One More Time: Archaeological Survey Does Not Equal a Reasonable and Good Faith Effort to Identify Historic Properties

On October 16, 2012 I posted the following on ACRA-L, a listserv subscribed to by a lot of Cultural Resource Management (CRM) practitioners:

Based on collective experience, does the following seem like common practice?

1.    Non-governmental project sponsor wants to use a big chunk of federal land.

2.    Responsible agency has not yet initiated Section 106 (of the National Historic Preservation Act) review -- i.e., it has not initiated consultation with SHPO (State Historic Preservation Officer), tribes, others; it may or may not have defined some kind of APE (area of potential effects), but has not consulted to establish a scope of its identification needs.

3.    Nevertheless, it directs the project sponsor to conduct an archaeological survey of something -- presumably an APE as someone has defined it.

It seems to me that this practice puts the cart at least partially before the horse.  At some point in the future, presumably the agency will initiate 106 review, but it seems inevitable that it will rely on the prior-conducted archaeological survey to define the universe of things to be consulted about.  If anyone suggests that the survey was ill-scoped or ill-conducted, that the APE was ill-defined, that there are properties or types of property that were missed or not sought, or that there are cultural phenomena other than putative historic properties to be considered, I'd expect that they'll have an uphill battle getting these concerns recognized.  At the very least, there will be a conflict situation, which might have been avoided had the work been planned as the Section 106 regulations require.

Does anyone else have a thought about this practice, and about how widespread it is?

I got only about half a dozen responses – most CRM practitioners are sick of my nattering, I suppose, and don’t read my stuff.  Those who did respond were about evenly divided between east and west, and almost evenly divided in their responses along the same geographic lines.  Those in the east said that what I described doesn’t happen or happens only rarely.  Those in the west said it happens all the time.

This was pretty predictable, since most federal land is in the west, so the condition I’d set out as #1 – applicant wants to use big chunk of federal land – is pretty foreign to conditions in the east.

But I think it also reflects the confusion that land managing agencies in the west seem to experience between “cultural resources” and “archaeological sites,” and between “archaeological survey” and making a reasonable and good faith effort to identify historic properties.

The Section 106 regulations (36 CFR 800) prescribe that the first thing a federal agency must do if its project requires review, besides figuring out who to consult in the course of such review, is to determine what the scope of its “reasonable and good faith effort” to identify affected historic places will be.  It’s to do this in consultation with State and Tribal Historic Preservation Officers, tribes, and other interested parties.  It is not to rush out and have an archaeological survey done (or an architectural survey, an engineering survey, a historical survey, or a survey of toenail fungus). 

Why not? For the same reason you don’t go out shopping for your family’s holiday gifts without first making some effort to determine what they might like to get and what you can afford.  You don’t want to wind up being a Stupid Santa. 

Consultative scoping under Section 106 (and NEPA, except NEPA doesn’t really require it) is done to determine what sorts of things different groups are concerned about, and what the nature of the area is – its history, its environment, its architecture, its culture.  Based on this information you can figure out what sorts of expertise you need, and what sorts of methods to employ, so that when you get farther along in the process you don’t have to say “oops,” and backtrack to look for things you didn’t initially consider.  Or – as is more commonly the case – not say “oops,” but just try to cover up your mistakes and ignore the people who are railing at you for missing the places and things that they think are significant, or the effects that they think are unacceptable.

But particularly in the west, and particularly among land management agencies, it’s just assumed that what you need to do to find “cultural resources” subject to effect by a project is to hire some archaeologists and have them walk the ground.  Exactly what ground they walk is another whole question, but it’s become unquestioned gospel among the land management agencies that the first and usually only thing you need to do to identify “cultural resources” is to send in the archaeologists.

The agencies usually also recognize, more or less, that they have to do “tribal consultation,” whatever they think that is.  Usually, though, they take this to mean sending a more or less incomprehensible letter to each tribe in the area, asking them if they have any “cultural resources” about which they want to volunteer information.  Maybe the agency will propose an “ethnographic study,” but they usually look on that as a form of impact mitigation, not as part of their identification work.  Agencies sometimes recognize that they ought to be on the lookout for historic buildings and structures; if the archaeologists say they can’t evaluate such things, then maybe they’ll bring in an architectural historian.  What they almost never, ever do is what the regulations say they’re required to do: sit down up-front with those interested in their project’s likely effects and find out what sorts of studies, if any, they think need to be done.  Instead, ninety-nine times out of a hundred, they simply have an archaeological survey done and distribute the resulting jargon-laden report for review – first excising most of the relevant data from it for fear that the untrustworthy public will go out and rip off all the discovered “sites.”

