More on National Register Determinations as Diagnoses

My respected colleague Darby Stapp has sent in a comment on my post about National Register eligibility determinations being diagnoses, not canonizations. Because for some reason Blogspot wouldn’t register it as a comment, and because I think it’s worth detailed consideration, I’m publishing it below, followed by my response.

Darby’s Comment:

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 (traditional cultural place) 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(a)(2) of NHPA, that requires agencies to develop programs for the identification, evaluation, and protection of historic properties.  As areas got surveyed for Section106 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[1] 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?

My response

Yeah, you’re over-reacting, and yes, I still say that it is (usually) not worth nominating sites – or anything else – to the Register, at least if what you want to do is protect places from willy-nilly destruction by or by leave of federal agencies. But maybe I’ve not been clear, so let me try to clarify, using Hanford as a case study.

Again, my basic points are that we’re none of us omniscient, and times change. Ergo a “determination” made yesterday may be suspect or plain wrong today, or tomorrow, because whoever made it didn’t think everything through or because we’ve learned stuff in the intervening years that we ought to consider. If we didn’t reconsider authoritative determinations from time to time, we’d still insist that we live in a heliocentric universe.

So at Hanford, you all determined, back in the ‘90s I believe, that Laliik (Rattlesnake Mountain) was eligible for the National Register as a TCP. I don’t know what was determined not eligible around the same time, but let’s say that Borsatg (Bunches of rocks scattered across the grassland) was thus determined – that is, diagnosed. Now, let’s say, someone’s considering building a power line that may affect both Laliik and Borsatg. Should they just say “OK, back in the ‘90s this all got taken care of, and far be it from us to question the wisdom of our elders or the sanctity of a Register determination?”

Of course not – no more than a medical doctor examining me in 2015 for signs of dementia would rely on how someone (probably mistakenly) diagnosed my mental acuity back in 1996. They should ask: Is Laliik still significant and is Borsatg still not? And of course, they should ask themselves about all the places that are neither Laliik or Borsatg, too.

Does this require that they hire a bunch of ACRAlytes and ACRAnyms to go do a pricy study of each landscape? Of course not. As Mammy Yokum[2] wisely said, any fool can plainly see that Laliik has been, is, and continues to be eligible – unless, perhaps, in the intervening years all the tribes in the area, and all their members, have formally proclaimed that they were just kidding back in the ‘90s. Nobody needs to do a study; at most somebody needs to check off a box, or murmur “yep, still eligible.” But with Borsatg, whoever’s planning the project needs to ask: have we learned anything about bunches of rocks scattered across grasslands in the last thirty years? Do we have any reason to think differently about them than people did back in the ‘90s? And it just may be – given recent thinking about stuff like cultural landscapes – that the answer is “yes.” Whether this means there needs to be an ACRAmonious study is another matter; that depends on how obvious it is, or remains, that Borsatg is or is not culturally significant.

All I’m really saying is, for heaven’s sake people, use your heads instead of just dumbly relying on past authority. Modern thinkers about matters universal can’t ignore the existence of Copernicus, but thankfully they haven’t been bound by his assumptions. Neither should we or our heirs be bound by the conclusions of our elders or theirs about what meets or does not meet the National Register’s precious criteria.

Oh -- and about regarding something as eligible being good only for Section 106 purposes -- as I recall it, back in the 1980s when we at the ACHP came up with that language for the Section 106 regulations, I wanted it to read that properties could be regarded as eligible based on agency/SHPO agreement, period. Then general counsel, now executive director John Fowler very correctly pointed out that if we said that, the National Park Service would have a cow, since National Register eligibility determinations are firmly lodged in the NPS manger. We had to stay strictly within the sideboards of Section 106 review. In a rational universe, a conclusion reached under Section 106 ought to have some influence on how things are viewed under Section 110, but where we actually live, that's all up for grabs.

---

[1] American Cultural Resources Association: see http://www.acra-crm.org/

[2] See https://en.wikipedia.org/wiki/Li%27l_Abner