Tuesday, July 30, 2013

The New East Utalina State Historic Preservation Officer

Memo to the Staff, East Utalina SHPO

As you know, yesterday I accepted Governor Christineger’s appointment as East Utalina’s State Historic Preservation Officer (SHPO).  I am honored and humbled by this appointment, and look forward to working with all of you.
In accepting the Governor’s appointment, I also accepted – and strongly support – his direction to make a 25% cut in the cost of SHPO operations and to simplify administrative processes.  The major purpose of this memorandum is to explain how I intend to implement this direction.

By way of background, I believe strongly that the central purpose of the National Historic Preservation Act (NHPA) and the East Utalina Historic Resources Act (EUHRA) is to protect and advance the public interest with respect to historic preservation.   NHPA and EUHRA were not intended to place the interests of historic preservation above all other interests, and the office of SHPO, created and described in the statutes, is not intended to be an unfailing advocate for historic preservation regardless of other interests.  Nor, I believe, is it the purpose of the SHPO to serve largely as an information repository, a collector of information, or a bookkeeper.
The core responsibility of the SHPO, I believe, is to do whatever is feasible to ensure that the public has every opportunity to influence decision-making relating to the management of historic properties, including the management of impacts on such properties.  This is implicit in the language of the regulations implementing Section 106 of NHPA, wherein the SHPO is said to “reflect the interests of the State and its citizens in the preservation of their cultural heritage” (36 CFR § 800.2(c)(1)(i)).  No individual or office can in fact reflect such a range of interests as those represented by the State and all its citizens, so what we must do is to ensure that citizens can readily participate in what we do, and to influence our decisions and those of others.  In many ways, NHPA and EUHRA are intended to protect the interests of the public from the plans and projects of government and those it assists or licenses.  This is the function I intend to emphasize.

Much of our staff time – and hence our budget – is given over to (a) encouraging, receiving, reviewing and processing nominations to the National and State Registers of Historic Places (carried out by the Office of Registration) and (b) participation in federal project review under Section 106 of NHPA  and Section 601 of EUHRA (carried out by the Office of Consultation).  The following measures are designed to simplify these functions, substantially achieving the 25% cost reduction ordered by the Governor while improving our responsiveness to the public interest.
1.       Effective immediately, the Office of Registration is abolished.  Registration, including listing properties on the State and National Registers, is a recordkeeping function that we must downgrade.

a.       To the extent registration continues, it will be carried out by the Office Librarian.

b.      SHPO sponsorship of surveys and nominations to the State and National Registers will be wound down in an orderly manner; by the end of this fiscal year, investment in such operations should approximate zero.

c.       Nominations prepared by others will be received and reviewed as time permits, with priority given to properties whose registration relates in some demonstrable way to land-use planning, development project review, and/or the receipt of grants to support preservation, with the explicit recognition that neither NHPA nor EUHRA require placement on the National or State Register to trigger the review of impacts on properties; eligibility for either register is sufficient.

d.      Employees whose positions are terminated by this action will receive priority consideration for jobs that become available elsewhere in the office, and will be counseled regarding employment options in other state agencies, local governments, with Indian tribes, and in the private sector.

2.       The Chief, Office of Consultation will within thirty (30) days deliver to me a plan of action to achieve the following objectives:

a.       Finalize guidelines for all federal and state agencies regarding initiation of NHPA Section 106 review in accordance with 36 CFR § 800.3, and for the conduct of review under 36 CFR §§ 800.4 and 800.5.  These guidelines are to emphasize agency outreach to the interested public, and ongoing consultation with interested parties, so as to ensure that such parties are given every opportunity to participate in and influence the project review process.   The guidelines should provide for monitoring by this office to promote agency compliance, and for intervention by this office in response to public concerns.

b.      Simplify or eliminate routine review by this office of agency determinations under  36 CFR §§ 800.4 and 800.5 and the equivalent sections of the EUHRA Section 601 procedures, provided the agency whose project is subject to review conducts itself in accordance with our guidelines and there are no objections from the public, local governments, or Indian tribes.  This office should concur in determinations that no historic properties are affected by a project, or that there will be no adverse effect, provided the responsible agency demonstrates that it has followed our guidelines and has the substantial agreement of Indian tribes, local governments, property owners, historic preservation interests, and other consulting parties.

c.       Establish that it is the role of this office to (1) promote responsible, thoughtful attention by federal and state agencies to the effects of their actions on the cultural environment, including but not limited to historic properties, and to (2) mediate and facilitate negotiation among such agencies and other interested parties to resolve the adverse effects of such actions under 36 CFR §§ 800.6, the equivalent provisions of the EUHRA Section 601 procedures, and other pertinent laws, regulations, and executive orders.

d.      Establish that this office will not invest substantial staff time or budget in promoting review processes for their own sake, or in promoting the preservation of properties in which Indian tribes, local governments, historical, architectural, or archaeological interests, and the public, having had a full opportunity to express interest, have not done so. 
I realize that some of these directions fly in the face of long-standing policies and procedures articulated by the National Park Service (NPS), an important source of funding for our operations.  NPS policies and procedures are not engraved in stone, however, and I am hopeful that NPS will recognize that the time has come to explore alternatives that may be more responsive both to the public interest and to fiscal reality.  I look forward to vigorous discussion of this matter with NPS and my colleagues in the National Conference of SHPOs.
Fred Noonan
State Historic Preservation Officer

Saturday, July 27, 2013

Sidestepping Consultation: Part Three

Third and last in a series on how project sponsors and government agencies can avoid or minimize the impacts of having to consult with Indian tribes, property owners, and citizens when "complying" with U.S. historic preservation and environmental laws and regulations.

