"Representing" an Indian Tribe: Part Two

Background

On June 25, I posted a copy of a letter that I’d written to Department of Defense John Rymer about the behavior of the Seattle District, U.S. Army Corps of Engineers (See immediately preceding post below).  Needless, I imagine, to say, I’ve not gotten a response. 

Here, I want to focus on one part of my letter – in which I said:

What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor ……………. to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

It’s that naïve expectation I’d like to explore a bit here. 

The Naïve Expectation

To elaborate: my expectation went like this:

1.    The purpose of an environmental impact assessment (EIA) is to make a fair, honest, comprehensive, at least reasonably objective assessment of a proposed action’s environmental impacts.

2.    That’s presumably what the company in question has been engaged to do, in this case in the form of an environmental impact statement (EIS).

3.    Part of their scope of work, presumably, is to gather the data necessary to form a basis for this assessment.

4.    So they ought to welcome input from all sources.

5.    My experience is that in this case, for whatever reason, it’s been hard for the Corps to quite come to grips with the Tribe’s concern for the landscape, as opposed to the specific archaeological site.

6.    Ergo, the company ought to welcome and respond positively to what amounted to an offer to facilitate their coordination with the Tribe, to help ensure their understanding of the Tribe’s environmental concerns.

But….

Well, I was obviously wrong, because the company’s representative did not take my call, did not return it, and indeed the only action the company seems to have taken was to scurry off to the Corps, or perhaps to their more immediate client, to report about me – whereupon the Corps undertook to sever my relationship with the Tribe.

Discussion

I hear my contractor colleagues chortling:  “Serves you right, King.  What did you think they’d do?  Their responsibility is to their client.” Who is probably either explicitly or implicitly (through a funding arrangement via the Corps) the project proponent.

Which strikes me as a problem.  If your responsibility is to your client – who very likely wants the project to move ahead, or at least to see it processed through the regulatory system with minimum muss and fuss – isn’t that a tad inconsistent with your responsibility to do a fair, balanced, comprehensive assessment of impacts?

To be fair myself, I’ve tried to imagine the shoe being on the other foot.  What if someone had called me up and said “Look, your tribal client isn’t giving you the full story, and I really think you ought to consult with XYZ?”  Would I have run off to the Tribe to tell them?

Well, yeah, maybe I would have, but then, I’m not under contract to produce an impact assessment; I’m under contract to help the Tribe get its point of view attended to.  If my job WERE to assess impacts on the environment, presumably in service to the greater public good, I DON’T think I’d go tell my client about the call.  Instead I’d try to follow up on it, see whether it revealed anything that was relevant to my analysis. 

Why?  Because my responsibility as an impact analyst would not be to my very likely (duh) self-interested client, but to the environment, and to the “public interest” that the Corps is so wont to spout off about. 

Moreover, I’d argue that even my client’s interests would be better served by my being open to information from outside – even from “the other side” – than by having me consider only sources approved by the client.  If they want only their own information considered, why in the world do they need me – or the company – to consider it?  Just to put a polish on the analysis to impress the review agencies and flummox the public?  That’s not supposed to be what EIA is about, but to me it doesn’t even seem like good business.  “Look before you leap” is good business, and you can’t look if you deliberately blindfold yourself. 

It seems to me that if I were the EIA company my responsibility to my client – if I have one, as opposed to a responsibility to the environment and the public interest – is to help my client avoid being blindsided.  I should find out what the hot-button environmental issues are, so they can be factored into planning and decision-making before they burst out in a public hearing or become grounds for litigation.

But to judge from my experience with Col. Estok and his troops, and the EIA company, mine is at best a minority opinion. 

Would anyone care to articulate the majority opinion?  

"Representing" an Indian Tribe: Part One

Text of a letter sent yesterday (6/24/14):

June 24, 2014

The Honorable John T. Rymer

Inspector General

U.S. Department of Defense

4800 Mark Center Drive
Alexandria, VA 22350-1500

Dear Mr. Rymer:

I write as a taxpayer, voter, veteran, and owner of a small business to request that you investigate what I believe to be at least negligent, and quite possibly intentional, interference in my business activities by personnel of the Seattle District, U.S. Army Corps of Engineers, including District Engineer Colonel Bruce A. Estok. 

Besides being objectionable to me as a small businessperson, the District’s behavior concerns me because it suggests a bias in favor of the applicant for a Corps Clean Water Act (CWA) permit,  calling into question the District Engineer’s ability to make the public interest decision required under 33 CFR §§ 320-330.

