Saturday, August 25, 2012

A Fishy Impression of "Cultural Resources"

It would of be unreasonable to expect fish or wildlife to know much about “cultural resources,” or to express themselves in good English.  But is it too much to expect that their human managers in government have such knowledge, or be adept at such expression?  

Apparently it is.

Case in point: the U.S. Fish and Wildlife Service’s notice of August 20, 2012 in the Federal Register announcing its final environmental assessment and finding of no significant impact on a special purpose permit application for shallow-set longline fishing (77 FR 50153).  This notice says – rather in passing, that:

No cultural resources as defined under the National Historic Preservation Act are significantly affected… because the fishery operates in the 200 mile U.S. Exclusive Economic Zone and on the high seas, far from historic sites.

Do the human, English-language-using employees of the FWS actually think that “cultural resources” are defined in the National Historic Preservation Act (NHPA)?  They are not; aside from a passing reference to “cultural resource managers,” the term is never used in the statute.  Or does the FWS humans’ use of “under” mean they think the term is defined in some NHPA-spawned regulation?  If so, they don’t specify what the regulation is.  I am not aware of any regulation of government-wide application that defines the term.

To judge from their statement, however, the FWS humans believe that only “historic sites” can be “cultural resources,” and they somehow ground this belief on their (mis)understanding of NHPA.

I suspect that their belief would come as a surprise to, for instance, some fishermen and their families, who just might regard themselves as having culture, who might regard their traditional lifeways and beliefs to be that culture’s intangible resources, who might think their boats, tackle, and on-shore facilities to be tangible resources employed in that culture’s support, and who might even regard fish as resources important to their culture's survival.  It might come as a surprise, too, to archaeologists and others who think there might be significant shipwrecks beneath the “high seas” and within the 200-mile Exclusive Economic Zone.  

I have no idea whether the activities permitted by FWS in this case have any potential to affect the tangible and intangible cultural resources of fishermen or others, or to impact shipwrecks on the bottom of the sea.  But in the English language I was taught to use, distance from land does not guarantee even the absence of “historic sites” (a term also not defined in NHPA) like shipwrecks.  Still less does it guarantee a lack of “cultural resources.”

Is there a need for remedial English instruction for U.S. government employees?

Friday, August 24, 2012

Rethinking Federal Historic Preservation

Reading the editorial pages over breakfast every morning has gotten me thinking about how the manifest if not exactly earth-shaking problems of historic preservation in and around the U.S. government might be addressed in the face of the much-trumpeted (and, I think, real) need to reduce the size and cost of the federal establishment.

One reason the trumpeting (most of it, sadly, from Republican elephants) resonates with me is that over the last 45 years I’ve seen how the government-focused preservation programs and policies created – with the best of intentions – in the 1960s and 70s have evolved.  Or failed to evolve. 

The solutions advanced by Congress in the 1960s and 70s to problems in historic preservation involved the creation of bureaucracies – the external programs of the National Park Service (NPS), the Advisory Council on Historic Preservation (ACHP), the State Historic Preservation Officers (SHPOs), all via the National Historic Preservation Act of 1966, as amended (NHPA).  This was perfectly understandable, but it failed to account for a fundamental principle:  bureaucracies tend to become fossilized, inward-looking, resistant to innovation, and self-protective.  Their own survival, and the survival-to-retirement of their employees, come to dominate their thinking and actions, at the expense of whatever they were created to do.  

This principle is not my independent invention; it reflects (poorly, no doubt) elements of the deep thinking on bureaucracy of scholars like Ludwig von Mises ( and zingers like those of John Moore ( ).  The principle is no less true for being common knowledge, and its operation is evident to anyone taking more than the most casual glance at today’s U.S. federal historic preservation “program.”  No one who knows that “program” expects leadership, or even much thought, from NPS, the ACHP, or the SHPOs; the sole preoccupation of these entities today is with maintaining the status quo that allows them and their personnel to survive.  

But there are reasons for the creation of bureaucracies; they provide services and regulate things that need regulating.  The federal historic preservation bureaucracy fulfills the following functions:

1.       Service functions:
a.       Maintaining and expanding the National Register of Historic Places (NRHP);
b.      Providing a historic preservation point of contact (the SHPO) in each state capitol;
c.       Recording historic properties via the Historic American Buildings Survey (HABS) and its kin;
d.      Passing on minor grant funds and technical assistance/direction to Indian tribes and local governments; and
e.      Promulgating regulations, guidelines, standards, and the like.

