Monday, July 08, 2013

Being an Expert Witness -- Addenda

A couple of addenda to yesterday’s post on this subject:

1.       I’m not fishing for work – just trying to make sure people who may find use for my help are aware it’s available.

2.       If you’re going to ask for my help on a case, please consider doing so EARLIER rather than LATER.  It’s understandable that people often contact me only when they find themselves in trouble, with things going very much against them, but by that time it’s often too late for me to be of much help.  Too many decisions have been made, too many assumptions have gone unchallenged.

Example: a couple of years ago I was contacted by landowners in a western state who were trying to fight the expansion of a federal facility; they felt – with good reason – that it would drastically alter the character of the land on which for generations they had lived and ranched.  The “responsible” federal agency, predictably, had equated “cultural resources” in its NEPA and NHPA studies with “archaeological sites” and “old buildings.”  The obvious point of attack was to advance the premise that the potentially affected lands were eligible for the National Register as landscapes that comprised traditional cultural properties (TCPs).  A good argument could have been made for this premise, potentially forcing the federal agency into face-to-face consultation with the landowners (which, of course, the agency really didn’t want to do).  But by the time they contacted me, the landowners had long since gotten sucked into nit-picky arguments about the archaeological techniques used to identify sites, and the architectural character of particular buildings; in other words, they had accepted the premises upon which the agency’s faulty compliance with NEPA and NHPA was built.  That’s what they’d written about in their comments on NEPA documents and on a proposed NHPA Section 106 memorandum of agreement, and it was really too late to raise the whole “new” issue of TCP landscapes.

In another case, I was asked to help get an agency to do a better job of handling the discovery of a tribal ancestral burial site during construction of a project.  But the project was being carried out under a strange sort of agreement in which the tribe had concurred, that essentially substituted “monitoring” during construction for proper compliance with NEPA and NHPA.  I had to tell them that they’d shot themselves in the foot, and I couldn’t do anything about the wound.

So please, if you think you may need my help, contact me early, when I can be most helpful.

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