) TCPs – spurred by the desire to avoid recognizing and dealing with such properties and to facilitate the projects of those who pay us CRM practitioners to make ostensibly objective and authoritative studies. If you want to use these criteria to help your client run roughshod over the cultural environment, that’s up to you, but please don’t pretend that you’re reflecting some widespread best practice or government guideline.

Thinking, and What to Do About It

One of my publishers is considering a new edition of one of my books, and sent out requests for recommendations from folks who've used it as a textbook. One of the responses went like this:


"(King) is getting more crotchety in his old age, but he makes you (the teacher) and the students think. I don’t always, or even 50% agree with him, but he always stimulates debate in my classes."

and...

"(I tell people): 'You need to read Tom King’s stuff. You laugh, you cry, you cringe, you yell at the book, but it always makes you think.'"

I appreciate those comments; I naturally like to think that my writings stimulate thinking. But I can't help but be a bit frustrated, too. "Hey, Reviewer," I think, "if you don't agree with half of what I write, and if you find yourself yelling at my books, why in the world don't you write something about the subject yourself? A book, a journal article, something on my (or someone else's) blog? Why don't we have a dialogue? That's how we both -- all -- can learn."

I expect the National Park Service, the Bureau of Land Management, and other bastions of the lightly-considered status quo to ignore my existence, and my expectations have never been disappointed.  But I do wonder about academics, who theoretically engage in scholarly discourse and encourage students to do the same. If you don't like or agree with what you read, sheesh, there are things to do about that. Question it!  Challenge it!  Argue about it!  Isn't that what scholars are supposed to do?
 
Only the most stultified of bureaucrats simply ignores what doesn't comport with what he thinks (or has been taught to think) and waits for it to be forgotten. But -- maybe I'm missing the real point.  Maybe life in a stultified bureaucracy is the kind of career for which you think you ought to prepare your students.

The Lihir Islands: a Cultural Heritage/Resource Planning Model?

The latest issue (18:1, 2011) of the International Journal of Cultural Property (Cambridge University Press) contains a number of thought-provoking papers. One that should be of special interest to those involved in environmental impact assessment (EIA) and cultural resource management (CRM) is "Stepping Stones Across the Lihir Islands: Developing Cultural Heritage Management in the Context of a Gold-Mining Operation," by Nicholas Bainton, Chris Ballard, Kirsty Gillespie, and Nicholas Hall (pp. 81-110].


The Lihir Islands are in Papua New Guinea (PNG). Bainton and his colleagues provide a concise summary of how cultural heritage/resource management law and practice have developed in PNG in the post-colonial period, including their hopeful if rather tenuous relationship to national development schemes and the interests of extractive industries like gold mining. They then discuss their own experience with a particularly tricky relationship -- that between the traditional people of the gold-rich Lihir Islands and the mining company Lihir Gold Ltd. (LGL) At the center of this uneasy relationship is Ailaya, a cultural landscape of considerable spiritual significance to the Lihirians, around which mining has taken place and within which there are economic incentives to mine (i.e. there's gold in that thar landscape). The evident conflict between mining and preservation of the landscape has not been resolved, but the Lihirians and Stepwise Heritage and Tourism, the Australian company that engaged Bainton and his colleagues and drew financial backing from LGL, have taken significant-seeming steps toward creating a context in which to address this and other development/culture conflicts by developing the Lihir Cultural Heritage Plan, whose pidgin name translates as “A Plan for Social Stability and Harmony on Lihir.” The authors' discussion of how this plan was developed in active collaboration with (really BY) Lihirian communities is fascinating, and may provide something of a model that – with much adaptation – could be useful elsewhere. It was interesting to me that the Lihir initiative employed the popular Australian "footsteps" approach to planning, which I've seen referred to and described but never until now could quite get into my head. Bainton and his colleagues show how "footsteps" works, and it seems very sensible. It will be interesting to see how successful the Plan is at resolving the seemingly inevitable conflict between mining and the sanctity of Ailaya, but one of the Plan's heartening aspects is that it does not (apparently) focus on the sacred landscape in its own right, for its own sake, as we would tend to do if it were in the U.S. and treated as eligible for the National Register of Historic Places.  Rather, as I understand it from this article, the Plan truly focuses on social stability and harmony on Lihir.  In this broad context, management of Ailaya will inevitably play an important role, but not necessarily a determinative one, and not in isolation from the rest of what Lihirians value in their culture.

Public Hearings, Public Participation, and Consultation

From Basin and Range Watch at http://basinandrangewatch.org/Stateline.html

September 3, 2011 - The Moreno Valley office of Bureau of Land Management (not the local Needles BLM office) held what was thought to be a scoping meeting at the Primm golf course for First Solar's Stateline Solar Farm application for a Right-of-Way for about 2,200 acres of public land next to the Ivanpah Solar Electric Generating System. Members of the public drove hours from as far as Palm Springs, Needles, and Las Vegas and beyond to the meeting thinking that they would be able to give voice to comments concerning the project. Union members, environmentalists, members of the Chemehuevi Tribe, and other concerned citizens attended the meeting hoping to have a chance to give comments in a public venue to the federal agency responsible for permitting the project.

