Monday, February 20, 2012


Congratulations to the Pechanga Band of Luiseño Indians (Riverside County, California) on their victory over Granite Construction Company, which proposed the gigantic Liberty Quarry in the midst of the Luiseño Ancestral Origin landscape. The County Planning Commission denied a permit for the quarry some time ago, based on its likely adverse effects on the environment, health, tourism, the economy, the transportation system and the cultural values of the Luiseño.  Granite appealed the denial to the Riverside County Board of Supervisors, which upheld the denial last week.

During his presentations to the Board of Supervisors, Granite’s legal counsel, Mark Harrison, argued that neither Granite nor the County was obligated to consider the cultural significance of the overall landscape because “the law” required only consideration of its constituent physical “features.” My own counter-argument was that Mr. Harrison’s logic would permit one to drop a quarry into Washington DC’s National Mall as long as one didn’t knock down the Washington Monument or demolish the Smithsonian museums. I don’t know if this carried any weight with the Board; there were so many reasons to deny the Liberty Quarry permit that one technical argument probably didn’t make much difference one way or the other. Since Mr. Harrison thought his proposition sensible enough to try to sell it to government decision-makers, however, it seems to me worth responding to in something a bit more public than a hearing record.

Though Mr. Harrison did not say what “law” he was referring to (The project was being considered under the California Environmental Quality Act), the only case law he cited was Te Moak Tribe of Western Nevada et al v. U.S. Department of the Interior et al (07-16336), a federal case decided by the 9th Circuit Court of Appeals in June 2010. Mr. Harrison said:

The 9th Circuit Court of Appeal has recently dealt with a claim very similar that’s being made here where an Indian tribe said large areas in the desert in this case were culturally valuable landscapes that needed to be protected and no disturbance was allowed. And what the 9th Circuit said is, “although it is understandable that the tribe values the landscape of the project as a whole, the Natural Historic Preservation Act requires that the lead agency protect only against adverse affects on those features.”

Setting aside the hyperbole about what “needed to be protected” and where “no disturbance was allowed” – since neither federal nor California environmental or historic preservation law demands “protection” or disallows disturbance – what did the 9th Circuit actually say in the decision from which Mr. Harrison cherry-picked his quote?

The court was dealing with a case in which the Bureau of Land Management (BLM), in considering a mining permit, had sought to comply with Section 106 of the National Historic Preservation Act (NHPA) by, among other things, consulting with the Te Moak about the proposed mine’s potential impacts on historic properties, including National Register-eligible traditional cultural properties (TCPs). The Te Moak asserted that a largish landscape was an eligible TCP. In BLM’s view, only parts of the landscape – a cliff, various rock outcrops, each itself apparently embracing a fairly substantial area – were eligible, and apparently the State Historic Preservation Officer (SHPO) concurred. The court’s decision does not indicate that the tribe availed itself of the opportunity to resolve this disagreement through referral to the Keeper of the National Register, as it could have by asking either the Advisory Council on Historic Preservation (ACHP) or the Keeper herself to request that BLM refer it. My assumption is that it did not. If this is the case, then BLM’s determination, whether appropriate or not, was definitive.

BLM gets institutional stomach cramps when it has to mutter the acronym “TCP” or acknowledge that the National Register Bulletin (#38) in which the term “traditional cultural property” was invented has any application to its responsibilities, so it calls such places “properties of religious and cultural importance” or PRCIs. The court accepted this terminology as equivalent to “TCP” (although it’s really not quite). The section of the court’s decision from which Mr. Harrison extracted his quote reads as follows:

Plaintiffs are correct that the PCRIs designated by the BLM as eligible for the National Register encompass large areas of land. The NHPA, however, does not mandate protection of all parts of an eligible PCRI. Section 106 requires a federal agency “[to] take into account the effect the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f; see also 36 C.F.R. 800.6(b). The NHPA regulations, however, define an “effect” as an “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.” 36 C.F.R. § 800.16; see also id. § 800.5(a)(1) defining an “adverse effect” as the direct or indirect alteration of “any of the characteristics of a historic property that qualify the property for inclusion in the National Register in manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association”). Here, the eligible PCRIs’ characteristics described in the BLM’s April 2004 report are discrete features such as the top of Mt. Tenabo, the “white quartz ledge on the south face Mt. Tenabo” called the White Cliffs, a network of caves within the mountain, and burial locations.

Characteristics that made Horse Canyon eligible included the specific resources available there: perennial surface water and unique medicinal and edible plants. Although it is understandable that the Tribe values the landscape of the project area as a whole, the NHPA requires that the BLM protect only against adverse effects on the features of these areas that make them eligible for the National Register. Plaintiffs have not demonstrated that the exclusion zones will fail to prevent any adverse effects to these features.

The general rule cited by the court here is that found in 36 CFR 800.5(a)(1), that an adverse effect on a historic property occurs when one alters “any of the characteristics……….that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association.” In the Te Moak case, the 2004 BLM report that the Tribe apparently did not contest identified these “characteristics” mostly as “discrete features” like the white quartze ledge, the caves, and so on. But the court also referred to characteristics that are not geographically specific features – such as perennial surface water and unique plants.

The point is that “the law” – in the form of the Section 106 regulations – doesn’t say anything about “features;” it refers to “characteristics.” The characteristics of an historic property that make it significant may be physical features of a site, building or landscape, or they may be other, less tangible things – ambience, a viewshed, the quality of the light, the movement of animals through a landscape, the distribution of its plants, the view of a building from across the street, the uses to which a building, district, or landscape is put. These characteristics may actually all be called “features” in some contexts, but that’s not what the regulations call them, and the regulations certainly do not say that a project has no effect on an historic property unless it physically tears up a physical feature that has been officially defined as contributing to the property’s eligibility. That’s the bill of goods that Mr. Harrison was peddling – that the quarry would have no effect on the landscape despite blasting a mile-long hole in it, because (according to Granite, actually ignoring some of the findings of its own contracted ethnographer) it wouldn’t destroy a specific rock or cliff named in the oral traditions its contractor had consulted.

It would be an adverse effect on the National Mall to build a quarry in the open space between the Washington Monument and the Museum of American History – not because that particular patch of lawn is a “feature” that makes the Mall significant, but because doing so would diminish the integrity of characteristics that contribute to such significance, such as the Mall’s uses by visitors, the views of its monuments, and the feeling the place evokes. Such characteristics can contribute in just the same way to the significance, and hence the Register eligibility, of any other historic property, regardless of whether specific physical features are involved. In the Te Moak case, BLM apparently determined (more or less, but consider the fish and plants) that physical features were the sole contributors to the “PCRI’s” significance, and the Tribe did not seek a clarifying determination from the Keeper of the National Register. This hardly makes it legitimate to apply this “rule” to other historic properties, in other situations, let alone in situations where other laws apply.

This case also illustrates just how esoteric and silly the regulations and their application have become.  In this case (and, I guess, in the Te Moak case) we had a big landscape about which a group of citizens -- in each of these cases, a federally recognized tribe -- was concerned, and the contentious issues were mere technicalities by the use of which project proponents tried -- in the Te Moak case successfully -- to avoid addressing the tribe's concerns.  The regulations are replete with such technicalities, interpretable only by us experts and lawyers; it seems to me that they get in the way of performing the simple function assigned to agencies by Section 106: to take into account the effects of actions on historic properties.

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