Friday, October 23, 2015

Determining Eligibility is a DIAGNOSIS, Not a Canonization

I’m seeing more and more documents in which federal agencies, consultants, and other participants in Section 106 review – even ostensible experts like State Historic Preservation Officers (SHPOs) – refer to finding something eligible for the National Register of Historic Places (NRHP) as a “designation.” Apparently they think that the eligibility determination process – and even the more flexible process of considering something eligible under 36 CFR §800.4(c)(2)[1], involves somebody formally designating something as something. I’ve even seen “designation” used in the context of recognizing a place as a traditional cultural place (TCP).

This is nuts.

Why? Well, for one thing it’s not consistent with the regulations. But if that’s too bureaucratic or legalistic for you, there’s this: it confers some sort of god-like status on whoever’s supposed to do the “designating” – usually a federal agency, an SHPO, or the Keeper of the NRHP. They don’t just figure out that a place is eligible, they make it so.

Why is that a problem? Well, if you’re a tribe or a local group that values a place, you might just have reason to object to some fancy-pants government agency having such power over how your special place is regarded. But more practically, there’s this:

If an agency or SHPO or Keeper of the NRHP has the discretion to make a place eligible, they also have the discretion to make it not so. Apply enough political pressure to the SHPO or the agency official or the Keeper and that place that’s in the way of your project can simply stop being historic.

Why an SHPO would want to expose himself or herself to this kind of pressure is more than I can imagine, but that’s what they’re asking for when they teach people that an eligibility determination is a “designation” for which they’re responsible.

Look, a determination of eligibility is like a medical doctor’s diagnosis. When a doctor diagnoses you with gonorrhea, she’s not giving you gonorrhea, she’s saying that your symptoms meet the criteria that she’s learned indicate that you have the disease. In just the same way, when an agency official or SHPO or the Keeper “determines eligibility,” they don’t make the property eligible; they say that its characteristics – vis-à-vis the NRHP Criteria at 36 CFR §60.4 – persuade them that it is eligible.

And just as the doctor can’t cure you of the clap just by saying you don’t have it, neither can the SHPO or agency or Keeper make your place not eligible just by un-determining it. They have to be able to show that the place really doesn’t meet the Criteria after all. That’s an important protection both for historic places and for those who make determinations.

On the other hand, the eligibility determination process is realistically flexible; it’s for use in the real world where things do change. So while a real “designation” – such as that involved in actually listing something in the NRHP – is pretty much forever, what we diagnose as eligible today may be diagnosed as not eligible in ten years, or vice versa. There are very good reasons for this flexibility; as the Section 106 regulations put it at 36 CFR §800.4(c)(1):

The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible.

Again, it’s like a diagnosis. Last year you were in good health; this year you’re not. Last year you were sick; this year you’ve gotten well. Last year we didn’t know how to recognize bilateral whatsamalady, now we can and boy, you’ve really got it. In the same way, last year it hadn’t occurred to anyone that traditional cultural marigolds might be eligible for the NRHP, but now we’re convinced that they meet Criterion C. That’s life; change happens.

So for heaven’s sake – or for the sake of historic properties, or that of your own job security – please stop mixing eligibility determinations up with “designation.” Something’s designated when it’s placed on the NRHP or some equivalent formal list; when it’s determined eligible it’s simply found to meet one or more of the NRHP criteria.

[1] If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes.”


Anonymous said...

A bigger issue to worry about is how many insignificant sites are artificially elevated and run through the 106 process, despite having no redeeming scientific or cultural values to anybody. At least the "determination" (however you prefer to look at it) gives every site a momentary consideration and whatever prefunctory protection or mitigation that can be afforded to it (not that this is right - only that doing something perfunctory makes folks feel a little better than they would by blowing off sites entirely). SHPOs and agencies can't hold public hearings and wait on consultation letters for every little site that the process produces. Lets be real - that doesn't happen in 90% of cases. Most of the time, the best they can do is call the site "eligible" and give it some sort of face saving treatment, for respectability's sake. Maybe agencies and SHPOs and preservationists do too much of the latter, and too much time and attention are indiscriminately wasted on sites that don't deserve attention at all. I'd vote for that argument. Too much time and resources wasted on far too many insignificant sites is the bigger issue underlying these "determinations". I realize that saying so may be sacrilegeous, but it's the damn truth.