They were denied this chance.

The meeting turned out to be a chance for First Solar to tell the public a few items about the proposed project, and then a "crowd-management" session of tables with various contractors available to answer questions privately. This is not what the public wanted. Quite often, in well-run BLM offices, scoping meetings will give people a chance to vocally enter comments into the record, and even have a recorder present to do this. Often an audience wants to hear other's concerns and learn about different issues and opinions. This is democracy after all.

But lately a new style of scoping has emerged, where the public is handed a sheet of paper and in 75 words or less asked to write comments to be handed in to BLM. No oral comments allowed. Jeffery Childers, BLM Project Manager for the application out of Moreno Valley, California, denied the public any chance to give public comments at this meeting after First Solar gave a brief review of the project. In addition, a county sheriff squad car was parked outside the building, and three BLM Law Enforcement Rangers armed with handguns and tasers were present in the room.

A colleague sent me the above link, asking if I was aware of similar forms of “consultation” or “scoping” used on other projects around the nation. My answer was sort of “a pox on both your houses.”


I’ve seen the basic format described above – presentation followed by breakouts – used quite responsibly in a lot of public participation efforts; it can be a lot more effective than the traditional “public hearing” as a means of sharing information and helping people understand a project and its potential impacts. Public hearings, in my experience, too often devolve into what a tribal colleague once defined for me as “Three-I” sessions: “Inform, get Input, and Ignore.” The proponent makes its pitch, the public officials blather, then each member of the benighted public gets 3 or 5 or 7.2 minutes to speak, and does so with greater or less coherence and vitriol, whereupon the “responsible” agency thanks everyone and checks off “public hearing” on its list of things to do.


It’s sad that people concerned about project impacts, like Basin and Range Watch in this case, put so much stress on public hearings. Such a hearing is a chance to vent, but that’s about all it is.


On the other hand, a “present the project and have breakouts,” by itself, may not accomplish much, and certainly lacks the synergy of a public hearing. It may be particularly ineffective – even counterproductive as seems to have been the case with the First Solar “hearing,” particularly when people have to drive in from considerable distances with the expectation of being heard.


It ought to be noted that neither the traditional hearing nor the “present and breakout” approach constitutes “consultation” as defined in the regulations implementing Section 106 of the National Historic Preservation Act. Nor, of course, does it have anything to do with an agency’s responsibility to consult with Indian tribes on a government-to-government basis. Section 106 consultation is defined as:


the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them (36 CFR § 800.16(f), emphasis added).


Tribal consultation, and, I think, all consultation, ought to be similarly understood – you try to find out what people’s concerns are (which may be aided by hearings and presentation/breakout sessions), you discuss them – which means a back and forth conversation, whether face-to-face or via phone, letter, internet or smoke signal – and consider them, and most importantly, unless for some reason it’s not feasible to do so, you seek agreement about how those concerns will be addressed. You may not achieve it, but you try. Which means negotiation, and documenting its results before you make your decision.


That’s how an agency or project proponent actually respects somebody’s concerns. Hearings and presentation/breakout sessions may contribute to this sort of consultation, but they don’t substitute for it.

Reflections on a Visit to China II: The Hegemony of Archaeology

I’m old enough to remember when the government of the People’s Republic of China (PRC) used to fulminate about “hegemonism.” It was a kind of post-colonial version of rants on colonialism, and referred to how, in the PRC’s view, the U.S., sometimes the Soviet Union, and various European powers tried to push their values and points of view on the rest of the world – to exercise hegemony over everyone else.

The term kept running through my mind in Beijing while listening to papers at the World Archaeological Congress’s Intercongress on Cultural Heritage Management in East and Southeast Asia. It did so because the hegemony exercised by archaeology seemed so manifest in – it seemed – everyone’s understanding of cultural heritage management. There seemed to be a widespread shared assumption that “archaeology” and “cultural heritage” were essentially synonymous. Or rather, that there was academic research archaeology, and then there was cultural heritage, which was essentially applied archaeology and the care and interpretation of archaeological sites and historic architecture (itself not much represented in the WAC’s gathering of archaeologists, co-sponsored by the Institute of Archaeology in the Chinese Academy of Social Science).

I know, I know, this is my usual complaint, expressed in the U.S. context as “cultural resource management isn’t just archaeology and old buildings, dammit!” But it was kind of discouraging to find myself lodging the same mental criticism against what my Asian and European colleagues were doing, and how they were thinking.

