Doing Away With “State Protocols” by the US Bureau of Land Management and State Historic Preservation Officers

For some years (far too many, in my opinion), the U.S. Bureau of Land Management (BLM) has carried out what it represents as compliance with Section 106 of the National Historic Preservation Act (NHPA) under a “nationwide programmatic agreement” (NPA) with the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers – the latter representing all 59 State Historic Preservation Officers (SHPOs).  Under the NPA, BLM executes “state protocols” with each SHPO.  These ostensibly lay out how BLM and the SHPO will interact during BLM’s compliance with Section 106 (sic: the NPA), but they inevitably go farther, in fact structuring how BLM approaches such matters as public involvement, tribal consultation, historic property identification, effect determination, and resolving adverse effects on historic properties.

I recently received a draft revised protocol negotiated by BLM and the California SHPO; although ostensibly provided to consulting parties for review, it was a very complete document, some 75 single-spaced pages long, all worked out between BLM and SHPO staff without any evidence that public views were solicited or considered. 

I commented:

Having given the proposed "new" protocol a sufficient (I think) review, I just want to suggest to all concerned that it is absurd. In an attempt to "streamline" the relatively straightforward processes laid out in the NHPA Section 106 regulations, BLM has generated a massive document made up mostly of meaningless abstractions and promises to do right, combined with references to still other documents. If BLM were designing a mechanism specifically to confuse readers and minimize the potential for anyone to participate in its decision-making, it could hardly do better than to issue this protocol.

BLM adds insult to injury by sharing the thing for review by interested parties only after it is complete in "draft" form. This is not consultation; it is at best an opportunity to comment on decisions already made.

Moreover, the draft shows no evidence I can see of the slightest attention to correcting the problems that tribes and others (myself included) have pointed out with the existing protocol. Specifically, the stuff on identification of historic properties remains deeply archaeo-biased, essentially taking the position that what BLM must identify and address are those phenomena that archaeologists can see and appreciate -- never mind places like landscapes important to tribes and local residents or the habitats of culturally and historically important animals and plants. Moreover, it continues to offer the easy out of "avoidance" -- if a project is designed to "avoid" being plopped down right on something that an archaeologist has identified, then no further review is necessary. Thus BLM not only ignores project impacts on historic places that don't happen to be places appreciated by archaeologists, but also ignores visual, auditory, olfactory, and other not-directly-physical impacts even on archaeological sites. These issues have been raised repeatedly in comments on environmental documents prepared for BLM by the proponents of projects like Genesis Solar and Ocotillo Wind, but BLM continues to stumble along giving them no attention at all. Despite a promise to address indirect and cumulative effects, this "find the arch sites and avoid them" approach ignores these effects as well.

This idiotic, irresponsible document ought to be rejected out of hand by all concerned. If BLM has trouble complying with the 106 regulations (as it apparently does, but might not if it actually tried to do so), then there may be ways to establish better ways for it to do business, but this sad exercise in decanting rancid old wine into a recycled bottle is not helpful.

To which BLM’s California State Archaeologist replied:

If you could get Congress to overhaul the whole NHPA and section 106, I wouldn't argue with you but, alas, I have to work with what I have.

To which I replied:

 If I'm understanding you, you're saying that NHPA and "section 106," by which I presume you mean the 36 CFR 800 regulations, make you do what you're doing with the protocol -- that you'd consider doing things differently if those legal authorities only let you do so. If that's what you're saying, please direct me to the parts of NHPA or the regulations that require you to do things like (but not limited to):

1.    Substituting a vaguely worded 75-page protocol, worked out bilaterally with the SHPO, for the multi-party consultative process set forth in the Section 106 regulations;

2.    Focusing on archaeological survey as your means of identifying historic properties, thus giving short shrift (at best) to cultural landscapes, the habitats of culturally important plants and animals, and other historic places that archaeologists are ill-equipped to identify;

3.    Relying on physical "avoidance" of archaeological sites as your means of impact mitigation, thus ignoring (again) historic places that are not archaeological sites AND ignoring impacts that are not directly physical AND ignoring indirect and cumulative effects; and

4.    Substituting providing time-limited opportunities to comment on documents for actually consulting people about their historic preservation-related concerns.

I've worked with NHPA and the regulations for something over 45 years, and I've never encountered the provisions that require you to operate in the above ways, so please, can you point them out to me?

If the above is NOT what you're saying, please advise me about what you ARE saying.

I’ve not received a response, and don’t much expect one – at least not a meaningful one.  Not because the State Archaeologist is stupid, or trying to avoid thinking (though either or both may be true), but because I think that she – in common with a lot of others in agencies, SHPO offices, and even at the Advisory Council on Historic Preservation (ACHP) take it for granted that NHPA, or the regulations, or some other writ-on-stone direction, actually does equate Section 106 review with getting SHPO comments on the identification and avoidance of physical impact on archaeological sites (or in relatively urban contexts, old buildings). 

 

So – acknowledging that nobody’s asked me, here’s what I think BLM actually ought to do:

 

1.    Void the NPA.  Transform those (possibly useful) elements of it that deal with internal BLM organization into elements of the agency historic preservation program required by Section 110(a)(2) of NHPA.

2.    Void all State Protocols.

3.    Replace them – if necessary – with simple agreements specifying how BLM will communicate and coordinate with the SHPO when complying with 36 CFR §§ 800.3(c), 800.3(e), 800.3(f), 800.4, 800.5, and 800.6 and with Sections 110(a), 110(b), 110(d), 110(f), 110(k), and 111 of NHPA.

a.    These agreements should be carefully crafted so as to avoid restricting or obscuring BLM’s responsibilities for tribal consultation, consultation with other interested parties, and effectively involving the public. 

b.    Such agreements could, I believe, eliminate SHPO review of specified BLM documents altogether (saving time and expense for all concerned), provided agreed-upon standards were met.  Such standards should emphasize the identification and resolution of direct and indirect impacts of all kinds, as well as a project’s contributions to cumulative impacts, on all types of historic properties, notably including cultural landscapes and other traditional cultural properties, in consultation with tribes and other interested parties.

c.    Such agreements could also clarify how Section 106 review, or at least the SHPO’s participation in it, would be coordinated with review under Section 102(c) of the National Environmental Policy Act (NEPA).

Such agreements ought actually serve to “streamline” Section 106 review (a popular goal toward which BLM seems counterintuitively to think it can advance by issuing 75-page compilations of platitudes) and could, if carefully crafted and implemented, preserve the rights of American citizens to participate in BLM’s piece of federal decision making.