2.       Regulatory functions:
a.       Assisting in/overseeing NHPA Section 106 review by ostensibly self-regulating federal agencies; and
b.      Reviewing private historic building/structure rehabilitation projects in terms of eligibility for tax credits.

There are a few other functions, but those are the main ones – all of which, of course, have various more or less complicated sub-elements.

So let’s consider: are there ways to perform these functions without the bureaucracies, or while sharply reducing them in size?  I think there are.

The National Register:  IF there is value in maintaining a national register of historic places – I’m not at all sure there is, but let’s suppose there is – there’s no reason to have a government agency do it.  The function could easily and efficiently be contracted out, to something like the National Trust for Historic Preservation.  This might just shift the bureaucracy from one place to another, but in contracting out, the federal government could put strict limits on what it would pay for, leaving it to the contractor to seek funding elsewhere if it wanted to expand or elaborate the list.  Alternatively, as I’ve argued elsewhere, the Register could be done away with altogether, letting tribal, state, and local lists take its place.

Points of contact:  The SHPOs – some of them, at least – perform useful functions, some of which are more impeded than facilitated by their overseer, the National Park Service.  A modest program of continued support is probably justified for the SHPOs and their equivalents in tribal and local governments, but the rules under which that program operates could, I think, be significantly reformed, and the whole operation could probably be merged with other programs of federal assistance.

Recording properties:  HABS and its brethren are academic quasi-research projects that were useful at their inception in the 1930s but have long ago become irrelevant.  Nothing but federal jobs would be lost if they were eliminated.

Grants and technical assistance:  As noted above, some sort of grant assistance is probably needed by tribes and local governments as well as by states, but there are probably ways to merge such grants with other like programs and achieve significant efficiencies.  As for technical assistance, it has been a long time since NPS has provided anything very useful; no one would miss such assistance if it disappeared.

Regulations, standards, guidelines:  We already have more than anyone attends to.

Assisting in Section 106 review:  The Section 106 review process has become largely dysfunctional.  It is overburdened with procedure and virtually unencumbered by substance.   Its reasonably clear initial function – to identify and resolve conflicts between historic preservation and other public interests – has been lost in the thicket of agency procedures, programmatic agreements, and intricate side-deals with SHPOs whose growth the ACHP has encouraged.  A minor amendment to Section 106 could preserve and even provide a basis for recovering the utility of Section 106 review while clarifying the roles of SHPOs and eliminating the ACHP altogether.

Tax credit review:  This undoubtedly useful function could be performed by SHPOs and/or local preservation authorities with minimal technical oversight.  Granted, someone would have to provide that oversight, but this is another function that could be contracted out.

So there: a modest reduction in the size of government coupled with, conceivably, a considerable increase in efficiency, effectiveness, and responsibility.  Obviously the devil is in the details of any such change, and I don’t kid myself about whether any such thing is likely to happen.  And I realize that I’m proposing the explicit abrogation of federal leadership in historic preservation.  But we haven’t seen any federal leadership in historic preservation in at least a couple of decades, so seriously, folks, what’s the difference?

Wednesday, August 22, 2012

DOI "Listening Sessions"

The Department of the Interior is holding "listening sessions" at which Indian tribes can express their views about how the Department and its bureaus are handling their responsibilities regarding "sacred sites."  "Listening," of course, does not bear any necessary relationship to "hearing," or to "doing anything;" the sessions pretty obviously constitute a public relations ploy designed to make the Department and its employees look busy while deflecting the tribes from taking any effective action on the outrages perpetrated daily by Interior in Indian Country (among other places).  The Quechan Tribe has outed the Department in the first of these exercises in flim-flam (See  Well done, Quechan!

In preparation for the sessions, Interior issued a press release in which it listed six issue areas about which it wanted to listen to views.  Though I'm not a tribe, and hence can't expect even to be listened to and ignored, I took the liberty of preparing the following responses, which I'm happy to share with tribes for whatever use they may make of them.