It seems so painfully obvious: “cultural heritage” means the heritage of a community, group, tribe, nation, or planet that is cultural in character, and that heritage includes customary ways of doing things, systems of belief, values, practices of all kinds – as well as, rather incidentally, the sites, buildings, building complexes, landscapes, and artifacts with which all those things are associated. When we implicitly, virtually without thinking about it, redefine the term to mean only the sites, buildings, artifacts and other physical leavings of culture, we’re ignoring most of our – everyone’s – heritage. And since most people aren’t interested only in culture’s physical leavings, since most people value their cultures as whole things that include but aren’t limited to stuff on and in the ground, we risk losing, or never gaining, the support of most of the population. Both things strike me as sad, and unwise.

Before someone protests – yes, UNESCO has fairly recently begun promoting the care and feeding of “intangible” cultural heritage, but it’s done so by putting together a convention that reflects the intellectual traditions of site/structure/artifact management. Signatory nations are to put together lists of nifty intangible stuff (Manchurian throat singing is a hot issue in China), and then – uh – do something about it. Exactly what they’re to do besides listing stuff isn’t clear, and of course there are already the inevitable arguments about what ought to be listed, by whom, and how it ought to be described. None of this strikes me as a very useful exercise in cultural heritage management. It does, though, illustrate the hegemony of archaeology (and architectural history) over the cultural heritage game. If something like throat singing is going to be recognized as cultural heritage, it seems, it’s got to be officially vetted, given a professional, official, governmental stamp of approval, and put on an official list. That’s the way we’ve always done it with archaeological sites and old buildings, so that’s obviously what we’d better do with anything else we’re going to call cultural heritage.

Of course, my own paper was about doing it another way – eschewing official lists and professional vettery and simply respecting what people and communities view as their cultural heritage. Leaving them alone to practice it except when some sort of conflict arises, and then consulting respectfully about how to deal with it. I beat the drum as usual for my favorite (sort of official) guidelines on the subject, the Akwe:kon guidelines of the Secretariat of the Convention on Biological Diversity. The paper went over like the proverbial pregnant pole-vaulter; people clapped politely and that was that.

Still, though, there were quite a few discussions at the Intercongress about how to engage communities in “cultural heritage” work, and about the effects of things like World Heritage Listing on living communities. It’s not that academic and governmental cultural heritage managers don’t realize that cultural heritage exists in people’s minds and influences people’s behavior, and that it extends beyond the boundaries of sites and the walls of buildings, or that we don’t care about it; it’s that we don’t have a model for dealing with it.

We cultural resource management (CRM) types in the United States sometimes talk like we do have a model, because we, after all, are anthropologists first, archaeologists only second. Unlike those benighted Brits and other old-worlders who define archaeology as a discipline in its own right. But in fact it’s rare that we do much with our anthropology, and particularly rare that we pay much attention to the fundamental anthropological ethic of trying, first of all, to understand, respect, and help the people we “study” in maintaining their own lives, lifeways, and traditions. It’s much easier to focus on the buildings and sites in their own right, for their own sake.

Back in the days when the PRC was beating the drum about hegemonism, we hegemonists pretty much ignored them. Not (I think) that people like Henry Kissinger and George Schultz didn’t see some merit in what they said, but that no one could figure out anything to do about it that didn’t compromise our essential national interests. Similarly in archaeology/CRM/cultural heritage, some of us can recognize that our centralized, bureaucratized, place and thing-dominated models are faulty, but we don’t know what to do about it.

But times change, and things happen, whether we’re ready for them or not. And those once hegemonized can become hegemonists themselves. There’s something to be said for the idea that this is what’s happening today with the PRC vis-à-vis the rest of the world. I wonder what would happen if the people whose sites and buildings we seek to “preserve” in accordance with our own notions of propriety and professionalism ever found a way to exercise real hegemony over us. I wonder how this could happen, and what its outcomes might be.

Reflections on a Visit to China, Part 1: Generalities

Introduction
With my wife, Pat Parker, I recently enjoyed a little under three weeks in the People’s Republic of China. At the invitation of the Chinese Academy of Social Sciences (CASS), Institute of Archaeology, I gave a paper in Beijing at the World Archaeological Congress (WAC) “Intercongress” on cultural heritage management in eastern and southeastern Asia, and we visited sites around Beijing, Xi’an and the mausoleum of emperor Qin shi Huangdi, often with the kind and knowledgeable assistance of Institute archaeologist Mr. Wang Renyu. On our own (with guides) we visited Hangzhou, Suzhou, Honcun, Xidi, Tongli, the Yellow Mountain Huangshan, and (briefly) Shanghai. I’m very grateful to Mr. Wang, CASS researcher Li Chunlin, Institute Deputy Director Prof. Chen Xingcan, and all their colleagues, as well as our China Odyssey guides, for making our visit a pleasurable and very educational one.