By way of background:  I am an independent contractor who consults, writes, and teaches about historic preservation and environmental impact assessment.  My specialty is federal agency compliance with the National Historic Preservation Act (NHPA).  Although I sometimes teach and consult for DOD and other federal agencies, much of my work today is done for Indian tribes.  I assist tribes in making sure that their traditional cultural places are recognized as eligible for the planning consideration guaranteed by the NHPA for places that are eligible for the National Register of Historic Places (NRHP); I also support tribes in consulting with federal agencies and others under Section 106 of the NHPA.  I am the author of most contemporary textbooks on such matters, and am generally recognized as expert in dealing with them.

I am under contract with the Lummi Nation, a federally recognized tribe in Washington State, to assist that tribe in consultation with the Seattle District in connection with the Corps’ potential issuance of a CWA permit for the proposed Gateway Pacific coal terminal at Cherry Point near Bellingham, Washington.  The project is currently the subject of an environmental impact statement (EIS) being prepared for the Corps.

I have been critical of the District’s handling of this case.  My strong impression is that the District’s approach has been and continues to be disingenuous and prejudicial to Lummi interests, as well as  to the integrity of a cultural landscape called Xwe’chi’eXen by the Lummi.  I believe Xwe’chi’eXen is eligible for the NRHP.

On May 28, after repeated efforts by the Lummi to prevail upon the Corps to pay attention to their concerns, Lummi leadership met with Col. Estok and members of his staff.  In the course of their conversation, Col. Estok informed the tribal leaders that I had contacted staff of the EIS contractor, purporting to “represent” the Lummi nation.

Of course, no one can “represent” a sovereign Indian tribe without the express permission and direction of the tribal government.  Because unscrupulous whites have pretended to such representative status over the last few centuries, with disastrous results, tribes are universally and understandably very sensitive about such pretensions.

I have never suggested to anyone that I “represent” the Lummi.  What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor – a company for which I formerly provided training – to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

Exactly how my voicemail message came to be misinterpreted as a statement that I “represented” the Lummi is not known to me.  However, it would clearly be in the interests of the Gateway Pacific project proponent to deprive the Lummi of access to expert advice, and by casually reporting that I had said I “represented” them, Col. Estok – whether negligently or intentionally – advanced those interests.

Whatever Col. Estok’s intention, his statement inappropriately and improperly raised questions in the minds of the Lummi leadership about my actions.  They contacted the EIS contractor and ascertained the actual content of my voicemail message (See attached letter of June 3), so it is my hope that Col. Estok’s action will not have a serious impact on my relationship with the Tribe.  However, Col. Estok has not formally corrected the record, which continues to reflect his untrue allegation.  As you may be aware, such allegations can take on lives of their own; if the false and defamatory rumor were spread that I was in the habit of purporting to “represent” tribes with whom I work, it would have a serious and deleterious impact on my business, and on my ability to help tribes make sure that their cultural environments are properly considered in environmental impact assessment.

I ask that you investigate this matter, and if you find – as you will – that my account of the matter is accurate, you exercise your authorities and responsibilities to ensure that the Corps immediately issues a formal statement correcting the record. 

Thank you for your attention to this request.

/S/ Thomas F. King

Historic Horses

 Friends of Animals (http://friendsofanimals.org/about_us/who_we_are ) and the Cloud Foundation (http://www.thecloudfoundation.org/) have filed a petition with the Secretary of the Interior seeking to have a segment of North America’s wild horse population listed as an endangered species (See http://www.thecloudfoundation.org/images/pdf/Final_Petition_Complete_As_Filed.pdf ).  Part of the rationale for listing is that the Bureau of Land Management (BLM) is allegedly mismanaging wild horses on public lands, failing to protect their habitat and removing them from their traditional ranges.

Wild horses are certainly “cultural resources.”  They have played important roles in the history of the West, and particularly in the histories of many Indian tribes.  They have iconic status in popular depictions of the West, and are treasured by many outdoor and equestrian groups.  Yet when BLM undertakes an action aimed at managing them – for example a roundup – it doesn’t do much (if anything) about compliance with Section 106 of the National Historic Preservation Act (NHPA).  Its people don’t sit down with groups that value wild horses and negotiate memoranda of agreement stipulating how a herd’s cultural values will be protected.  It doesn’t seek the comments of the Advisory Council on Historic Preservation (ACHP).

Why not?

Because horses, and animals in general – however obvious they may be as cultural resources – are not eligible for the National Register of Historic Places (NRHP), and Section 106 of NHPA requires agencies only to consider the effects of their actions on places included in or eligible for the NRHP.  So BLM needs to address the effects of its wild horse management under the National Environmental Policy Act (NEPA), but not under NHPA – except to the extent that such management may churn up archaeological sites or other places eligible for the NRHP.

That, at least, is a gloss on the government’s party line.  But does it make sense?

