The California Energy Commission is considering a new solar energy project in southeastern California, extending across the state line near Pahrump, Nevada. A local citizen concerned about the project's cultural impacts, Cindy MacDonald, asked me to review pertinent documents and write up some comments for her to pass on to the Commission. Because the case seems to be another one in which a "green" energy company and its cultural resource management consultants are making a mockery of good faith impact assessment, with Ms. MacDonald's permission I thought I'd share my comments. Here they are.
Review of cultural, historic, and visual resource assessments,
Hidden Hills Solar Electric Generating System
Thomas F. King
February 4, 2013
My qualifications for offering comments on these documents are outlined in the attached resume. In summary, I have worked within and outside government in the fields of cultural resource management (CRM) and environmental impact assessment (EIA) since the 1960s, authored ten books and a large number of professional articles and government guidelines relating to these subjects, and hold a PhD in anthropology with an emphasis on archaeology and experience in the California desert. I have no financial or other interests in the proposed Hidden Hills Solar Electric Generating System or its proposed siting. To the best of my knowledge, all facts contained in this memorandum, and all references to and citations of documents) are true and correct. The opinions offered are my own.
In the interests of full disclosure, I should also say that I am professionally acquainted with both the Commission's ethnographer, Dr. Thomas Gates, and the applicant's ethnographic consultant, Dr. Lynne Sebastian. I have long been impressed with Dr. Gates' abilities and integrity, and have been sadly disillusioned in recent years with Dr. Sebastian's.
Comments on the FSA
There are a number of things in the FSA with which I could quibble, but I generally find it to be quite a thoughtful document, and about as thorough as can be expected given the limited data with which the staff apparently had to work.
Like many documents of its kind, the FSA sometimes confuses and conflates terms like "cultural resource," "historic resource," and "archaeological site;" this tends to muddy its analysis and raise what may be unnecessary questions. It seems apparent from the ethnographic element of the FSA, for instance, that water is an important cultural resource for Indian tribes of the area, but by defining "cultural resource" as "tangible or observable evidence of past human activity” (p. 4.3-3, underscore added) the FSA seems to exclude water from consideration. "Historic (or "historical") resource" and more especially "archaeological resource" have statutory and regulatory definitions that rightly or wrongly suggest association with human activity. “Cultural resource" is not defined in law, and by conflating the term with those that do have explicit legal definitions, the FSA risks leading the Commission into ignoring serious impacts like those on the cultural value of water.
I also cannot tell why the staff has defined the Pahrump Metapatch Mesquite Woodland-Coppice Dune Landscape as "archaeological,” while characterizing and describing it largely with reference to ethnographic, geomorphological and hydrological variables. Nor do I understand -- given the unavoidable presumption that the "archaeological resources" of the area were the creations of Paiute ancestors -- why the staff does not seem to have felt it necessary to consult the tribes of the area when evaluating these resources. The tribes were very responsibly consulted in preparation of the "ethnographic" sections of the FSA, but seemingly not in addressing the “archaeology.” This seems strange and rather arbitrary, and may give the Commission a false impression of the area's cultural, historical, and archaeological significance. A more holistic approach might have been more fruitful.
Still, on the whole the "cultural resources" section of the FSA appears to me to be a responsible analysis that reaches respectable conclusions.
The "visual resources" section also appears to me to reflect responsible analysis, but I am puzzled by its rather abstract character. Visual impact analyses in which I have been involved in the past have recognized the seemingly obvious fact that visual impacts invariably involve the operation of eyes and brains. As a result, they have involved actual viewers of actual scenes -- asking people who regularly apply their eyes and brains to a viewshed to say what they value about it, and to react to mock-ups of proposed new constructions within the viewshed. The FSA gives the reader little idea of who regularly looks down onto or across the land where the project is proposed, and what they value (if anything) about the view. I wonder particularly about Native American spiritual practitioners and others who may use the area for religious or inspirational purposes -- do such people exist, and if they do, what burdens might the project place on their practice of religion? Similarly, I wonder who, if anyone, walks, rides or drives the route of the Old Spanish Trail to seek history-based inspiration, and what their impressions of the project's impacts may be. Again, this is not to say that the FSA is irresponsible or poorly constructed in its treatment of visual impacts -- only that it is rather bloodless and abstract, losing track of the viewers in its analysis of views.