Three weeks in a country confers no expertise in its character, history, archaeology or culture, but there may be something to be said for first impressions, so I’m going to take this opportunity to offer a few reflections on our visit, for whatever they may be worth.

Environmental Matters

What they say about the air in Beijing is true. Within three days, the Navajo silver bracelet that Pat routinely wears had turned black (it cleaned up, though). Luckily (or maybe due to cloud seeding) there was then a thunderstorm and the sky turned clear and blue. But yes, pollution is a serious issue. However, there is apparently a serious effort underway to reduce emissions. For example, almost every rooftop seemed to sport a solar water heater. I saw few or no photovoltaic arrays, but lots of solar heating was going on. And while there are certainly too many gasoline and diesel vehicles on the (extensive and seemingly well-maintained) expressways, we also saw a vast number of bicycles, scooters, motorcycles and other vehicles driven by electricity, heavy use of public transport, and a lot of cars running on compressed natural gas.

As an inveterate recycler, I was charmed to see recycling bins almost everywhere, side-by-side with containers for non-recyclable trash, clearly labeled but often disguised as architectural forms compatible with historic structures, as rocks, as ancient urns, and in other clever ways. And lots and lots of people collecting discarded trash, moving huge piles of flattened cardboard boxes to collection points, and so on. The big cities we visited (e.g. Beijing, Shanghai) were remarkably clean, as big cities go.

I came away with no clear idea of how environmental impact assessment (EIA) is done. That it is done, somehow or other, was clear from, for example, an interesting paper at the Intercongress on archaeological survey and data recovery along a stretch of the humongous South-to-North Water Transfer Project (where, as here, “avoidance” of archaeological sites is apparently given precedence over excavation/destruction). Clearly studies are done and efforts are made to minimize and otherwise mitigate impacts, but it’s not clear to me how it happens, or what range of environmental variables are addressed. I’d like to know more.

Oh yes – and we rode the bullet train from Hangzhou to Shanghai the day after two similar trains collided not far away in Wenzhou City, and for what it’s worth, it was clean, pleasant, quiet, fully loaded with passengers, and really fast. And on time. I can’t testify to its safety, except to say that we survived, and enjoyed the ride.

Social-Cultural-Political Matters

We saw no particular evidence of oppression or repression (though there was no getting on Facebook, and one of the sites on which I routinely “click-to-donate” was blocked – doubtless because the donations go to Amnesty International). On the contrary, we were impressed at how many people we saw simply enjoying themselves – dancing, singing, and playing traditional instruments in the parks, in one case an apparently impromptu brass band of retirees playing patriotic music while people around them sang with seemingly unrestrained enthusiasm. We found people to be unfailingly gracious, friendly, and seemingly positive in their outlooks. And we were impressed at the volume of internal tourism we saw: thousands upon thousands of Chinese tourists crowding every historic or scenic site we visited, apparently having a good time and appreciating their country’s heritage. And having the disposable income to do so.

But in talking with some ordinary citizens, where language barriers permitted (neither Pat nor I, alas, speak Mandarin or any other Chinese dialect, and Rosetta Stone, while helpful, wasn’t enough), I was interested to encounter a lot of pretty frank expressions of unhappiness with corruption at high levels of government, inefficiencies, restraints on freedom of speech (especially as regards the Internet), and the growing gap between rich and poor. “Communism is dead,” one person volunteered; “all we have left is the Party.” And we crossed paths with one group of high Party officials getting the royal treatment at a couple of hotels where we stayed, to the disgruntlement of some around us. Of course, one could hear similar things expressed, and see similar kowtows to authority, in the U.S.

I couldn’t resist the impression, though – in the context of observing the incredible amounts of money being lavished on historic site development and internal tourism – that the government is pursuing a sort of bread and circuses policy: giving the people enough goodies to keep them off the streets, except when engaged in seemingly innocuous pursuits like tourism.

Cultural Heritage Management

Speaking of which: we were literally agog at the financial resources the PRC and its provincial governments are committing to aspects of cultural heritage/cultural resource management. At Xi’an, for example, the site of the Tang Dynasty (618-907 CE) Daming Palace – leveled hundreds of years ago and built over – has been cleared (relocating 100,000 or so people in the process) and developed as an archaeological park complete with a reconstructed monumental gatehouse, a scale model of the whole palace complex, an interactive archaeological museum (that even tries to explain field methodology!), and an Imax movie house showing relevant 3-D movies.

That’s before you leave town to go visit the first emperor, Qin shi Huangdi (aka Qin shi Huang, Qin Shihuangdi; 259-210 BCE) in his mausoleum, guarded by his terra cotta soldiers and horses. The terra cotta army as excavated so far is actually about a quarter mile from the mausoleum, in a very handsome park/museum complex incorporating the ongoing excavations. There are lots of soldiers, horses, and chariots, apparently, still to be uncovered, and who knows what else?