Ignore Alternatives

Particularly if you’ve been successful in establishing presumptions favorable to your plans (See previous discussion), you should be able to ignore a lot of alternatives that your opponents might like to see considered.  Actually, you should be able to keep them even from knowing about such alternatives, so they won’t even be able to start arguing for them.  After all, they’re probably not specialists in mining or energy production or whatever it is you’re doing, so they have no way to know what options are being kicked around among the experts.  The last thing you want to do is let them in on the secret.

So if the DeepDark Mine is intended to produce Dilithium crystals for use in matter/antimatter energy production, and there’s research underway into formulating Dilithium from sewage, you don’t want to reveal this alternative until and unless you’re forced to by a regulatory agency or by public exposure.  Neither of these is particularly likely to happen if you’ve been successful in establishing favorable presumptions.  If somebody does raise the possibility of processing sewage instead of digging the mine, you should be able to give the idea short shrift because it’s inconsistent with the agreed-upon presumptions.

Expand Alternatives

On the other hand, it’s sometimes helpful to expand the range of alternatives thrown on the table – not for extensive, expensive consideration, but just for discussion – so those that might actually work get lost in the noise generated by impossibilities. 

Outside the cultural resources and environmental arenas, the National Rifle Association in the United States has recently given us a fine example of alternative expansion.  Faced by massive popular revulsion at gun violence in the wake of the massacre at Newtown, Connecticut, the NRA vigorously espoused improved mental health as the solution.  It’s hardly debatable that improved mental health would reduce the number of nutcases with guns (or with rubber bands or chewing gum, for that matter), but fixing the nation’s mental health is a big, complicated job.  By shifting the focus from the feasible alternative of reducing the number of guns available to the mentally ill to the near-impossible task of curing them, the NRA skillfully muddied the water and thus far has once again preserved its members’ ostensible right to deploy whatever kinds of weaponry suit their fancy.

You can learn from the NRA.  Propose, say, a study of how to mine Dilithium under aquifers without polluting them, or a documentary video on the bridges of West Easterly County.  Or maybe suggest development of a web site on big blue oaks, or a tell-all book on people who’ve made out on the Kissing Bridge.  Anything to divert attention from the straightforward question of whether putting in the mine, taking down the tree, or replacing the bridge is a good idea.  Some ideas may get rejected out of hand, but some may get traction, and in any event, offering them will make you look responsive to people’s concerns while actually confusing the consultation.

Pre-draft an Agreement

In my consulting practice I strongly recommend against drafting an agreement document before you start consulting, but that’s for people negotiating in good faith.  This paper is for people negotiating in bad faith, so I can say that for you, pre-drafting an agreement is a good idea.  Make it say what you want it to say, with a few cosmetic elements designed to make it look responsible, and promote it as the obvious, reasonable solution to the conflicts posed by your project (which, of course, you don’t acknowledge as real conflicts).  This is easiest to do if you represent the government agency responsible for overseeing the consultation; if you represent a non-governmental project proponent you may need to persuade the overseeing agency to buy into your document before presenting it to the other consulting parties.  This is usually easy to arrange, because having an agreement document to work with can be presented as an efficiency-builder, something that will make the government’s life easier.  Since the in-boxes of overseeing agency bureaucrats are often just as overflowing as are those of tribal and state officials, those bureaucrats tend to welcome such efficiencies.

Runaway Agreements

Even if you can’t pre-draft an agreement document, you can minimize the damage it can do to your interests.  Of course, you can negotiate aggressively and with care – that’s only fair.  But beyond what’s fair, you can try to make the agreement as ambiguous as possible, as unclear as possible about who is supposed to do what, and as complicated as possible for anyone to try to enforce.

One simple ploy is to make the document long, with many clauses and subclauses, with special emphasis on clauses that don’t commit anyone (or at least, don’t commit you or your client) to doing anything.  In writing NHPA Section 106 memoranda of agreement (MOAs), it’s become very common to devote page after page to “whereas” clauses –  for instance: “Whereas the DeepDark Mine Company proposes to construct the DeepDark Mine.”  As that example illustrates, “whereas” clauses are supposed to state the facts, and sometimes to recite the events that have led up to the terms agreed upon.  “Stipulations” then specify what’s actually going to be done (“The Company will employ the non-ground-disturbing methodology described in Utazona Division of Mines Technical Paper 17, dated April 1 2024, to avoid intruding upon the PaleAle Aquifer”).  People can get very fixated on “whereas” clauses, both because they represent what everybody is agreeing represents the reality of the case and because they’re a place to get licks in, to make oneself look good (“Whereas the U.S. Bureau of Minerals is deeply and righteously concerned about the welfare of the Kawako Tribe.”).  Negotiators from what Edward Hall (1977) and others call “high context” societies (including most indigenous groups) may understandably want to use agreements to say things that, in essence, play well with the folks back home (“Whereas the Tribal Tribe has endured centuries of suffering as the result of U.S. government actions.”), but anybody can play the game.  You may be able to get the consulting parties so wrapped up in arguing about historical minutiae and statements of principle that by the time they get to the real meat of the document – the stipulations – they’re exhausted and have lost interest; then you can make the stipulations say whatever you want them to say.

