Tom King’s CRM Plus -- Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.
Wednesday, November 30, 2011
Blog 2005-2011 is on Kindle
Thursday, November 17, 2011
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.
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.
Wednesday, November 16, 2011
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.
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.
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.
Friday, November 11, 2011
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).
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).
Tuesday, November 01, 2011
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.
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.
Subscribe to:
Posts (Atom)