A quarter-mile away, the protected, still unexcavated mausoleum itself (bigger than the Great Pyramid of Khufu) and its extensive grounds have also become a park, with two museums under construction on the sites of major discoveries of burials, bronze chariots, armor, and other remarkable stuff. There are moves afoot to clear away nearby residential and industrial developments and expand the controlled area. All these developments are relatively recent; Mr. Wang showed me images from the early 20th century showing the whole area under agricultural use.

Xi’an is not unique in its attention to and investment in cultural and natural heritage sites. We saw similar investments being made in the interpretation and development of segments of the Great Wall, the Zhokoudian H. erectus site, river towns on the lower Yangtze, the Bund in Shanghai, and the Yellow Mountain Huangshan. All these places – most of them inscribed in the World Heritage List (and proudly advertised as such) were drawing vast, vast numbers of tourists, all paying fees for the privilege of visiting.

I was very impressed – mostly favorably – by all this investment, and all this interest. But the impression of bread and circuses continued to rattle around in my mind, and it generated another (though related) niggling worry as well. The history of China is characterized by a series of fairly autocratic imperial dynasties punctuated by peasant revolts. The uprising of 1989 that we associate with Tiananmen Square (where now a huge TV screen straddles the space, complicating assembly while inspiring with scenic and patriotic views but, I’m told, playing hell with the place’s feng shui) can be viewed as a recent unsuccessful example of the latter; the Cultural Revolution of 1966-76 was, in a twisted way, another such revolt. I had to wonder – viewing the magnificent cultural site developments, many of them seeming to glorify the imperial past (There’s a huge statue of Qin shi Huangdi – by all accounts not a very nice fellow – that greets visitors to the terra cotta army), and hearing people grumble about the rich/poor divide and the power of the Party – is the PRC government setting itself up for another revolt, and is “cultural heritage,” in the form of all these magnificent archaeological parks and similar developments, likely to become a target of revolutionary ire?

As it did, in many ways, during the Cultural Revolution. Countless times we were told: “There used to be a Buddhist shrine here, but during the Cultural Revolution….,” or “There was a handsome tablet here memorializing the ancestors, but during the Cultural Revolution….” I sat one day in the garden of a 19th century Qing Dynasty official, handsomely restored by his son in the early 20th century before he, the son (also a distinguished government official) was denounced and had to flee the country during the Cultural Revolution. The garden was classic – a complex of plantings, elaborate pavings, sculptures and stone constructions providing delightful vistas and enclaves. Many of the trees were marked with old marble slabs on which genus and species were inscribed in Chinese and Latin. I thought, “How beautiful, and erudite, and precious (in both senses of the word),” and – rather to my surprise – found myself kind of sympathizing with the Cultural Revolutionaries. I imagined them wondering, with sneering ire, where this aristocrat got off sitting around contemplating his beautiful garden and pondering the splendors of speciation when The People were suffering? It was an easy jump to imagining contemporary or near-future revolutionaries asking similar questions about massive investments in exhibiting the relics of past emperors.

Only after I’d left China did it occur to me to wonder whether anybody is pursuing the archaeology of the 700,000 workers said to have been involved in building Qin shi Huangdi’s mausoleum – along the lines of the recent exploration of the workers’ town associated with the Giza pyramids. It seems like some serious attention would be in order to the archaeology of the common people on whose labors the emperor (and every emperor) depended – both because it would be fascinating research and because it would convey a more populist, if not precisely communist, message to the visiting public about the glories of China’s past.

-- To be continued --

My Blather in Beijing

Here's the paper I'm scheduled to present next week in Beijing at the World Archaeological Intercongress on Heritage Management in East and Southeast Asia.  I'm grateful to WAC and the Institute of Archaeology in the Chinese Academy of Social Sciences for the invitation to do so.

Cultural Heritage, Environmental Impact Assessment, and People

Abstract: Environmental impact assessment (EIA) is the procedure by which the impacts of proposed construction and land-use projects are assessed and – in theory – made to influence development decisions. Cultural heritage tends to be poorly considered in EIA. Much of the blame lies with cultural heritage professionals. We tend to focus our energy on inscribing places in formal lists, and on debates about the formal interpretation of such places. We are too wrapped up in promoting the selective presentation and management of places that governments recognize as significant, and we too easily facilitate development schemes by excavating and thus removing sites that lie in their way. Most importantly we fail to engage the people of our countries, who alone have the power to redirect destructive development. We fail to engage them by failing to respect them and the places that they think are significant. Instead we insist that they respect our evaluations of places and our plans for management. We come to be seen as elitist, and as junior partners in the very development projects that destroy heritage. As junior partners we are easily ignored when conflicts arise between development and heritage, and the people who should be our allies in pushing back against destruction find us irrelevant to their concerns. We need to reconsider our priorities, and our methods of pursuing them.