What do you want them to say?  That depends on the real-world circumstances with which you’re dealing, of course, but you probably want them to commit you, your agency, or your client to doing as little as possible, in the most untimely possible ways.  Some commonly used strategies include:

Using passive voice.  Don’t let the document say “the DeepDark Mining Company will do X, Y, and Z;” make it say “X, Y, and Z will be done.”  This way there’s no real telling who’s going to do X, Y, and Z; nobody really has the responsibility.  You may be able to slither out of it altogether, or fob it off on somebody else; at the very least you can make compliance with the agreement’s terms hard to enforce.

Employing abstractions.  Abstract terms like “best practices,” “high scientific standards,” “due diligence,” and “culturally sensitive” can mean almost anything, and probably do mean different things to the different consulting parties. 

Do a plan.  I very commonly see agreement documents stipulating that Party X will construct a plan (or “a plan will be constructed”) to accomplish something, perhaps according to detailed standards, and perhaps subject it to detailed review by other parties – but then fails to stipulate that the plan will be implemented once it’s been constructed.  So the plan may be developed – probably taking years, and all the while your project’s going forward – and then put on the shelf to gather dust.

Kick the can.  One of the beauties of agreeing to do a plan is that usually it means the parties are agreeing that your project can go forward, subject to doing (and maybe implementing) your plan down the road someplace.  “Kick-the-can” agreements are terrible from the standpoint of the good-faith negotiator, but from a bad-faith perspective, they’re great.

Control the Agreement Document

It’s important to maintain as much control of the agreement document as you can, to either do the drafting yourself or strongly influence those who do it.  Having an impressive, aggressive lawyer at your side can be a big help here; she can sneer (even through a smile) at all the poor stupid non-lawyers struggling with a legal document, and make it clear that only she is really competent to do the drafting.  She can flummox them with what Justice Scalia has memorably called “legalistic argle-bargle”[1].  Once she’s beaten the opposition into submission, you can make the document say what you want it to say.  It’s useful, too, to have a stock of laws, regulations, and policies to draw upon as authorities for what can and cannot be done (whether they’re really relevant or not).  It’s remarkable what people will accept as authoritative, controlling, procedures.  Just the other day, I was told by a government official that the “Code of Federal Regulations” required production of certain documents.  The Code, of course, is a vast corpus of direction; when I asked for a specific citation laying out the requirement she was insisting be complied with, the official couldn’t provided it – probably because it doesn’t exist.  But it was a brave ploy, and probably works with a lot of people.

I’m sure there are lots of other ways to sidestep consultation, and I’d welcome suggestions – which can be anonymous if you wish.  Send them to me at tfking106@aol.com.

Tuesday, July 23, 2013

How to Sidestep Consultation: Part 2

Second in a series on how project sponsors and government agencies can avoid consulting with Indian tribes, property owners, citizens groups, and other concerned parties under the U.S. cultural resource management (CRM) and environmental impact assessment (EIA) laws.

Discouraging Dissent

If you can’t get away with Three-I (inform, get input, and ignore) – if you actually have to sit down and talk with people, give them the opportunity, in theory, to influence your thinking through face-to-face discussion and/or extended correspondence – there are still plenty of ways to limit your risk of actually having to pay attention.  Here are a few possibilities:

Establish and Maintain Presumptions

One of the first things to do is to establish the presumptions that will structure and control anything that resembles consultation.  You need to control the conceptual environment within which discussions will take place.  In National Environmental Policy Act (NEPA) terms, you need to define the purpose of and need for your project in such a way as to minimize the range of alternatives that are open for discussion. 

Say, for instance, that you’re proposing to put in a solar energy project that will use thousands of acres of public land and have visual impacts on thousands more.  What’s the purpose of this project, and why’s it needed?  Well, you might think that the purpose is to generate a lot of electricity in a relatively clean way.  You might think that the need is to reduce dependence on fossil fuels.  But if you let purpose and need be defined that way, there are quite a few alternatives that might be considered – distributed solar panels on rooftops, solar over canals, solar in highway medians, maybe wind energy, tidal energy, and geothermal.  If it turns out that the site you want to use is a tribe’s spiritual landscape, or the local community’s favorite place to commune with nature, or the home of a lot of endangered squirrels and sand-fleas, you may find a constituency developing for such alternatives, and you’re going to spend a lot of time and money analyzing them.

But wait!  You can argue that the federal action here – the thing that requires review under NEPA and the National Historic Preservation Act (NHPA) in the U.S. system – isn’t the generation of energy!  No, it’s the issuance of a right-of-way by the federal land managing agency to allow you to put in the facility.  So the need is for the agency either to issue the right-of-way or not to; the purpose is to satisfy the agency’s regulatory requirements.  That means that the only relevant alternatives are to issue the right-of-way or not to, or maybe to issue it with a tweak here and an adjustment there.  Once you have this established, then the presumption that all the consulting parties – the serious ones, anyhow – must share is that your project either (a) will go in and produce the public benefits you claim, or (b) won’t go in and the public will be deprived of those benefits.  Your opponents are now arguing against the public interest in affordable, clean energy and reducing greenhouse gas emissions; they’re going to destroy the planet just to protect their esthetic values or crazy religious beliefs or hangup with fuzzy critters.  Needless to say, this will put them at a disadvantage.