Meanings of “sacred sites” and whether the Department should attempt to define the term.
·         It is fundamental that a “sacred” place must be sacred TO someone.
·         Only that someone can say which places are and are not sacred to him or her.
·         It follows that a tribe’s sacred sites must be defined by that tribe.  The Secretary has no role to play.
·         Tribes should not be forced to identify all their important cultural places as “sacred” in order to get the Department to pay attention to them.  Any place of cultural significance to a tribe should be respected.
Personal views of existing Departmental practices and policies…..
·         Bureaus of the Department seem to have trouble respecting a tribe’s right to define the significance of its own cultural environment; hence they tend to rely on expensive and time-consuming studies by professional archaeologists and cultural anthropologists to “filter” a tribe’s views and decide what is “really” significant.  This disrespectful practice should end.  There are times when archaeological and anthropological studies are necessary and appropriate, but if a tribe says that an area (whether site, object, or landscape/riverscape/seascape) is significant to the tribe, that view should be respected, not subjected to analysis by people from another culture.
·         The Department should not apply culturally inappropriate technical standards to tribal cultural places.  For instance, many such places are extensive landscapes with vaguely defined boundaries.  This is reality, however inconvenient it may be to Departmental employees.  Bureaus of the Department should not hold such places, or tribal consultation, hostage to the definition of arbitrary boundaries – which often have no relevance to management.
·         Even if a cultural place is not physically disturbed by Departmental or Department-permitted activities, tribal associations with it may be impacted by visual, auditory, and other changes.  These effects should not be ignored because they are perceived somehow to be “indirect” or “secondary.”
Potential development of Departmental practices and policies…
·         The Secretary should adopt it as policy that any place (including any landscape, riverscape, or seascape) identified by a tribe as culturally significant is eligible for the National Register of Historic Places and must be treated as such under the National Historic Preservation Act.
·         It should be policy and practice to define project areas of potential effects (APEs) under Section 106 of the National Historic Preservation Act in consultation with tribes, and to ensure that such APEs embrace all areas where tribally valued cultural areas may be subject to direct, indirect, or cumulative effect.
·         All Interior bureaus that interact with tribes should ensure that key decision-making personnel are trained in effective tribal consultation.
·         Training should be built around the Secretary’s Standards and Guidelines for Federal Agency Programs under Section 110 of the National Historic Preservation Act, particularly Standard 5 and its guidelines (See
How the Department should facilitate access to sacred sites (on lands controlled by Interior)
·         Bureaus of the Department should negotiate agreements with tribes about how tribal members can access culturally important areas, and about what they can do there. 
·         These agreements should respect tribal cultural values and avoid imposing undue technical requirements.
How the Department should control and grant access to tribally provided information.
·         Bureaus of the Department should not seek or demand more information than the absolute minimum they need to meet a given management requirement.
·         When Bureaus of the Department do gather cultural information from tribes, they should absorb the minimum information necessary into their own management databases, and return the data to the tribes.
·         Bureaus of the Department should enter into agreements with tribes under which the tribes themselves hold and manage cultural data, providing access to such data by Bureaus when needed.
Whom should the Department include in determining whether a “site” is “sacred?
·         See above about not requiring that tribes identify all culturally valued areas as “sacred sites.”
·         The question of whether a place is culturally valued by a tribe can be answered only by the tribal government, in consultation with the tribe’s membership.
·         Authoritative tribal members should be consulted about culturally valued places and their management, and they should receive the respect due any American citizen by representatives of the U.S. government.  Any information they provide about “sacred sites” or other culturally valued places should be carefully and respectfully addressed in planning, and they should be sensitively and responsibly consulted.  Cultural authorities outside a tribe (e.g. State Historic Preservation Officers, archaeologists, cultural anthropologists) may provide important insights, but do not themselves define what is and is not “sacred” or culturally significant to a tribe.

Tuesday, August 21, 2012

Traditional Cultural Properties, Properties of Traditional Religious and Cultural Importance, and Ethnographic Landscapes

Chris Moreno asked me some questions in an email this morning.  Since I imagine Chris is not alone in his puzzlement about these matters, I asked him if I could post his questions and my responses; he agreed.  Here they are:

Chris’ question: 

In relation to (National Register) Bulletin 38 (, what is the rule of thumb for ascribing affiliation to a potential traditional cultural property (TCP)?  More specifically, for it to be eligible as a TCP, can more than one cultural group ascribe affiliation?  Any insight on multiple affiliation and TCPs would be helpful.