Well, that depends on your perspective.  The NRHP is, after all, the National Register of Historic Places, so the first question is: is a horse a place?  Most of us, most of the time, would probably say “no.”  But when one is sitting on a horse, is one not in a “place?”  Or what if one is a flea, living its entire life on a horse’s belly; is the horse not a “place” from the flea’s perspective?

More to the point, the National Park Service divides the world of historic properties up into “districts, sites, buildings, structures, and objects.”  In 2005, the District Court for the Northern District of California raised the question of whether an animal could be defined as an “object.”  The case at hand was Okinawa Dugong v. Rumsfeld[1], dealing with a proposed base on Okinawa that would, if built, threaten the habitat of the Okinawa Dugong, an iconic animal listed in Japan’s equivalent of the NRHP.  The court mused:

Defendants contend that a wild animal cannot qualify as a “property” and that there is no indication in the NHPA (National Historic Preservation Act) and its amendments, the accompanying legislative history, the implementing regulations and guidelines, or case law that Congress “sought to expand the NHPA’s statutory coverage in order to protect or preserve wild animals.”  See Def.’ Mot. At 3, 13.  “Wild animals” fails to describe the relevant group of animals at issue here, namely those with special cultural significance protected under foreign historical preservation laws which are deemed “equivalents” of the National Register of Historic Places.  Taking defendants’ point, nonetheless, very little precedent exists governing the question of whether a living thing can constitute a property eligible for the National Register.  The decision of the one district court that has dealt with the issue undermines defendants’ argument that the dugong is automatically disqualified.  In Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1-47 (M.D. Ga. 1995), plaintiffs sought a preliminary injunction against continued construction of a federally-funded road widening project that involved destruction of an oak tree of significance in Native American history.  The court held that the tree was at least potentially eligible for placement on the National Register and granted the preliminary injunction.  Id. At 1056-57.  In a subsequent case, in which the Department sought to have the injunction dissolved, the court again rejected the defense’s argument that an unaltered tree could not qualify for the National Register.  See Hatmaker v. Ga Dep’t of Transp. 974. Sup. 1058, 1066 (M.D. Ga. 1997).  In assessing the applicability of the statute, the court emphasized the verifiable nature of the contested object’s historic qualities. Id. At 1067.

Hatmaker is analogous to the present case. While animals obviously differ from trees, their distinguishing qualities are not significant under the plain language of the statute.  The dugong may, like a tree, fall under the category of “object” as “a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment.” 36 C.F.R. § 60.3(j)[2].

To the best of my knowledge, NPS has never addressed this question as a matter of policy.  If a tree can be eligible for the NRHP, why cannot a horse?  Or an eagle, a whale, or, say, a population of animals like a herd of horses or a school of fish?

In practice, we’ve usually dodged the question – either by ignoring it and taking it as given that “animals can’t be eligible for the NRHP,” or by addressing not the animals per se but their habitat.  In 2004, for example, in a report for the Klamath River Intertribal Fish and Water Commission, I argued that California’s Klamath River was eligible for the NRHP in part as salmon spawning habitat – salmon being of existential cultural significance to the tribes along the river.  Following the lead of then-Yurok Tribal Historic Preservation Officer Tom Gates, I defined the Klamath as a “riverscape” district, with the salmon among its character-defining features[3].  This assessment was accepted by the California State Historic Preservation Officer (SHPO) and the Federal Energy Regulatory Commission (FERC) for purposes of NHPA Section 106 review.  Around the same time, I failed in attempting the same sort of argument with respect to Southern California’s Coyote Canyon and its erstwhile wild horses.  However, that was in the context of a formal nomination to the NRHP, in which it is traditional to pick fatuous nits – and in fairness, the wild horses had been removed from the canyon, so their association with it was a bit tenuous.

Presumably now the U.S. Fish and Wildlife Service (FWS) will be preparing some kind of response to the Friends of Animals/Cloud Foundation petition.  It occurs to me that this response – whatever it is – ought to be a federal undertaking subject to review under NHPA Section 106, because it surely is the kind of federal action that has the potential to affect historic properties.  Particularly if wild horse habitat – to say nothing of the horses themselves – can be defined as NRHP eligible.  I certainly hope that FWS will undertake such review; it might provide a context in which the cultural significance of wild horses -- and other animals -- could be systematically addressed.

---

[1] OKINAWA DUGONG (Dugong Dugon); CENTER FOR BIOLOGICAL DIVERSITY; TURTLE ISLAND RESTORATION NETWORK; JAPAN ENVIRONMENTAL LAWYERS FEDERATION; SAVE THE DUGONG FOUNDATION; DUGONG NETWORK OKINAWA; COMMITTEE AGAINST HELIPORT CONSTRUCTION, SAVE LIFE SOCIETY; ANNA KOSHIISHI; TAKUMA HIGASHIONNA; and YOSHIKAZU MAKISHI v DONALD H. RUMSFELD, in his official capacity as the Secretary of Defense; and U.S. Department of Defense; U.S. District Court for the Northern District of California, Civil Action No. C-03-4350 (MHP)

[2] Memorandum and Order, No. C 03-4350 MHP, filed March 2, 2005: I.B

[3] King, T.F. First Salmon: the Klamath Cultural Riverscape and the Klamath River Hydroelectric Project.  Klamath River Intertribal Fish and Water Commission, 2004.