Bury Them in Paper

This is a very popular and effective strategy in the U.S., particularly with Indian tribes since the 1990s when statutory changes and executive orders increased the level of official rhetoric calling for tribal consultation.  It’s pretty simple; you “consult” your potential opposition about everything, by sending them letters – preferably OCLs (See “The Obscure ‘Consultation’ Letter,” above) – about every project you consider, at each and every step in your planning, or about each and every subdivision of your plan.  Particularly if you’re communicating with an official body like a tribal council or tribal or local historic preservation officer, they’re probably getting similar letters from dozens of other agencies and project proponents; their in-boxes are overflowing.  Add to the pile!  And be sure to ask – ever so politely – that they respond to you by a date certain, so you can show that, gee, you tried, but they missed the deadline and you just had to move forward.

Of course, in this day and age it doesn't have to be paper per se.  Save trees; bury them in digital media.  My colleague David Rotenstein refers to what he calls "the two-ton PDF" -- massive e-documents made available via websites or as attachments to email, or maybe on CDs.  Some people won't be able to open them at all; others will just get lost trying to work through them.  You can put a lot of garbage into a two-ton PDF (or compilation of PDFs, MS Word documents, spreadsheets, digital imagery, and so on) at very low cost.  You look like you're sharing freely with concerned citizens, when really what you're doing is swamping them.  If you were consulting in good faith you'd organize the stuff carefully to facilitate its use, but you're not, so don't.

Invite to “Cooperate” or “Collaborate”

One way to confuse and discourage a potentially adversarial consulting party is to invite them to “cooperate” or “collaborate” in your project review.  This can be useful language to use in your OCL or public notice.  The recipient or reader doesn’t want to cooperate with you, or be a collaborator (Maybe she’s old enough to remember what that word meant in Europe during World War II, or knows how it’s still used in some countries with oppressive governments).  She wants to stop your project, or change it in some way.  By inviting her to cooperate or collaborate, you may actually discourage her participation.  Conveniently, in project review under NEPA, about the only way someone can actually be consulted about the project – and then only if they’re a government agency – is to be recognized as a “cooperating agency” (40 CFR §1501.6). 

Divide and Conquer

Easy as it is to be scornful of those who oppose or dislike your project, you’ll benefit by recognizing that they’re complex human beings, each with a range of concerns, values, and priorities.  Why?  Because you can exploit their differences. 

In my practice, I often deal with cases in which proposed projects will destroy what archaeologists call archaeological sites, and what Indian tribes or local communities think of as spiritually powerful ancestor places – where ancestors’ bones were sent on to the next world, or where the elders communicated with the spirits, and maybe still do.  Neither tribal people nor archaeologists may want the places destroyed, but they’re likely to be suspicious of one another, and not readily inclined to cooperate as parts of an organized, strategic opposition.  Or maybe the Sierra Club’s hydrologists say that anything over .2 parts per million of gunk in the PaleAle Aquifer would be a problem, while to the local tribe anything above zero parts per million would be intolerable, and they just can’t talk about it in terms of how much is too much.  If you have a situation like this – not necessarily Indians and archaeologists, or Indians and water quality experts but any case where potential consulting parties are antagonistic toward one another, suspicious of one another, or have conflicting world views – you can make good use of their differences.  Subtly encourage them, build on them, and play them up with other parties, particularly those with real power, like regulatory agencies.  There’s nothing wrong with your project; you’re just caught in the middle between opposing interests.  You may not be able to escape consultation altogether, but you should be able to keep the opposition disorganized, preventing anyone from developing enough power to mount a serious challenge.

Keep the Focus Narrow

You can usually minimize participation – though you’ll probably infuriate some consulting parties – by keeping the focus of the consultation as narrow as possible.  Insist on paying attention only to the specific subject of whatever law or regulation is driving the consultation, and define that subject as narrowly, rigidly, and arbitrarily as you can.  Or use some regulatory bureaucrat to do so.  If you’re consulting under NHPA Section 106, you can try to make sure the agenda of each meeting is organized around things like exactly what makes places eligible for the National Register of Historic Places, using lots of shorthand references like “Criterion C” and “contributing element.”  If NEPA is your authority you can debate the fine points of impact significance with reference to the definitions at 40 CFR 1508.27.  When somebody starts emoting about how important the Big Blue Oak or the Old Kissing Bridge is to the people of West Easterly, you (or your consultants) can patiently explain that you really can’t talk about these places unless and until they’ve been determined eligible for the National Register of Historic Places.  That’s not true under either NEPA or NHPA, but how are the West Easterlians to know?  And if they want to worry about the fish that swim under the Old Kissing Bridge or the birds that squawk in the branches of the Big Blue Oak – well, that’s a job for the professional biologists, and the fish and birds really don’t matter (you can say) unless they’re on a threatened or endangered species list.  And the PaleAle Aquifer?  Well, it’s surely much too big and ill-bounded to be eligible for the National Register, so we really can’t deal with it under NHPA – however culturally significant its water may be to the tribe – and the water quality issues will be taken care of by the water quality experts, so really, it’s off the table as a subject for consultation. 

 You can pretty certainly count on official experts like – in the U.S. – State Historic Preservation Officers (SHPOs), the National Park Service (NPS) and environmental protection agencies to support you in keeping the focus tight and bureaucratically defined.  Such experts are usually comfortable picking professional and procedural nits, and they're unlikely to feel invested in addressing stuff that’s just important to citizens.  They’re also often pretty easy to dupe; I run into a lot of SHPO and agency experts who may be perfectly competent architectural historians, archaeologists or wildlife biologists, but whose understanding of the relevant laws and regulations is, to be charitable, very limited. 