Finally with reference to both sections, while I recognize that the Commission’s purview is limited to California, I understand that the project will involve activities in Nevada as well, which will have to be reviewed by federal agencies under the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA). I wonder how the Commission’s review will be coordinated with these reviews – particularly with the consultation-based review required under Section 106 of NHPA. The potential for costly and time-consuming complications appears to me to be high if provision is not made for coordination, and for ensuring that all studies carried out for EIA purposes are responsive to both state and federal guidelines. I raise this issue because of my concern about the lack of documented consultation with stakeholders – a core part of NHPA Section 106 review – in the FSA’s discussion of “archaeological resources” and of visual impacts.
Comments on the Applicant’s Testimony
The applicant's "cultural resources" analysis contrasts dramatically with the FSA's, and predictably enough seeks to deny any serious cultural value to the areas affected by the project.
This process of denial begins by not seeking anything but prehistoric and historic archaeological resources. As far as I can tell, the applicant's effort to identify impacts on "cultural resources" has amounted to reviewing readily available background documents and sending out archaeologists to perform "pedestrian" (i.e. walking) survey of the land surface, followed by excavation of some trenches to characterize subsurface conditions. Notably, despite a few unsubstantiated assertions to the contrary, I see no evidence that the applicant consulted any of the tribes in the area, or any of the people who may be interested in places like the Old Spanish Trail. The applicant's evaluation of the area's "cultural resources" is in fact an evaluation only of how significant the area's archaeological sites appear to be to archaeologists employed by the applicant.
Discussing the FSA’s conclusions, the applicant first asserts (on page 6) that the FSA simply lacks the "substantial evidence” necessary to form the basis for judging places like the Pahrump Metapatch to be eligible for the California Register of Historic Resources (CRHR). That may be true, but if it is, then surely someone needs to develop such information, and until it is developed, the Commission lacks a complete record upon which to base its decision about the project. I agree with the applicant that it is inappropriate to propose developing such information as mitigation; that would allow the project to be approved and go forward without full consideration of its environmental impacts. Such evidence, if needed, should be gathered and analyzed in advance of the Commission’s decision, to inform that decision.
The applicant also objects (on page 7) to the staff’s “assumptions” about the eligibility of places for the CRHR. I find this rather sadly amusing. In the 1980s I worked for the Advisory Council on Historic Preservation (ACHP), which oversees federal agency compliance with Section 106 of NHPA. In the early 1980s, the ACHP’s regulations followed NPS guidance in requiring that eligibility for the National Register of Historic Places (NRHP) be determined only by NPS, after multi-level review by federal agencies and State Historic Preservation Officers. During a revision of the regulations directed by the administration of then-president Ronald Reagan, and at the request of such disparate agencies as the U.S. Army and the Bureau of Land Management as well as private sector mining and energy interests, we included provisions allowing agencies to assume eligibility for the NRHP. This enabled agencies and applicants to reduce bureaucratic red tape and get on with deciding how to manage significant properties. It appears that the Commission’s staff is merely adopting the same sort of efficiency-enhancing approach to evaluation, and this outrages the applicant – who I assume must think that if it and the Commission just do not assume eligibility for the California Register, they can assume ineligibility and ignore the resources. It doesn’t work that way under the federal regulations, and I do not think it does under CEQA either. I note, in fact, that the State’s CEQA Handbook, at §15064.5(a)(4), says that—
“(t)he fact that a resource is not listed in, or determined to be eligible for listing….,does not preclude a lead agency from determining that the resource may be an historical resource…”
As I read this language, it seems to be consistent with federal guidance and practice. Confronted with a place that may be an “historical resource” per state law, an agency like the Commission can either (a) assume eligibility and get on with its decision-making, or (b) collect the data and go through the administrative processes necessary to formalize its determination. It cannot just avert its eyes and ignore a place because someone thinks it lacks sufficient information to reach a decision.
To rebut the FSA's ethnographic element, the applicant brings in Dr. Sebastian to perform what I have observed to be a common service she provides to clients. This is the third time I have seen Dr. Sebastian pursue what I have come to characterize as "the Sebastian Strategy;" the previous cases were those of the proposed Glamis Gold Mine in Imperial County (under federal law and the North American Free Trade Agreement) and of the proposed Liberty Quarry in western Riverside County (under CEQA). In neither case did her client prevail. The Sebastian Strategy works like this:
Step 1: First, one touts one's credentials (See pages 1 and 2 of Dr. Sebastian’s paper, “Ethnographic Landscapes and the Hidden Hills Solar Electric Generating System: “I am a nationally recognized expert..” etc. etc.).