Introduction: Assessing Environmental Impacts and Cultural Heritage

It is no secret that development projects of all kinds – housing and agricultural schemes, dams, highways, rail lines – do injury to the environment, however justified they may be on economic, social, and even environmental grounds. One has to destroy in order to build; it is in the nature of the enterprise. To control such damage, since the early 1970s virtually every national government, and such nongovernmental organizations (NGOs) as the World Bank, have put in place procedures for “environmental impact assessment” (EIA). The reason for such procedures is summed up in the Confucian’ maxim: “If you do not consider the future, you will be in trouble when it comes near.” Governments and funding bodies should consider what damage a project is likely to do before they decide whether and how to go forward with it. This is not to say that damaging projects should not be undertaken: only that if we know what damage is likely to occur, perhaps we can do things to keep it from happening, to reduce its severity, or make up for the damage somehow.

Of course, among the aspects of the environment that can be damaged by modern activities are what we call “cultural heritage.” We in this conference can probably all agree that potential impacts on cultural heritage should be closely examined in the course of EIA, that alternatives to damaging activities should be considered, that steps should be taken to avoid or reduce the damage. In general terms, the world’s people seem to agree; most communities react badly to actions that they perceive as damaging to their cultural heritage, and most governmental guidelines for EIA indicate that impacts on cultural heritage should be considered in planning.

Often, however, when EIA is performed on proposed projects, not much attention is paid to cultural heritage. EIA analysts merely list affected historic monuments or places included in the World Heritage List, and assert that these will be taken care of by following whatever standard procedures governments have put in place. Often the people and communities whose heritage is most at risk are poorly engaged in the process of EIA, their heritage values are poorly considered in planning, and the steps taken to mitigate impacts – decided on by project proponents and governments, if indeed any such steps are taken – are inadequate or even irrelevant to the people whose heritage is affected.

In my experience there are several common, interrelated reasons that cultural heritage is not addressed well in EIA. In this paper I want to outline some of these problems, and suggest steps that we might take to solve them.

Problem One: What is Cultural Heritage?

Different people conceptualize cultural heritage in different ways, and this complicates its consideration in EIA. In my own experience in the United States and the Pacific islands, and in reading the international literature, I find that cultural heritage is variously defined to include – or exclude (among other things) –

• Monuments, archaeological sites, and cultural landmarks;

• Traditional ways of using the land and its resources;

• Culturally important plants and animals;

• Stories, songs, philosophy and language;

• Traditional forms of subsistence;

• Traditional ways of life;

• Religious and cultural practices;

• Objects of material culture (artifacts, antiquities);

• Art forms, and

• Books, manuscripts, and other literary products.

Each of us academic and professional practitioners specializes in one or more of the above types of heritage. Most of us at this conference, in fact, specialize in a subdivision of the first type shown on my list: archaeological sites, which may also be thought of as historic places and/or landmarks. We understandably do not take responsibility for other kinds of cultural expression, other parts of the cultural environment. But here is the problem: we also often fail to inform those who plan and carry out EIA that we are not authorities on all aspects of cultural heritage. And we fail to recommend that they consult those who are authorities on cultural things other than archaeology, notably including the local people themselves. This results in assessments in which “cultural heritage” is equated entirely with monuments or archaeology, while the other aspects of culture are given little consideration or even ignored entirely. These aspects of the cultural environment may be just as worthy of protection as – even more worthy than – archaeological sites, and they may be much more the concern of local people, but if they are considered in EIA at all, they are often considered in spite of us rather than with our support.

Consider, for example, animals or plants that figure importantly in a community’s self-identity. I have been involved lately with the Okinawa dugong, significant in the beliefs of traditional Okinawans; the dugongs’ habitat is threatened by the proposed construction of a new U.S. military base. To those performing EIA on the project, the dugongs were simply animals of professional concern to biologists and natural resource managers. To the local people, however, the dugong is literally a sacred animal. Had it not been for legal intervention by Okinawan, Japanese, and U.S. environmental groups, and near-violent demonstrations on the project site by Okinawans, the cultural value of the dugongs and their habitat to the people of Okinawa would have been ignored in the military’s EIA and its decision making about the project.

Problem Two: The Limitations of Traditional Thinking About Cultural Heritage

EIA has developed as a widespread aspect of governmental and non-governmental planning only in the last half-century. The management of historic landmarks, monuments, and archaeological resources, of course, has a more venerable history, by some reckonings going back to the 10th century ACE and perhaps farther. Organized government systems for heritage management were being put in place in Europe by the early 19th century, and spread across the world with colonialism. So the ways archaeologists, architectural historians, and our close colleagues think about our aspects of cultural heritage were well set in place before EIA ever came on the scene. These ways of thinking feature the following more or less standard elements:

• A narrow focus on places: that is, buildings, other structures, monuments, and archaeological sites, and on portable antiquities;

• The compilation of official lists of heritage places, variously called registers, inventories, and schedules, among other things;

• An expectation that listed heritage places should be preserved unchanged in perpetuity;

• Little or no consideration given to places not on official lists, or regarded as eligible for them;

• Official governmental bodies that compile and maintain lists, and promote preservation;

• Laws and regulations aimed at protecting listed places to varying degrees, or at least at reserving to government the right to destroy them.