After a meeting or two at which the professionals slice and dice esoteric technicalities while everyone else sits and fumes, people will often throw up their hands and go away.  They may write a nasty letter or two, but you can respond to these with meaningless rhetoric (See OCL above).

 Keep Secrets

This is particularly fun to do with Indian tribes and Native Hawaiian groups in the U.S.  You have archaeological surveys done, or maybe even ethnographic studies asking tribal members to cough up information on what they value in the environment, and then you decline to share the resulting data with them, their lawyers, or their allies (like environmental groups) because – you say solemnly – releasing the data might endanger the sites and special places that have been recorded.  Someone might go out and dig them up, or do other terrible things to them.  This naturally limits the opposition’s ability to frame arguments against you, or at least requires them to generate their own data, which you can usually discredit or just ignore (See below).

In the U.S. there are legal grounds for keeping data on historic places confidential[1] – not very good legal grounds, but substantial enough to confuse people.  You can count on archaeologists and regulators to be supportive; they tend to be dogs in the manger when it comes to information on their own special places, and keeping cultural places secret is a knee-jerk response among Indian tribes.

 If you’re not dealing with archaeological and historic sites, or you’re not in the U.S., there may be other ways to hide data that could be troubling.  Maybe you can say it’s proprietary, or needs to be kept confidential in the interests of national security.  If you’re representing a government agency you may have the authority to keep almost anything secret.  And of course, you can always just lie.

Maintain Professional and Bureaucratic Standards

Reliance on standards has become a popular way for some land management agencies in the U.S. to avoid considering impacts on aspects of the environment that don’t fit neatly into pre-defined bureaucratic pigeonholes.  Even if it’s not as big a head-scratcher as whether the PaleAle Aquifer is a historic property – even if, say, the local tribe says it’s the 10,000 square mile landscape overlying the aquifer that’s culturally important -- you can rub your corporate or bureaucratic chin and say “Hmm, we’re not sure how to relate anything that big and ill-bounded to the regulations and guidelines on eligibility for the National Register of Historic Places; we’ll have to study that.”  Then keep assuring the world that you’re studying the matter very earnestly, while in fact you're doing no such thing, and in the meantime ignore the landscape and plan to take care only of the “archaeological sites” that the proponent’s paid-for contractors have oh-so-carefully defined in such a way as to be easily “avoided” by the mine pits, haul roads and spoil heaps.  Somebody may point out that what you're saying is that your information on cultural landscapes is incomplete, and according to the NEPA regulations if there’s “incomplete or unavailable information” that’s relevant to determining environmental impacts, you’re supposed either to get the information or explain why you can’t (40 CFR 1502.22).  To judge from recent cases I’ve seen, however, this seems to be a pretty easy reminder to dodge.

Shift the Burden of Proof

Under U.S. laws like NEPA and NHPA Section 106, it’s the responsible federal agency – or the project proponent at the agency’s direction and with agency oversight – that’s supposed to collect, organize, and analyze data on a project’s likely impacts.  Often, though, it’s possible to shift this burden onto the shoulders of the opposition.  The tribe and environmental group think the mine will pollute the aquifer?  Well, they haven’t presented any studies proving this to be the case.  The people of West Easterly think the Old Kissing Bridge is eligible for the National Register?  Well, they haven’t proved that it is; why don’t they prepare a nomination form and see if they can get it listed?  If they buy this argument – and many will, knowing no better – then they’ll have to go out and spend the money to gather and organize and analyze the relevant data.  They’ll have to gather comparative data on aquifers and mines, collect and organize historical data, beat up tribal elders to get them to share their spiritual secrets and traditional ecological knowledge.  Best of all, they’ll have to present the data on your terms, or on the terms of the oversight agencies – maybe even having to do things like nominating places to the National Register, using the strange, utterly counterintuitive forms on which NPS insists.  By doing so, they’ll take upon themselves the burden of proving the case, in the foreign – to them – language of science and bureaucracy.  They’ll probably fail, and waste a lot of time and money in the process.  Meanwhile you can proceed with your planning and ultimately with your project, while assuring everyone that you’re waiting ever so respectfully for the tribe or the environmentalists or the West Easterlians to make their case.  If they never do, or never do it to the satisfaction of the SHPO or the NPS or the environmental regulators, well shucks, that’s not your fault.

Forthcoming in Part Three:  Ignoring and Expanding Alternatives, and Manipulating Agreement Documents

[1] Section 9 of the Archaeological Resources Protection Act (ARPA) and Section 301 of NHPA.

Monday, July 22, 2013

How to Sidestep Consultation

Claudia Nissley and I are wrapping up a book for Left Coast Press on consultation under laws like Section 106 of the National Historic Preservation Act (NHPA).  Naturally it promotes broad, inclusive consultation aimed at identifying and resolving conflicts between the cultural environment and modern development.  It should be out by mid-2014.

But what if you’re planning a project and you don’t want to consult with people about it?  What if you know what you intend to do, and by damn, you’re going to do it?  Or what if you’re the bought and paid-for consultant (sic) for someone who doesn’t want to consult?  I wanted to include a chapter in our book for such folks, but Claudia talked me out of it.  So I’ll present it here in three parts.  You needn’t thank me.


Many U.S. laws, executive orders and regulations, as well as some international conventions and other agreements or guidelines, call for project proponents and government agencies to consult with those potentially affected by proposed construction and land use projects.  But consultation is bothersome to government agencies and non-governmental project sponsors alike; most would prefer to avoid it.  After all, sponsors know what they want to do, and agencies usually have their marching orders; consultation is unlikely to deflect them far from their preferred courses of action.  To them, consultation is a costly, time-consuming frill. 