Step 2: Then, either at the outset or woven through one's analysis, one characterizes the context of regulatory and other official guidance in which the analysis is performed, being very careful to do so in the most narrowly pedantic manner possible and to avoid any acknowledgement of alternative interpretations.
Step 3: Then, one reviews background ethnographic and historical documents, but one never, never in the course of doing so consults with the people upon whose cultural resources and views one is offering opinions.
Step 4: One assures the reader of one's great respect for the people, communities, and cultures that allegedly ascribe value to the project area, but explains, patiently, that:
(a) they simply do not know their own culture and history, and/or
(b) however valid their views may be, those views regrettably do not fit into the context of regulation and official guidance that one has carefully constructed at Step 2.
Step 5: Where the place or places involved comprise a somewhat extensive landscape, one goes on to suggest that even if such places are culturally significant, they constitute such large areas that the proposed project will really have only the most miniscule little impact on them – or that the places of real significance, in terms of the regulations and guidance to which one refers, are really pretty small and conveniently situated outside the area subject to effect.
In this case, Dr. Sebastian devotes much of her Step 2 discourse to a scholastic parsing of NPS guidance about characterizing historic, cultural, and “ethnographic” landscapes, emphasizing that the available official guidance tends to allude to evidence of human modification of such landscapes. Since Paiute communities did not make major, permanent changes to their landscapes (if one ignores things like trails and mesquite husbandry) -- and since those human modifications that are apparent in the landscape in this case have been filtered out of the ethnographic analysis by being characterized as "archaeological resources" -- why then, it's a real shame, but the Paiute just don't have any cultural landscapes, as the NPS guidance describes them.
Dr. Sebastian cannot quite ignore the fact that another NPS guideline document -- National Register Bulletin 38 on traditional cultural properties, of which I am a co-author and upon which my 2003 textbook Places That Count is based -- could give comfort to the notion that even a landscape without visible modifications may be culturally significant. She deals with this inconvenience by counting up the number of times my co-author and I used the word "landscape" in the bulletin. We used the word only four times (contrasted, incidentally, with 17 uses of the word "building," most often when quoting pre-existing NPS documents or in citations). Based on this observation she concludes that Bulletin 38 fails "to provide guidance on identifying and evaluating ethnographic landscapes" (Page 3).
In arriving at this conclusion Dr. Sebastian ignores the fact that as examples of known or hypothetical traditional cultural properties the bulletin includes mountains, lakes, canyons, and other substantial geographic features -- landscapes by other names. Because we did not use precisely the term in which Dr. Sebastian is interested (which as she notes came into use by NPS in 1991, a year after publication of Bulletin 38), Dr. Sebastian apparently finds that Bulletin 38 provides no official basis for the staff’s definition of cultural or “ethnographic” landscapes.
Having thus assured the Commission that there is simply no place in pertinent cultural resource law and regulation for consideration of a landscape like those discussed in the FSA, Dr. Sebastian goes on to assert, as usual, that even if such a landscape were viewed as eligible for the CRHR, it would comprise or be part of something so much larger that it would lose meaning, or the proposed project’s effects would be lost within it.
There may be good reasons to argue about the significance and character of the various cultural landscapes the Commission staff has defined in the FSA. It may be that more "substantial evidence" is needed before their eligibility for the CRHR can be confirmed or disconfirmed. It may be that the project will have little impact on them if they are eligible. There is, however, no basis I can think of for accepting Dr. Sebastian's analysis as authoritative. If the Commission is inclined not to accept the FSA's conclusions, what should be done is to consult more thoroughly, holistically, and systematically with the Paiute and other people who may ascribe cultural value to the landscapes. Only they can say what is significant to them, or what will affect that significance. That, incidentally, is the main thrust of National Register Bulletin 38.
The applicant’s treatment of visual resources suffers from what seem to me to be the same flaws as does the staff’s analysis – i.e. a failure to address the views (sic) of those who actually look at and may (or may not) value the viewshed within which the project is proposed. Predictably, the applicant regards the project’s visual impacts as less substantial than does the staff, but lacking reference to the opinions of actual viewers, I cannot see that either the applicant or the staff has a leg to stand upon.