All this, on the whole, is fine with the “cultural resource” consulting firms and environmental impact assessment outfits that ostensibly provide expert advice to the agencies and to those seeking to use federal lands.  It’s a very cozy arrangement; the agencies prescribe an archaeological survey and the consulting firms go do it – all according to standard procedures so nobody needs to strain their brains too much.  The companies that want to use federal land pay for it, the whole operation is kept out of the public eye, and everybody’s happy.  The boat gets rocked only when some scurrilous outsider – an Indian tribe, a local organization, an environmental group with a lawyer – makes a fuss, but if that happens, well, then, the consulting firm just gets more paying work from its client, so it’s still happy.  The land management agency may be disgruntled, but it’s most likely just mad at whoever’s rocking the boat.  The company that’s paying the tab doesn’t like the costs and delays, but all it knows is that some NIMBYs are making trouble with which its hired experts need to be paid to deal.  It’s just a cost of doing business.  If the companies knew that the agencies to which they’re applying and the consultants advising them were ignoring a simple, sensible scoping requirement that if attended to could keep them from having such problems, or at least let them anticipate them, they’d probably be more upset.  But they probably couldn’t do much about the matter, and most times they don’t know

In theory, the State and Tribal Historic Preservation Officers (SHPOs/THPOs) are supposed to ride herd on the agencies and consultants, to insist that they follow the regulations.  But a lot of SHPOs, at least, don’t seem to know what the regulations say, or they have their own exotic notions about the regulations’ content.  Scoping as an explicit regulatory requirement has been in the 106 regulations only since 2000; a lot of SHPOs don’t seem to have caught up with the lightning pace of regulatory change.  And of course, SHPOs are congenitally underfunded, understaffed, underqualified, and required (and/or prefer) to spend their time doing things other than project review – like compiling paper for the National Park Service (NPS) to ponder, and nominating things to the National Register.  They ride herd astride spavined, hobbled ponies, wielding popguns loaded with nit-picks.  THPOs have many of the same problems, and a lot less money with which to address them.  And both SHPOs and THPOs are beholden to NPS for what federal money they do have, and NPS – to judge from the records it makes SHPOs keep – hasn’t read the Section 106 regulations since approximately 1986.

Some SHPO staff members do get frustrated with their roles; here’s a quote from one who wrote me just a couple of days ago – her email text altered slightly to protect her identity:

My pet peeve here is "archaeo-business."  It’s a million dollar industry and it has gotten to a point where five pieces of pottery found in a bulldozed site can be justification for getting an archaeologist to conduct tests and reconnaissance for the developer at a very hefty cost. And yet when the project they're working on is doing major damage to an important historic structure in plain view from where they’re monitoring excavations, they look the other way and claim that it is not in their scope of work to be concerned with structures.  It just disappoints me, demoralizes me, and erodes my belief that historic places are priceless.

Why doesn’t such an aggrieved employee do something about it?  Usually because they can’t.  Their supervisors don’t want to rock boats.  And they often don’t know what to do about it, because they haven’t read the regulations either.  Or because they know that even if they get their supervisors to blow the whistle, they’re unlikely to get any help from what jokingly passes for federal historic preservation leadership at the ACHP and NPS.

We’ve had the current version of the Section 106 regulations for a dozen years now.  The regulations are far from perfect, but they’re pretty clear about scoping.  At 36 CFR § 800.4(a) they say:

Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall:

(1)  Determine and document the area of potential effects, as defined in § 800.16(d);

(2)  Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3)  Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and

(4)  Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites.

I added emphasis to that “shall” to emphasize that scoping is a legal requirement, not just something the agency oughta do.  And you’ll note, I hope, that the term “archaeological survey” appears nowhere in that regulatory prescription.

Buy Mushgigamongsebe: Benefit a Tribe

I got my royalty statement the other day from Amazon Kindle ($14.50, YAY!) and saw that once again all the sales were of Thirteen Bones, not Mushgigamongsebe (http://www.amazon.com/The-Mushgigamongsebe-District-Traditional-ebook/dp/B008AK7AJQ).  Not meaning to discourage sales of my gripping, exciting novel (perfect for holiday giving), but anyone interested in traditional cultural properties (TCPs) or what the National Park Service (eyes fixed firmly on its lint-filled navel) calls "ethnographic landscapes" ought to get Mushgigamongsebe, all royalties from which I pass on to the Mole Lake Sokaogon Band of Great Lakes Chippewa, whose landscape Mushgagamongsebe is, and who have rescued it from the depradations of a multinational mining firm.  The Kindle book is the report that Anna Willow, Larry Nesper and I prepared for the Mole Lake Band when they were fighting the mine via Section 106 review -- one step toward its eventual preservation.

NEW EVIDENCE OF JUST HOW STUPID A STATE HISTORIC PRESERVATION OFFICER CAN BE

I’m reliably advised – with authoritative supporting documentation provided – that a State Historic Preservation Officer (SHPO) in a state that will remain nameless uses an “SHPO Clearance Form” to expedite “compliance” (sic) with Section 106 of the National Historic Preservation Act (NHPA) by federal agencies and, apparently, applicants for federal assistance and permits. 