Under U.S. law, there are lots of ways to avoid, or at least minimize, consultation when planning a project.  It’s doubtless the same in other nations whose governments are more or less similar to that of the United States.  In nations with political systems that are dramatically different from ours (e.g., China, Cuba) the same strategies may not work, but variants on them doubtless will, and do. 

So, if you’re trying to put in a project and you want to avoid or minimize consultation with an indigenous group, local residents, or just about anyone else, here are a few strategies to consider.  Each may not work by itself to spare you the nuisance of consultation, but a combination usually will.  If you can’t avoid consultation entirely, some of these techniques may help you control the process and minimize its impacts.

Limit the Parties

You can try to consult only with those you’re absolutely required by law to consult – the fish and wildlife agencies in the case of the Endangered Species Act (ESA), the State Historic Preservation Officer (SHPO) under the National Historic Preservation Act (NHPA), agencies with “jurisdiction by law or special expertise” (whatever you take that to mean) under the National Environmental Policy Act (NEPA).  For the most part these consulting parties will be government agencies that are probably sympathetic to your interests – at least in their higher echelons where they’re sensitive to political pressure and far from the on-the-ground effects of projects like yours.  Even if they’re not entirely sympathetic, they’re predictable; they have rules and customs, time frames and deadlines; they’re used to taking part in polite meetings, composing and reading elliptical letters and memos, and trying to be good team players.  Or they’re satisfied to lodge their comments and say “well, we’ve done what we could.”  If worst comes to worst, they can be pressured by higher political authority – the congressperson or president to whom you’ve made campaign contributions.

Federally recognized Indian tribes in the United States are something of a special case, and minimizing consultation with them can be tricky.  The responsibility to consult with such tribes is a broad one, with a lot of case law behind it.  Every recent U.S. president has issued direction to consult (without saying much about how and when to do it), and every federal agency has its own internal guidance on the subject.  So unless you can take the position that whatever you’re proposing to do just hasn’t anything to do with tribal interests, you’re probably stuck doing some kind of consultation.  But it doesn’t necessarily have to be much consultation; you may be able to employ one or more of the strategies outlined below to keep it to a minimum.

Make FACA Your Friend

In 1972, reflecting increasing public unease about secret deal-cutting between government officials and outside groups, the U.S. congress enacted the Federal Advisory Committee Act (FACA).  In essence, FACA forbids U.S. government agencies from establishing and maintaining advisory groups made up of non-government employees, unless the groups are structured and governed according to strict regulations; their meetings have to be open, their membership public, and so on.

If you’re a non-governmental entity in the U.S., it may be worth considering arguing that the consulting parties seeking agreement about your project under a law like Section 106 of the NHPA constitute an illegally constituted advisory committee.  They probably don’t; federal agencies carry out hundreds of NHPA Section 106 consultations every year without running afoul of FACA, and there are fine points in the interpretation of FACA and its implementing regulations (41 CFR 101-6) that are generally thought to let Section 106 consultation off the hook (See King 2001:110-14).  That said, an implied threat to call the responsible agency to account for violating FACA may have a chilling effect on consultation, making the responsible agency act more formally and cautiously than it might otherwise behave, bringing more lawyers to the table, and generally encumbering the discussions.  This may not actually be to your advantage, so the FACA card is one to be careful about playing, but it’s there to be played if you think it will help you.

Inform, Get Input, and Ignore

If you have to create the illusion of consultation with more than a few controllable agencies or experts, the widely used “Three-I” or “I3” Model is often effective.  Using this model, you tell the world (or selected parts of it) about your project, let everyone say (or shout, scream, or sob) their pieces, assure them that you’ll give every consideration to their concerns, and then proceed with whatever you’re planning to do.  Maybe make a cosmetic adjustment here and there to create the illusion of responsiveness, but don’t really do anything serious.  Keep a good record of what everyone has said, how they’ve said it, and maybe make up an account of how you’ve considered it.  You can then assure the world, and whatever regulators or courts you may have to deal with, that you’ve bent over backward to accommodate people’s concerns.  And you usually will be able to demonstrate, if need be, that you’ve followed the letter of the law, since most environmental and cultural resource laws and regulations specify that public input be considered but don’t specify how to do it, and either don’t explicitly require consultation or just use the word without specifying what it means.

Here are some common components of a “Three-I” strategy:

The Obscure “Consultation” Letter

The obscure consultation letter (OCL) works particularly well with Indian tribes, but it can be applied to any group.  The idea is to write a letter to the group – automatically creating an official record of your “good-faith” effort to consult – but make it so obscure, so laden with bureaucratic and technical language, that it’s virtually incomprehensible to any normal reader.  Maybe include lots of attachments, too, the more technical the better.  In the case of a tribe, send it off to the Chairman or Governor or President and hope for the best.  Chances are there will just have been an election and the tribal offices will be all in flux, so the package will get lost or misdirected.  Even if that doesn’t happen, there’s a pretty good chance the OCL will wind up on somebody’s desk who will just scratch his or her head, wonder what it’s all about, not know what to do with it and as a result let it languish.  Give it thirty or sixty days, say “well, we tried,” and move on. 

With a group that’s not a tribe, you can’t take advantage of the confusion that’s commonly produced by tribal politics, but there’s still a good chance your OCL will get lost, buried under other incoming paperwork, or be puzzled over and argued about indefinitely rather than responded to with a demand that you sit down with the group and consult.