• More or less rigorous constraints on the private appropriation of heritage places, or of antiquities.

These standard elements are embedded not only in the legal systems of most nations, but in such international instruments as the World Heritage List. Even when we try to bend our minds around cultural things that are not archaeological sites and historic landmarks, we automatically apply our traditional ways of thinking. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, for example, directs that signatory nations compile lists of intangible cultural heritage, despite the inherent fluidity and evanescence of intangible culture.

When this list-based, hierarchical, bureaucratic and rather rigid system of thought intersects with EIA, it further narrows the scope of impact analysis. Not only does EIA come to represent archaeological sites and landmarks as the only culturally significant aspects of an affected environment, it tends to recognize as significant only those sites and landmarks that government has officially declared and listed as such. In the United States, for instance – to hold up only my own country as a sad example – if a local community fears that a place it holds to have cultural significance may be destroyed by government action and wants it considered in EIA, it must show that the place is eligible for the National Register of Historic Places. This requires the community to explain the place’s significance to government archaeologists and architectural historians, following technical regulations issued by the National Park Service and understood only by specialists. In most EIA documents in the United States, if a place has not been found to be eligible for the National Register, it is assumed to be of no significance, and can be destroyed with impunity. And cultural heritage that is not embodied in places – animals, plants, belief systems, traditional food – has almost no chance of being considered in EIA. This strikes me, at least, as a strange way for a grandly self-proclaimed democracy to consider its impacts on the cultural values of its people.

Problem Three: Attitudes and Assumptions

When people conducting EIA seek to consider the cultural aspects of the environment, they understandably turn for advice to government’s cultural heritage authorities – ministries of culture, official archaeological surveys, agencies that maintain schedules or registers of cultural places and things. They assume that such authorities can advise them about – perhaps even provide them with a list of – significant cultural heritage that may be affected.

The cultural heritage authorities often have little understanding of EIA, but they do know their own programs, regulations, policies, and professional specialties. As far as they know, when they are asked to advise about cultural heritage, they are being asked to advise about what is on their lists, what they are officially responsible for, or what falls within the ambit of their professional expertise. They advise about archaeological sites, scheduled monuments, registered buildings. What they almost certainly do not advise about is how to interact with local people, local communities, to find out what they think is important and what they think ought to be done about it. That sort of engagement has never been part of the portfolio of most government heritage offices, and few of them are staffed, funded, trained or encouraged to promote such engagement.

Presuming that they now know what cultural heritage may be involved, the people conducting EIA duly report it and proceed to analyze environmental impacts without further consideration of culture. If local people and other interest groups then object – perhaps violently – to what they think the project will do to their heritage, it often comes as a surprise to the project’s proponents and their EIA specialists (and perhaps to the cultural heritage authorities as well).

Government, Culture, and People

This situation is fundamentally unfair and counter-democratic, and it undercuts our efforts to preserve cultural heritage. Surely it is true that only the citizens of our countries, only the people, have the power to redirect and control destructive development, but our traditional ways of managing heritage disconnects us from the people. By focusing attention only on the kinds of heritage that we understand and appreciate, we fail to engage the people. By failing to respect them and the things that they think are significant, by insisting instead that they respect our evaluations of heritage, our ways of discussing it, and our plans for its management, we cause ourselves to be seen as elitist and irrelevant to the people’s interests. This leaves us in a relatively powerless position when confronting the development projects that destroy heritage. We become, in essence, junior partners in such developments, and as such we are easily ignored when conflicts arise between development and heritage.

Ironically, failing to engage the people and address the heritage they value can also impede development projects. I have personally seen important, highly justified projects held up for years, at very high cost, and sometimes abandoned altogether, because of last-minute controversies over locally valued cultural heritage. These controversies often could have been avoided or efficiently resolved had affected people and communities been respectfully consulted, early in project planning.

I suggest that it is in everyone’s interests – the interests of governments, of archaeologists and other heritage professionals, of our institutions and agencies, of communities world-wide, and of the development community, to make EIA more sensitive to cultural heritage, broadly defined, and notably to the cultural values of local communities. Interestingly, a way to do this has been offered, not by us cultural heritage experts, but by biologists.

The Akwé: Kon Guidelines

The Secretariat of the Convention on Biological Diversity – a convention to which China and other Asian countries are signatories but my country, I am sorry to say, is not – has produced a sophisticated set of guidelines for considering cultural heritage in EIA. These guidelines are called “Akwé: Kon”(“Ahgwégoh”) a term in the language of the North American Mohawk tribe meaning “everything in creation.” They outline how to conduct social, cultural, and environmental impact assessments in concert with affected communities.