Su Nu Nu Shinal Dancers Need Support

One of California’s better preserved and interpreted historic sites is Fort Ross, the early 19^th century Russian fur-hunting settlement on the Sonoma County coast.  In recent years the California Department of Parks and Recreation, which administers the site, has done a fine job of working with the Kashia Pomo community on whose ancestral land the settlement was built.  In contrast with the state’s Spanish, Mexican, and American colonizers, the Russians enjoyed relatively cordial and collegial relations with their Pomo neighbors, and these relations have been renewed in recent years.

Now the Su Nu Nu Shinal Dancers – traditional Pomo dancers – are going to Russia on a performance tour.  They’ve raised almost enough money for the trip, but still need a little more.  I’ve just made a contribution, and hope you will too.  The Fort Ross Conservancy, a 501(c)(3) non-profit, is helping organize the trip and handling donations.  You can learn more and make a contribution at http://www.fortross.org/krasnoyarsk.htm.  A worthwhile cause.

Beware the Arbitrary APE

In the language of impact assessment under Section 106 of the National Historic Preservation Act (NHPA), “APE” stands for “Area of Potential Effect” (See 36 CFR § 800.16(d)).  It’s the area or areas within which a project may have effects on historic places.  Under the Section 106 regulations, federal agencies figure out what the APEs of their undertakings are when establishing the scope of their historic property identification efforts (See 36 CFR § 800.4(a)(1)).

I’ve recently reviewed several scoping documents prepared by or for federal agencies that purport to establish APEs.  They’ve involved several kinds of projects, but here’s a typical if hypothetical example.  A block of federal land – let’s say 100 acres – is proposed for transfer to non-federal parties, who will use it as part of an economic development scheme.  The overall scheme features roads, water lines, power corridors, industrial facilities, and probably spin-off residential and commercial development covering, say, 1000 acres.  The scoping document says that the APE for the federal land transaction comprises the 100 acres to be transferred plus a standard “buffer” around them – bringing the size of the total APE to, say, 200 acres.

As mentioned above, it’s the federal agency that determines the APE.  They supposedly do this in consultation with State or Tribal Historic Preservation Officers but not necessarily with anybody else.  This gives agencies a lot of latitude for making mischief, and it seems to me that the above example (like its real-world counterparts) is mischievous indeed. 

Why?  Because it doesn’t really embrace the area to be affected.  Arguably, at least the whole 1000 acre development actually lies within the APE – depending on how critical the 100-acre federal parcel is to the overall scheme.  If the 100 acres aren’t particularly vital, then the APE may not be so big, but surely it at least includes the areas to be affected by any facilities needed to facilitate the 100 acres’ development – probably roads, utility corridors, and the like -- and areas where development of the 100 acres may stimulate other changes in land-use.  Some of these may fall within the buffer zone, but others probably do not.  On the other hand, some parts of the buffer zone may not be affected at all.  If the agency focuses its identification work within its 200-acre APE, it may quite systematically miss historic places that are actually subject to effect, and waste time and money finding and documenting places that aren’t.  And if someone objects to project effects that will occur outside those 200 acres, the agency will have nothing to say except “Sorry, that’s not in our APE.”

The “E” in APE is important.  The APE is supposed to include all the areas where EFFECTS on historic properties may occur.  Direct effects, indirect effects, and contributions to the cumulative effects of other past, present, and reasonably foreseeable future actions.  An APE defined to embrace only an area of direct effects (in the example above, the land actually passing out of federal control) plus some arbitrarily defined buffer zone is precisely that – ARBITRARY.  Under the Administrative Procedures Act (APA), courts of law are directed to reject arbitrary agency decisions.   

So here’s some advice for federal agencies: try not to let your APES get arbitrary.  Think about where effects may ACTUALLY occur, and draw your APE boundaries to embrace them.  You may not be sure where all the effects will happen, but you can make reasonable and defensible judgments based on the facts before you.  Making such judgments, and documenting how you did so, will produce a much more defensible administrative record than will just drawing lines around your direct impact area and tossing in some buffer zones.

And some advice for project opponents: look carefully at how the agency defines the APE.  If it’s arbitrary, if it doesn’t include areas where you think effects will occur, object to it, and if the agency isn’t responsive, talk with your lawyers about including arbitrary APE definition in the complaint when you go to court.