Post a Notice

When we consultants advise a corporate or government client that they need to consult, we’re often asked if this means they need to post a notice in the Federal Register, in the local newspaper, on the worldwide web, or on the bulletin board at the local Walmart.  We respond that these things may be among the ways to seek people with whom to consult, but by themselves they don’t constitute consultation.  Under some laws and regulations, though, posting a notice may be all you’re actually required to do, and if nobody responds, you’re good to go.  If you can get away with this, then of course you want to make the notice as unlikely as possible to attract attention.  As with a letter, if you can make it obscure, use a lot of technical or legal terms, and avoid any implication that the project might present environmental or cultural issues, you may be able just to post the required notice – specifying a deadline for comments, of course – and then wait to see what happens.  If nothing happens by your deadline, and no laws or regulations require you to do more, you can document what you’ve done and move on.

The Free-Floating Public Hearing

Americans in particular are suckers for public hearings.  It may be easy – even effortless – to maneuver opposition groups into reducing their demands for consultation to the insistence that you hold a public hearing.  So, then, hold one.  But avoid, if you can, any implication that it’s going to lead to anything, other than your sober consideration of everyone’s “input,” to which you really don’t need to give any consideration at all.

If you can manage it, keep your hearing as free-floating and unfocused as possible.  Make it a very general hearing on your project, its pros and cons, so you get all kinds of participants with all kinds of interests, most of whom just want the opportunity to spout off.  Make sure there are time limits – give each person three or five or six-point-three minutes to speak. 

Make sure that a lot of project supporters attend, and are as vocal as possible.  Pay them to come, if need be, and give them scripts.  If your project will (according to you, anyway) generate jobs, you can probably get unions to encourage their members to come, waving signs and pounding the floor.  Vocal project opponents can be helpful, too, particularly if they’re obvious nutcases; in the public eye their nuttiness will rub off on the whole opposition.

Document the hearing; keep good minutes and other records, so you can show anyone who asks that you really did a great job of consultation.  There’s a very good chance the opposition won’t be able to figure out how to insist on more, and if you’ve conned them into demanding a hearing, they’ll have little ground on which to build an objection; you’ve given them a hearing.

The Listening Session

The “listening session,” which has become popular in the early 21st century, is a variant on the public hearing.  A listening session quite explicitly isn’t intended to have an outcome; you just listen to what people have to say, act sympathetic, and then – well, then it depends.  A listening session can lead into real consultation: having heard that the opposition is really concerned about the neighborhood or creek or lake, and having maybe even come to understand something about why they’re concerned and what they think ought to be done, you can go forward to engage in real, informed, consultation.  But you can often get away with treating the listening session as consultation, and making it your one and only “consultative” activity.  It can make you look oh-so respectful of the opposition’s views, and give you cover while you do nothing whatever to address them.

In planning a public hearing or listening session, be sure to be sensitive to environmental justice issues – make sure the session is open and convenient to whatever minority or low-income groups may be affected, and if need be get a translator so you can say you’ve really tried to communicate.  It doesn’t necessarily have to be a relevant translator – if you’re faced with an Indian tribe whose elders preferentially speak their own obscure language, you can probably get away with a Spanish translator.  You don’t have to make anybody understand anything, or come away from the session understanding anything yourself; you just need to appear sensitive.                                               

Source cited

King, Thomas F.

           2001     Federal Planning and Historic Places: the Section 106 Process.
                        Lanham, MD, Altamira Press

 Upcoming in Part 2: Discouraging Dissent

Friday, July 19, 2013

Unsolicited Litigation Advice

If you’re a landowner, an Indian tribe, a neighborhood group, or anyone else considering litigation against a federal agency for failure to comply with Section 106 of the National Historic Preservation Act (NHPA), I have some advice for you.  Most of it’s in my various books, but it seems like it might be helpful to toss it out in the form of a short, organized paper.  Yes, lawyers, here I am once again practicing law without a license; sorry about that.

Potential litigants deprive themselves of some of their best weapons by accepting too much of what “experts” and government authorities say about the law and its requirements.  Congress enacted Section 106 of NHPA to protect the American people and the historic places they hold dear from undue despoliation by federal government agencies and those they license or assist.  Over the decades, the government has allowed the law to be warped into affording such protection mostly just to things valued by narrow disciplinary specialists and agency bureaucrats.  But that’s custom, not law; the law itself, and the regulations (36 CFR Part 800) cast a broader net and give citizens more voice.  The trick is to avoid getting sucked in by the authoritative talk of the 106 bureaucrats and consultants; focus instead on what the law and regulations actually say.
So, here are some questions to ask and things to consider when an agency says it’s complying with Section 106 and you don’t think it’s properly considering impacts on something that’s important to you.

1.       Did the agency’s people contact and consult with you when developing the scope of work for identification of historic places?  The regulations (36 CFR 800.3(f) and 800.4(a)(3)) require that they identify consulting parties (like you) and then seek information from such parties in defining the scope.  Obviously, doing this is critical to finding, or even seeking, the places and effects that are important to you, but many if not most agencies skip it, and State Historic Preservation Officers (SHPOs) seldom remind them.

It’s a good idea to contact the responsible federal agency early on and tell them that you want to be a consulting party; this isn’t mandatory, but it makes it harder for them to ignore you.  Be sure to contact the relevant federal agency, not just whatever state or local agency or private developer may be involved.  It’s the federal agency that has responsibilities under Section 106.  Contact the SHPOtoo, but don’t expect them to do anything; they aren’t responsible for enforcing the law.