Ryan Howell said...

Maybe they are thinking of "designation" in the political sense. Like the President designating a new park under the Antiquities Act? That is what they see in the news on TV and so that is the vocabulary they start adopting....

Also, I love the use of a STD analogy in CRM discussions.... You really are becoming embittered about this crazy field aren't you, TK?

Ryan Howell

Dogscratcher said...

So are you saying that it is better to nominate? My understanding was that a determination of eligibility conferred the same protections. Or am I misreading you?

Darby S said...


This blog has given me much to think about. First I was concerned that I was one of the guilty parties using the word “designate” in reference to a TCP determination, but I could not find that I have ever used the word in any of my writings. Nevertheless, I will admit to assigning a degree of permanence to such determinations. At the Hanford Site in Washington State, a federal facility that at the time was 560 square miles in size before they turned half of it into a National Monument, we kept track of sites determined or not determined eligible and managed them accordingly. These efforts were in response to Section 110 of NHPA, Standard 2, that requires agencies to develop programs for the identification, evaluation, and protection of historic properties. As areas got surveyed for Section 106 reviews and sites got identified and evaluated for National Register eligibility, we kept lists of sites determined eligible and put them into a monitoring program so we could monitor their condition. When new projects would be proposed in an area that already had been surveyed, we used existing determinations to develop regulatory paths forward. If the site had already been determined eligible, we jumped to determination of adverse effect. While new determinations could always be re-done, I can only recall a few instances when that ever happened, usually when it appeared that the original evaluation was suspect. We rarely nominated sites for listing in the National Register because by this time, some CRM expert (I wish I could remember his name) had taught us all that it was stupid and a waste of time and money to actually nominate sites; we were told that determining a site eligible gave the agency all it needed to protect the site.

Now comes your blog where you indicate that a determination of eligibility is just a diagnosis, and apparently only good for the undertaking that required the Section 106 review in the first place. You imply that any time a new undertaking comes along, any sites previous identified and evaluated should be re-evaluated. Certainly one should be open to such a possibility, but to make it part of the process, boy oh boy, are you going to be popular with ACRA! There’s millions of dollars of new work for ACRA contractors to do.

My main concern, however, is if this is in fact the case, then it is not true that getting a determination of eligibility is just as good as listing the site on the Register; at least not in the long term. If this is the case, then I regret not making the effort to get important sites at Hanford listed on the National Register so that they would be protected in the future. If indeed a determination of eligibility has little meaning beyond the specific Section106 review, then there are a lot of important sites out there that are at risk of being determined not eligible by future managers at Hanford and their contractors who might put projects ahead of heritage protection. You know what it’s like out here, you wrote the book, Our Unprotected Heritage. What you are saying is that agencies and their contractors can—should--go around and redo all of the determinations of eligibility every time they have a project involving site that has been previously been determined eligible or not eligible. While I like the part about re-evaluating sites determined not eligible, the fact of the matter is that the way things are today, not eligible will stay not eligible, and eligible will become not eligible; at least contractors will be pressured to make these recommendations.

Am I over-reacting? Do you still say that it is not worth nominating sites to the Register?

Thomas F King said...

James -- I am NOT saying it's better to nominate. Nomination has its (limited) place, but in most cases, in my experience, it's not worth doing. I think you have to ask yourself (a) what practical value will anyone derive from this nomination and (b) what downsides may there be to nomination? If there's a practical value, and no downsides, sure, go ahead and nominate, but in my experience neither is usually the case.

Darby, what I'm actually saying is that we're not gods, we're not omniscient, and in fact none of us really knows what's likely to be regarded as significant in the future. Although the NRHP is grounded on the principle of "inherent eligibility," that's really a crock. We decide on eligibility in our heads, and it's not unreasonable to allow for changing our minds. As for employing armies of ACRAlytes (or ACRAnyms), I don't think so. 99 times out of 100, if a place has been regarded as eligible in the past, it ought to be easy to decide to treat it as eligible at some future date; there's no need for exhaustive study. But every now and then there may be reason for one -- particularly in cases where things have been determined NOT eligible and times have changed.