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.
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