A government or NGO planning some form of land-use – say a dam, a highway, an agricultural or urban revitalization scheme, or a power plant – that is conscientiously following Akwé: Kon would actively and creatively engage local communities in every aspect of project planning. It would work with such communities to identify who speaks for different cultural interests. It would learn how to communicate with these groups, find out and record their concerns and negotiate ways to address those concerns. In doing so, it would make sure that affected groups have the financial and other resources necessary to participate fully in impact assessment and decision making. It would negotiate and put in place agreements with the communities about how the impacts of the project would be identified and considered. Following such agreements, it would conduct cultural impact studies addressing the project’s possible impacts on, for example:

…cultural heritage, religions, beliefs and sacred teachings, customary practices, forms of social organization, sys¬tems of natural resource use, including patterns of land use, places of cul¬tural significance, economic valuation of cultural resources, sacred sites, ceremonies, languages, customary law systems, and political structures, roles and customs.

(Secretariat of the CBD 2004:13)

The scope of such studies would take into account:

(a) Possible impacts on continued customary use of biological resources;


(b) Possible impacts on the respect, preservation, protection and mainte¬nance of traditional knowledge, innovations and practices;


(c) Protocols (negotiated with communities);


(d) Possible impacts on sacred sites and associated ritual or ceremonial activities;


(e) Respect for the need for cultural privacy; and


(f) Possible impacts on the exercise of customary laws.

(Secretariat of the CBD 2004:14)

The government or NGO would carry out environmental assessments coordinated with the cultural assessments. These would “respect existing inherent land and treaty rights as well as legally established rights of indigenous and local communities” and “con¬tribute to the protection of the rights of indigenous and local communities by recognizing (their) distinct activities, customs and beliefs…” Such assessments would consider, among other more strictly eco-biological factors:

• areas of particular economic significance (as hunting areas and trapping sites, fishing grounds, gathering areas, grazing lands, timber harvesting sites and other harvesting areas);


• particularly significant physical features and other natural factors which provide for biodiversity and ecosystems (e.g. watercourses, springs, lakes, mines/quarries that supply local needs); and


• sites of religious, spiritual, ceremonial and sacred significance (such as sacred groves and totemic sites).


(Secretariat of the CBD 2004:16-17)

Coordinated social impact assessments would:

…. take into account gen¬der and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications… and evaluate …. tangible benefits to such communities, such as non-hazardous job creation, viable revenue from the levying of appropriate fees from beneficiaries of such developments, access to markets and diversification of income opportunities.

(Secretariat of the CBD 2004: 18)

Economic assessments would recognize that:

…changes to traditional practices for food production, or (that) involve the introduction of commercial cultivation and harvesting of a particular wild species (e.g. to supply market demands for particular herbs, spices, medicinal plants, fish, fur or leather) may lead to pressures to restructure traditional systems of land tenure or expropriate land, and to pressures on the sustainable use of biological diversity, in order to accommodate new scales of production. The ramifications of these kinds of changes can be far-reaching and need to be properly assessed, taking into account the value systems of indigenous and local communities. Likely impacts associated with the cultivation and/or commercial harvesting of wild species should also be assessed and addressed.

(Secretariat of the CBD 2004: 19-20)

The results of all these assessments would be brought back to the community and coordinated with its own planning, in a transparent, consultative manner, with provision made for the resolution of disputes (Secretariat of the CBD 2004:22-25).

Opting for Akwé: Kon

An EIA system based on Akwé: Kon would not discourage consideration of things like World Heritage sites and places or things listed in a national schedule or register, but it would recognize that those who are fixated on such places – that is, let’s admit it, many of us – constitute only one set of cultural stakeholders, whose values are not privileged over those of others, notably including local people. It would be significantly more democratic, more transparent, more inclusive than most existing systems. It would also, I think, produce a higher degree of predictability for development project proponents than they currently enjoy.

Adopting an Akwé: Kon based system would require administrative, legislative, and policy actions of different kinds, depending on the nation or NGO involved. In the U.S., unfortunately, it would require action by our legislative bodies, which is very unlikely to happen. In nations with less fossilized EIA and cultural heritage systems than ours, and among NGOs and even private-sector development proponents, there is probably much more hope.

I have no magic formula for replacing the world’s ineffective cultural heritage systems with something like Akwé: Kon, and I certainly have no wisdom to impart. My purpose here today is just to suggest that many of our existing systems for relating cultural heritage to EIA are self-defeating, and to suggest that we consider such creative alternatives as Akwé: Kon. I hope that WAC and other cultural heritage organizations, and the smart young people who are rising to leadership in such organizations, will undertake this consideration.