The form is two pages long; the “applicant” fills in blanks identifying the project and saying what county it’s in, then offers his or her own determinations as to the eligibility of affected properties for the National Register of Historic Places and as to the nature of the project’s effects on them (“No effect,” “ No adverse effect” or “Adverse effect”).  He or she then sends the form in to the SHPO, who signs either to concur or not concur in the applicant’s determinations.  And hey presto!  You’ve finished Section 106!

Very efficient, SHPO; great work.  Except, of course, that you’ve systematically directed the applicant into non-compliance with Section 106 and its regulations (36 CFR Part 800).

How?  Let me count the ways:

1.       Nowhere in NHPA or in 36 CFR Part 800 is there any provision for SHPO “clearance.”  The Advisory Council on Historic Preservation (ACHP) has made this clear not only in the regulations but in various guideline documents; I’ve tried to make it clear in every relevant textbook I’ve written since 1998; the ACHP and others (Claudia Nissley, myself) have tried to make it clear in our training.  

2.       This is not merely a technical quibble.  Section 106 review is fundamentally about multi-party consultation.  Reducing it to an exchange of “clearance” documents between an “applicant” and the SHPO cuts everybody but the “applicant” and the SHPO out of the loop.  That’s contrary to the core principles upon which Section 106 review is based.

3.       It also encourages federal agencies and others to break the law by ignoring:

a.       36 CFR § 800.3(e), which directs agencies, when they initiate Section 106 review, to plan how to involve the public (“clearance” effectively cuts the public out).

b.      36 CFR § 800.3(f), which directs agencies initiating review to “identify other consulting parties” – that is, parties other than the SHPO, including Indian tribes or Native Hawaiian groups, local governments, and anyone else who’s “entitled” to consult – “entitlement” being based on interest in the project or its effects on historic properties (36 CFR § 800.2(c)(5)).  “Clearance” cuts out all these consulting parties.

4.       The “clearance” process in this case goes farther by encouraging “applicants” to ignore:

a.       36 CFR § 800.4(a), which requires agencies to consult with SHPOs (and Tribal Historic Preservation Officers or THPOs, also ignored in this form), in establishing the scope of their historic property identification work, including:

                                                               i.      Establishing what the Area(s) of Potential Effect (APE) are;

                                                             ii.      Reviewing background data, and

                                                            iii.      Gathering and considering information held by other parties, notably Indian tribes and Native Hawaiian groups regarding places of religious and cultural significance to them;

b.      36 CFR § 800.4(b), which requires agencies to consult with SHPOs, THPOs, and others in conducting a reasonable and good faith effort to identify potentially affected historic properties, based on the scope of work developed per § 800.4(a); the “clearance” form doesn’t even ask the “applicant” what he or she has done to identify historic properties;

c.       36 CFR § 800.4(c), which requires agencies to consult with SHPOs, THPOs, and others in determining which potentially affected properties are eligible for the National Register; the “clearance” form reduces this to a check-box interaction between the “applicant” and the SHPO;

d.      36 CFR § 800.4(d), which requires agencies to consult with the various parties in determining whether eligible properties will be affected (again reduced by the “clearance” form to the applicant’s box-check and the SHPO’s concurrence); and

e.      36 CFR § 800.5, which requires consultation in determining whether such effects will be adverse (another check-box on the form)

OK, by now your eyes are glazing over, so let’s get down to the nitty-gritty.  By using this “clearance” form, the SHPO is screwing up in two large ways.

1.       He or she is setting things up so the taxpayers who pay his or her salary can have no influence on federal agency decision making under Section 106.  This seems like a pretty strange thing for an ostensible public servant to do – and just to throw another regulatory cite at you, it’s inconsistent with 36 CFR § 800.2(c)(1), which says that the SHPO is supposed to “reflect the interests of the state and its citizens in the preservation of their cultural heritage.”  Though maybe this SHPO can somehow magically reflect such interests while keeping those interested in the dark.

2.       By encouraging agencies not to do what the regulations quite explicitly require them to do, the SHPO is setting agencies and other “applicants” up for litigation and other challenges to their project planning, which can have serious fiscal implications for all concerned.

And I suppose it’s worth noting that he or she is probably facilitating the destruction of a lot of historic properties, but maybe I’m just picking nits.

Bottom line: the regulations have never provided for SHPO clearance, and the revisions of 1999-2001 (with which it looks like this SHPO is unfamiliar) considerably clarified the fact that SHPO clearance is not the name of the 106 game.  Ignoring the regulations, and setting up one’s own happy little process that keeps the public in the dark while the SHPO and agencies pass paper back and forth to one another, is both reprehensible and, I’d say, stupid.  Reprehensible because it encourages illegality, ignoring project impacts, and keeping those who pay one’s salary in the dark about things that are important to them; stupid because one will eventually get caught, and the results of doing so are likely to be very uncomfortable.