2.       Did they define the area of potential effects (APE) correctly?  The APE is supposed to include all the areas where the project could have effects on historic places – if any such places turn out to be there (In other words, the agency doesn’t need to know there’s a historic place involved; that’s something it has to find out).  “Effects” include direct and indirect effects, and whatever contributions the project may make to cumulative effects.  Effects of all three kinds can include physical, visual, auditory, olfactory, or any other kind of effects, providing they can somehow, in theory, alter the character or use of a historic place.  A change in an area’s olfactory regime, for example – making it smellier – might alter the use of historic houses (if any are there) by driving out their residents.  Agencies commonly define the APE only to include the construction footprint of the project, or mix up “direct effects” with “direct physical effects.”  You should be alert to this kind of thing, and raise questions or object.   If they blow you off, make sure that’s documented; it can be a good basis for showing that they’ve not complied with the law.

3.       What have they done (or what are they proposing to do) to identify potentially affected historic places?  Land managing agencies like the Bureau of Land Management (BLM) can be pretty reliably expected to confuse “identify historic places” with “send archaeologists out to find archaeological sites.”  Urban development agencies routinely conflate identification with sending architectural historians out to determine what styles the buildings represent, and whether any famous architects were involved in their design.  Agencies of all kinds routinely ignore or just don’t think about cultural landscapes, culturally important plants and animals (that may contribute to the significance of such landscapes), culturally valued neighborhoods, parks, streetscapes and rural areas, and culturally valued water-bodies and offshore areas.  If you value any such place – if it figures somehow in your history and/or cultural practices or beliefs, you ought to object strongly and loudly to an agency’s failure to do the kind of identification work that would find and consider it.   Again, if they blow you off, document it, and don’t stop objecting.  Don’t accept a statement that they have only to identify nice old buildings and archaeological sites, or historic places as appreciated by their professional consultants or the SHPO.  If the place is important to you, and/or your community, your tribe, your family, then the responsible agency ought at least to consider whether it’s eligible for the National Register of Historic Places (NRHP).

4.       How have they evaluated places to decide whether they’re eligible for the NRHP?  It’s very, very common for evaluation to be done in very black boxes, by narrowly-qualified professionals who don’t talk to a soul outside their own particular complex of cubicles.  Or if they do talk to anyone, it’s only to the SHPO.  They often apply very narrow-minded interpretations of the NRHP Criteria (36 CFR 60.4).  Such evaluations can and should be challenged, to the relevant agency and to the Advisory Council on Historic Preservation (ACHP) and Keeper of the NRHP in the National Park Service.  This may or may not get you anyplace, but raising questions about eligibility, early and often, is important in establishing a good documentary record on which you can draw in litigation.  Challenge both the procedures (e.g. failure to consult anybody concerned with the property) and the standards on which evaluation was based.  Even if they found that the place is eligible for the NRHP, look critically at their finding; they may have used tricky language that will enable them to say that whatever they’re doing won’t really affect what makes the place significant.  Which of course might be true, but most times isn’t.

5.       Have they done an honest and thorough job of determining what adverse effects the project may have on historic places?  A common ploy is to say that there won’t be any adverse effect (or any effect of any kind) because a place will ostensibly be “avoided” by construction.  This conflates “adverse effect” with “direct physical damage or destruction,” ignoring visual, auditory, and other such effects.  It also assumes that the place has been properly and accurately defined, so it’s possible to determine whether one has avoided it or not.  Very commonly in the west, agencies will ignore large cultural landscapes in favor of considering only individual archaeological sites within them, then define the archaeological sites more or less arbitrarily, and then say they’ll all be avoided so everything’s fine.  If you’re concerned with the landscape, or even just with the sites, you ought to call them on this and insist that they consider the project’s real effects on the places that are really important.

6.       What have they done (or what do they propose to do) to resolve the adverse effects?  This basically means somehow mitigating effects on them, and of course it requires that the places and the effects are reasonably well identified.  Even if these have been well identified, however, the agency may still slither out from under doing anything much about them.  A common ploy is to develop a Memorandum of Agreement (MOA) that is so ponderous, contorted, and laden with vague abstractions that it’s virtually impossible to decipher.  MOAs are supposed to be negotiated among the consulting parties, but they often aren’t; the agency just has an MOA drafted and slaps it down in front of everybody to sign.  If you don’t understand what you’re being asked to sign, you obviously shouldn’t sign it, and you should object.  Another common practice is to include “kick-the-can” provisions, saying that something that ought to be done before the MOA is even considered (like evaluating historic properties and effects) will be done after the project is approved and underway.  Occasionally there are good reasons for such provisions, but the burden of proof should be on those proposing them to demonstrate why they’re necessary and appropriate.  Often, too, MOAs will deal only with direct, physical effects on specific buildings or sites, ignoring broader, less direct impacts or impacts on landscapes and other relatively big, loosely defined places.
DON’T WAIT to raise these issues until you’re ready to go to court.  If you can’t show that you raised them during the agency’s administrative process (that is, its project review under NHPA and NEPA), and got ignored or given short shrift, the court is unlikely to accept them as issues meriting a legal remedy.  So get involved in the review as early as possible in the process, be vigorous in pushing for proper consideration of your concerns, and DOCUMENT EVERYTHING.  You may hope you don’t have to go to court, but you ought to be prepared to.