My response:

First, a TCP is a TCP if those who value it say it's a TCP.  The National Register doesn't determine TCP-nes; it determines eligibility.  But as either a TCP or a Register-eligible TCP, of course multiple groups can assign significance to it.  Consider the site of the Solomonic and Herodic temple in Jerusalem -- a major TCP for Jews, Christians, and Muslims; the fact that one ascribes significance to it doesn't mean the others can't, or that an objective outside governmental body (e.g. the U.N., or God) shouldn't recognize all three ascriptions.

Chris’ question: 

What is the main difference between TCPs and Properties of Traditional and Religious Importance from an National Register evaluation standpoint?

My response: 

Logically, "properties of traditional and religious importance" are TCPs, but not the ONLY kinds of TCPs, since anyplace to which a group of people ascribes tradition-grounded cultural significance can be a TCP (e.g. tribal plant gathering areas, urban neighborhoods, areas where a community traditionally recreates, etc.).  Historically, "properties of traditional and religious importance" (actually "properties of traditional religious and cultural importance") was the terminology adopted in the 1992 amendments to the National Historic Preservation Act to smack down the three agencies (BLM, Forest Service, and BIA) that had refused to recognize Bulletin 38, but since it was tribes and intertribal organizations pushing the amendment, and I as amendment-drafter didn't think it proper to refer to my own freshly minted term (TCP), the amendment simply refers to tribal properties of traditional and religious importance.  In retrospect I'm sorry we didn't find a way to make the terms synchronous, but that's the way it goes.  See pages 35-36 of Places That Count ( for details.

Chris’ question:

Lastly, is there any specific National Register criterion that you know of that applies to Ethnographic Landscapes?

My response:

"Ethnographic" landscapes (I hate the term, because it implies that such places are important because ethnographers say so, rather than because people in communities say so) can be eligible under any of the NR criteria, but most often are eligible under Criterion A (association with significant events, patterns, etc.).  For an example, see

Hope this helps, but remember that I speak, above, for no one other than myself, and you certainly can't count on the Advisory Council on Historic Preservation or National Park Service to say anything similar.

Tom King

Friday, August 10, 2012

"Expediting" Energy Projects

Following is an email I sent yesterday (August 9th) to Nancy Sutley, Chair of the Council on Environmental Quality (CEQ) at the White House.  In the unlikely event I get a response, I'll post it.

Dear Ms. Sutley:

    I have a question that I hope you can answer. 

    As you know, the president and the Secretary of the Interior have just announced that seven renewable energy projects on public (and in one case tribal) lands in the west will be “expedited,” which if it means anything at all must mean that they are slated for quick approval (c.f. ).  Of the seven, at least five (Mohave Wind Energy, Quartzite Solar Energy, Desert Harvest Solar Energy, McCoy Solar Energy, and Silver State South) have not yet completed environmental impact assessment (EIA) under the National Environmental Policy Act (NEPA).  Each of these projects, according to Bureau of Land Management (BLM) websites, has been the subject only of a draft environmental impact statement (DEIS), which is now undergoing public review.  A quick review of the same websites and other data sources indicates that most of these projects have not yet been fully reviewed under other variously applicable laws, including but not limited to the Endangered Species Act, the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, and the Federal Land Policy Management Act.

    Your NEPA regulations, at 40 CFR § 1502.5, specify that:

    An agency shall commence preparation of an environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal (Sec. 1508.23) so that preparation can be completed in time for the final statement to be included in any recommendation or report on the proposal. The statement shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made
(emphasis added).

    Other sections of your regulations provide similar direction, underscoring the obvious point that EIA is useless if it does not inform decision making.  Yet the president and Secretary of the Interior have apparently decided to approve at least the five projects listed above (and to do so on an expedited basis) even though EIA under NEPA and other statutes, including public review, has not been completed.  It appears that they regard EIA not as a substantive contribution to decision making, but as a mere administrative requirement to be expedited.  And the many individuals, tribes, local governments, and organizations now preparing comments on the DEISs are wasting their time.

    So, are the president and Secretary of the Interior not in violation of your regulations, and hence of NEPA?  If not, why not? 

    Anticipating one obvious dodgy answer, let me also ask: if the president and Secretary have not decided to approve these projects, what precisely have they decided, and what is the meaning of their direction to expedite them?

    Thank you in advance for your explanation.

    Sincerely, in puzzlement,

    Tom King